Category Archives: Divorce

Talaq and related issues (english/ Urdu)

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When Talaq becomes irrevocable:

1) A talak in the ahsan mode {S. 302 (1)} becomes irrevocable and complete on the expiration of period of iddat. (S 227)

2) A talak in the hasan mode [S . 302 (2)] becomes irrevocable and complete on the third pronouncement, irrespective of the iddat.

3) A talak in the badai mode {S. 302 (3)} becomes irrevocable immediately it is pronounced, irrespective of the iddat. As the talak becomes irrevocable at once, it is called Talak-i-Bain, that is, irrevocable talak.  (See our section about divorce in Islam for further details. Note, these are take from Mulla’s Muhammadan Law, Which is regulating authority in judicial cases in India and Pakistan Courts).

According to the Muslim Family Laws Ordinance, 1961, to give effect to Talaq there are three requirements:

(a) Pronouncement in accordance with Muslim Law:

(b) Service of notice on Chairman; and

(c) Service of copy of notice to wife.

In any one of such conditions is not satisfied, the Talaq would not be effective even after 90 days. Mere pronouncement of divorce under the Muslim Family Laws Ordinance 1961 does not operate as divorce. Yes it can be orally or in writing. In Shia Law however, Talak may be orally pronounced by the husband in Arabic words in the presence of two witnesses and wife.

Talaq-e- Tafweez: (Delegation of Power) :

Although the power to give divorce belongs to Husband, he may delegate the power to the wife or to a third person, either absolutely or conditionally, and either for a particular period or permanently. The person to whom the power is thus delegated may then pronounce the divorce accordingly. A temporary delegation of the power is irrevocable, but a permanent delegation may be revoked.
(Section 305 (1) )

Talak by Tafweez (delegation of power): The husband may in person repudiate his wife, or he may delegate the power of rapudiating her to a third party, or even  to the wife; Baillie , P. 238.: The shia law is the same : Such  a delegation of power is called tafweez.

When a man has said to his wife. “Repudiate thyself”. She can repudiate herself at the meeting, and he cannot divest her of the power. But if there is no reference to his pleasure, it is an appointment of agency which is not restricted to the meeting, and may be revoked. Baillie, p.254. When a man has said to his wife, “Choose thyself today’ or ‘this month’ . or ‘ a month’ or ‘ a year’ , she may exercise the option at any time within the given period. Baillie. P. 242.

The delegation must be expressly made and will not be implied. Thus where mediators were appointed for bringing about a reconciliation between husband and wife  in accordance with verse 35, of Surah IV of the Holy Quran, it was held that the mediators could not, in the absence of any delegation of power by the husband, effect a divorce between the parties. (a) The delegation of the right to divorce can be conditional or unconditional. (b) A Kabinnamah gave the wife the right to pronounce Talak if prompt dower is not paid. A pronouncement of divorce after demand held not against public policy and principles of Islamic Law. Such a divorce is known as Talak by Tafweez.

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