TALAQ

PROF.(DR.) SHASHI BALA

 TALAQ
Talaq is an Arabic word and its literal meaning is “to release”
Under Muslim law, talaq means ‘repudiation of marriage by the husband’
The word talaq comes from a root (tallaqa) which means “to release (an animal) from a tether”;
hence, to repudiate the wife or free her from the bondage of marriage
Muslim law does not require the existence of any fault or matrimonial offence as an excuse for
talaq.
The Muslim concept of divorce is that, where it is impossible for the spouses to live together, they
must separate peacefully.
The law gives to the husband, an absolute authority to terminate the marriage by pronouncing
talaq; because, the society is a male dominated.
Whenever a husband finds that the marriage cannot be continued happily (either because of the
misconduct of the wife or because of his own fault), he is empowered to dissolve the marriage. But
this absolute authority of pronouncing talaq should not be misused by the husband. In Islam,
“talaq is permitted only when the wife by her conduct or her words, does injury to the husband or
happens to be impious”
The following verse of the Quran in support of husband’s authority to pronounce unilateral divorce
(talaq) is:
“Men are the protectors and maintainers of women, because Allah has given the one more
(strength) than the other, and because they support them from their means. Therefore the
righteous women are devoutly obedient, and guard in (the husband’s) absence what Allah would
have them guard. As to those women on whose part you fear disloyalty and ill-conduct, admonish
them (first), (next) refuse to share their beds, (and last) beat them (lightly); but if they return to
obedience, do not seek against them means (of annoyance): for Allah is Most High, Great (above
you all)
(The Holy Quran IV, 34; translated by Abdullah Yusuf Ali, edn. 2004, p.50, Ayman Publications, New
Delhi)
Abdul Rahim says that, with a view to regulating the matrimonial relations, Muslim law allows
predominant position to the husband “because generally speaking, he is mentally and physically
superior of the two; and some theorists would treat the dower payable to the wife as
consideration for the alienation of her matrimonial freedom”
Every Muslim husband of sound mind, who has attained the age of puberty, is competent to
pronounce talaq, whenever he likes. He need not give any reason for his pronouncement. This
absolute right is given to him by Muslim law itself and does not depend on any condition or cause.
 Musst. Rebun Nessa v. Musstt. Bibi Ayesha &
others, AIR 2011 Gauhati 36.
The Gauhati High Court has observed that the correct law of Talaq
as ordained by the Holy Quran is that
(i) Talaq must be for a reasonable cause;
(ii) that it must be preceded by an attempt of reconciliation
between the husband and the wife by two arbiters, one from the
wife’s family and the other from the husband. If an attempt fails,
talaq may be effected.
 Types of talaq

Extra judicial divorce, Judicial divorce

By husband- By wife-
talaq, khula By mutual agreement
talaq-i-tafweez, Lian mubarat.
ila, and
zihar.

the right of the divorce under the

Dissolution of Muslim Marriages
Act 1939.
Divorce at the instance of the husband:
1. Talaq-ul-Sunnat or revocable talaq- approved form of talaq
further sub-divided into:
i) Talaq Ahsan (most approved form or most proper form): single pronouncement of divorce
made in a period of tuhr or at any time if the wife is free from menstruation, followed by
abstinence from sexual intercourse during the period of iddat.
This talaq may be revoked either by express words or impliedly, by cohabitation within the
iddat period. The husband can simply say ‘I have retained you’ .
If cohabitation takes place even once during this period, the talaq is revoked and it is
presumed that the husband has reconciled with the wife.
When the period of iddat expires and the husband does not revoke the talaq either expressly
or impliedly, the talaq becomes irrevocable and fina
 ii) Talaq Hasan: (Approved form)
Regarded to be proper and approved form
the husband is required to pronounce the formula of talaq three times during three successive
tuhrs.
It is necessary that no intercourse should have taken place during the period of purity in which,
the pronouncement has been made.
The movement the husband utters the third pronouncement, the marriage stands dissolved
irrevocably.
 Example: W, a wife, is having her period of purity and no cohabitation taken place. At this time,
her husband, H, pronounces talaq, on her. This is the first pronouncement by express words. Then
again, when she enters the next period of purity, he makes the second pronouncement. He again
revokes it. Again when the wife enters her third period of purity and before any intercourse takes
place H pronounces the third pronouncement. The moment H makes this third pronouncement,
the marriage stands dissolved irrevocably, irrespective of iddat.
