Islam has condemned the act of divorce and such an action has been declared as evil which attracts displeasure of God. However, when the union between husband and wife becomes hateful and it becomes impossible for the husband and the wife to live in peace within the limits prescribed by Allah then it is better to revoke the contract of marriage.
A divorce may be affected in the following ways:
1. By the husband at his will; or
2. By mutual consent of the husband and the wife; or
3. By a judicial decree at the instance of the husband or the wife.
In Islam, an adult and sane husband can divorce his wife at any time without assigning any cause or reason. Revocation of a marital contract unilaterally at the whim of the husband is called ‘Talak’. ‘Talak’ may be effected either orally or in writing through a ‘Talaknama’. It must be remembered that a talak in writing operates as an irrevocable divorce and takes effect immediately on its execution, unless a contrary intention is shown in the talaknama itself. However, if ‘Talak’ is effected orally then no specific or particular words are required for ‘Talak’ to be effective and it is sufficient if the words are express or well understood to imply a ‘Talak’ and no proof as to the intention to terminate the marriage contract is required. On the other hand a wife cannot divorce herself from her husband without his consent which may be given either before or after the marriage at any time or she has a limited right to file a suit for dissolution of marriage in the Family Court.
Hanafis School of thought recognizes the following two kinds of ‘Talak’:
1. Talak-us Sunnat
2. Talak-ul-Bidaat or Talak-i-Badai
This kind of ‘Talak’ is based on the principles and rules laid down by the Holy Prophet Muhammad (may peace be upon him). Talak-us Sunnat may further be divided into two kinds i.e. TalakAhsan and TalakHasan. TalakAhsan is the most proper form and TalakHasan is the proper form.
This kind of Talak is affected by a single pronouncement of divorce during a tuhr followed by abstinence from sexual intercourse for the period of ‘iddat’. Tuhr is the period intervening between menstruations. A talak in this mode becomes effective on the expiration of the period of iddat. The period of iddat prescribed by the muslim law is 90 days.
This kind of Talak is effected by a single pronouncement of Talak in one tuhr followed by another pronouncement of Talak in the next tuhr and then followed again by another pronouncement of talak in the successive tuhr. Therefore, this kind of talak is affected by three pronouncements of talak in three successive tuhrs. No intercourse should take place during any of the aforesaid three tuhrs. A talak in this mode becomes effective automatically on the third pronouncement irrespective of the iddat.
Talak-ul-Bidaat or Talak-i-Badai
Talak-ul-Bidaat is a new, irregular or heretical form of Talak which is considered as good in law but bad in theology. The essential feature of Talak-ul-Bidaat is its irrevocability and this kind of talak becomes effective immediately it is pronounced. It is pertinent to mention here that this kind of talak is not recognized in ‘FiqhJafria’. Talak-ul-Bidaat can take place in the following ways:
1. a) By three pronouncements of talak in a single tuhr; or
b) By a single pronouncement of talak during a tuhr making his intention clear that the talak is irrevocable.
DistinctionBetween Talak-us Sunnat &Talak-ul-Bidaat
The main difference between Talak us Sunnat and TalakulBidaat is that the former can be revoked at any time before it has become absolute whereas the later is irrevocable and takes effect immediately once it is pronounced.
Delegation of the Power of Divorce
The power to divorce his wife vests primarily in the husband, however, the husband may delegate this power to the wife or to a third person either for a fixed period or permanently. Such a delegation of power may either be absolute or conditional and then the wife or the third person may effect a divorce on behalf of the husband. A temporary delegation of the aforesaid power may be revoked whereas a permanent delegation cannot be revoked by the husband. Delegation of power of divorce to the wife can be made by an agreement between the husband and the wife stipulating that on the happening of certain events the wife can divorce herself from the husband and such an agreement can be made either before or after the marriage. Such an agreement is valid if it is not opposed to the policy of Muhammaden Law. On the happening of the stipulated event the wife can divorce herself from the husband and then the divorce is effected as if a divorce has been pronounced by the husband. Any such power delegated to the wife is not revocable. A talaq effected through delegated power is called talaq by tafweez.
