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S V L Narasimha Rao (Legal Practitioner)     15 November 2020

Muslim husband needs Divorce

Now , there is no Trouble Talak. how to file Divorce petition by Muslim Husband?
wife is not agreeing for Mutual consent divorce.


Learning

 7 Replies

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     15 November 2020

1.  "TRY" filing Divorce Petition in the local Family Court.

Keep Smiling .... Hemant Agarwal
VISIT: www.chshelpforum.com

Shashi Dhara   15 November 2020

File divorce petition in civil court with grounds as per family law.

S V L Narasimha Rao (Legal Practitioner)     15 November 2020

Under which Act , a muslim husband can file divorce petition, when wife not agreeing to mutual consent divorce?

Shashi Dhara   16 November 2020

Under special marriage act.

Sureka Nagendhran (Senior Advocate)     18 November 2020

You can file Divorce Petition under Special Marriage Act., Before the District Court. 

S V L Narasimha Rao (Legal Practitioner)     18 November 2020

Thanq Very much dear SIR.

P. Venu (Advocate)     20 November 2020

To my knowledge, the provision of Talaq is still available to a Muslim husband. It is only the triple talak that has been outlawed by the Supreme Court. The relevant extracts of the Judgment are unequivocal:

"The practiced modes of ‘talaq’ amongst Muslims:

"11. Since the issue under consideration is the dissolution of marriage by ‘talaq’, under the Islamic law of divorce, it is imperative, to understand the concept of ‘talaq’. In this behalf, it is relevant to mention, that under the Islamic law, divorce is classified into three categories. Talaq understood simply, is a means of divorce, at the instance of the husband. ‘Khula’, is another mode of divorce, this divorce is at the instance of the wife. The third category of divorce is ‘mubaraat’ – divorce by mutual consent.

"12. ‘Talaq’, namely, divorce at the instance of the husband, is also of three kinds – ‘talaq-e-ahsan’, ‘talaq-e-hasan’ and ‘talaq-e-biddat’. The petitioner’s contention before this Court is, that ‘talaq-e-ahsan’, and ‘talaq-e-hasan’ are both approved by the ‘Quran’ and ‘hadith’. ‘Talaq-e-ahsan’, is considered as the ‘most reasonable’ form of divorce, whereas, ‘talaq-e-hasan’ is also considered as ‘reasonable’. It was submitted, that ‘talaq-e-biddat’ is neither recognized by the ‘Quran’ nor by ‘hadith’, and as such, is to be considered as sacrosanctal to Muslim religion. The controversy which has arisen for consideration before this Court, is with referenc to ‘talaq-e-biddat’.

"13. It is necessary for the determination of the present controversy, to understand the parameters, and the nature of the different kinds of ‘talaq’. ‘Talaq-e-ahsan’ is a single pronouncement of ‘talaq’ by the husband, followed by a period of abstinence. The period of abstinence is described as ‘iddat’. The duration of the ‘iddat’ is ninety days or three menstrual cycles (in case, where the wife is menstruating). Alternatively, the period of ‘iddat’ is of three lunar months (in case, the wife is not menstruating). If the couple resumes cohabitation or intimacy, within the period of ‘iddat’, the pronouncement of divorce is treated as having been revoked. Therefore, ‘talaq-e-ahsan’ is revocable. Conversely, if there is no resumption of cohabitation or intimacy, during the period of ‘iddat’, then the divorce becomes final and irrevocable, after the expiry of the ‘iddat’ period. It is considered irrevocable because, the couple is forbidden to resume marital relationship thereafter, unless they contract a fresh ‘nikah’ (-marriage), with a fresh ‘mahr’. ‘Mahr’ is a mandatory payment, in the form of money or possessions, paid or promised to be paid, by the groom or by the groom’s father, to the bride, at the time of marriage, which legally becomes her property. However, on the third pronouncement of such a ‘talaq’, the couple cannot remarry, unless the wife first marries someone else, and only after her marriage with other person has been dissolved (either through ‘talaq’ - divorce, or death), can the couple remarry. Amongst Muslims, ‘talaq-e-ahsan’ is regarded as – ‘the most proper’ form of divorce.

