Divorce in Islam is the most disliked permissible act. Introduction: Rules of Divorce in Islam Divorce in Islam is the most disliked permissible act. In the earlier times, no rules of divorce were set, men used to divorce their women out of anger or any other reason and after some time they used to take them back. Women were not given any rights and they were forced to go back in the marriage with their ex-husbands. This inequality and injustice was addressed by Islam and there were rules set to divorce so that no injustice could take place.

Cont------- In Islam, divorce is not liked and it should be chosen as a last resort when one sees that there is nothing left in the relation to continue The Holy Prophet (Peace be upon him) said: “Never did Allah more hateful to Him than divorce” [Abu Dawud ]

Cont------ Divorce in Islam is not only the right of man but also if a female is not comfortable with her husband, if he beats her and does not give her due rights or compels her to do what is forbidden acts, she can ask him for divorce and man cannot keep her if she does not wants to live with him. But the best thing is to resolve the issue peacefully.

REVOCABLE DIVORCE There is no concept of three divorce at one time, like we see in our society today. Islam has a proper set of rules for divorce. A man if divorce to his wife by saying [I divorce you, I divorce you, I divorce you] at one time, it will be considered as one divorce and he can wait for the iddah period and can save his marriage.

IRREVOCABLE DIVORCE After one divorce if husband does not see any chances of reconciliation, he can give her the second divorce and wait for Iddah period, if in that Iddah period things go normal, the marriage is safe else after the third divorce, there is no turning back now, it is irrevocable.

Divorce in Islam   Marriage, as prescribed by Allah, is the lawful union of a man and a woman based on mutual consent. Ideally, the purpose of marriage is to foster a state of tranquility, love and compassion in Islam, but this is not always the case. Islam discourages divorce but, unlike some religions, does make provisions for divorce by either party.

Cont------ Allah provides general guidelines for the process of divorce with emphasis on both parties upholding the values of justice and kindness in formalizing the end to their marriage.

Cont----- Allah encourages the husband and wife to appoint arbitrators as the first step to aid in reconciliation in the process of divorce. If the reconciliation step fails, both the man and woman are guaranteed the right to divorce as established in the Quran, but the difference lies in the procedure for each one. When a divorce is initiated by the man, it is known as Talaaq.

Cont------ The pronouncement by the husband may be verbal or written, but once made, there is to be a waiting period of three months ('Iddah) during which there can be no sexual relations, even though the two are living under the same roof.

Cont------ The waiting period helps to prevent hasty terminations due to anger and allows time for both parties to reconsider as well as to see if the wife is pregnant. If the wife is pregnant, the waiting period is lengthened until she delivers the baby. At any point during this time, the husband and wife are free to resume their conjugal relationship; thereby ending the divorce process.

Cont------ During this waiting period, the husband remains financially responsible for the support of his wife. The divorce initiated by the wife is known as Khul' (if the husband is not at fault) and requires that the wife returns her dowry to end the marriage because she is the 'contract-breaker'. In the instance of Talaaq, where the husband is the 'contract-breaker', he must pay the dowry in full in cases where all or part of it was deferred, or allow the wife to keep all of it if she has already been given it in full.

Dissolution of Islamic marriage What is dissolution (divorce} of Islamic Marriage? Dissolution of marriage means the end of marriage, whether by divorce or annulment. The dissolution of a marriage means the same as divorce when the marriage is dissolved. An annulment would mean the same as never being married in the first place.

Cont--------- Dissolution of marriage and Divorce are often used interchangeably but this is not true in all states. A dissolution can be done only if both parties agree to end the marriage with no fault put on either party. Divorce in islam involves the pronouncement by a husband of the Arabic phrase talaq (‘’ I divorce you’’) to his wife. ‘’ The most hated thing before Allah is divorce.’’

Divorce By Husband Talaq It means repudiation of marriage by the husband. It is peculiar because Muslim Husband has unrestricted right to divorce without giving any reason. Muslim law does not require the existence of any fault or matrimonial offence as an excuse for divorce. It is applicable where it is impossible for the spouses to live together so they must separate peacefully. However, an indirect check upon this right is the obligation of husband to pay the dower upon the dissolution of marriage.

Cont-------- Conditions for a valid Talaq: Capacity: Every Muslim husband of sound mind and who has attained the age of puberty is competent to pronounce Talaq. The guardian cannot pronounce Talaq on behalf of a minor husband. Some jurists also consider that even Talaq pronounced against a minor or insane wife is void and ineffective.

