ABSTRACT

Talaq is defined as a unilateral act, which takes

legal effect by the husband’s declaration. Neither
grounds for divorce nor the wife’s presence or
consent are necessary, but the husband must pay
his wife’s mahr translated in English as “dower,”.
This is the gift the bridegroom offers the bride
upon marriage if he has not done so at the time of
marriage, and maintenance (nafaqa) during the
idda period.

Saveeza Kabsha Abbasi

Arooj Fatima
Nabila Asif
LEGAL ISSUES OF Sana Zeb

TALAQ ISLAMIC PERSONAL LAW

SUNNI & SHIA LAW

LAW V

MA’AM MUNAZZA RAZZAQ

14-12-17
LEGAL ISSUES OF TALAQ 1

TABLE OF CONTENTS

Thesis statement ……………………………………………………………………………

1. Introduction ……………………………………………………………………………
1.1. Meaning of divorce ………………………………………………………………..
1.2. Definition ………………………………………………………………………….
2. Islam discourages divorce ……………………………………………………………
2.1. Divorce in Quran and Islam, Hadith On Divorce ………………………………….
3. Types of talaq ………………………………………………………………………….
3.1. Talaaqur Raj’ee ………………………………………………………………………
3.2. Talaaqul Baa’in …………………………………………………………………….
3.3. Talaaqul Mughallazah ……………………………………………………………..
3.4. Khula ……………………………………………………………………………….
4. Charactersticts ………………………………………………………………………….
4.1. Adulthood ………………………………………………………………………….
4.2. Sanity …………………………………………………………………………….
4.3. Free volition ….…………………………………………………………………….
4.4. Intention …………………………………………………………………………..
5. Talaq as per shia and sunni law …………………………………………………………..
5.1. Divorce by the Guardian (Talaaq al-Walee) …………………………………………..
5.2. The Divorcee (Al-Mutallaqah) …………………………………………………………
5.3. The Pronouncement of Divorce (al-Seeghah) ………………………………………….
5.4. Witnessing the Divorce
………………………………………………………………….
5.5. Revocable and Irrevocable Divorce …………………………………………………
5.6. The Third Divorce …………………………………………………………………..
5.7. Doubting the Number of Divorces
……………………………………………………….
5.8. Divorcee's Claim of Tajlíl
………………………………………………………………
5.9. Requirement of valid Talaq under Shia Laws …………………………………………
6. Conditions for a valid talaaq . …………………………………………………
6.1. Sunni law …………………………………………………
6.1.1. Capacity …………………………………………………
LEGAL ISSUES OF TALAQ 2

6.1.2. Free Consent …………………………………………………

6.1.3. Involuntary intoxication …………………………………………………
6.1.4. Formalities …………………………………………………
6.2. Shia law …………………………………………………
6.2.1. Coercion, undue influence, fraud, or voluntary intoxication ………………….
6.2.2. Formalities …………………………………………………
6.2.3. Express words …………………………………………………
7. Judgments of Superior Courts regarding Shia Divorce …………………………………………………
7.1. 2016 YLR 15 LAHORE-HIGH-COURT-LAHORE …………………………………………………
7.2. 2014 MLD 254 KARACHI-HIGH-COURT-SINDH …………………………………………………
7.3. Syed Ziauddin v. Parvez Sultana …………………………………………………
7.4. Zubaida Begum v. Sardar Shah …………………………………………………
7.5. Aboobacker v. Mamu koya …………………………………………………
LEGAL ISSUES OF TALAQ 3

THESIS STATEMENT
The purpose of our research on the topic “Legal issues of Talaq in Islamic Law as well as `
Shia Law” is to encompass all aspects of issues arising out of Talaq in Muslim world.
For this purpose, it is essential to address the general outline of status of Talaq in Islam
LEGAL ISSUES OF TALAQ 4

1. Introduction
1.1. Meaning of divorce
A form of divorce underiIslamic law in which theihusband repudiates the marriage by
saying 'talaq' three times. (http://systemofislam.com/social/html)
1.2. Definition
Talaq is defined as a unilateraliact, which takes legal effect by theihusband’s
declaration. Neither grounds foridivorce nor the wife’sipresence or consent
areinecessary, but the husband must payihis wife’s mahritranslated in English as
“dower,” ithis is the gift the bridegroom offersithe bride upon marriageiif he has not
done so at the itime of marriage, and maintenancei (nafaqa) during the iddaiperiod
(three mensesiafter the declaration) (Talaq in islamiand islamicilaws about talaq,
2011).
2. Islam discourages divorce
2.1. Divorce in Quran and Islam, Hadith On Divorce
After marriageiboth male and female life partners haveialmost equal opportunities to
get divorce if theyidon't want to live together. However, itishould be noted that as per
our beloved prophet (peace be upon him): Allah did not make anything lawful more
abominable to Him than Divorce. Of all the lawful acts, the most detestable to
Allah is Divorce. (Sunan Abuidawud: Book #12, Hadith #2172-2173)
3. Types of talaq
There are 4 types ofidivorce in Islam:
 Talaqiul raj’ee
 Talaqiul baa’in
 Talaqiul mughallazah
 khulai
3.1. TalaaquriRaj’ee
TalaaquriRaj’ee is that type of divorce where the husband divorces hisiwife in clear
and explicititerms. Once theihusband uttersisuch words, the wife becomesidivorced
andishe has toisit in Iddah (waiting period). The husband now has the choiceiof
revoking his divorceibefore the expiryiof the Iddah period. The husband mayirevoke
his divorce by verballyiexpressing his desire to take her back into his nikaahior by
having physical contactiwith her byiway of kissing, fondling, touching heriwith
passion or having intercourse withiher. If the husband does not revoke the
LEGAL ISSUES OF TALAQ 5