"14. ‘Talaq-e-hasan’ is pronounced in the same manner, as ‘talaq-e-ahsan’. Herein, in place of a single pronouncement, there are three successive pronouncements. After the first pronouncement of divorce, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. The same procedure is mandated to be followed, after the expiry of the first month (during which marital ties have not been resumed). ‘Talaq’ is pronounced again. After the second pronouncement  of ‘talaq’, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. It is significant to note, that the first and the second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, ‘talaq’ pronounced by the husband becomes ineffective, as if no ‘talaq’ had ever been expressed. If the third ‘talaq’ is pronounced, it becomes irrevocable. Therefore, if no revocation is made after the first and the second declaration, and the husband makes the third pronouncement, in the third ‘tuhr’ (period of purity), as soon as the third declaration is made, the ‘talaq’ becomes irrevocable, and the marriage stands dissolved, whereafter, the wife has to observe the required ‘iddat’ (the period after divorce, during which a woman cannot remarry. Its purpose is to ensure, that the male parent of any offspring is clearly identified). And after the third ‘iddat’, the husband and wife cannot remarry, unless the wife first marries someone else, and only after her marriage with another person has been dissolved (either through divorce or death), can the couple remarry. The distinction between ‘talaq-e-ashan’ and ‘talaq-e-hasan’ is, that in the former there is a single pronouncement of ‘talaq’ followed by abstinence during the period of ‘iddat’, whereas, in the latter there are three pronouncements of ‘talaq’, interspersed with abstinence. As  against ‘talaq-e-ahsan’, which is regarded as ‘the most proper’ form of divorce, Muslims regard ‘talaq-e-hasan’ only as ‘the proper form of divorce’.

"15. The third kind of ‘talaq’ is – ‘talaq-e-biddat’. This is effected by one definitive pronouncement of ‘talaq’ such as, “I talaq you irrevocably” or three simultaneous pronouncements, like “talaq, talaq, talaq”, uttered at the same time, simultaneously. In ‘talaq-e-biddat’, divorce is effective forthwith. The instant talaq, unlike the other two categories of ‘talaq’ is irrevocable at the very moment it is pronounced. Even amongst Muslims ‘talaq-e-biddat’, is considered irregular.

16. According to the petitioner, there is no mention of ‘talaq-e-biddat’ in the Quran. It was however acknowledged, that the practice of ‘talaq-e-biddat’ can be traced to the second century, after the advent of Islam. It was submitted, that ‘talaq-e-biddat’ is recognized only by a few Sunni schools. Most prominently, by the Hanafi sect of Sunni Muslims. It was however emphasized, that even those schools that recognized ‘talaq-e-biddat’ described it, “as a sinful form of divorce”. It is acknowledged, that this form of divorce, has been described as “bad in theology, but good in law”. We have recorded the instant position at this juncture, because learned counsel for the rival parties, uniformly acknowledge the said position.

The majority judgment had declared only struck down "Triple Talaq":

"57. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated 400 above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him."

The reference to the submissions made by the Attorney General was made in the context of his contention that, not only triple talaq, all forms talaq are unconstitutional. However, the Court had only recorded his assertions, but had refrained from examined the issues or giving any finding or decision therefrom.

"77. It is also necessary for us to recount an interesting incident that occurred during the course of hearing. The learned Attorney General having assisted this Court in the manner recounted above, was emphatic that the other procedures available to Muslim men for obtaining divorce, such as, ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ were also liable to be declared as unconstitutional, for the same reasons as have been expressed with reference to ‘talaq-e-biddat’. In this behalf, the contention advanced was, that just as ‘talaq-e-biddat’, ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ were based on the unilateral will of the husband, neither of these forms of divorce required the availability of a reasonable cause with the husband to divorce his wife, and neither of these needed the knowledge and/or notice of the wife, and in neither of these procedures the knowledge and/or consent of the wife was required. And as such, the other two so-called approved procedures of divorce (‘talaq-e-ahsan’ and ‘talaq-e-hasan’) available to 133 Muslim men, it was submitted, were equally arbitrary and unreasonable, as the practice of ‘talaq-e-biddat’. It was pointed out, that submissions during the course of hearing were confined by the Union of India, to the validity of ‘talaq-e-biddat’ merely because this Court, at the commencement of hearing, had informed the parties, that the present hearing would be limited to the examination of the prayer made by the petitioners and the interveners on the validity of ‘talaq-e-biddat’. It was contended, that the challenge to ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ would follow immediately after this Court had rendered its pronouncement with reference to ‘talaq-e-biddat’. We have referred to the incident, and considered the necessity to record it, because of the response of the learned Attorney General to a query raised by the Bench. One of us (U.U. Lalit, J.), enquired from the learned Attorney General, that if all the three procedures referred to above, as were available to Muslim men to divorce their wives, were set aside as unconstitutional, Muslim men would be rendered remediless in matters of divorce? The learned Attorney General answered the querry in the affirmative. But assured the Court, that the Parliament would enact a legislation within no time, laying down grounds on which Muslim men could divorce their wives. We have accordingly recorded the above episode, because it has relevance to the outcome of the present matter."

As such, the correct legal position is that Muslims can rely on Talaq, other than the Triple Talaq, in seeking divorce.

 

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