Talaq-ul-Biddat: (irrevocable) This is also known as Talaq-ul-Bain. It is a disapproved mode of
divorce. It is sinful form of divorce. It is recognized only under Sunni.
The Talaq-ul-Biddat has 2 forms:
a) Triple irrevocable talaq.
b) Single irrevocable talaq.
it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation
between the parties.
In the Single irrevocable Talaq, three pronouncements are made in single Tuhr, either in one sentence, “I
divorce thee, thrice” or in separate sentences e.g.,I divorce thee, I divorce thee, I divorce thee”
Following are the requirements of a single form of Talaq:
1) Marriage must be consummated.
2) A single irrevocable pronouncement of talaq may be made. Thus, if a husband says to his wife, “I had
divorced thee in Talaq-ul-Biddat form”, it is enough and an irrevocable divorce will come into effect.
3) Such pronouncement may be made any time either in a period of tuhr or even during menstruation.
4) Such pronouncement may be made even if the husband had sexual intercourse with her since the last
menstruation.
5) Marriage is dissolved immediately on the irrevocable pronouncement of talaq.
Delegated Divorce: (Talaq-i-Tafweez)
Talaq-i-tafweez is also known as Talaq-i-Tawhid. Literally, tafweez means ‘delegate’. A Muslim
husband can delegate his power of pronouncing talaq to his wife or to any other person108.
But such power does not deprive the husband of his own right to pronounce a talaq.
Capacity to delegate the power: A husband:
a) Who is of sound mind, and
b) Who has attained the age of puberty may delegate his right of pronouncing talaq.
Wife must say ‘I am divorced’ or I divorce myself’ and not ‘I divorce thee’ because it is the wife
who is divorced and not the husband
Sainuddin v. Latifunnessa, (1918)46 Cal 141 there was an agreement between husband and wife
under which, the husband delegated to the wife, his own power of giving three talaqs in the
event of his marrying a second wife without the permission of the first. The husband took
second wife without the permission of the first. Accordingly, the first wife gave herself three
talaqs under the authority of the tafweez. The court held that as the event upon the happening
of which, the wife was given the authority to divorce herself was valid under Muslim law, and
since that event has happened, the divorce by the wife was effective and the marriage must
dissolve.
Divorce at the instance of wife:
1. Khula :-The word Khula literally means “to take off clothes” and thence,
to lay down one’s authority over wife. In law, it is laying down by a
husband of his right and authority over his wife for an exchange.
Wife agrees to give a consideration to the husband for her release from
the marriage tie.
Khula infact is thus a right of divorce purchased by the wife from her
husband.
Conditions for khula :-
Both the husband and the wife must be of sound mind and have attained
puberty. A khula given under compulsion is not valid under the Shia law;
but it is valid under the Sunni law.
2. ILA
Ila means “oath” or “vow”. In law, it means that, when a husband takes an oath that he will not do
sexual intercourse with his wife for four months or above on the expiry of four months after making
Ila, if the husband has abstained from sexual intercourse during this period, the marriage shall stand
dissolved.
There is no limit prescribed for the longest period. Ila made under compulsion or intoxication would
be valid.
The words expressing ila are either express or implicative. The express terms are:
a)”I swear by god that I will not approach you”;
b)”I swear by god that I will not cohabit with you”.
The implicative expressions are:
a)”I swear by god that I will not touch you”;
b)”I swear by god that I will not approach your bed”;
c)”I swear by god that I will not enter upon you”
The shortest period of vow of abstinence must be four months. If the husband swears to abstain for
a period of three months, no ila shall take effect.
3. Zihar:
When the husband compares his wife with the back of his female relations within the degrees of
prohibited relationship. He may say ‘the back of my wife is as my mother’s back. The woman so
addressed was thereby promoted from the subordinate status of a wife to the highly honourable
position of an adoptive mother.
In India, The Shariat Act has recognized zihar. After its legislative recognition, the right of wife to
claim a divorce on this ground may be granted by courts.
Capacity to make zihar:
A husband who is: a) Of sound mind, and b) Who has attained puberty can make zihar.
Once the husband makes it, the wife gets a right to refuse cohabitation with him until he performs
a penance (he should fast for two months /should feed sixty indigent ones /should free a slave )
and if the husband refuses to perform the penance, the wife may get a judicial divorce. i.e., she
may apply to the court for the penance to be performed by the husband or to pronounce a talaq on
her. On the refusal of the husband to do either thing, the court may grant a divorce.
