Religious And Legal Modes Of Divorce:
1. Talaq-e-Ahsan: According to the Holy Prophet (PBUH) Talaq-e-Ahsan is the best mode of divorce. In this mode of divorce the husband pronounces single Talaq during the “Taha’r†period and in this situation and the wife waits for three menstrual cycles (if she menstruates) or three months (if she does not menstruate). If cordial agreement is reached during these three months the husband would call off his talaq and both can live together without renewing the Nikkah.
2. Talaq-e-Hasan: In this mode of divorce, the husband pronounces Talaq each coming month during the “Taha’r†period. The husband can revert (Rajou’) after pronouncing the 2nd Talaq but if he pronounces the 3rd Talaq the husband not only loses the right to revert but also he cannot perform Nikkah with the same female unless she performs Nikkah with another person who then divorces her or he is dead.
3. Talaq-e-Bida'ie: In this mode of divorce the husband pronounces Three Talaqs at the same time. Islam has seriously this mode of divorce but the divorce becomes effective. In Pakistan, this mode is widely used.
Procedure Of Divorce Under Muslim Family Laws 1961:
Under sec. 7 of Muslim Family Laws 1961when the husband pronounces Talaq through whatever mode narrated above, a notice to this effect must be served to the Chairman Arbitration Council. After receiving the notice, the chairman would try to reconcile the parties through mediation. In case no compromise is reached within 90 days, the divorce would become effective. Under law, non-serving the notice to the chairman carries the sentence of fine of Rs. 5000/- or one year simple imprisonment or both.
Other Modes Of Divorce:
1. Khul'a: Khul’a is the right delegated to the wife in marital situations where wife develops intense dislike and hatred towards the husband. In such situation the relations between wife and husband reach such level of dislike and hatred that both cannot live within the limitations ordained by Allah. The wife can approach the court for dissolution of marriage on the basis of Khul’a and she does not require permission of the husband for her such act. However, the wife has to surrender all or some of the benefits that she derived from her husband during subsistence of marriage or on any other mutually agreed terms and conditions. According to decisions of the superior courts the wife is not required to prove her intense dislike and hatred, her statement to this effect would be sufficient for divorce on the basis of Khul’a.
2. Talaq-e-Tafve'z: This mode of divorce is delegated to the wife at the time of Nikkah. This delegated right to divorce to the wife may be conditional or otherwise. The wife can use her right to divorce the husband at any time without seeking the court’s help.
3. Khyar-e-Balough (Option Of Puberty): According to Muslim Family Laws 1961 the age of bride must be 16 years and that of groom it must be 18 years at the time of their marriage. Marriages celebrated in situation where both bride and the groom are of lesser age, such marriages cannot be registered. In Islam the right to marriage of the minors is delegated to their respective “Wali†(Guardian). The Wali can give his minor son/daughter into marriages but the minor, on attaining puberty or becoming legally major can approach the court to nullify such marriage using his/her option of puberty or Khyar-e-Balough. The husband can divorce his wife using this right but the wife has to approach court to use her such right. To use this mode of divorce it is necessary for the wife approaches court before marriage is consummated, if the wife has consummated with the husband then her right of Khyar-e-Balough ceases.
4. Mubara't: This mode of divorce is described in Surrah Baqra Ayat 228 of the Holy Quran. In this mode of divorce if it is clear to both the parties i.e., the husband and the wife that they cannot live together within the limits prescribed by Allah. This mode of divorce is called Mubara't. In Mubara’t the husband and the wife dissolve their Nikkah on mutual consent and agreement without intervention of the court. However, both the parties are legally bound to fulfill the mutually agreed conditions of Mubara’t. The Holy Quran has allowed divorce on such mutually agreed conditions.
5. Il'a: Il'a (Eila) is the mode of divorce in which the husband does not use the word of ‘Talaq’ instead he swears to end the relationship of husband and wife. For example, the husband after swearing says to the wife that from now I end my relationship with you (the wife) and if the husband does not consummate for the next four months and fulfills his such swearing then this mode of divorce is what is called “Il’aâ€. Period of four months is an essential part of this mode if the husband swears for a lesser period than four months then it would not be an “Il’aâ€. However, if the husband swears to his wife not to consummate ever again or permanent non-consummation then it converts into Talaq-e-Baye’n†immediately. This mode of divorce is enunciated in the Holy Quran in Surrah Baqra, Ayyat 225.