Divorce by Mutual consent of the husband and the wife
Divorce can also take place with mutual consent of the husband and the wife and this can take the form of either Khula or Mubarat.
Where the aversion is from the side of the wife and she desires a divorce then the transaction is called Khula. In Khula the offer to terminate the marital ties arises at the instance of the wife who agrees to give consideration for her release from the bond of marriage. If this offer is accepted then it operates as a single irrevocable pronouncement of divorce and its operation is not postponed till the execution of the khulanama.
In Mubarat, the aversion is mutual i.e. both the husband and the wife intend separation from each other. In Mubarat the offer for divorce may arise either from the husband or the wife. However, once the offer is accepted then it operates as a single irrevocable pronouncement of Talaq.
Dissolution of marriage by a judicial decree
A wife has a limited right to seek dissolution of marriage by a judicial decree. A wife can seek divorce from a court of law under the provisions of Dissolution of Muslim Marriages Act, 1939 and the following grounds can be urged for divorce by a wife under the aforesaid Act:
1. Whereabouts of the husband are unknown for a period of 4 years,
2. Failure of the husband to provide maintenance for the wife for a period of 2 years,
3. Sentence of imprisonment on husband for a period of 7 years,
4. Failure without reasonable cause in performing marital obligation,
5. Impotence of husband,
6. Insanity of husband,
7. Repudiation of marriage by wife,
8. Cruelty of husband,
9. Any other grounds recognized by Muslim Law.
The other grounds for dissolution of marriage recognized by Muslim Law are:
This divorce is effected by abstinence from sexual intercourse with the wife for a period of not less than 4 months in pursuance to a vow. According to the Shafi School of thought the wife has a right in such a case to apply for a judicial decree.
This kind of divorce may be effected through a judicial decree at the behest of the wife if the husband compares his wife to his mother or any of the females in the prohibited degree and the husband has defaulted in making penance.
Li’an or Imprecation
The wife can file a suit for dissolution of marriage if her husband falsely accuses her of adultery. If it is proved that the charges of adultery were false then the divorce may be effected if is not so proved then no dissolution may be allowed.
In the light of the above stated principles of the Muhammaden Law with respect to divorce we shall now examine the provisions of S. 7 of the Muslim Family Laws Ordinance, 1961 (hereinafter referred to as the “Ordinance”) and the judgments of the Superior Courts of Pakistan.
Section 7 of the Ordinance reads as follows:
(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman a notice, in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever, contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.
(3) Save as provided in sub-section (5) a talaq, unless revoked expressly or otherwise shall not be effective until the expiration of ninety days from the day on which the notice under sub-section (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of the notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.
As far as section 7 is concerned, it is clear that this section is applicable to those cases only where the husband has made pronouncement of talaq to his wife. In such a case, the husband shall give a notice, in writing, of such pronouncement to the Chairman. Failure to give the aforesaid notice by the husband is considered a crime punishable with imprisonment or fine or with both. Sub-section (3) is of utmost importance in our analysis. According to this sub-section, a talaq shall not be effective until after the expiration of 90 days from the delivery of notice to the Chairman. This provision together with sub-section (5) has invited some criticism from various sections of the society and since the promulgation of the Ordinance ulema have voiced their concerns over these provisions and have held the same to be against the injunctions of the Holy Quran and Sunnah of the Prophet Muhammad (may peace be upon him). In addition to this, there is a plethora of judgments on this issue and the Superior Courts have expressed divergent views on the subject.
The main issues in respect of these provisions are as follows:
1. That the period of iddat prescribed by the Holy Quran is different for different situations whereas sub-section (3) of section 7 has made it uniform.