LIAN:-
Under pure Islamic law, where a husband made an accusation of adultery
against his wife, he was required to prove his charge by the testimony of four
law worthy witnesses, failing which, he was to receive a punishment of 80
stripes for slander.
This is so because Islamic law provides very severe punishment to adulterers,
sentencing through stoning to death. Therefore, safeguards for such false
charges should be provided. Quran condemns a false charge against chaste
woman in general and against wife in particular
Once a charge has been made by the husband, the wife may ask him either to
retract the charge or confirm the separation through a divorce of lian. She is
entitled to enforce this demand through a court
 Divorce by Mutual Consent :(Mubaraat)
Mubaraat means “release”, which puts an end to matrimonial rights.
The word Mubaraa means an act of freeing one from another mutually.
It is a mutual discharge from marriage tie.
The formalities for Mubaraat are the same as in the case of khula.
 Talaq may be oral or in writing:
A talaq may be effected orally or by a written document called “Talaqnama”. A person who is not
able to speak can also terminate his marriage by positive and intelligible signs.
Among Hanafis, no special form of talaq is recognized. All that is necessary is that, the words of
talaq should show an intention to dissolve the marriage. But under Shia law, there is a prescribed
formula which must be recited orally in the presence of two competent witnesses in order to effect
the talaq.
The formula of talaq is in Arabic, but if the man is ignorant of Arabic, then he may use any language
known to him. A talaq communicated only in writing is not valid unless the husband is incapable of
pronouncing it orally.
Dilshada Masood v. Gh. Mustaffa AIR 1986 J&K 80
the divorce has not been pronounced in Arabic. The respondent in this case, has told the Magistrate
that, he has divorced his wife and at that time, two lawyers were present. Prior to that, he had sent a
written divorce to the petitioner. Both such divorces are unknown to Shia law and would not operate
as divorce. He told before Magistrate that, the divorce pronounced on his wife was not in Arabic and
also not in the presence and hearing of two “Aadil” witnesses; therefore it would not operate as
divorce under Shia law.
Kinds of written talaq:
Written talaq may be of two types; i) Customary and ii) Non-Customary.
i) Customary or Marsoom or Manifest Talaq:
When the writing of Talak (Talaqnama) is properly made so as to be legible and clearly
indicating to whom and by whom it is addressed, it is customary, also known as Marsoom or
Manifest Talaq; and a talaq will be effected immediately and irrevocably even if the husband
had no intention of making it and it is not brought to the knowledge of the wife.
ii) Non-Customary or Unusual Talaq:
If the Talaqnama is not written in the customary form and is not addressed to anyone, the
intention to divorce has to be proved. Such talaq is known as Non-Customary or Unusual
Talaq.
Communication of talaq:
Though talaq may be pronounced in the absence of the wife, yet its communication to the
wife is required for some purposes, e.g. on divorce, Dower becomes payable and the wife has
to undergo Iddat
 Conditional and Contingent talaq:
A talaq may be either absolute (unconditional) or subject to a condition or contingency.
Contingency means an uncertain future event. Where the talaq is without any condition, it takes effect
immediately.
A conditional or contingent talaq becomes effective only upon the fulfillment of the condition or
happening of the future event.
Under Sunni law, conditional and contingent talaq is recognized. Shia law does not recognize conditional
or contingent talaq.
Under Sunni law, the conditions must not be un-Islamic. If a condition is against the principles of Islam,
the condition is void and a talaq cannot take place. For example, if the condition is that, whenever the
wife would demand her Prompt Dower, there would be talaq by husband, the condition is void and talaq
does not take place.
Where the condition is valid, it becomes effective only upon the fulfillment of the condition or happening
of the specified event. Further pronouncement is not necessary.
In Bachchoo v. Bismillah PLD (1962) Karachi 491 ,
the husband in writing, promised to pay a maintenance allowance to the wife for certain period. On
failure of the husband to do so, the writing was to operate as Talaqnama. The Allahabad High Court held
that, it was a conditional talaq. The condition was non-payment of maintenance allowance to the wife
during the agreed period. On default of the husband to pay maintenance allowance to wife, the condition
was fulfilled. Thus, the talaq became effective without any further pronouncement.