divorceiduring the Iddah period, the divorce becomesiirrevocable. Now, if he wishes

to take heriback (i.e after theiIddah period has lapsed), heican only do so
byiperforming a new Nikkah.[ CITATION hal08 \l 2057 ]
3.2. Talaaqul Baa’in
Talaaqul Baa’in is aniirrevocable divorce where the husband usesiambiguous or vague
words to divorce hisiwife. In other words, he uses such words whichicould mean
divorce or which could alsoimean something else. Talaaqul Baa’in willionly take place
if the husband has theiintention of divorce at the time of utteringithese words. Once the
husband hasiissued one or two Talaaqul Baa’in, the nikaah hasibeen broken and she
has to sit iniIddah. If the husband wishes to take back his wife, ainew Nikaah will have
to be performed. (mansoori2006)
3.3. TalaaquliMughallazah
Talaaqul Mughallazah is whenithe husband issues threeidivorces to his wife. Once the
husband issues hisiwife with three divorces (TalaaquriRaj’ee or Talaaqul Baa’in), their
nikaah is completelyibroken. She cannot marry himiuntil Halaalah has taken place.
(halima, 2008)
3.4. Khula
A woman can demand aidivorce from her husband. Inireturnishe might have to pay
back the dowerimahr, money, ijewellery that she receivedifrom her husband atithe
time of marriage. The principleiof Khula have been derivedifrom the holy Quran surah
Nisa verse 20 128 130. In oneiof the hadith it is reportedithat:
A woman came toithe prophet (PBHU) and said! I hate my husband and want
separation from him” theiprophet PBHU) said “would u return the orchard that he gave
you as a dower?” sheireplied “yes! even more than that” the prophet (PBHU) said “
you should not returnimore than that” (raza, 1998)
4. Characteristics
A divorce should possess theifollowing characteristics:
4.1. Adulthood
Divorce by a child isinot valid, even if of a discerning age, accordingito all the schools
except the Hanbalí, iwhich observes: Divorce byia discerning childiis valid even if his
age is below teniyears.
4.2. Sanity
Divorce byian insane person is not valid, irrespective of the insanityibeing permanent
or recurring, when the divorceiis pronounced during the state ofiinsanity. Divorce by
LEGAL ISSUES OF TALAQ 6

an unconscious personiand one in a state of delirium due to highifever is also not valid.
The schools differiregarding the state of intoxication. The Imámís observe: Such a
divorce is not validiunder any circumstance. The other fourischools remark: The
divorce is valid if the Divorcer hasivoluntarily consumed aniunlawful intoxicant. But
if he drinks somethingipermissible and is stupefied, oriis coerced to drink, theidivorce
does not materialize. Divorce by aiperson in a fit of anger is valid if theiintention to
divorce exists. But if he loses his sensesicompletely, the rule which appliesito an
insane person will apply to him.(mansoori2006)
4.3. Freeivolition
All theischools except the Hanafi concur that divorce byia person under duress I does
not takeiplace in view of I the tradition: “My ummahihave been exculpated of genuine
mistakes, i forgetfulness, and that which they areicoerced to do.” The Hanafís say:
Divorce by aiperson underiduress is valid.
(divorce accordingito five schools of jurisprudence, 2017)
4.4. Intention
According toithe Imámís, divorce pronounced unintentionally or byimistake or in jest
is not valid. AbuiZuhrah says (page 283)
The Hanafiischool considers I divorce by all persons exceptiminors, lunatics I
andiidiots as valid. Thus divorceiI pronounced I byia person in jest, oriunder I
intoxication by an unlawful intoxicant, oriunder I duress, is valid. On pagei286 he
writes: It is the acceptediview of I theiHanafi school that a I divorce byimistake or in a
I state of forgetfulness isivalid. On page 284 he I observes: Maalikiand I aliSháfi`í
concur with Abu Hanifahiand his followers regarding a divorce pronouncediin jest,
while I Ahmad differs andiregards such a divorce as invalid. The Imámísihave narrated
from the Imáms ofithe Ahl al-Bayt: I No divorce (takes effect) exceptiby one who I
intends divorce. Divorceidoes not take placeiexcept by intention.
5. Talaq as perishia andisunni law
5.1. Divorce by theiGuardian (Talaaq al-Walee)
The I Imámi, the Hanafiiand the Sháfi`íischools state:
A father mayinot divorceion behalf of his minorison, because of theitradition:
The Málikísistate: A father may divorce his minorisons' wife in the khul' form of
Gdivorce. Two opinions are ascribedito Ahmad.   
The Imámísiobserve: When a childiof an unsoundimind matures, hisifather or
paternal grandfatherimay pronounceidivorce ion his behalf ifiit is beneficial for him. If
LEGAL ISSUES OF TALAQ 7

the father and theipaternal grandfather do not exist, theijudge may pronounce the
divorce on his behalf. Asimentioned earlier, the Imámís allow theiwife of ailunatic to
annuli the marriage. (al-kasani III 24)   
The Hanafísistate: If a lunatic's wifeisuffers harmiby living withihim, she may raise
the issue beforeia judge and demand separation. The judge isiempowered to pronounce
divorce toirescue her from theiharm, and the husband's fatherihas no say in this affair.

