H.

P NATIONAL LAW UNIVERSITY, SHIMLA

FAMILY LAWASSIGNMENT :
DISTINCTION BETWEEN SHIA AND SUNNI
LAW OF TALAQ
Submitted To:
Miss. Sarita

Submitted By:
Priya Singh
Roll no. – 1020171860
BA.LLB. (HONS.) –V SEMESTER
 ACKNOWLEDGEMENT

Every project big or small is successful largely due to the effort of a number of
wonderful people who have always given their valuable advice or lent a helping hand.
I sincerely appreciate the inspiration; support and guidance of all those people who
have been instrumental in making this project a success.

I, Priya Singh, the student of H.P. National Law University (Shimla), am extremely
grateful to H.P. National Law University (Shimla) for the confidence bestowed in
me and entrusting my assignment of Family Law.

I also extend my gratitude to my Project Guide, Miss. Sarita, who assisted me in

compiling the project.

I would also like to thank all the faculty members of H.P. National Law University
(Shimla) for their critical advice and guidance without which this project would not
have been possible.

Last but not the least I place a deep sense of gratitude to my family members and my
friends who have been constant source of inspiration during the preparation of this
project work.

NAME – Priya Singh

 Introduction
Among almost all the nations of antiquity, divorce was regarded as a natural corollary
or marital rights. Romans, Hebrews, Israelies etc. all had divorce in one or the other
form. Even though the provision of divorce was recognised in all religions. Islam is
perhaps the first religion in the world which has expressly recognised the termination
of marriage by way of divorce. In England divorce was introduced only hundred years
back. In India among Hindus, it was allowed only by Hindu Marriage Act, 1955.
Before the passing of this Act divorce was not recognised by Hindu Law.

Divorce among the ancient Arabs was easy and of frequent occurrence. In fact, the
tendency has even persisted to some extent, in Islamic Law in spite of the fact that
Prophet showed his dislike to it. It was regarded by the Prophet to be the most hateful
before the Almighty God of all permitted things; for it prevented conjugal happiness
and interfered with the proper bringing up of children.

Islamic reforms- According to Ameer Ali, the reforms of Prophet Mohammad marked
a new departure in the history of Eastern Legislations. The Prophet of Islam is
reported to have said "with Allah, the most detestable of all things permitted is
divorce"1, and towards the end of his life he practically forbade its exercise by men
without intervention of an arbiter or a Judge. The Quran Ordains, “....if ye fear a
breach between them twain (the husband and the wife) appoint an arbiter from his
folk and an arbiter from her folk. If they desire amendment, Allah will make them of
one mind”. The Quran permits divorce partly because of some countenance to the
customs and partly to enable men get rid of an odious union.

Prophet Mohammad restrained the power of divorce and gave to the woman the right
of obtaining separation on reasonable grounds. The Prophet is reported to have said, "
if a woman be prejudiced by a marriage, let it be broken off."

Distinction between talaq and divorce

It is not easy to distinguish between talaq and divorce. The term talaq is used in two
senses :

1
Mohammedan Law, p. 472.
(i) a restricted sense in which it is confined to separation effected by use of certain
appropriate words by the husband; and
(ii) a wide sense - In this category it covers all separations for causes originating from
the husband.2

Talaq is an act of repudiation of marriage by the husband in exercise of his power

which has been conferred on him. The term 'divorce' includes all separation
originating from the husband and repudiation for talaq in the limited sense, namely, of
separation effected by use of appropriate words (Furzund Hussain v. Janu Bibee)3.
"Talak in its primitive sense means dismission in law; it signifies the dissolution of a
marriage or the annulment of its legality by certain words,"4

Classification of Divorce
Under the Muslim Law, a marriage is dissolved either by the death of the husband or
wife, or by divorce. After the death of a wife the husband may remarry immediately.
But the widow cannot remarry before the expiry of iddat period. The iddat on case of
death is four months and ten days and in in case the wife is pregnant, until delivery of
the child.

Generally, both the parties to the marriage contract have an option for divorce. but the
husband's right in this respect is much greater than that of the wife. The husband can
dissolve the marriage tie at his will. A divorce can also take place by mutual
agreement. But the wife cannot divorce herself from her husband without his consent.
She can, of course, purchase her divorce from her husband and can have the marriage
dissolved by tafweez (delegation). Marriage may also be dissolved by judicial decree
under the Dissolution of Muslim Marriage Act, 1939.