2. That under the Muhammaden Law no notice is required to be given to the Chairman for talaq to be effective.
3. That the period of iddat has been made to run under sub-section (3) from the date of notice to the Chairman and not from the date of pronouncement of talaq which is against the injunctions of Islam.
4. In a case where husband has pronounced talaq to his wife, however wilfully or due to neglect has failed to give notice to the Chairman; would talaq be ineffective in such a case and the husband be allowed to take advantage of his own neglect?
In a relatively recent decision the Hon’ble Federal Shariat Court has held the provisions of section 7(3) and (5) to be repugnant to the injunctions of Islam.
With respect to issue no. 1 the Hon’ble Shariat Court observed that there is no period of iddat for a marriage which has not been consummated. Similarly, in case of talaq during period of pregnancy the iddat stands terminated on the delivery of the child. Keeping a period of 90 days in such situations is clearly violating the injunctions of Islam.
On the second and the third issue, the Court stated that the period of iddat is to commence from the date of pronouncement of talaq and not from the day of delivery of notice to the Chairman as the talaq takes effect from the date of pronouncement of talaq by the husband.
In view of the aforementioned, the Court declared that section 7 of the Muslim Family Laws Ordinance, 1961 as a whole cannot be declared violative of the injunctions of Islam. However, the provisions contained in sub-sections (3) and (5) of the said section 7 cannot be maintained.
The President of Islamic Republic of Pakistan was directed to amend the law so as to bring it in conformity with the injunctions of Islam and the aforesaid provisions of law were to cease to have effect on 31st day of March, 2000.
With respect to issue no. 4, the following pronouncements have been made by the Apex Court:
“In view of the provisions of section 7(3) of the Ordinance talaq would become effective only after notice of talaq is given to the Chairman and the period of three months provided for bringing out a reconciliation between the parties has expired. Where the husband does not give the notice of talaq to the Chairman, it can be deemed that he has revoked the talaq.”
PLD 1963 SC 51
Nevertheless, the Hon’ble Supreme Court has made a very significant and important statement in the above case with respect to section 7 in the following words:
“Whether the result achieved is in strict conformity with Islamic Law is a question which does not fall within the province of this Court by reason of articles 5 and 6 of the Constitution”
“The learned counsel for the petitioner concedes that no notice of the alleged divorce was given to the Chairman as required by section 7(1) of the Muslim Family Laws Ordinance. That being so the alleged divorce, in view of the express provision of the sub-section (3) of section 7 of the said Ordinance, is yet to become effective”
1970 SCMR 845
The above stated view in PLD 1963 SC 51 and 1970 SCMR 845 was supported in 1984 SCMR 583 and NLR 1987 SCJ 239.
Now, the position which emerges is that according to the Supreme Court talaq in any mode whatsoever, does not take effect unless a notice is delivered to the Chairman. On the other hand, the Federal Shariat Court directly saying nothing about the service of notice to the Chairman, however, holding that the period of iddat should run from the pronouncement of talaq rather than the delivery of notice and this period is to be calculated strictly in accordance with the rules of Islamic Law. There is an inherent contradiction between the verdicts of the two respectable Courts because if the period of iddat is to run from the pronouncement of talaq and is to be calculated in accordance with the Islamic Law then the talaq would become effective on the expiry of such Islamic period of iddat and not from the delivery of notice. In other words, the requirement of notice to the Chairman in order for the talaq to be effective has been done away by the Hon’ble Shariat Court.
I would like to end this discourse with a judgment of the Hon’ble Supreme Court of Pakistan wherein the addition of Chapter 3-A in the Constitution of Islamic Republic of Pakistan was taken into consideration and on conjunctive reading of Articles 203-A to 203-J it was held as under:
“These provisions when read together would mean that findings of the Federal Shariat Court, if the same is either not challenged in the Sharaiat Appellate Bench of the Supreme Court or challenged, but maintained, would be binding even on the Supreme Court.”
1993 SCMR 1718ss