Bilqees Begum v. Manzoor Ahmed, PLD (1962) Karachi 491
the husband used to object his wife’s frequent visits to her female friends. Once, there was a quarrel
between husband and wife on this matter and in anger, the husband declared that, if she went again to
her female friends’ house, there would be talaq by him. From that date, the wife never went there. The
Karachi High Court (Pakistan) held that, the husband’s declaration was a conditional talaq. But since
the condition was not fulfilled after the declaration, the talaq has not taken place.
Mirjan Ali v. Maimuna Bibi AIR 1949 Ass 14 , there was an agreement between husband and wife
under which, if the wife lived with her parents for a period of 90 days or more, and the husband failed
to take her back within the said period of 90 days, it would result in the husband’s irrevocable talaq
and the wife would be free to remarry. The husband visited the place of the wife’s parents within the
stipulated period of 90 days and asked his wife to accompany him. The wife refused to go with him on
the ground that, now she had divorced the husband under the authority given to her by the husband.
It was argued by the wife that the agreement was a delegated talaq and under this delegated
authority, she had divorced her husband. The Assam High Court held that, the agreement written by
the husband was not a delegated talaq and she had no authority to divorce the husband.
The court further observed that the above mentioned agreement was that of a contingent talaq and
the contingency was ‘failure of the husband to take her back within 90 days’. As the contingency did
not happen and husband went to take her back within the said period, the talaq by husband could not
take place. And the wife’s suit was dismissed. As such, the wife was bound to accompany the husband.
 Judicial separation:
the law has recognized the following grounds where a Muslim wife will refuse to live with the husband and will be
entitled for judicial separation.
1. Husband’s impotency:
Where the husband is impotent, the kazi should permit him to prove his potency within a period of one year from
the date of litigation. If he has sexual relation with the wife, then there will be no divorce. However if he has no
sexual relation, the kazi must pronounce a separation.
2. Cruelty:
If there was cruelty rendering it unsafe for the wife to return to his dominion, she could refuse to give company to
her husband.
3. A Muslim wife can claim separation if her marriage was irregular.
4. If there was gross failure on the husband’s part to perform the obligation imposed on him by the marriage
contract, then also she was permitted to live separately.
5. A Muslim wife may enter into an agreement at the time of marriage. Such a contract will be enforced by the
courts if it is lawful and not opposed to the principles of Islam.
6. If her husband has been made an outcast by his community, then also, she can claim separation.
7. A Muslim wife can claim separation if the marriage was arranged by her guardian other than the father.
3. Judicial divorce: (Faskh)
Faskh means annulment. It refers to the power of Kazi (in India, law court) to annul a marriage
on the application of the wife. In India, such judicial annulments are governed by Section 2 of
the Dissolution of Muslim Marriages Act, 1939
Before passing of the act of 1939, a Muslim woman could apply for dissolution of marriage on
three grounds:
i) impotency of the husband;
ii) lian (false charge of adultery),
iii) repudiation of marriage by the wife.
The Dissolution of Muslim Marriages Act, 1939 made revolutionary changes in the existing law
and provided six more grounds on which the wife may apply to the court for the dissolution of
marriage. Thus, under the act, 9 grounds have been provided under which a Muslim wife may
obtain a decree for dissolution of her marriage.
 THE DISSOLUTION OF MUSLIM MARRIAGESACT, 1939
S. 2. Grounds for decree for dissolution of marriage. ?
A woman married under Muslim law shall be entitled to obtain a decree for the
dissolution of her marriage on any one or more of the following grounds, namely:
(i)that the whereabouts of the husband have not been known for a period of four years;
(ii)that the husband has neglected or has failed to provide for her maintenance for a
period of two years;
(iii)that the husband has been sentenced to imprisonment for a period of seven years
or upwards
(iv)that the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three years;
 THE DISSOLUTION OF MUSLIM MARRIAGESACT,
1939 S.2 Contd.
(v)that the husband was impotent at the time of the marriage and continues to be so;
(vi)that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
(vii)that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years,
repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated;
(viii)that the husband treats her with cruelty, that is to say, ?
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-
treatment, or
(b) associates with women of evil repute or leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her exercising her legal rights over it, or
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran;
 THE DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939
S.2 Contd
(ix)on any other ground which is recognised as valid for the dissolution of marriages under Muslim law:
Provided that ?
(a)no decree shall be passed on ground (iii) until the sentence has become final;
(b)a decree passed on ground (i) shall not take effect for a period of six months from the date of such
decree, and if the husband appears either in person or through an authorised agent within that period
and satisfied the Court that he is prepared to perform his conjugal duties, the Court shall set aside the
said decree; and
(c)before passing a decree on ground (v) the Court shall, on application by the husband, made an order
requiring the husband to satisfy the Court within a period of one year from the date of such order that
he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree
shall be passed on the said ground.