All theischools concur that divorce byia stupid husband (safeeh) and his agreeing to
khul' are both ivalid.2 (al-kasani III 246-248)
5.2. The Divorcee (Al-Mutallaqah)
There isiconsensus that the divorcee isithe wife. For the validityiof the divorce of a
wife withiwhom intercourse hasioccurred, the Imámi requireithat she shouldinot have
undergone menopauseinor she shouldibe pregnant, that sheibe free from menses at the
time of divorce, andithat intercourse should not haveioccurred during theiperiod of
purity. Thus, if sheiis divorced duringiher menses orinifaas, 3 or in a periodiof purity
in which she has beenicopulated with, theidivorce willibe invalid. Al-Raazi, iniihis
exegesis of the first verse ofiSurat al-Talaaq,(W.P. heinrichs. 2017)
"By 'iddah is meant the period of purityifrom menses, by consensusiof all Muslims. A
group of exegetes has observed that byidivorce at the timeiof 'iddah is meant that the
wife may be divorced only during theiperiod of purity iniwhich inter course has not
occurred. In brief, it is compulsoryithat divorce occuriduring the period of purity,
otherwise it will not be according toithe Sunnah, andidivorce according to the Sunnah
is conceivable only in theicase of an adult wifeiwith whom marriage has been
consummated, and one whoiis neither pregnant norimenopausal." For thereiis no
sunnah concerningithe divorce of aiminor wife, a wifeiwho has not been copulated
with, or a wife inimenopause or pregnancy. This is exactly whatithe Imámís hold.
[ CITATION moh15 \l 2057 ] 
In al-Mughni (vol. 7, p.98, 3rd. ed.) theiauthor states: "The meaning of a sunnah
divorce (Talaaq al-sunnah) is a divorce iniconsonance with the commandiof God and
His Prophet (S); it isidivorce giveniduring a period of purity in whichiintercourse with
her has not occurred." Heicontinues (p.99): "A divorce contrary to theisunnah (talaaq
al-bid 'ah) is a divorceigiven during menses or during a period of purityiin which she
has been copulated with. Butiif a person pronouncesisuch a divorce, heisins, though
the divorce is valid accordingito the view generally held byithe scholars. Ibn al-
LEGAL ISSUES OF TALAQ 8

Mundhir and iIbn 'Abd al-Birrihave said: None oppose the validity ofithis form
ofidivorce except the heretics (ahlial-bida' wa al-daldlah)! If to followithe command of
Allah and the Sunnah of His prophet (S) is heresy and misguidance, then it is of
courseiproper that following Satan beicalled 'sunnah ' and 'guidance'.  (divorce
accordingito five scholls of jurisprudence, 2017) (patel, 2015) 
Whateverithe case, the Sunnis andithe Shi'ah concur that Islam hasiprohibited the
divorcingiof an adult, non-pregnantiwife with whom marriage has beeniconsummated,
who isieither undergoing periods or has been copulated during heriperiod of purity.
But the Sunniischools add thatithe Shari'ah's prohibition makesithe divorce haraam
(unlawful) but notiinvalid, and one who pronounces divorce inithe absence of these
conditions sins andiis liable toipunishment, but the divorce willibe valid. The Shi'ah
state: The Shari'ah's prohibition is for invalidatingisuch a divorce, not forimaking it
haraam, for the mere pronouncingiof divorce is not haraam and the soleipurpose is to
nullify the divorce as if it had not taken place at all, exactly like theiprohibition of sale
of liquor and swine, where the mereirecital ofithe contract of saleiis not haraam, only
the transfer ofiownership fails to take effect. The Imámís permit the divorceiof the
following fiveiclasses of wives, regardless of their stateiof menstruation oripurity
(raza,1998)   

1. A minor wifeiunder the age of nine.

2. A wife whoseimarriage has not been consummated, regardlessiof whether she was a
virgin or not, andiirrespective of his having enjoyediprivacy with her.
3.A menopausaliwife; menopause is taken to set iniat fifty for ordinary women and at
sixty for Qurayshi women.
4.A wife who isipregnant.   
5.A wife whoseihusband has been away from her foria whole month and the divorce is
given duringihis absence fromiher, since it is notipossible for him toidetermine her
conditioni (whether she is iniher menses or not). A prisonerihusband is similar to a
husbandiwho has been away. (systemofislam.com)
The Imámísistate: The divorce of a wifeiwho has reached the age ofimenstruation but
doesinot have menses due to some defectior disease or childbirth, isinot valid unless
the husband abstainsifrom inter course withiher for three months. Such a womaniis
called al-mustarabah (a term derived fromirayb, doubt).
5.3. The Pronouncement of Divorce (al-Seeghah)
LEGAL ISSUES OF TALAQ 9