Cont------- 2. Free Consent: the consent of the husband in pronouncing Talaq must be free. A Talaq pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc. is invalid and not dissolved the marriage. However, Talaq pronounced under forced or involuntary taxation is also void.

Cont--------- Formalities: Sunni Law: (a) Talaq may be in oral or in writing. (b)No particular word is required to constitute Talaq but the expression should clearly indicate the husband’s desire to dissolve the marriage. (c) It need not be made in presence of witnesses.

Cont-------- Express words: The words of Talaq must clearly indicate the husband’s intention to dissolve the marriage. So the pronouncement must be expressed. Presence of wife: The presence of wife at the time of pronouncement of Talaq is necessary. The name of wife must be specifically referred in the pronouncement. Where the husband has more than one wife he must specify and name the wife against whom he is pronouncing Talaq. Notice of Talaq: It is not necessary for husband to communicate the pronouncement of Talaq to wife. Talaq becomes effective from the moment of pronouncement and not from the time when the wife comes to know.

Cont---------- 7. Conditional and Contingent Talaq: Sunni Law: A Talaq may either be absolute(i.e. unconditional) or subject to a condition or contingent(dependent upon happening of an uncertain future event). A conditional or contingent Talaq becomes effective only upon fulfillment of the condition or happening of future event. However the condition must not be un-Islamic.

Kinds of Talaq Talaq Talaq–ul-Sunnat (Revocable) Talaq-ul-Bidaat (Irrevocable) Talaq Ahsan (Most Proper) Talaq Hasan (Proper)

Talaq-ul-Sunnat (Revocable Talaq It is regarded to be the approved form of Talaq. It is based on Prophet’s tradition (Sunna). The Prophet always considered Talaq as an evil. If at all this evil was to take place the best possible formula was one in which there was possibility of revoking the effects of this evil so the Prophet recommended revocable Talaq as the consequences do not become final at once.

Cont------- There is possibility of compromise and reconciliation between husband and wife. It is also called Talaq-ul-Raje. It is followed by both Shia and Sunnis. It may be pronounced either in Ahsan or Hasan form.

1. Talaq-ul-Ahsan (Most Proper) It is the most proper form of repudiation of marriage because there is possibility of revoking the pronouncement before the expiry of the Iddat period and the evil words of Talaq are to be uttered only once. In this Talaq there is single declaration during the period of purity followed by no revocation by husband for three successive period of purity.

Cont------ Formalities required: Husband has to make single pronouncement of Talaq during the Tuhr of the wife (i.e. the period of purity which is the period between two menstruations). But if woman is not subjected to menstruation either because of old age or pregnancy, a Talaq may be pronounced anytime. After this wife has to observe Iddat of three monthly courses. If she is pregnant at the time of pronouncement then Iddat is till the delivery of the child. For Talaq to become final and effective the husband should not revoke (either expressly or impliedly) the Talaq within the period of Iddat .

2. Talaq Hasan (Proper) This is also regarded as proper and approved form of Talaq. Here also there is a provision of revocation but it is not the best mode because the evil words of Talaq are to be pronounced three times in the successive Tuhrs. Formalities Required: The husband has to make a single declaration of Talaq in a period of Tuhr. In next Tuhr there is another single pronouncement for second time.

Cont-------- If no revocation is made after first or second declaration then the husband has to make the third pronouncement in the third period of Tuhr. After this Talaq becomes irrevocable and marriage dissolves and wife has to observe Iddat period. In order to make an effective Talaq the words must be uttered in the three consecutive periods of purity (Tuhr).

Talaq-ul-Bidaat (Irrevocable Talaq) It is a disapproved mode of divorce. A peculiar feature of this Talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. It is also called Talaq-ul-Bain. It is in practice among Sunni Muslims. Under Shia law irrevocable Talaq is not recognized.

Cont--------- Formalities required: The husband may make three pronouncements in a period of purity(Tuhr ) saying “I divorce thee, I divorce thee, I divorce thee” or he may also declare in one sentence saying “I divorce thee thrice” or “I pronounce my first, second and third Talaq”. The husband may make only one declaration in a period of purity expressing his intention to divorce the wife irrevocably saying: “I divorcee thee irrevocably” or “I divorce thee in Bain”.