3. Notice to be served on heirs of the husband, when the husband's whereabouts are not
known. ?
In a suit to which clause (i) of Section 2 applies ?
(a)the names and addresses of the persons who would have been the heirs of the husband
under Muslim law if he had died on the date of the filing of the plaint shall be stated in the
plaint,
(b)notice of the suit shall be served on such persons, and
(c)such persons shall have the right to be heard in the suit: Provided that paternal uncle and
brother of the husband, if any, shall be cited as party even if he or they are not heirs.
4. Effect of conversion to another faith. ?
The renunciation of Islam by a married Muslim woman or her conversion to a faith other than
Islam shall not be itself operate to dissolve her marriage:
Provided that after such renunciation, or conversion, the woman shall be entitled to obtain a
decree for the dissolution of her marriage on any of the grounds mentioned in Section 2:
Provided further that the provisions of this section shall not apply to a woman converted to
Islam from some other faith who re-embraces her former faith.
 Siddique v. Amina, 1996(1) DMC 87)
Section 2 of the Act deals with the right of a woman married under Muslim
Law to obtain a decree for dissolution that her husband assaults her or makes
her life miserable by cruelty. If any incident perpetrated by the husband with
cruelty had made her communal life miserable then that would amount to
cruel treatment as envisaged in the clause.
Held, it was a cruelty to force a young woman, who was desirous of becoming
a mother, to abort her pregnancy and some drug was administered to her and
miscarriage occurred consequently.
 Rashid Ahmad v. Anisa Khatoon AIR 1932 PC 25
one Ghayas Uddin, pronounced the triple talaq in the presence of witnesses, though in the absence of the wife. Four
days later, the talaqnama was executed which stated that the three divorces were given. It was not proved that
there was re-marriage between the parties, or intermediate marriage and a subsequent divorce after actual
consummation (Halala).
The husband and wife lived together and five children were born to them. Ghayas Uddin treated Anisa Khatoon as
his wife and children as legitimate children. As there was no intermediate marriage, the bar to remarriage created
by the divorce was not removed.
In these circumstances, remarriage could not be presumed and the children born after the triple divorce were held
to be illegitimate.
The words “I divorce Anisa Khatoon for ever and render her haram for me” were repeated by Ghayas Uddin three
times (talaq-ul-bian) which clearly showed an intention to dissolve marriage and it was confirmed by divorce deed.
Therefore, it was held that, the divorce was valid.
On the point of revocation of divorce, the Privy Council observed: ”According to Hanafi law of Sunnis, Ghayas Uddin
could not marry Anisa Khatoon after pronouncement of talaq unless she contracted another marriage. Therefore, it
was held that, the fact of subsequent treatment of divorced wife as his wife and birth of children during the
subsequent period cannot undo the divorce and make children legitimate. Thus, the five children born after the
triple divorce were held to be illegitimate”.
 Mohammad yusuf commissioner, Quetta Division v.
Syed Ali Nawaz Gardezi P.L.D. 1965 (W.P.) Lah. 141
On the 4th December, 1906, the petitioner, who was domiciled in Scotland, married Ghulam Mohammad
Ebrahim, who was a Sunni Mohammadan, domiciled in India, at the General Registry Office in Edinburgh.
In 1912, the petitioner converted to Islam and continued to profess that religion up to the middle of April
1923. Between 1914 and 1923, Ghulam Mohammad Ebrahim permanently resided at Secunderabad.
On 27th June 1922, Ebrahim pronounced talaq against the petitioner in accordance with Muslim law at
Secunderabad.
On 10th April 1923, the petitioner made a declaration in the District Court at Secunderabad that she was no
longer the wife of Gulam Mohammad Ebrahim.
On 24th April 1923, the petitioner was married to the respondent under the Special Marriage Act, 1872.
It was held that, at the time of the marriage, Ebrahim was domiciled in British India and that in 1912, when
the petitioner embraced Islam, both Ebrahim and the petitioner were domiciled in British India. Since she
converted to islam, Muslim personal law applies. In the circumstances, it was held that, the marriage was
dissolved.
 Masroor Ahmed v. State (NCT of Delhi) 2008 (103) DRJ 137 (Del.)
the complainant and the petitioner got married on 2.4.2004 and that they lived together till 8.4.2005. On
that date, according to the complainant, she was thrown out of the house on account of non- fulfillment of
dowry demands. But, according to the petitioner, the complainant left their house without informing him
and of her own will.