The Imámísiobserve: Divorce requires theipronouncement of a specificiformula

without which it doesinot take place. Thisiformula is (you are divorced). Thusiif the
husband uses theiwords, xxx etc., it willihave no effect even if he intends aidivorce
because the formixxxx.is absent despite theipresence of its root (Talaaq). Itiis
necessary that the formula be properlyirecited without anyierror in pronunciation
andithat it be unconditional. Even aicondition of certainioccurrence such as,
'atisunrise', etc. is not adequate. If theihusband gives the wife theioption of divorcing
herself and she does so, divorce willinot take placeiaccording toiImámi scholars.
[ CITATION moh15 \l 2057 ]
Similarly, divorce willinot take place if husbandiis questioned, "Have youidivorced
your wife ", and he answersiaffirmatively with the intention iof ieffecting a divorce. If
the husbandisays, "You are divorced, threeitimes", or repeats theiwords, "You are
divorced", thrice, only aisingle divorceitakes place if the othericonditions are fulfilled.
Divorce does not takeiplace throughiwriting or by gesticulationiunless the Divorceriis
dumb, incapableiof speech. It isinecessary that the divorce beirecited in Arabic when
possible. It is betterifor a non-Arabiand a dumb person toiappoint an attorney, if
possible, to recite the divorceiion his behalf. Similarly, accordingito the Imámís,
divorce will not take place by an oath, ia vow, a pledgeior any other thing except by
theiword xxx, on fulfilment of all the iimitations and conditions.
Thi author of ial-Jawahir, citing a statementifrom al-Kafi says: "There can be no
divorce except(in theiform) as narrated by BukayriIbn A'yan, and it is this:
Theihusband says to his wife (whileishe is free from mensesiand has not been
copulatediwith during that period ofipurity): xxxxx (You areidivorced), and (his
pronouncement) is witnessediby two justicadil) witnesses. Everyiother form
exceptithis one is void". Then theiauthor of al-Jawahir quotes al-'Intisarito theieffect
that thereiexists consensus on thisiissue among the Imámís. Consequently, ithe Imámís
have restricted the scope ofidivorce to its extreme limitsiand imposeisevere
conditionsiregarding the Divorcer, theidivorcee, the formula ofidivorce, and the
witnessesito divorce. All this isibecause marriage is a bond of love andimercy, a
covenantiwith God. The Qur'an says:
How can you take it backiafter one of you hath gone in into the other, and they (the
wives) have taken a strong pledge from you? (4:21)
LEGAL ISSUES OF TALAQ 10

And one of His signs is that He created mates for you from yourselves that you may
find tranquillity in them, and He ordained between you love and compassion.(30:21)
...And hold not to the ties of marriage of unbelieving women....(60:10)
Therefore, itiis not permissibleiin any mannerithat one break this bondiof love and
compassion, thisipledge and covenant, exceptiwith a knowledge thatileaves no doubt
that the Shari'ahihas surely dissolved theimarriage and has brokenithe tie which it had
earlieriestablished and confirmed. But theiother schools allow divorce in any manner
in whichithere is an indication of it, either byioral word or iniwriting, explicitly o]
implicitly (such as whenithe husbandisays: "You are haraam for me", or "You are
separated" or "Go, getimarried", or "Youiare free to goiwherever you want," or "Join
your family," and soion). Similarly, theseischools allow an unconditionalias well as a
conditional divorcei (such as when the husbandisays: "If you leaveithe house, you are
divorced," ori "If you speak to your father youiare divorced," or "If I doithis, you are
divorced," ori "Any womaniI marry, she isidivorced;" in the last case theidivorce takes
place asisoon as the contractiof marriage isiconcluded!). There areivarious other
pronouncementsithrough which divorce isieffected, but our discussion does not
warrant such detail. Theseischools also permit aidivorce in whichithe wife orisomeone
else has been authorized toiinitiate it. Theyialso allow a tripleidivorce by the use of a
single pronouncement. The legists of theseischools have filledimany a long page with
no result exceptiundermining the foundationiof the family andiletting it hang in the air.

The Egyptianigovernment has doneiwell in followingithe Imámi in most aspects of

divorce. Apart from this, the fourischools do noticonsider the presenceiof witnesses a
condition forithe validity aidivorce, whereasithe Imámís consideriit an essential
condition. Weihand over the discussionito al-Sheikh AbuiZuhrah regarding this issue.
(brillonline.com)
5.4. Witnessing the Divorce
In al-'Ahwal al-shakhsiyyah (p.365), al-SheikhiAbu Zuhrah hasiobserved: "The
Twelve-Imámi Shi'i legistsiand the Isma'iliyyah state Aidivorce does not materialize if
not witnessed by two just.
Then whenithey (the wives) have reacheditheir 'iddah, retainithem honourably, or part
from themihonourably. And have two justimen from amongiyourselves bear witness
and giveitestimony for Allah's sae. By thisithen is admonishedihe who believes in
Allah and theiLast Day. Andi whoever is careifull of (his duty to) Allah. He would
LEGAL ISSUES OF TALAQ 11

provide for him anioutlet, and give himisustenance from whence he never reckoned....
(65:2~3)
Thisicommand about the witnesses inithe Qur'an follows the mention of divorce and
the validity ofirevoking it. Therefore, it isiappropriate that the callingiin of witnesses
should be relatedito divorce. Moreover, theireason given for calling inithe witnesses,
that God seeksithereby to admonish thoseiwho believeiin God and theiLast Day,
confirmsithis interpretation, because theipresence of just witnesses is notiwithout the
good advice whichithey would offer toithe couple; and thisicould bringiabout for them
aniescape from divorce, which is the most hated of lawfulithings inithe eyes of God. If
itiwere for us to choose theilaw to be acted uponiin Egypt, weiwould choose
thisiopinion, which requires theipresence of two just witnesses for effectingia divorce".
Together withithe restrictions that the Imámís have laid down for theiDivorcer, the
divorcee, andithe pronouncementiof divorce, they have also laid downian additional
limitationiregarding the witnessesiby demandingithat ifiall conditions areifulfilled
exceptithat the two just witnessesido not hear the pronouncement of the divorce, the
divorce will not takeiplace. Therefore, a singleiwitness will notisuffice even if he is a
goodisubstitute, not eveniif he isian infallible (ma'sum) person.
 Further, theiwitnessing of the pronouncement by one ofithem by listening and of the
other byitestifying to their admission (of having concluded the divorce) is not
sufficient. The testimonyiof a group of people will also notisuffice, even if itiis big
enough to make the divorce aiknown public fact. The testimonyiof women, with
oriwithout the testimony of men, isinot sufficient. (huquq.com)
Similarly, if the husband pronounces theidivorce and then bringsiin the witnesses, it
will have noieffect. The Case of a SunniiHusband and a Shi’i Wife. (islam.net)
If aiSunni husband divorces hisiShi'i wife, either throughia conditionalidivorce
contingentiupon something, or in a period of purityiduring whichisexual intercourse
has occurred, oriduring mensesior nifaas, or without two just witnesses being
presentior by an oath ofidivorce, or by saying, xxxxxxx" to wherever you want," or in
any other form which isivalid in accordanceiwith Sunni law and invalidiaccording to
Shi'i law, isisuch a divorceiconsidered valid by the Shi'ah, so thatithe woman
mayiremarry after completingi her 'iddah?
The answeriis that there is consensusiamong the iImámi jurists thatievery sect is bound
by its owniprecepts, and that theitransactions of its followers, asiwell as their affairs
pertainingito inheritance, marriageiand divorce, areivalid ifiperformed according to
LEGAL ISSUES OF TALAQ 12

