1

Q-1: What are the ingredients/essentials of a valid marriage?

Answer:
Essential of a marriage:

It is essential to the validity of a marriage that there should be a proposal made by on behalf of
one of the parties to the marriage and another, in presence and hearing of two male or one male
and two female witness, who must be sane and adult Muhammadans. The proposal and
acceptance must both be expressed made at another meeting do not constitute a valid marriage.
Neither writing nor any religious ceremony is essential. Under section 5 of Muslim Family law
ordinance 1961 every marriage solemnized under the Muslim in Pakistan shall be registered.

Proposal:

Making three acceptance of marriage proposal either oral or written, proposal and
acceptance made both personally or through representative are valid, provided that the person or
the representative making the proposal and acceptance is major and sound mind. The proposal
and acceptance both should be in past tense, as for instance one says, ―I contracted myself or my
daughter or my client into marriage with you‖ and the other says, ―I accepted‖.

Witness:

Nikkah is performed publicly in the presence of two male‘s witnesses or one male and two
female witnesses for Nikkah, if the parties to marriage contract are Shias or the marriage contract
is performed in accordance with Shias rights then the presence of witnesses are not necessary for
its validity.

Majority:

In Pakistan according to S-3 of the Pakistan Majority Act 1875 the age of 18 years is set
for attaining majority.

Essential Ingredients:
1- Civil contract:

According to contract Act under section 10 is “All agreements are contracts if they are made by
the free consent of parties competent to contract.

Agreements- (proposal+ Acceptance + Consideration)

Proposal & Acceptance= Promise
Proposal made by on behalf of one of the parties to the marriage and another accept its
proposal after that marriage date is fixed and in the date of Nikkah we must writing in documents
form then it is agreement. But when husband and wife done the sexual intercourse then it are
made a contract.
 2

Consideration:

According to Contract Act under section 25 ―contract without consideration is void‖.

The consideration of female is dower and the consideration of male is sexual intercourse.
Competency of parties:

There are three categories:

1- Minor – minor are those who are not major under 15 years, minor can marrying on behalf
of guardians and that gives the option of puberty.
2- Adult: adult are those who reach in age of 15 to 17.
3- Major: In Pakistan according to S-3 of the Pakistan Majority Act 1875 the age of 18
years is set for attaining majority.
According to Sunni law Imam Abu Hanifa said that the 15 years age is adult.
According to Shia law the girl age is 9 years and boy age is 15 years.
Option of puberty:

When any minor can contract of marriage by the guardian so that have option of puberty
which is that he or she accept it marriage or rejected but there is one condition which is that if
they consummation then the marriage is not rejected.

Insane:

Insane also can have contract of marriage by the guardian.

Under section 12 of the Contract Act there are three kinds of insane which are as under:

1- Unsound mind:

A person, who is usually of unsound mind, but occasionally of sound mind, may
make a contract when he is of sound mind. A person, who is usually of sound mind, but
occasionally of unsound mind, may not make a contract when he is of unsound mind.

2- Lunatic:

Lunatic are those who is not mental but due to any accident his mental capacity is
dies and he is mental. When he is mental then he or she cannot have contract of marriage
but if he is sound mind after some time then that time he can have contract of marriage.

3- Idiot:

Idiot is those who insane by birth and idiot cannot have contract of marriage
directly or by guardian.

Consent:

Under section 13 of the Contract act without consent contract is void. Then it means
without consent of both parties marriage is also void.
 3

Free consent:

Under section 14 of the Contract Act free consent are those which have not these things
which are under in the following:

1- Coercion: force, in marriage contract which has use force then it marriage contract
is void.
2- Undue influence: use one‘s dominance (in marriage contract any one party use force
for the marriage then it is void.
3- Fraud: if we do marriage any fraud then it is also
void. 4- Misrepresentation:
Whenever these four things are not come then contract of marriage is valid.

Q-2 Difference between valid, irregular and void marriage and highlight their
legal consequences?
Answer:

Valid, Irregular and Void Marriage:

A marriage may be valid (shih), or irregular (fasid), or void from the beginning (bail).

