Introduction to dissolution of marriage:

Marriage being a civil contract under muslim law can be terminated

for the benefit of the parties as any other contract.The society was
completely male dominated patriarchal.But now polygamy is
restricted, and divorce is strictly procedural under section 6 and
section 7 respectively of the muslim personal laws ordinance,1961.
Prophet Mohammed(PBUH) says:
with Allah, the most detestable of all things permitted is
divorce.
According to the Holy Quran:
A divorce is only permissible twice; after that the parties
should either hold together on equitable terms,i.e.retain them with
humanity or separate them with kindness.
In shahi-al-bukhari it was reported that the prophet said:
If the woman be prejudiced by marriage, let it be broken off.
Marriage is the very foundation of civil society and on part of the
laws and institutions of a country can be more vital importance to its
subjects than those which regulate the manner and conditions of
forming and, if necessary, of dissolving, the marriage contract.153

Classification of dissolution of marriage:

Among the books on muslim law, including that of Baillie,
Wilson, Tyabji, Ameer Ali, Mulla and Saksna, the best classification
of divorce has been given by Fyzee in his outines of Muhammad law.
His method of classification is more scientific and easy to grasp and
hence it has been adopted here with little additions.

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There are two categories of dissolution of marriage under the Muslim
personal law:
1. Extra judicial dissolution
2. Judicial dissolution
There are four categories of extra judicial dissolution, under the
Muslim personal law:
1. Death Agreement
2. By Husband
3. By wife
4. Mutual
The third category is the right of the wife to give divorce under
the Dissolution of Muslim Marriage Act 1939.
There are two categories of judicial dissolution, under the Muslim
personal law:
1. Lian &
2. Fask.

Divorce given by the husband:

A husband may divorce his wife by repudiating the marriage without
giving any reason. Pronouncement of such words which signify his
intention to disown the wife is sufficient. Generally this is done by
talaaq But he made also divorce by ila,and zihar which differ from
talaaq only in form, not in substance. A wife cannot divorce her
husband of her own accord. She can divorce the husband only when
the husband has delegated such a right to her or under an agreement.
Under an agreement the wife may divorce her husband either by
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Khula or Mubarat.Before 1939, a Muslim wife had no right to seek
divorce except on the ground of false charges of adultery, insanity or
impotency of the husband. But the dissolution of Muslim Marriage
Act,1939 lays down several other grounds on the basis of which a
Muslim wife may get her divorce decree passed by the order of the
court.

Talaq:
Under Muslim law Talaq means freedom. The right of giving
freedom by her husband from marriage to wife is called talaq. The
right is enforceable by the husband only.
According to heyday it means relinquishment.
Asaf A.A.Fyzee said, In law,it signifies the absolute power which
the husband possess.
A husband who is sound mind and adult can divorce his wife without
showing any cause. Though to give divorce is so hated and a heinous
act but recognized by law.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 the Talaq in limited sense, namely of
separation effected by use of appropriate word. A separation occurs
when a married to live together, but decide to live a part for a while.

Forms of Talaq:
1.Talaq-al-sunnah or Talaq-e-rajee
2.Talaq-al-Biddat or Talaq-al-Bain

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Ila (vow of continence):
Where the husband is of sound mind and of the age of majority,
swears by Allah that he will not have sexual intercourse with his wife
and leaves the wife to observe ideate, he is said to make ila.If the
husband after having pronounced ila abstains from having sexual
intercourse with wife for four months, the marriage is dissolved with
the same result as if there had been an irrevocable divorce pronounced
by the husband. This requires following conditions-

1. Husband must be of sound mind and above the age of majority.

2. must swear by Allah or must take a vow.
3. vow must be that he will not have sexual intercourse with his
wife.
4.must abstain from sexual intercourse with his wife for four
months or more after taking the vow.

It can be canceled by-resuming sexual intercourse within the period of

four months or by a verbal retraction.
Ila is effected when the husband swears that he would not have
intercourse with his wife for a period not less than four months. If he
does not have intercourse for that period the marriage is dissolved
without legal proceedings. If the husband returns to the wife within
the period specified in the ila,the ila would come to an end but he
would be liable to expiation.
According to Ithna Ashari and Sahfi School, the wife is entitled to
apply to the court for passing a decree dissolving the marriage. In
Sunni law, legal proceedings are not required.