rules of their Shari'ah. A tradition hasibeen narrated from theiImáms of the Ahl al-Bayt
(A) Bindithem with the laws withiwhich they haveibound themselves.
In anotheritradition, al-'Imám al-Saadiq (A) was questionediregarding a woman who
had beenidivorced by a Sunni husbandiagainst the principles ofithe Sunnah, whose
complianceiis necessary for theivalidity of a divorce according toithe Shi'ah. The
Imám (A) replied
She willimarry, and a womanishall not be left withoutia husband.
In a thirditradition it is stated:
For theifollowers of every religion, that which theyiconsider lawful is permissibleifor
them.
A fourthitradition says:
One whoifollows the religion of aiparticular sect, is bound byiits rules. (al Jawahir,
vol.5, theidiscussion regarding seeghat al-talaaq).
Consequently, if aiShi'i husband divorcei his Sunni wifeiaccording to the principles of
her school andinot his, the divorceiis invalid, and if aiSunni divorces his Shi'i wife
according to theiprinciples of his ownischool, the divorceiis valid.
5.5. Revocable and Irrevocable Divorce
A divorce is eitheri revocable oriirrevocable. The schoolsiconcur that airevocable
divorce is one iniwhich the husbandi is empowered toirevoke the divorceiduring the
'iddah, irrespectiveiof the divorcee'siconsent. One of the conditions ofia revocable
divorce is that theimarriage shouldihave been consummated, because aiwife divorced
beforeiconsummation does not haveito observeithe 'iddah in accordanceiwith verse 49
of Surat al- 'Ahzaab:
O believers! When you marry the believing women and then divorce them before you
touch them, you are not entitled to reckon for them an 'iddah....
Among the other conditions of a revocable divorce are that the divorce should not have
been given on the payment of a consideration and that it should not be one which
completes three divorces.   
The divorcee in airevocable divorce enjoys ithe rights of a wife, and theiDivorcer has
all the rights of aihusband. Therefore, bothiwill inherit from each otheriin the event of
death of one ofithem during the 'iddah. Theideferred Dowry payable ion
theioccurrence of any of theitwo events, death oridivorce, will become payableionly
after the expiry of the 'iddah ifithe husbandidoes notirevoke the divorce during ithat
period. On the whole, a revocableidivorce does not giveirise to a new situationiexcept
LEGAL ISSUES OF TALAQ 13

its being accountable for ascertainingiwhether theinumber of divorcesihas reached

three.   
In an irrevocableidivorce, the Divorcer mayinot return to theidivorced wife, who
belongs to one of theifollowing categories:
1. A wifeidivorced before consummation, byiconsensus of all theischools.
2. A wifeiwho has-been divorcedithrice. There isiconsensus here asiwell.
3. A divorceeithrough khul'. Some legistsiconsider this form of divorceivoid and say
that it is not aidivorce at all.
4. A menopausalidivorcee, in theiImam; school, whichiobserves: She hasino 'iddah and
the rulesiapplicable to aidivorcee before consummation applyito herias well.
According to it, in verse 4 of Surat al-Talaaq;
If you are in doubt concerning those of your wives who have ceased menstruating, 12
now that their waiting period is three months, and (the same is the waiting period of)
those who have not yet menstruated.... the iphrase xxx, doesinot imply those women
who areiknown to have reachedimenopause but those whoseimenses have stopped and
it is not iknown whether theireason is disease or age; consequently, I their 'iddah is
three months. There is no questioniof doubt regarding those whoseimenopause is
certain. The doubtiarises in cases ofiuncertainty, as indicated by theiwords xxx (if you
are in doubt) of theiverse, because it is not the Lawgiver's wont wheniexplaining a law
to say: "If you are inidoubt regarding the lawiregarding something, the law is that...."
This confirms thatithe doubt mentioned in theiverse relates to the fact of menopausei,
in which case she is toiobserve an 'iddah of threeimonths. As to the phrase xxx?, it
refers to women who despiteiattaining the age ofimenses do not haveithem due
toisome congenital or contingentifactor. Many traditionsihave been narratedi the
Imáms of the Ahl al-Bayt (A) with this interpretationiof this verse.
(questionsonislam.com)
5. The hanafísisay: Valid seclusion (khalwah) with the wife, eveniwithout
consummation, requires the observance of 'iddah. But theiDivorcer is not entitled to
return to heriduring the 'iddah, because here theidivorce isiirrevocable.
The hanbalísistate: Seclusion is similarito consummationiin all respects so far as the
necessity of 'iddah and the right ofirevocation is concerned. Asimentioned earlier,
seclusion hasino effect accordingito the Imámi and the Sháfi`í schools.
6. The hanafísiobserve: If a husbandisays to his wife: "You are divorced irrevocably"
or "divorced firmly,' "(withia divorce as firm) asia mountain," andisuch similar strong
LEGAL ISSUES OF TALAQ 14