Talaq (Repudiation) -Meaning.-Talaq In its original sense means repudiation or

rejection but under Muslim Law, it means a release from the marriage tie,
immediately or eventually. It is a generic name for all kinds of divorce; but is

2
Verma, Muslim Marriage and Dissolution, p. 158
3
(1878) 4 Cal. 588
4
Hamilton's Hedaya, Vol. I, p. 200,
particularly applied to the repudiation by or on behalf of husband. In Moonshee
Buzloor Rahim v. Laleefutoon nisa,5 it was said that under Muslim law talaq is the
mere arbitrary act of a Muslim husband who may repudiate his wife at his own
pleasure with or without cause. He can pronounce the talaq at any time. It is not
necessary for him to obtain the prior approval of his wife for the dissolution of his
marriage.

A revocable pronouncement of talaq does not dissolve the marriage till the period of
iddat has expired, but an irrevocable pronouncement dissolves the marriage
immediately on its pronouncement.6

Diffennt modes of Talaq

A talaq may be effected by the husband in any of the following modes :

1. Talaq-ul-Sunnat ;
2. Talaq-ul-Biddnt ;
3. Ila ; and
4. Zihar

1. Talaq-ul-Sunnat - It is Talaq which is effected in accordance with the traditions

of Prophet. It has been further sub-divided into:
(i) Ahsan, and
(ii) Hasan

(i) Ahsan (Most approved mode of talaq) -This Arabic word 'ahsam’ means
'best’ or as Wilson puts it, 'very proper‘. This signifies that the talaq pronounced
in this form is the best form of talaq. To be in ahsan form, the proceeding of
divorce must satisfy certain conditions. These conditions are as follows:

(a) the husband must pronounce the formula of divorce in single statement.

5
8 MIA 397
6
Saxena (K.P), Muslim Law, p. 76
 (b) the pronouncement of divorce must be in a state of purity (tuhr); (tuhr is a
period when a woman is free from her menstrual course);

(c) he must abstain from intercourse for the period of iddat.

When the marriage has not been consummated, a talaq in the ahsan form may be
pronounced even if the wife is in her menstruation. Where the spouses are away from
each other for a long period or where the wife is beyond the age of menstruation, the
condition of tuhr (purity) is not applicable as discussed in Chand Bi v. Bandesha7

The Quran itself says :

"And the divorced woman should keep themselves in waiting for three courses (II-228)
and" And those of your woman who despair of menstruation, if you have a doubt,
their prescribed time is three months, and of those too, who have not had their course"
(XXXVIII-4).
A pronouncement made in the ahsan form is revocable during iddat. Such revocation
may be either in express words or may be implied. Cohabitation with the wife is an
implied revocation of talaq. After the expiration of the iddat the divorce becomes
irrevocable.

(ii) Hasnn (Good mode of talaq)- In Arabic Hasan means 'good'. Wilson translates it
as 'proper‘. As terms signify, a talaq pronounced in hasan form is of lesser worth than
the one pronounced in ahsan form. To be in hasan form the proceedings must satisfy
the following conditions :

(a) there must be three successive pronouncements of the formula of divorce;

(b) in the case of menstruating wife, the first pronouncement should be made during a
period of tuhr, the second during the next tuhr and the third during the succeeding tuhr;

(c) in the case of non-menstruating wife, the pronouncement should be made during

7
AIR 1960 Bom 121
the successive intervals of 30 days ;

(d) no sexual intercourse should take place during these three periods of tuhr.

The above divorce is based on the following Quranic injunctions - “Divorce may be
pronounced twice, then keep them in good fellowship or let (them) go kindness" (II;
229), "So if he (the husband) divorces her (the third time ) she shall not be lawful to
him afterward until she marries another person" II: 230

Such divorce becomes irrevocable on the third pronouncement.

2. Talaq-ul-biddat.-(Disapproved mode of talaq) - It is sinful form of divorce. It is

the irregular mode of talaq introduced by Omeyyads in order to escape the strictness
of law.

Talaq-ul-biddat is a recognised form of divorce among the Hanafis. in the court

affirmed in Mst. Saleha Bi v. Sheikh Gulla8 that triple repetition is not a necessary
condition for irrevocability of talaq. Sunni Law recognises talaq-ul-biddat, though
they consider it to be sinful.

Shias and Malikis do not recognise this form of divorce. In order to be included in this
form of divorce the following requirements are necessary.

(i) Three pronouncements made during a single tuhr either in one sentence e.g., "I
divorce thee thrice" or in separate sentences e.g., "I divorce thee, I divorce thee, I
divorce thee."

(ii) A single pronouncement made during a tuhr clearly indicating an intention

irrevocable to dissolve the marriage, e.g., "I divorce thee irrevocably".