6. Zaha'r: In this mode of divorce the husband does not use the word of “Talaq†to the wife instead he uses words like ‘mother’ ‘sister’ or any other female relationship who fall within the prohibitory degree and with whom his Nikkah cannot be performed. This mode of divorce is enunciated in the Holy Quran in Surrah Muja’dla, Ayat 2-4. According to these Ayats of Holy Quran if the husband doesnot revert to his wife and consummate with her within three menstrual cycles then the divorce becomes effective. In the same Ayat Allah has ordained severe repercussions for the husband who indulge in such practice. The husband, in case of Ziha'r has to free one slave or if he does not have one then he has to fast for two months continuously before the husband is allowed to touch his wife or when the man is not even capable of two continuous month's fasting then he has to feed sixty poor people.
7. Lia'n: Lia'n is defined as that when the husband accuses the wife of adultery but he does not produce four eye witnesses then according to Surrah Al-Noor, Ayat 6-9 of the Holy Quran, the husband will repeat his accusation of adultery four times before the court that his wife has committed adultery and at the fifth time the husband would swear that if he is wrong in his accusation then the Wrath of Allah befall on him. Afterwards, the wife would be called into the court and if she accepts the accusation she will be punished accordingly but if she refuses to accept the allegation of adultery leveled against her then she would reiterate four time, in front of the court, that the accusation of adultery is wrong against her and on the fifth time she would say that if she is telling wrong then the Wrath of Allah befall on her. After completion of this procedure the court will dissolve their marriage and thus, divorce happens through the mode of Lia’n.
The husband would not be prosecuted under ‘Hudood Laws’ to level the accusation of adultery without producing four eyewitnesses nor the wife would be punished on the accusation of adultery by the husband. However, if any party to this process does not take part in the court procedure then the same party can be punished under Tazi’r laws. Furthermore, if the wife is pregnant at the time of prosecc of Lia’n and the husband refuses to accept the fatherhood of the unborn child then parentage of the child will not be attributed towards the husband, however, the child would be entitled to inherit the property of the mother.
All Rights Reserved. Copyright © Azeem M. Qazi Law Office.
1. Talaq-e-Ahsan: According to the Holy Prophet (PBUH) Talaq-e-Ahsan is the best mode of divorce. In this mode of divorce the husband pronounces single Talaq during the “Taha’r†period and in this situation and the wife waits for three menstrual cycles (if she menstruates) or three months (if she does not menstruate). If cordial agreement is reached during these three months the husband would call off his talaq and both can live together without renewing the Nikkah.
2. Talaq-e-Hasan: In this mode of divorce, the husband pronounces Talaq each coming month during the “Taha’r†period. The husband can revert (Rajou’) after pronouncing the 2nd Talaq but if he pronounces the 3rd Talaq the husband not only loses the right to revert but also he cannot perform Nikkah with the same female unless she performs Nikkah with another person who then divorces her or he is dead.
3. Talaq-e-Bida'ie: In this mode of divorce the husband pronounces Three Talaqs at the same time. Islam has seriously this mode of divorce but the divorce becomes effective. In Pakistan, this mode is widely used.
Procedure Of Divorce Under Muslim Family Laws 1961:
Under sec. 7 of Muslim Family Laws 1961when the husband pronounces Talaq through whatever mode narrated above, a notice to this effect must be served to the Chairman Arbitration Council. After receiving the notice, the chairman would try to reconcile the parties through mediation. In case no compromise is reached within 90 days, the divorce would become effective. Under law, non-serving the notice to the chairman carries the sentence of fine of Rs. 5000/- or one year simple imprisonment or both.
Other Modes Of Divorce:
1. Khul'a: Khul’a is the right delegated to the wife in marital situations where wife develops intense dislike and hatred towards the husband. In such situation the relations between wife and husband reach such level of dislike and hatred that both cannot live within the limitations ordained by Allah. The wife can approach the court for dissolution of marriage on the basis of Khul’a and she does not require permission of the husband for her such act. However, the wife has to surrender all or some of the benefits that she derived from her husband during subsistence of marriage or on any other mutually agreed terms and conditions. According to decisions of the superior courts the wife is not required to prove her intense dislike and hatred, her statement to this effect would be sufficient for divorce on the basis of Khul’a.