ILA Besides Talaq a Muslim husband may also repudiate his marriage by Ila. It is the constructive divorce by husband. The husband does not expressly repudiate the marriage but the conduct of the husband is of such nature that it is concluded that he intends to dissolve the marriage In Ila the husband takes an oath not to have sexual intercourse with the wife. Followed by this oath there is no consummation for a period of four months. After the expiry of four months, the marriage dissolves irrevocably. But if the husband resumes cohabitation within the prescribed period of four months Ila is cancelled and the marriage is not dissolved.

Zihar Zihar is also constructive divorce. In this mode the husband compares his wife with a woman within his prohibited relationship e.g. mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such an objectionable comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of four months Zihar is complete. But the marriage does not dissolve. After completion of four months the wife has following rights:

Cont--------- She may go to the court for a judicial divorce; or, She may go to the court for an order of restitution of conjugal rights . When the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce.

Li’an In the li'an oath, the husband denies paternity of his wife's child. The wife is given an opportunity to take an oath denying infidelity, and if she does so and the husband persists in his accusation, the marriage is dissolved by a judge and the couple can never remarry.

Divorce by wife A Muslim wife has no independent right of divorce. She cannot divorce her husband whenever she likes, as her husband may do. Under Muslim law divorce by wife is only possible in the following three situations: Where the husband delegates to the wife the right of Talaq (Talaq-e-Tafweez). Where she is a party to divorce by mutual consent (Khula and Mubarat). Where she wants to dissolve the marriage under the Dissolution of Muslim Marriages Act.

Cont------- In the first two cases the wife’s right depends upon the consent of the husband. In Talaq-e-Tafweez unless the husband gives the right to pronounce, she cannot divorce. In divorce by mutual consent she cannot get divorce unless the husband also gives his consent. Under the Dissolution of Muslim Marriages Act, the dissolution of marriages depends upon the decision of the court.

Cont------ • That the whereabouts of the husband have not been known for a period of four years. • That the husband has neglected or has failed to provide for her maintenance for a period of two years.  • That the husband has been sentenced to imprisonment for a period of seven years or upwards. • That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.  • That the husband treats her with cruelty.

Delegated Divorce (Talaq-e-Tafweez) A Muslim husband has an unrestricted right to either exercise his right of divorce himself or delegate it to someone else including his wife. This is called Talaq-e-Tafweez or delegated divorce. The authority is given to the wife under an agreement at the time of the marriage or anytime after the marriage. The delegation of power may either be permanent or temporary i.e. only for a specified time. The delegation may even be conditional or even unconditional.

Cont------ But in case of conditional delegation the conditions must be of reasonable nature and must not be against the principles of Islam. In such cases the divorce takes place in the same manner as if the husband himself has pronounced the Talaq.

Divorce by Mutual consent Under Muslim Law, a divorce may take place also by mutual consent of the husband and the wife. Existence of any prior agreement or delegation of authority by the husband is not necessary for a divorce by common consent. It may take place any time whenever the husband and wife feel that it is now impossible for them to live with mutual love and affection as desired by God. A divorce by mutual consent of the parties is a peculiar feature of Muslim law. There are two forms of divorce by mutual consent: Khula Mubarat

Khula It means divorce by the wife with the consent of her husband on the payment of something to him. Quran lays down about Khula that: “……and if you fear that they(husband and wife may not be able to keep within the limits of Allah, in that case it is no sin for either of them if the woman releases herself by giving something to the husband”. Essentials of Valid Khula: Competence of Parties: Husband and wife must be of sound mind and must have attained the age of puberty. Free Consent: the offer and acceptance of Khula must be made with the free consent of the parties

Cont------- 3. Formalities: There should be an offer made by the wife to the husband. The offer of Khula must be accepted by the husband. Offer and acceptance may be either oral or in writing. The offer and acceptance must be made at one sitting, i.e. at one place of meeting. 4. Consideration: For her release the wife has to pay something to the husband as compensation. It may be any sum of money or property.

Mubarat In Mubarat both the parties are equally willing to dissolve the marriage. Therefore, in Mubarat the offer for separation may come from either the husband or the wife to be accepted by the other. So who takes the initiative is irrelevant here. One of the important features is that here both the parties are equally interested in the dissolution of marriage so no party is legally bound to compensate the other by giving some consideration.