Under the talaq-ul-biddat, once a definite complete separation has taken place parties
so separated cannot remarry without the formality of the woman marrying another

8
AIR 1973 M.P. 207
man and being divorced from him. In Sarabhai v. Rabia Bai9 it was said that
talaq-ul-biddat is theologically improper. It has been maintained that this form of
talaq is improper from the moral point of view. In Fazlur Rahman v. Aisha,10 the
validity of this divorce was questioned. It was argued that this type of divorce is
against the Quranic Law and the Court is bound not to give effect to the rule and it
also opposed to a tradition of the Prophet. It was held that the Quran verses have been
differently interpreted by the different Schools.

Capacity for Talaq

In order to pronounce a valid talaq, the husband must possess the following
qualifications.

Under Shia law, every Muslim husband of sound mind, who has attained the age of
puberty is competent to pronounce talaq, provided talaq is not pronounced in any
form of compulsion or duress etc, and is pronounced orally in the presence of at least
two witnesses, unless the husband is unable to speak.

Sunni Law herein says that any Sunni Mohammedan of sound mind who has attained
majority may divorce his wife whenever he likes by pronouncing talaq even without
assigning any cause( Medak v. hajju Bibi11). Thus according to Sunni Law every man
is capable of pronouncing Talaq who is (i) adult, and (ii) sane. Apart from Muslim
Law, the provisions of Indian Majority Act, 1875 are also applicable to Muslims.
Section 2 of the aforesaid Act says that nothing herein contained shall affect the
capacity of any person to act in the following matters (namely) marriage, dower,
divorce and adoption. Similarly soundness of mind is one of the necessary ingredient
for dissolving marriage.
A talaq pronounced under compulsion or intoxication or fraud is also effective under
Sunni law but void under Shia Law.

9
(1906) 30 Bom. 537
10
(1929) 8 Pat. 690
11
(1970) 1 Andh WR 138
 Talaq pronounced under intoxication
Muslim law on the question of talaq under intoxication is not plain. One view is that if
the husband was forcibly made drunk, and has pronounced talaq, such a talaq will not
take effect. Ameee Ali was of the opinion that a talaq pronounced by a person in a
state of intoxication or by one labouring under a temporary stupor from the use of
some practice, or any other cause is invalid. According to Shafei School, the talaq of a
drunken man is not recognised by Muslim Law.12

Fyzee says that in Turkey under the Sultans, by a well understood convention, a wife
who wished to be rid of a dissolute husband would go before the Qazi with two
irreproachable witnesses and depose that he had divorced her when drunk, an
allegation which could not be in a position to deny. Under the Sunni Law of schools
there are jurists who are of the opinion that talaq during intoxication in any manner
would not be validly effected. On the other hand, there are jurists who hold the view
that such divorce will be valid. In the case of voluntary intoxication, talaq would be
effective if it has been caused by the use of wine obtained from grapes or dates or
from hemp-leaves, opium or henbane-seed as in such cases the person would be liable
to punishment.13 There is a difference of opinion on the question of divorce by using
drink obtained from things which are not prohibited, such as grain, fruits or honey.
Fatwa-i-Alamgiri says that such a talaq will be valid. 0n the other hand, Abu Hanifa
and Abu Yusuf maintained that such a talaq would not be effective.

The guardian of a husband of unsound mind who has attained puberty. May
pronounce a talaq on behalf of the husband; if doing so is to the husband's benefit.14

Oral or in writing
A talaq may be effected-
(i) orally (by spoken words) or

12
Ameer Ali, Muhammedan Law, P. 179
13
Bom. 1141, 209
14
Tayabji, Muslim Law, 4th ed. P. 153
(ii) by a written document called talaqnama (discussed in the case of Ma Mi. V.
Kallander Ammala15)
Smt. Husna Parveen vs Rashid Ahmad the notices clearly show that there is a divorce
and defendant-appellant is no more wife of plaintiff and she is free to stay wherever
she likes. It was proved that the earlier notice (talaqnama) has been made final by the
later notice. Having gone through two documents, we find that the same can be
construed to have pronounced divorce to defendant-appellant.

Oral talaq - The husband may give talaq by words without any talaqnama or deed of
divorce and no particular form of words are necessary. If the words are express and
well understood as implying divorce then no proof of the intention is required. If in
any case the words used are ambiguous, then intention of the user must be proved.
Thus the words “ I have divorced thee” or as in the case of Rashid Ahmad v. Anisa
Khatun16 “I divorced my wife for ever and render her haram for me” clearly indicate
an intention to dissolve the marriage and no proof of intention is required. But the
words “Thou art my cousin. the daughter of my uncle, if thou goest' or 'I give up all
relations and would have no connection of any sort with you,” use in Wajid Ali v.
Jafar Hussain17 are ambiguous and as in such cases, the intention must be proved.