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An example,
Bibi Rehana v. Iqtidar-uddin, after the marriage ceremony was over,
the parents of the boy pushed him into a room where his wife was
waiting for him. It appears from the facts of the case that the husband
was not interested in the marriage. Immediately after entering into the
room he took a vow in the presence of his wife that he would never
have sexual intercourse with her.Soon after living this statement he
came out of the room and repeated the vow in the presence of his
mother and his mothers sister. His fathe than came out of another
room and he once more repeated that vow.the court refused to accept
the version of the husband. The court said that the husband has failed
to established that there had been a divorce in the ila form.

Talaq-al-Sunnah or Talaq-e-Rajee:
This is a talaq which carries the approval of the prophet. It may be
the most approved form,i.e.,Ahsan and Hasan.

Ahsan(Most Approved Form):

it is the most approved and considered to be the best kind of talaq.
The word Ashen means best or very proper. To be of Ashen form, it
must satisfy the following conditions-

1. the husband must pronounce the formula of divorce in a single

sentence.

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 2. the pronouncement of divorce must be done when the wife is in
State of tuhr(purity), Which means when she is free from her
Menses.
3. Husband must abstain from intercourse for the period of iddat

Talaq ahsan is effected when the husband pronounces one divorce

during a tuhr(when the women is free from menstrual courses) in
which cohabitation has no taken place between the parties, and then
abstains from cohabitation during the iddat. But during that period the
husband can take back his wife at any time. When the women is not
subject to courses the talaq can be pronounced even after
cohabitation. The divorce becomes irrevocable only on the
completion of iddat which is three periods, and when the woman is
not subject to periods it is three months. When the woman is pregnant
the iddat comes to an end on the delivery of the child or three months,
whichever is later.

Hasan(Approved Form): Hasan in Arabic means good and so

this form of talaq is considered to be a good form of talaq but not as
good as Ahsan. To be in this form, it must satisfy the following
conditions-

1. There must be three successive pronouncement of the formula

Of divorce.
2. in case of a menstruating wife, the three pronouncements must

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 be made in three consecutive tuhrs.
3. in case of a non-menstruating wife, the three pronouncements
must be made during the successive intervals of 30 days.
4. no sexual intercourse must take place during these three periods
Of tuhr.

It can be revoked any time before the third pronouncement. It

becomes irrevocable on the third pronouncement. Talaq-i-hasan is
effected when the husband repudiates his wife during a tuhr in which
he has not had carnal connection with her, and then repeats the
repudiation during the next two tuhrs. The third repudiation or
pronouncement makes the divorce final and irrevocable; imam malik
does not consider it a talaq-al-sunnah.

Talaq-al-Biddat or Talaq-al-Bain:
It is a disapproved and sinful from a talaq. It was introduced by
Ommeyyads in order to escape the strictness of law. To be of this
form, it must satisfy the following conditions-

1. Three pronouncements may be made during a single tuhr either

Either in one sentence (e.g. I divorce three thrice ) or in three
sentences ( e.g. I divorce thee, I divorce thee, I divorce thee).
2. a single pronouncement made during a tuhr clearly indicating an
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 Intention to dissolve marriage irrevocably ( e.g. I divorce thee
Ireevocably).

It becomes irrevocable immediately when it is pronounced

irrespective of iddat. Thus, once pronounced, it cannot be revoked.
One a definite complete separation has taken place, they cannot
remarry without the formality of the woman marrying another man
and being divorced from him.

An example,
Saiyyad Rashid Ahmed v. Anisa khaton 1932, once Ghayas
Uddin pronounced triple Talaq in the presence of witness though in
the absence of the wife. Four days later a Talaqnama was executed
which stated that three divorces were given. However, husband and
wife still lived together and had children. While the husband treated
her like a wife, it was held that since there was no proof of
remarriage, the relationship was illicit and the children were
illegitimate.

It has been said that this type of Talaq is theologically improper. In

Fazlur Rahman v. Aisha 1929, it was held that Quran verses have
been interpreted differently by different schools. Thus, it is legally
valid for Sunnis but not for Shia.

Talaq-i-biddat is effected by pronouncing talaq thrice during the some

tuhr, or in pronouncing the formula of talaq once with the condition
that it should be considered to have been said thrice. As when the

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husband says, I divorce thee thrice. It is immediately effective and
irrevocable.

Talaq-i-biddat is the most common and prevalent mode of divorce in

Bangladesh, India and Pakistan. It is not prohibited even during the
womans courses. This form of talaq is not recognized by Shia law.