Valid Marriage:

Marriage contract and solemnized in according with Shariah with all its constituents and
conditions without any legal impediment shall be a valid marriage contract. It conform all the
requirements laid down by the Sharaiah for the marriage. The marriages are valid as under
following:

a) Marriage between a Sunni and Shia

b) Marriage with Kitabiyah

Irregular Marriage:

Irregular marriage contract is the one from which some condition of a valid marriage
contract is missing.

Exception:

Shias does not believe on irregular marriage his point of views that marriage is either
valid or void.
 4

Void Marriage:

A void marriage contract is one which is basically null and void.

 Void means unlawful.

Distinction between void & irregular marriage:

If a marriage which is not valid so according to Sunni law it is irregular or void marriage
but according to Shia law marriage is only valid and void in Shia law there is no concept of
irregular marriage.

Void Marriage:

 A void marriage is one which is unlawful in itself, the prohibition against the
marriage being perpetual & absolute. A marriage with a woman prohibited by the
reason of consanguinity, affinity or fosterage is void, the prohibition against
marriage with such woman being perpetual and absolute.
 An irregular marriage is one which is not lawful in itself but unlawful for something
else, as where prohibition is temporary or relative or when the irregularity arises
from an accidental circumstance such as absence of witnesses. The marriages are
irregular namely:

a) A marriage contract without witnesses.

b) A marriage with fifth wife by a person having four wives.

c) A marriage with a woman undergoing Iddat.

d) A marriage prohibited by reason of difference of religion.

e) A marriage with a woman so related to the wife that if one of them had been male;
they could not have lawfully intermarried.
Legal consequences:

The reason why the marriages are irregular and not void, is that: In clause

a) The irregularity arises from an accidental circumstance;

b) The objection may be removed by the man divorcing one of his wives;
c) The impediment ceases on the expiration of the period of Iddat;
d) The objection may be removed by the wife becoming a convert to the Muslaman,
Christian or Jewish religion, or the Muslim adopted the Muslim faith.
e) The objection may be removed by the man divorcing the wife who constitutes the
obstacle; thus if a man who already married one sister marries another, he may divorce
the first and make the second lawful to himself.
 5

Q-3: What are the remedies available in case of a valid marriage? If consummated or
otherwise?
Answer:
Effect of an irregular (fasid) marriage:

An irregular marriage may be terminated by either party, either before or after

consummation, by words showing an intention to separate, as where either party says to
other ―I have relinquished you‖.
If consummation has taken place:

i- The wife is entitle to dower, proper or specified whichever less is.

ii- She is bound to observe the Iddat, but the duration of Iddat both on divorce and
death is three courses.
iii- The issue of the marriage is legitimate. But an irregular marriage, through
consummated, does not create mutual rights of inheritance between husband
and wife. It has been held that it does create such right, but the decision is not
correct.
In irregular marriage wife does not claim the maintenance and inheritance.

Q-4: How may the marriage of the minor be solemnized? What is the option of puberty and
on which condition it can be avail?

Answer:

Marriage of minors:

A boy or girl who has not attained puberty is not competent to enter into a contract of
marriage but he or she may be contracted in marriage by his or her guardian. The four
imams' of the Sunni and also Shia‘s jurists agrees on the point that minors may be contract
into marriage by their guardians.

Option of puberty:

Where a marriage is contracted for a minor by any guardian other than the father or
grandfather the minor has the option to repudiate the marriage on attaining puberty. This is
technically called the ―option of puberty‖. The right of repudiating the marriage is lost, in case
of a female, if after attaining puberty and after being informed of the marriage and of her right
to repudiate it, she does not repudiate without unreasonable delay.
 6

The dissolution of marriage Act, 1939, gives her the right to repudiate marriage before
attaining the age of 18 years, provided that the marriage has not been consummated. But in the
case of a male the right continues until he has ratified the marriage either expressly or
impliedly as by payment of dower.

DOWER

Q-5: Define Dower and its types?

Answer:

Dower defined:

Mahr or dower is a sum of money or other property which the wife is entitled to receive
from the husband in consideration of the marriage.