words, the divorce will beiirrevocable and theiDivorcer will notibe entitled to return
duringithe 'iddah. Similarly, a divorceipronounced by usingiwords which cannot break
a relationship (such as. "Sheiseparated,'' "cut off," "disassociated").(jamal.j)
5.6. The Third Divorce
The schools concurithat a husband whoidivorces his wife thriceicannot remarryiher
unless she marriesianother personithrough aivalid xxxxx this se xxxx
The Imámi and theiMaliki schoolsiconsider it necessaryithat the person who
marriesiher (muhallil) be aniadult. The Hanafi, the Sháfi`í and theiHanbalí  schools
consider his capacity foriintercourse as sufficient, eveniif he is notian adult. The
Imámi andithe Hanbalíischools state: If in a marriageicontract tahleel (causing
theiwoman to become permissibleifor her former husband toiremarry) is included as
aicondition (such as when the secondihusband says, "Ii amimarrying you to make
youihalal for your Divorcer), the condition isivoid and theicontract valid. But the
hanafís add: If the womanifears that the muhallil mayinot divorce her afterithe tahleel,
it is permissible for her toisay; "I marry you on theicondition that the powerito divorce
be in myihands," and forithe muhallil in saying:  "Iiaccept this condition." Then the
contract will be valid and sheiwill be entitled to divorceiherself whenever sheidesires.
But if the muhallilisays to her: "I marry you on the conditionithat your affair (of
divorce) be iniyour own hands," the contract isivalid and theicondition void.
The Maliki, the Sháfi`í and the Hanbalí schools state: Theicontract is void condition
of tahleel is included as aicondition. The Maliki and Hanbalí schools ifurther add:
Even if tahleel is intendediand notiexpressed the contract isi void.
The Málikís and some Imámi legistsiconsider it necessaryithat the second husband
(muhallil) haveiintercourse with her inia lawful manner (such as when she is not
menstruating orihaving nifaas, and whileiboth are not fastingia Ramadan fast). But
most Imámi legistsigive no credence to thisicondition and regardimere intercourse,
even if unlawful, to be sufficient for tahleel.
Whatever beithe case, when a divorcee marries another husbandiand is separated from
him, eitheridue to his death oriby divorce, and completesithe 'iddah, itibecomes
permissibleifor the first husbandito contract a new marriageiwith her. Then, ifihe again
divorces herithrice, she willibecome haraam for him untilishe marries another. This is
how she willibecome haraam for him after every thirdidivorce, and will again become
halaal byimarrying a muhallil, even if she isidivorced a hundreditimes.   
But the Imámís state: If a wife is divorced nine times in the talaaq al-'iddah form, and
LEGAL ISSUES OF TALAQ 15

is marrieditwice (i.e. following tahleel after every thirdidivorce), she will become
permanently haraam. The meaningiofitalaaq al-'iddah, according to the Imámís, is a
divorceiin which the husband afteridivorcing returns toiher during the 'iddah and has
intericourse with her, and thenidivorces her again inianother period ofipurity, then
returns to her and hasiintercourse, then divorces her foria third time andiremarries her,
after a muhallil doesithe tahleel, by concluding a freshicontract, and divorcesiher thrice
in the sameimanner, with a muhallil doing theisecond tahleel, and remarriesiher again.
Now if heidivorces her thrice again, the ninthitalaaq al-'iddah completed, she will
becomeiharam for himipermanently. Butiif the divorce is not a talaaq al 'iddah (such as
when he divorcesiher, then returnsito her and then divorces heriagain before having
intercourse), sheiwill not becomeiharam perpetually, and willibecome halal through a
muhallil, even ifithe number ofidivorces is countless. (patel, 2015)
5.7. Doubting the Number of Divorces
The schools (exceptithe Maaliki) concur thatihe who has doubtiregarding the number
of divorces (whether aisingle divorce has takeniplace or more) will baseihis count on
the lower number. TheiMaalikees observe: Theiaspect of divorce shallipreponderate
and the count will be basedion the higherinumber. (halima, 2008)
5.8. Divorcee's Claim of Tajlíl
TheiImámi, theiSháfi`í and iHanafi schools state: If theihusband divorces his
wifeithrice, and heior she knows nothing aboutithe other for someitime andithereafter
she claims havingimarried a second husbandiand separated fromihim andihaving
completed the 'iddah, heriword will be acceptediwithout an oath if thisiperiod is
sufficient for her under goingiall this, and her firstihusband is entitled to marryiher if
he is satisfied regardingiher veracity, and it is not necessary forihim to inquireifurther.
(alJawahir, Ibn 'Abidin, and Maqsad al-nabih)
5.9. Requirement of valid Talaq under Shia Laws
A divorce mustibe pronounced orally in theipresence of two competentiwitnesses and
a talaq / divorceicommunicated in writing isinot valid unless husbandiis incapable of
pronouncing itiorally. Presence of witnessesiis a condition precedentiof a valid talaq /
divorceiaccording to Fiqh Jafria. When bothithe spouses wereigoverned by the Shia
Law, divorceimust be pronounced by theihusband orally andiin the presence of two
competentiwitnesses. Divorce communicatediiin writing isinot valid under ShiaiLaw
unlessihusband was incapable of pronouncingiit orally.
LEGAL ISSUES OF TALAQ 16