Conclusion:
It is argued that Islam has given unfettered power to the husband to
give divorce to his wife without any cause. But experience shows that
greater suffering is endangered by the husbands withholding divorce
than by his irresponsible exercise of this right. Under such conditions
the power to release herself is the surest safeguard for the wife. No
system of law can produce material happiness, but humane laws may
at least alleviate sufferings. And when marital life is wrecked, the
home utterly broken up by misunderstanding, jealousy, cruelty,
infidelity, what greater boon can a spouse have to secure his/her
liberty. Divorce of course, a social evil in itself, but it is a necessary
evil. It is better to wreck the unity of the family than to wreck the
future happiness of the parties by binding them to a companionship
that has become odious. Thats why Quran permits divorce partly
because to enable men to get rid of an odious union.
It has shown in the dissertation that the judiciary has taken efforts
to curb the practice of arbitrary, unilateral pronouncement of divorce
by Muslim husbands, and affirmed the right of the woman to
challenge such a divorce. There is no doubt that Muslim women have
recourse to the courts to challenge arbitrary unilateral talaq, and hence
arbitrary talaq becomes a non-issue if recourse to law is taken.
However, many women are unable to take recourse to law due to lack
of awareness, poverty, illiteracy, financial implications of litigation
and community opposition against such a move. How can the
judgements impact women's lives, when women themselves, and the
communities they live in, believe that they have been legally

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 divorced? The challenge then is to educate women living in
communities about the legal position and enable their access to law,
as well as to promote community awareness and acceptance of the
law as stated through judgments.

REFERENCES

Books
1. Aqil Ahmed. Text book of Mohamadan Law. 21st ed. (Allahbad: Central
Law Agency, 2004).
2. Md. Altaf Hossain. Islamic Jurisprudence and Muslim Ain Sohaika.( In
Bangali), (Dhaka: City Law Book, 2003).
3. Shaukat Mahmood, Principles and Digest of Muslim Law, 6th ed. (Lahore:
Legal Research Centre, 2002).
4. Asaf A. A. Fyzee, Outlines of Muhammadan Law, 4th ed. (Oxford: Oxford
University Press, 1993).

Statutes
1. Muslim Family Law Ordinance, 1961.
2. Dissolution of Muslim Marriage Act, 1939.

Cases
1. Bibi Rehana v. Iqtidar-uddin, (1943), ALL, 295.
2. Mst. Balaquis Ikram v. Najmal Ikram, 2(1959), WP, 321.
3. Md. Khan v. Shahmali, AIR (1977), Cal, 90.
4. Zafar Husain v. Ummat-ur-Rahman, AIR (1999), All, 182.
5. Jauri Beebee v. Sheikh Moonshee Beparee, 3 (1865), WR, 93.
6. Nurjahan Bibi v. Mohd. Kazim Ali, AIR(1977), Cal, 90.
7. Mohd. Khan v. Mst. Shahmali, AIR(1972), J.&K., 8.
8. Muhammad Ali Akbar v. Fatima Begum, AIR(1929), 660.
9. Mst. Sadiqa Begum v. Ata Ullah, AIR (1933), 885.
10. Janson v. Driefontein Consolidated Mines, Ltd,(1902) Appeal Cases 484.
11. Syed Ziauddin v. Parvez Sultana, (1943) 210 IC 587.
12. Zubaida Begum v. Sardar Shah, [1] (1971) KLT 663.
13. Aboobacker v. Mamu koya, AIR (1960), All, 684.

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14. Itwari v. Asghari, AIR(1945), Lah, 51.
15. Umar Bibi v. Md. Din, AI.R (1971), Ker, 261.
16. Safura khatun v. Osman Gani Mollah, 9 (1957), DLR, 455.
17. Shah Banu Case, AIR(1985), SC, 945.
18. Hefzur Rahman v. Shamsun Nahar Bagum and Others, 59(1999), DLR, AD, 172.
19. Shamim Ara vs State of U.P, 7(2002), SCC, 527.

Web Pages
1.[ttp://www.google.com.bd/#hl=bn&q=Triple+talaq%2C+women%27s+rights+and
+Indian+judicial+responses&meta=&aq=&oq=Triple+talaq%2C+women%27s+rights+a
nd+Indian+judicial+responses&fp=ed0bd4d3e01e7a66, last visited on 30 December
2009].
2.[http://www.legalaid.qld.gov.au/Legal+Information/Relationships+and+children/
Relationships/Separation+-+what+it+means.htm ,last visited 13 October 2009].
3. [http://www.wluml.org/english/pubs/pdf/misc/talaq-i-tawfid-eng.pdf last visited
13 October 2009].
4. [http://www.lawyersclubindia.com/articles/-Divorce-by-wife-IN-MUSLIM-
LAW/1632/ last visited on 21 December 2009].

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