Meaning and scope:

Mahr or dower is that financial gain which the wife is entitled to receive from her husband
by virtue of the marriage contract itself whether named or not in the contract of marriage in
which case proper dower (Mahr Mithl) becomes due. The dower is a right which comes
into existence with the marriage contracts itself except that in case the dower is deferred its
enforcement is held in abeyance till a certain event. I.e. dissolution of marriage by death or
divorce occurs. Dower money is a debt payable to a wife and she is with her legal right to
even press for its payment. Every lawful object that is of value may be fixed as dower.
Cash, good, immovable property, company shares etc. may be settled as dower provided
that the property is such that it is certain lawful and is capable of being taken into
possession.

Kinds of dower:

Specified Dower:

The husband may settle any amount he likes by way of dower upon his wife, though it may be
beyond his means, and through nothing may be left to his heirs after payment of the amount.
But he cannot in any case settle less than ten dirhams. According to Hanifa and Shafi jurists
hold that the lowest amount of dower is ten dirhams or any object of equal value. According to
imam Malik the lowest amount of dower is three dirham and according to some others it is
five dirham. It someone settled the dower and less than ten dirham and woman be agreeable to
at even then 10 dirhams shall have to paid as dower has the religious mended is for 10
dirhams. In Hanifa law the lowest amount of dower has been fixed but its highest limits has
not been described.
 7

According to Shia law even the lowest amount of dower has not been fixed. It is essential
for the dower to be such an object or financial gain that its use be religiously permissible
therefore wine or pig‘s meat cannot be fixed at the woman dower. If such objects be fixed as
dower it would be invalid but the marriage contract shall remain valid and proper dower shall
be due on the husband.

Transfer of land in lieu of dower would not be sale but would have element of gift and thus
immune from right of pre-emption even through the price was mentioned in deed of transfer.

Proper dower:

If the amount of dower is not fixed, the wife is entitled to ―proper‖ dower (Mahr-i-nisl), even
if the marriage was contracted on the express condition as she should not claim any dower.

Proper dower is the dower of a woman which is determined accordingly with the dower settled
upon other female members of a father family. In deterring proper dower regard shall be held
to the dower settled upon other female members of the father family such as father sister, her
own sister and she‘s cauzon sister. In deterring proper dower the social position of the women
family, wealth of the husband the wives personal qualifications, the circumstances or time,
condition of society and the husband status are all requires.

According to Shia law the proper dower under the Shia law should not exceed 500 dirhams.

Q-6: Explain the ground of conformation of full dower, half dower and extension of
dower?

Answer:

Confirmation of dower:

The dower becomes confirmed—

a) By consummation of the marriage; or

b) By a valid retirement (khalwate-sahia); or

c) By the death of either the husband or the wife.

According to Shia law the right to dower is established by consummation or by death of

either party, but not by valid retirement. If the husband divorces the wife before
consummation, the dower is reduced by half, but if the husband dies before consummation,
the full dower is payable to the wife.
 8

Q-7: What are the defenses available to the husband in case of suit by wife?

Answer:

The wife may refuse to live with her husband and admit him to sexual intercourse so long as the
prompt dower is not paid. If the husband sues her for restitution of conjugal rights before sexual
intercourse takes place, non-payment of the dower is a complete defense to the suit and the suit
will be dismissed. If the suit is brought after sexual intercourse has taken place with her free
consent the proper decree to pass is not a decree of dismissal but a decree for restitution
condition on payment of prompt dower.

Debtor non-praesumitur donare:

The maxim means that a debtor is not presumed to give that is to make a gift. The wife, till the
non-payment of her prompt dower, shall be entitled to refuse to live with her husband and
submit to conjugal obligation; through previously cohabitation may or may not have taken
place. All the imam jurists concur altogether on the point that the wife, as long as she has not
submitted herself to her husband, is entitled, on account of the non-payment of prompt dower,
to refuse to live with her husband and submit her to cohabitation with him. They, however,
differ on the point: in case a husband has cohabited with his wife or has had valid retirement
with her, whether after that, the wife has the right to keep off the husband from exercising his
conjugal right over her till the prompt dower is paid to her. According to Imam Abu Hanifa in
such condition as well the wife has that right but according to Sahibayn she does not have any
such right. According to Imam Malik and Imam Shafi also the wife has no such right.