Requirement of validiTalaq under ShiaiLaw is that it should be pronouncediin Arabic

words inipresence ofitwo adult maleiwitnesses andithe wife---When
presence/attendance of wife cannot beiprocured, then husband can pronounce Talaq
(divorce) in specific Arabic words whichiis knownias “Khutba Talaq “, but inipresence
of two male witnesses---Such Talaq (divorce) can be reducediinto writing and
forwarded to wife. (http://paklawyer.com/blog/shia-talaq)
6. Conditions for a valid talaaq
6.1. Sunni law
6.1.1. Capacity
Every Muslimihusband of soundimind, who hasiattained the ageiof puberty, is
competent toipronounce talaaq. It is not necessaryifor him to giveiany reason
for his pronouncement. A husband who is minorior of unsoundimind cannot
pronounce it. Talaaqiby a minor oriof a personiof unsound mindiis void and
ineffective. However, if a husband is lunaticithen talaaq pronounced by him
during “lucidiinterval” is valid. The guardianicannot pronounce talaaq on behalf
of a minorihusband. When insane husbandihas no guardian, theiQazi or a judge
has the right toidissolve the marriage inithe interest of such aihusband. (ash-
Shawkani, Naylul-Awtar, 1250 H, y.y., VI, 268)
6.1.2. Free Consent
Except underiHanafi law, the consentiof the husband inipronouncing talaaq
must be a free consent. UnderiHanafi law, a talaaq, pronouncediunder
compulsion, coercion, undueiinfluence, fraud and voluntaryiintoxication etc., is
validiand dissolves theimarriage.
6.1.3. Involuntary intoxication
Talaaqipronounced under forced or involuntaryiintoxication is void even under
the Hanafi law.
6.1.4. Formalities
According to Sunniilaw, a talaaq, mayibe oral or in writing. Itimay be simply
uttered by the husband or he may write aiTalaaqnama. No specific formulaior
use of any particulariword is required toi`constitute a valid talaaq. Any
expression which clearlyiindicates the husband’sidesire to break theimarriage is
sufficient. It need notibe made in the presence of theiwitnesses. (ash-Shawkani,
ibid, VI, 274)
6.2. Shia law
LEGAL ISSUES OF TALAQ 17

6.2.1. Coercion, undue influence, fraud, or voluntary intoxication

Under theiShia law (and also under other schoolsiof Sunnis) a talaaq
pronounced under compulsion, icoercion, undue influencei, fraud, ior voluntary
intoxication is voidiand ineffective.
6.2.2. Formalities
According toiShias, talaaq, mustibe pronouncediorally, except where the
husband is unable to speak. If the husband can speakibut gives it iniwriting, the
talaaq, is void underiShia law. Here talaaq must beipronounced in the presence
of two witnesses.
6.2.3. Express words
 The words of talaaqimust clearly indicateithe husband’s intentionito dissolve the
marriage. If theipronouncement is not express and is ambiguousithen it is absolutely
necessary toiprove that theihusband clearlyiintends to dissolve the marriage. ( ash-
Shawkani, VI, 268)

7. Judgments of Superior Courts regarding Shia Divorce

7.1. 2016 YLR 15 LAHORE-HIGH-COURT-LAHORE 
Syed MUHAMMAD ALI RAZA vs PROVINCE OF PUNJAB, through DCO
Lahore 
Shia personaliof divorce was notiso strict so asito make a womanislave of the man
whoiwould always remain unableito get divorceiwithout his permission—Wife
who hadibeen delegated the right of divorce by theihusband could
pronounceidivorce by sending ainotice in writing to the Chairman UnioniCouncil
—Such notice had to be sent to theiUnion Council of the union where wifeito
whom Talaq had been pronounced wasiresiding at the time of the
pronouncementiof Talaq—Notice had to be sent to theiUnion Council
whereiNikah was registered inicase of divorceiby the wife withidelegated powers
by theihusband—No illegality hadibeen committed while issuingicertificate of
effectiveness of divorce—Constitutional petition was dismissed inicircumstances.
7.2. 2014 MLD 254 KARACHI-HIGH-COURT-SINDH 
Syed ASAD RAZA NAQVI vs Mst. SAIMA FATIMA 
Parties wereihusband and wifeiinter se and dispute between ithem wasiregarding
pronouncingiof divorce—Grievance of husband wasithat divorce was notiproperly
LEGAL ISSUES OF TALAQ 18