Under the Sunni Law, presence of wife or address to her is not essential Fullchand v.
Nazid Ali18. A talaq pronounced before a family counsel was held invalid as the wife
was not named in Furchand Hussain v. Janu Bibi19. The Privy Council cited this case
with approval and held that talaq pronounced in the absence of wife was validin the
case of Rashid Ahmad v. Anisa Khatun20. Madras High Court was also of the view
that the words should refer to the wife.Asha Bibi v. Kadir21

Talaq in writing (Talaqnama) -A talaq may be in writing and no particular form is

necessary. Under the Sunni Law, where the husband properly, executes a deed
mentioning the lady whom he has divorced end the name of the writer, it constitutes a

15
(1932) 34 BOMLR 475
16
59 I.A. 21
17
AIR 1932 Oudh 34: 7 Luck.430
18
36 Cal. 184
19
(1878) 4 Cal. 588
20
(1932) 34 BOMLR 475
21
33 Mad. 22
valid divorce without any regard to intention with which it has been executed. If the
contents of the deed are not intelligible or facts cannot be deciphered, even clear
intention of talaq will not validate the pronouncement, an intention must be proved as
held in the case of Ma Mi v. Kallendar Ammal22. So the deed of divorce, not writing
in usual and customary form showing the name of the writer and the person addressed
to, does not form a valid pronouncement of divorce unless it can be comprehended as
having been written with the intention of its operation as pronouncement of divorce as
in Russul Baksh v. MT. Bhelan23. The wife’s presence is not necessary it may be
signed in the presence of the Qazi or the wife’s father or any other personas discussed
in In Re, Raja Saheb24. A talaq whether oral or in writing may be made without
witnesses. Talaq without Witnesses is valid under Sunni law.

Pronouncement of talaq in the absence of wife

It is not necessary for the validity of a talaq by husband that the wife should be
present at the time of the pronouncement. The husband can pronounce talaq even in
the absence of his wife. It was laid in Fulchand v. Naval Ali Choudhry,25 that the talaq
should be deemed to have come into effect on the date on which the wife came to
know of it. Same was laid down in Mohd. Shamsuddin v. Noor Jahan26

Intention
A divorce pronounced under mistaken belief is said to be a valid divorce in Sunnia
law of talaq. For example. if a person has pronounced talaq against a women who is in
fact his wife,would be valid even though it was pronounced under the mistaken belief
that she is not his wife. Similarly, a divorce pronounced under compulsion or jest or
inadvertently or by mere slip of tongue is valid talaq as discussed in Saiyed Rashid
Ahmad v. Mst Anisa Khattun27. It is not necessary for the wife to understand the term
of the talaq. However, Ameer Ali maintained that the formula applied by the husband
in dissolving his marriage must be understood by the wife.28

22
54 I.A. 61
23
1932 Lah. 498
24
44 Bom.44
25
(1909) 36 Cal. 185
26
AIR 1955 Hyd. 144
27
AIR 1932 P.C. 25
28
Ameer Ali, Mohammandan Law, p. 479
Shia’s law of talaq is distinct in this sense the talaq so pronounced will not be
affective.

Pronouncement of talaq made during death illness (Marzul-maut)

An ailing Muslim has been given the power to dissolve his marriage. This right is
generally exercised by a man who does not want to give right of inheritance to his
wife after his death. Hedaya says a sick man may divorce his wife though he be on his
death bed. When a man pronounces an irrevocable talaq in death illness and dies
before the expiry of his wife's iddat period, she is entitled to take her share in his
estate unless the talaq was given at her request. In case the husband has died after the
expiry of her iddat period, she will have no right of inheritance.

Contingent divorce
Under the Muslim law a husband can authorise his wife to dissolve her marriage on
the happening of certain contingencies. The contingency must be reasonable. Tyabji
says that this type of divorce may be like a floating mine, capable of destroying the
marital bond, beyond the direct control of the husband or wife: though it cannot
seriously harm them in practice if both wish to dissolve it.29 In Buchhoo v.
Bismillah,30 the husband agrees to pay his wife maintenance within a specified time
and in default the writing of the deed in respect thereof operate as a divorce.

It was held in the case of Mohammad Muin-ud-di v. Jamal Fatima31 that under
Muslim Law a divorce may be pronounced as to come into effect not immediately but
at some future time, contingent on the happening of some specified future event.

Under the Shia Law, a tataq is not effective, unless it is pronounced :

(1) strictly in accordance with the Sunnat;

(2) in Arabic terms;

29
Tyabji,Muslim Law, p. 157
30
AIR 1936 All 387
31
AIR 1921 All. 152
(3) in the presence of at least two adult male witnesses;

(4) with the distinct intention to dissolve the marriage tie;

(5) out of the husband's own free will, without any restraint or pressure brought to
bear upon him;

(6) while sane and possessed to sound understanding; and

(7) after attainment of puberty.