Q-8: When is the wife required to give up the dower and limitations of dower?

Answer:

If the dower is not paid, the wife, and after her death, her heirs, may sue for it. The period of
limitation for a suit to recover ―prompt‖ dower is three years from the date when the dower is
demanded and refused, or where during the continuance of the marriage no such demand has
been made, when the marriage is dissolved by death or divorce. The period of limitation for a
suit to recover the ―deferred‖ dower is three years from the date when the marriage is dissolved
by death or divorce. Where prompt dower has not been fixed a demand and refusal is not a
condition precedent for filing a suit for its recovery.

Limitation for prompt dower runs from the time when the dower is demanded and refused but
both demand and refusal must be explained.

Limitation for deferred dower does not run against the widow during the period she is in lawful
possession of her husband‘s property under a claim for her dower.
 9

Where a wife is divorced by a writing time under Article 103 and 104 of Limitation Act beings
to run only from the date of communication of the writing to the wife. The wife has the right to
bring an action for the recovery of prompt dower both before and after consummation of
marriage. The consummation has not the effect of converting prompt dower into deferred
dower.

Q-9: What are the remedies available to wife in case of non-payment of dower by
husband?

Q-10: How can wife exercise her right of redemption in lien of dower? What are the
limitations?

Answer:

The widow‘s claim for dower does not entitle her to a charge or any specific property of her
deceased husband. But when she is in possession of the property of her deceased husband
having ―lawfully and without force or fraud‖ obtained such possession ―in lieu of her dower‖
(that is on the ground of her claim for her dower, to satisfy her claim out of the rents and profits
and with a liability to account for the balance), she is entitled as against the other heirs of her
husband and as against the creditors of her husband to retain that possession until her dower is
satisfied. The right to retain possession is extinguished on payment of the dower debt. This
right is sometimes called a ―lien‖ but it is not a lien in the strict sense of the term.

In Islamic law widow has no special claim to retain her husband property in lieu of dower. She
stands footing with other creditors. The widow shall have the right to maintain her possession
over the property of her deceased husband will her unpaid dower debt is paid to her.
Explanation: The fact that the widow is in possession of the property of her deceased husband
in lieu of her dower debt is no bar to her suing the heirs of the deceased for the realization of
her dower debt Commentary: If the wife, during the life-time of her husband, is in exclusive
possession of a property or a part of property of her husband, she, on the death of her husband,
has the right, without the assent of the heirs, to remain in undisturbed possession of the same till
the payment of her dower debt is made to her, provided her possession must have been acquired
validity without coercion or deceit. Provided further that the possession must not be that of a
mortgagee nor should it be such that it may create proprietary right in her favor. The widow,
during her possession over the property, shall simultaneous have the right of suing the heirs for
the realization of her dower debt. In the event of filing a suit for the realization of her dower
debt, she shall have to express her willingness to give up her possession (on the basis of the
dower being due of the property at the realization of her dower debt.
 10

Q-11: What is the remedy available to a widow when she is dispossessed of her husband’s
property while she has a claim of dower?

Answer:

If a widow, who is in possession of her husband‘s property under a claim for her dower, is
wrongfully deprived of her possession she may bring a suit for recovery of possession. If the
property is immovable the suit must be brought within six months from the date of
dispossession. If it is immovable it must be brought within three years from the date on which
she first learns in whose possession it is. The widow right to sue for possession has nothing to
do with her right to hold possession. It is the ordinary right of a person who though he has no
title to property is entitled to sue for possession. If he is wrongfully dispossessed In the case of
immovable property such right is given by Specific Relief Act, 1877 section 9. In the case of
movables the right of sue is a common law right.