On 22.10.2005, the complainant gave birth to a baby girl (the said Sara @ Ushna, is now about 2 years old).
towards the end of October 2005, his brother-in-law and his sister attempted to arrange for the return of
the complainant to her matrimonial home. But, this was in vain. he became very sad and extremely angry
and in this mental condition, in the presence of his brother-in-law and another man, he uttered the words
giving talaq to his wife (the complainant) approximately three times or even more.
According to the petitioner, he forgot about this incident and continued to make efforts for the return of
his wife. Admittedly, the factum of the purported talaq was not communicated to the complainant.
On 23.3.2006, the petitioner, wanting the return of his wife, filed a suit for restitution of conjugal rights. On
13.4.2006, statements of the complainant and the petitioner were The complainant stated:- I am ready to
join the company of the plaintiff/ husband and from the court I am going to my matrimonial home with my
husband.
The complainant returned with the petitioner to their matrimonial home on 13.4.2006 from court itself.
Thereafter, a second nikah was performed between the parties on 19.4.2006 Which, according to the complaint, the
complainant got to know only upon receiving a duplicate copy of the nikahnama from the Qazi who performed the
ceremony.
According to the petitioner, the second nikah was necessitated because after the settlement of 13.4.2006, he was
reminded by his brother-in-law that he had already divorced the complainant by way of a triple talaq in october 2005.
Faced with this situation, the petitioner, who did not want any illegitimacy in his marital status, allegedly sought an
opinion from a mufti on 16.4.2006. The mufti reportedly gave a fatwa on 17.4.2006 that three talaqs pronounced in one
sitting would be regarded as one talaq-e-rajai and, consequently, the petitioner could have taken back the complainant
within the iddat period of three months. But, as that period had elapsed, the petitioner and the complainant could renew
their matrimonial relationship only by performing a fresh nikah.
After her return to the matrimonial home on 13.04.2006, the complainant continued to reside with the petitioner. Once
again, there was discord between them and the petitioner pronounced talaq (again) on 28.08.2006. On 30.8.2006, the
petitioner left the matrimonial home. Since then, she is residing at her parental home.
On 6.9.2006, she filed a complaint before the crime against women cell. It is further alleged by her that during the inquiry
it came to light that the petitioner had given her talaq earlier also (ie., in October, 2005).
According to the complainant, on 3.10.2006 when the petitioner appeared before the CAW cell, he disclosed that he had
already given the first talaq to the complainant in October 2005. It is then, according to the complaint, that the
complainant came to know for the first timethat a fraud had been played upon her and that the petitioner had sexual
intercourse with her during 13.4.2006 and 19.4.2006 when, in law, he was not her husband. However, she filed her
written complaint only on 12.12.2006 with regard to the alleged rape committed during 13.4.2006 and 19.4.2006. The FIR
under section 376 IPC was registered
Several questions impinging upon Muslim law concepts arise for consideration. They are :-
(1) What is the legality and effect of a triple Talaq ?
(2) Does a Talaq given in anger result in dissolution of marriage?
(3) What is the effect of non-communication of the Talaq to the wife?
(4) Was the purported Talaq of October 2005 valid?
(5) What is the effect of the second Nikah of 19.4.2006 ?
The answers to the five questions
1. It is not even considered to be a valid divorce by shia schools. I hold that a triple talaq which is talaq-e-bidaat, even for sunni
muslims be regarded as onerevocable talaq.
2. If a talaq is pronounced in extreme anger where the husband has lost con trol of himself it would not be effective or valid.
(3) If the pronouncement of talaq is communicated to the wife, the talaq shall take effect on the date it is so communicated.
However, if it is not communicated at all the talaq would not take effect.
(4) No. First of all, it was given, if at all, in extreme anger. Secondly, it was never communicated to the complainant, at least not
by the relevant period (i.e., till 13.04.2006 or even by 19.04.2006). Thirdly, there was no attempt at reconciliation in the manner
suggested in the Quran either before or after the purported pronouncement of talaq in October 2005. Consequently, the marital
tie of the petitioner and the complainant subsisted during the relevant period (ie.,13.04.2006 to 19.04.2006). Therefore, the
offence of rape is not made out.
(5) It was not necessary. Since the marriage was subsisting, the second nikah between them would be of no effect.