pronounced and executedihence was invalid—ValidityiIn divorce deed there was

no mention that husband oriauthorized person recited Seegha or
pronouncediTalaq, orally in aiset form of Arabic words to wifeiby her name—It
was mentioned in certificate ofiTalaqnama that itiwas decided to issueiSeegha of
Talaq on behalf of husband but it was notimentioned therein that suchidecision
was acted upon and followed byipronouncement of oral Talaq or recitation of
Seegha/Khutba Talaq—Such certificate of Talaqnama did notisay
aboutipronouncement of Talaq in prescribediform in presenceiof witnesses,
though namesiof two witnesses were mentioneditherein with their signatures
likeiattesting witnesses of Talaqnama but for its pronouncement, their
evidenceiwas not recorded in court—Though Talaqnama wasifollowed by divorce
deed butiit also did not fulfilirequirements of earlieridocument—Divorce
pronounced byihusband to wife was not valid Talaq or valid repudiation in
accordanceiwith requirement of Fiqah Jafria and, therefore, the same was not
effective under Shia doctrine of Talaq—As valid Talaq was preconditionifor
exercise of jurisdiction under S.7(1) of Mulsim FamilyiLaws Ordinance, 1961, ior
initiatingiproceedings under it and as Talaq in question was invalid, therefore,
wife was notiliable to act uponisuch invalid Talaq and as such any proceedings, iif
initiated, on the basis ofiinvalid Talaq would be illegal and without lawful
authorityiand of no binding effect—Husband was at liberty to pronounce fresh
Talaq to his wifeikeepingiin viewithe requirements prescribed under Shia lawiand
thereafter, wife would act in accordance with withoutiany delay—Petition
wasidisposed of accordingly.
7.3. Syed Ziauddin v. Parvez Sultana
Parvez Sultana was a scienceigraduate and she wanted toitake admission in a
college for medicalistudies. She needed money for heristudies. Syed Ziaudddin
promised to give her moneyiprovided she marriedihim. She did. Later she filedifor
divorce for non-fulfillment of promise on the part of theihusband. The court
granted her divorce on theiground of cruelty. Thus weisee theicourt’s attitude of
attributing a wider meaningito the expression cruelty.
7.4. Zubaida Begum v. Sardar Shah
This case is fromiLahore High Court, the husbandisold theiornaments of the wife with
her consent. It wasisubmitted that the husband’siconduct doesinot amount to cruelty.
LEGAL ISSUES OF TALAQ 19

7.5. Aboobacker v. Mamu koya

The husband used toicompel his wife to put onia sari and seeipictures in cinema. The
wife refused to doiso because according to her beliefs this wasiagainst the Islamic way
of life. She soughtidivorce on the groundiof mental cruelty. TheiKerela High Court
held that the conductiof the husband cannot be regarded asicruelty because mere
departure from the standardsiof suffocating orthodoxyidoes noticonstitute un-Islamic
behaviour.
LEGAL ISSUES OF TALAQ 20

BIBLIOGRAPHY
 Talaq in islamiand islamicilaws about talaq, 2011
 ABUiDAUD
 tafsirial qurtubi vol 1
 tirmidhii
 http://www.forum.nooriclinic.com/ithread.php?topic=12640
 divorce according to fivie schoolsiof jurisprudence. (2017, december 10). Retrieved
from huquq.com: http://fiqh.huquq.com/2012/02/divorce.html
 halima. (2008, april 29). myiummah .co.za. Retrievedifrom talaq types:
http://myummah.co.za/site/2008i/04/29/types-of-divorce/
 patel, m. s. (2015, august 12). different methodsiof islamic seperation. Retrieved from
linkedin: https://www.linkedin.com/pulsei/different-methods-islamic-separation-part-
2-types-talaq-patel
 raza, m. M. (1998, iseptember 27). divorce iniislam. Retrievedifromipdf:
http://www.islamiccentre.org/presentationsii/divorce.pdf
 talaqiin islam and islamic laws aboutitalaq. (2011, march 10). Retrieved from islam
andiislamic law: http://www.islamlaws.com/talaq-in-islam-and-islamic-law-meaning-
definition
 http://systemofiislam. icom/social/html
 Schacht, J., in: Encyclopaedia ofiIslam, SecondiEdition, Edited by: P. Bearman, Th.
Bianquis, C.E. iBosworth, E. vaniDonzel, W.P. Heinrichs. Consulted online on 03
November 2017 http://dx.doi.org/10. i1163/1573-3912_islam_SIM_4665
 http://referenceworks.brillonline.com/ientries/encyclopaedia-of-islam-2
 http://www.questionsonislam.com/node/i12936
 The Holy Quran
 http://www.itsislam.net/quran/surah.asp?sid=24
 ash-Shawkani, Naylul-Awtar, 1250 H, y.y., VI, 268
 ash-Shawkani, VI, 268
 Jamal J, AhmediNasir, The statusiof womeniunder IslamiciLaw and moderniIslamic
legislations, third edition
 al-Kasani, Badayiu's-Sanayi, Beiruti1328/1910, III, ?39; Ibnu'l-Humam, Fathu'l-
Qadir, Cairo, n.d., III, 260 ff.; al-Maydani, al-Lubab, III, 79
LEGAL ISSUES OF TALAQ 21

 al-Kasani, ibid, III, 24; Ibnu'l-Humam, ibid, III, 259; ial-Maydani, ibid, III, 75,78; Ibn
Abidin, Raddul-Mukhtar, Egypt, n.d., II, 805 fif
 al-Kasani, ibid, III, 246-248; al-Maydani, ibid; III, 79; Ibn Abidin, ibid, II, 811
 al-Kasani, ibid, III, 238; al-Maydani, ibid, II, 808; Ibn Abidin ibid, II, 808
 ash-Shawkani, Naylul-Awtar, VI, 271
 ash-Shawkani, ibid, VI, 274
 Seeial-Kasani, ibid, III, 244-248; Ibnu'l-Humam, ibid, III, 253 ff.; al-Maydani, ibid,
III, 77-78; IbniRushd, Bidayatu' l-Mujtahid, Egypt, n.d., II, 120 ff.; Ibn Qudama, al-
Mughni, Cairo, n.d., VII, 410-416; Abdurrahman as-Sabuni, Mada Hurriyati'z-
Zawjayn fi't-Talaq, Beirut 1968, II, 896 ff.
 (GhulamiBhik vsiHussain Begum, (PLD 1957iLah 998))
 ((1948) 229 I.C. 220; (48) A.A 34)
 Offence of Qazf, HududiOrdinance, 1979