Q-12: Define Divorce and its different forms? In details

Answer:

Different forms of divorce:

The contract of marriage under the Muhammadan law may be dissolved in any one of the
following ways:

1- By the husband at his will, without the intervention of court;

2- By mutual consent of the husband and wife without the intervention of a court;

3- By a judicial decree at the suit of the husband or wife. The wife cannot divorce herself
from her husband without his consent, except under a contract whether mode before or
after marriage, but she may in same cases obtain a divorce by judicial decree.

When the divorce proceeds from the husband it is called Talaq. When it is affected by mutual
consent it is called Khula or mubara‘at according to the terms of the contract between the
parties.

Shafi law:

From the grounds on which a wife may divorce her husband under Shafi law.

Divorce by Talaq:

Any Muhammadan of sound mind who has attained puberty may divorce his wife whenever he
desires without assigning any cause.
 11

Contingent divorce:

A divorce may be pronounced so as take effect on the happening of a future event. In an

Allahabad case the husband agreed to pay his wife maintenance within a specified time and in
default the writing to operate as a divorce. It was held that on the husband‘s default the writing
took effect as a valid divorce.

Commentary:

When the divorce take place on the happening of a contingency the husband delegate to the
wife his own right of pronouncing divorce. Payment is also enforceable there is an agreement to
that effect.

Shia law:

Contingent divorce is not recognized by Shia law.

Talaq may be oral or in writing:

A Talaq may be affected

1- Orally spoken words or

2- By a written document called a talaqnama.

Words of divorce:

The words of divorce must indicate an intention to dissolve the marriage. If they are express
e.g. ―Thou are divorced‖, ―I have divorced thee‖ or ―I divorce May wife forever and render her
haram for me‖. They clearly indicate an intention to dissolve the marriage and no proof of
intention is necessary. But if they are ambiguous e.g. ―Thou art mu cousin the daughter of my
uncle, if thou goest‖ or ―I give up all relations and would have no connection of any sort with
you‖ the intention must be proved.

If a man says to his wife that she has been divorced yesterday or earlier, it leads to a divorce
between them even if there be no proof of a divorce on the previous day or earlier. Wife shall
be treated to have been divorced on the date on which statement to that effect was made by
husband in his plaint.

Shia law:

A divorce must be pronounced orally in the presence of competent witnesses and a Talaq
communicated in writing is not valid unless husband is incapable of pronouncing it orally.
Presence of witnesses is a condition precedent of a valid Talaq according to Fiqh Jaferia.
 12

Under Shia law divorce must be pronounced only in Arabic and that too in a specific form. It is
not necessary that the husband himself must be known Arabic. He can engage the services of an
agent who knows Arabic to pronounce the same on his behalf.

This is an established principle of Shia law that pronouncement of Talaq must be uttered orally
in the presence and hearing of two male witnesses who are Muslims and approved probity.

Where in proceedings initiated by the wife for maintenance the husband raise plea of divorce. It
was held that the plea by itself was sufficient to termination marriage and that wife was entitled
to maintenance for the period of Iddat only not for an earlier period unless the circumstance
justified it.

Hanifa law:

Under Hanifa law a Talaq is valid whether oral or writing.

Talaq in writing:

A talaqnama may only be the record of the fact of an oral Talaq or it may be the deed by which
the divorce is affected. The deed may be executed in the presence of the Qazi or of other
witnesses.

Shia law:

A Talaq under the Shia law must be pronounced orally in the presence two competent
witnesses. A Talaq communicated in writing is valid unless the husband is physically incapable
of pronouncing it orally.

Q-13: Explain the types of divorce and its legal consequences?

Answer:

A Talaq may be effected in any of the following ways:

1- Talaq Ahsan:

This consists of a single pronouncement of divorce made writing a tuhr (period between
menstruations) followed by abstinence from sexual intercourse for the period of Iddat.

When the marriage has not been consummated a Talaq in the Ahsan from may be pronounced
even if the wife is in her menstruation.

Where the wife has passed the age of periods of menstruation the requirement of a declaration
during a tuhr is inapplicable furthermore this requirement only applies to an oral divorce and
not a divorce in writing.
 13

3- Talaq Hasan:

This consists of three pronouncements made during successive tuhr no intercourse taking place
during any of the three tuhr.