2. Talaq-e-Tafve'z: This mode of divorce is delegated to the wife at the time of Nikkah. This delegated right to divorce to the wife may be conditional or otherwise. The wife can use her right to divorce the husband at any time without seeking the court’s help.
3. Khyar-e-Balough (Option Of Puberty): According to Muslim Family Laws 1961 the age of bride must be 16 years and that of groom it must be 18 years at the time of their marriage. Marriages celebrated in situation where both bride and the groom are of lesser age, such marriages cannot be registered. In Islam the right to marriage of the minors is delegated to their respective “Wali†(Guardian). The Wali can give his minor son/daughter into marriages but the minor, on attaining puberty or becoming legally major can approach the court to nullify such marriage using his/her option of puberty or Khyar-e-Balough. The husband can divorce his wife using this right but the wife has to approach court to use her such right. To use this mode of divorce it is necessary for the wife approaches court before marriage is consummated, if the wife has consummated with the husband then her right of Khyar-e-Balough ceases.
4. Mubara't: This mode of divorce is described in Surrah Baqra Ayat 228 of the Holy Quran. In this mode of divorce if it is clear to both the parties i.e., the husband and the wife that they cannot live together within the limits prescribed by Allah. This mode of divorce is called Mubara't. In Mubara’t the husband and the wife dissolve their Nikkah on mutual consent and agreement without intervention of the court. However, both the parties are legally bound to fulfill the mutually agreed conditions of Mubara’t. The Holy Quran has allowed divorce on such mutually agreed conditions.
5. Il'a: Il'a (Eila) is the mode of divorce in which the husband does not use the word of ‘Talaq’ instead he swears to end the relationship of husband and wife. For example, the husband after swearing says to the wife that from now I end my relationship with you (the wife) and if the husband does not consummate for the next four months and fulfills his such swearing then this mode of divorce is what is called “Il’aâ€. Period of four months is an essential part of this mode if the husband swears for a lesser period than four months then it would not be an “Il’aâ€. However, if the husband swears to his wife not to consummate ever again or permanent non-consummation then it converts into Talaq-e-Baye’n†immediately. This mode of divorce is enunciated in the Holy Quran in Surrah Baqra, Ayyat 225.
6. Zaha'r: In this mode of divorce the husband does not use the word of “Talaq†to the wife instead he uses words like ‘mother’ ‘sister’ or any other female relationship who fall within the prohibitory degree and with whom his Nikkah cannot be performed. This mode of divorce is enunciated in the Holy Quran in Surrah Muja’dla, Ayat 2-4. According to these Ayats of Holy Quran if the husband doesnot revert to his wife and consummate with her within three menstrual cycles then the divorce becomes effective. In the same Ayat Allah has ordained severe repercussions for the husband who indulge in such practice. The husband, in case of Ziha'r has to free one slave or if he does not have one then he has to fast for two months continuously before the husband is allowed to touch his wife or when the man is not even capable of two continuous month's fasting then he has to feed sixty poor people.
7. Lia'n: Lia'n is defined as that when the husband accuses the wife of adultery but he does not produce four eye witnesses then according to Surrah Al-Noor, Ayat 6-9 of the Holy Quran, the husband will repeat his accusation of adultery four times before the court that his wife has committed adultery and at the fifth time the husband would swear that if he is wrong in his accusation then the Wrath of Allah befall on him. Afterwards, the wife would be called into the court and if she accepts the accusation she will be punished accordingly but if she refuses to accept the allegation of adultery leveled against her then she would reiterate four time, in front of the court, that the accusation of adultery is wrong against her and on the fifth time she would say that if she is telling wrong then the Wrath of Allah befall on her. After completion of this procedure the court will dissolve their marriage and thus, divorce happens through the mode of Lia’n.
The husband would not be prosecuted under ‘Hudood Laws’ to level the accusation of adultery without producing four eyewitnesses nor the wife would be punished on the accusation of adultery by the husband. However, if any party to this process does not take part in the court procedure then the same party can be punished under Tazi’r laws. Furthermore, if the wife is pregnant at the time of prosecc of Lia’n and the husband refuses to accept the fatherhood of the unborn child then parentage of the child will not be attributed towards the husband, however, the child would be entitled to inherit the property of the mother.
All Rights Reserved. Copyright © Azeem M. Qazi Law Office.