The first pronouncement should be made during a tuhr, the second during the next tuhr and the
third during the succeeding tuhr.

3- Talaq-ul-bidaat or Talaq-I- badai:

i) Three pronouncement made during a single tuhr either in one sentence, e.g. ―I
divorce thee thrice – or in separate sentences e.g. ―I divorce thee, I divorce thee, I
divorce thee‖ or

ii) A single pronouncement made during a tuhr clearly indicating an intention

irrevocably to dissolve the marriage e.g. ―I divorce thee irrevocably‖.

Commentary:

Talaq-us-Sunnat and Talaq-ul-bidaat:

The hanfis recognized two kinds of Talaq, namely Talaq-us-Sunnat, that is Talaq according to
the rules laid down in the Sunnat (traditions) of the Prophet; and second Talaq-ul bidaat, that is
new or irregular Talaq. Talaq-ul-bidaat was introduced by the Omeeyade monarchs in the
second century of the /Muhammadan era.

Talaq-ul-Sunnat is of two kinds namely:

1- Ahsan, that is most proper, and

2- Hasan, that is proper.

The Talaq-ul-bidaat or heretical divorce is good in law, through bad in theology, and it is the
most common and prevalent mode of divorce in the sub-continent, including Oudh in the case
of Talaq Ahsan and Talaq Hasan the husband has an opportunity of reconsidering his decision.

a) Talaq al-Ahsan (Most approved form of divorce):

Talaq al-Ahsan is the first kind of Talaq completed by efflux of prescribed time. In the case of
this Talaq one single revocable divorce is pronounced by a husband who has consummated the
marriage, during the period in which the wife is free of menstruation and in which she has not
been cohabited with leaving her to complete her ‗Iddat of the prescribed period of time unless
she is pregnant om which case she is delivered of child.

Talaq al-Ahsan is based on the narrative of Ibrahim Nakh‘i that the companions of the holy
Prophet approved of the divorce which was pronounced once to the wife, thereafter she was left
also till she completed three periods of her menstruation if she menstruates otherwise three
 14

months.

Imam Muhammad has laid down in his book Muwatta that Talaq al-Sunnat is that which the
husband pronounces to his wife keeping in view the period of her probation in the state of her
purity without having sexual intercourse with her in that state of her purity which she attains
often her menstruation. That is the formulation of Imam Abu Hanafah and or Hanafi jurists in
general.

b) Talaq al-Hasan (proper form of Talaq):

Talaq al-Hasan is the second approved form of divorce by a husband who has consummated the
marriage pronounces one divorce during each three successive periods in which the wife free of
menstruation has not been cohabited with. There is no disagreement about Talaq al-Ahsan
being a divorce in accordance with the rules laid down in the tradition of the Prophet. There is
disagreement whether Talaq al-Hasan is an accordance with the rules laid down in the tradition
of the Prophet. The Hanafi‘s base their formulation on the verse of the Quran ―that you divorce
them at their term of probation‖. Those three divorces are to be pronounced in three periods of
purity. The Abdullah bin Umar. He divorced his wife in the state of her menstruation. Umar
consulted the Prophet about this act of his son. The Prophet expressing little anger said,
―Abdullah has contravened Sunnat (method, mode) ordained by Allah‖ and added ―proper
divorce is that which you pronounce one in each period of purity.

The view point of Imam Malik:

All jurist Imams other than Imam Malik hold that Talaq al-Ahsan (most approved form of
divorce) and Talaq al-Hasan (proper form of divorce) are both Talaq al-Sunnat (divorce
according to tradition). According to Imam Malik to pronounce one divorce in each of the
terms of purity. (The Hasan procedure) is also innovation. Pronouncement of one divorce by
the husband is the only divorce according to Prophet‘s tradition because divorce in fact the wife
and the purpose is served by the pronouncement of one divorce only. Hence divorce according
tradition in the opinion of Imam Malik is that which is pronounced revocable once by the
husband to his she left alone during her term of probation of three menstruations and during
these periods no further divorce need to pronounced. According to Imam Malik it is essential
for Talaq al-Sunnat that no further divorce during the term of probation be pronounced. The
basis of his assertion pronounced for carrying out a set purpose. The purpose is carried out by
the pronouncement of one divorce. Hence the pronouncements of second and third divorce in
the second and third term of purity being unnecessary are abominable. Likewise the
pronouncement of all the divorces at a time according to Imam Malik is abominable in as much
as the first divorce having taken effect the second and third divorces are superfluous being
unnecessary.
 15

Imam Shafi viewpoints:

The pronouncement of three divorces at a time according to Imam Shafi is also in accordance
with Talaq al-Sunnat whereas the pronouncement of three divorces at a time according to
Hanafi‘s and Imam Malik cannot be said to be Talaq al-Sunnat. Imam Shafi argues on the basis
of tradition of Mulanah that Ajlani after imprecating his wife pronounced three divorces to her
in the presence of the Prophet. If three divorces were not Sunnat the Prophet would not have
maintained salience. He must have then and there told Ajlani that his was not the proper way of
pronouncing divorce. The Maliki‘s in reply say that Ajlani had pronounced three divorces after
imprecating his wife. The very imprecation had made the wife irrevocably divorced; the
pronouncements of divorces were meaningless.

Hanafi’s interpretation:

Imam Kasani a renowned Hanafi‘s jurists construe this averment by Imam Shafi in the way that
he neither called it Talaq al-Sunnat nor Talaq al-Bidaat. Kasani interpretation of Imam Shafi
appears to be more correct than the assertion of Ibn Rushd. This is supported by other books of
Fiqh as well.

II. Talaq Al-Bidaat (Innovated Divorce) and its kinds:

Innovated divorce is called impious divorce. Pronouncing such a divorce is sinful.

The innovation being of two kinds:

a) As regard time

b) As regards number.

Provision of S.5 of Muslim Family law ordinance, 1961 stipulates three steps pronounce Talaq:

1- Firstly, it has to be verbally pronounced as mandated by Sharia. 2- Secondly, the same

may be pronounced in any from whatsoever, which would mean that in any prevalent
mode i.e. one own language or in Arabic as some prescribe in that behalf. 3- Thirdly
verbal pronouncement of Talaq to be reduced in writing and has to be conveyed to the
chairman of union council with a copy to the wife.
 16

Q-14: When does Talaq become irrevocable?

Answer:

1- A Talaq in the Ahsan mode becomes irrevocable and complete on the expiration of
the period of Iddat.

2- A Talaq in the Hassan mode becomes irrevocable and complete on the third
pronouncement irrespective of the Iddat.

3- A Talaq in the badai mode becomes irrevocable immediately it is pronounced

irrespective of the Iddat. As the Talaq becomes irrevocable at once it is called
Talaq-I-Bain that is irrevocable Talaq.

Commentary:

Irrevocable divorce of major degree is that as a result of which the husband cannot re-enter into
marriage contract with his divorced wife unless she after having married and having intercourse
with another person secures divorce from him or that he dies.

According to jurists in general irrevocable divorce of major degree takes place when the
husband at a time or at different times pronounces three divorces by one or more words to his
wife.

The period of Iddat prescribed by Muslim law is 90 days. In the instant case the suit was filed
by the wife seeking declaration that she was divorced even before the period of Iddat has
expired.

When Talaq in writing becomes irrevocable:

In the absence of words showing a different intention a divorce in writing operates as an

irrevocable divorce and take effect immediately on its execution.

Q-15: Can the right of divorce be delegated by husband? Can the right of divorce can be
delegated by wife?

Answer:

1) Delegation power to divorce:

Although the power to give divorce belongs primarily to the husband he may delegate the
power to the wife or to third person wither absolutely or conditionally and either for a particular
period permanently. The person to whom the power is thus delegated may the pronounce the
divorce accordingly. A temporary delegation of the power irrevocable but a permanent
delegation may be revoked.
 17

Commentary:

Talaq by tafweez (delegation of power):

The husband may in person repudiate his wife or he may delegate the power of repudiating her
to a third party or even to the wife such 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.

In Hamilton‘s Hedaya it is stated as

when you please‖, she is at liberty to divorce herself either upon the spot or at any future period
because the word ‗‘when‘ extend to all time and hence it is the case as if her were to say
‗divorce yourself at whatever time you like‖!

has said to his wife Repudiate they self (whether he says if you please, or not) she may
repudiate herself at the meeting and he cannot divest her of the power‖.

2) Stipulation by wife for right of divorce:

An agreement made whether before or after marriage by which it is provided that the wife
should be at liberty to divorce herself in specified contingencies is valid, if the conditions are of
reasonable nature and are not opposed to the policy of the Muhammadan law. When such an
agreement is made the wife may at any time after the happening of any of the contingencies
repudiate herself in the exercise of the power and a divorce will then take effect to the same
extent as if a Talaq has been pronounced by the husband. The power so delegated to the wife is
not revocable and she may exercise it even after the institution of a suit against her for
restitution of conjugal rights.

Commentary:

At any time after the happening of the contingency:

Where a power is given to a wife by the marriage contract to divorce herself on her husband
marrying again then if her husband does marry again she is not bound to exercise her option at
the very first moment she hears the news. The wrong done to her is a continuing one and she
has a continuing right to exercise the power.

Q-16: What is illa and its legal consequences?

Answer:

Divorced by Illa is a species of constructive divorce which is effective by abstinence

from sexual intercourse for the period of not less than four month pursuant to a vow. According
to Shafi law the fulfillment of such a vow does per se operate as a divorce but gives the wife the
right to demand a judiciary divorce.
 18

Q-17: What is Zihar and it legal consequences?

Answer:

Zihar is a form of inchoate divorce. If the husband compares his wife to his mother or
any other female within prohibited degrees the wife has a right to refuse herself to him until he
has performed penance. In default of expiation by penance the wife has the right to apply for a
judicial divorce. Cases of Zihar are unknown in India and it has been doubted by the text book
writers whether the wife‘s right under Zihar would be enforced by court in India. But the law of
Zihar has now received statutory recognition in section 2 of the Shariat Act 1937.

Q-18: difference between Khula and Mubharah and its legal consequences?

Answer:

1- A marriage may be dissolved not only by Talaq which is the arbitrary act of the
husband but also by agreement between the husband and wife. A dissolution of
marriage by agreement may take the form of Khula and Mubara‘at.

2- A divorce by Khula is a divorce with the consent and at the instance of the wife in
which she gives or agrees to give a consideration to the husband for her release
from the marriage tie. In such case the terms of the bargain are matters of
arrangement between the husband and wife and the wife may as consideration
release her dyn-mahr (dower) and other rights or make any other agreement for the
benefit of the husband. Failure on the part of the wife to pay the consideration for
the divorce does not invalidate the divorce though the husband may sue the wife for
it.

A Khula divorce is effected by an offer from the wife to compensate the husband if he releases
her from her marital rights and acceptance by the husband of the offer. Once the offer is
accepted it operates as a single irrevocable divorce and its operation is not postponed until
execution of the khulanama (deed of Khula). 3- A Mubara‘at divorce like Khula is dissolution
of marriage by agreement but there is a different between the origins of the two. When the
aversion is on the side of the wife and she desire a separation the transaction is called Khula.
When the aversion is mutual and both sides desire a separation the transaction is called
Mubara‘at. The offer in a Mubara‘at divorce may proceed from the wife or it may proceed from
the husband but once it is accepted the dissolution is complete and it operates as a Talaq-I-bain
as in the case of Khula. 4- As a Talaq so in Khula and Mubara‘at the wife is bound to observe
the Iddat as stated in section 257 above.
 19

Commentary:

―Khula‖ means to put off, as a man is said to khoola his garment when he puts it. In law it is the
laying down by a husband of his right and authority over his wife for exchange.

Effect of Khula and Mubara’at divorce:

Unless it is otherwise provision by the contract a divorce effected by Khula or Mubara‘at

operates as a releases the wife of her dower but it does not affect the liability of the husband to
maintain her during her Iddat or to maintain his children by her.