Divorce under Muslim personal law Talaq and Talaq -e- tafweez2 min read

-Swetha Ravidas

According to Muslim personal law, marriage is considered as a contract that cannot be dissolved but in certain circumstances, such matrimonial contract can be broken. Parties themselves can break the contract or by a decree to court. Primarily the right of divorce is given to the husband. An arbitration meeting has arranged by elders in the first instance of divorce. If such an effort is failing he can divorce his wife by writing or verbally. On the instance of pronouncement of Talaq presence of two witnesses is necessary. There are certain criteria for the proclamation of Talaq such as:

  1. Talaq can be done only once
  2. Only at the time where his wife is not undergoing the menstrual time
  3. There was no sexual contact since her last menstrual time.

The wife has to undergo a certain period called iddat after pronouncing divorce. During the period wife can stay at home, but there will not be any sexual intercourse between them. The husband has an option to take back his wife by verbally saying ‘I take you back’. On the other hand, if the husband hasn’t done that, at the end of the iddat period wife is divorced completely and has to leave from her matrimonial house.  Two witnesses are also necessary when the husband decides to take back before the end of the period of iddat. The husband cannot take back or remarry her when he pronounced three Talaq on the same or even different occasions. After the divorce council issues certificate of Talaq in the presence of two witnesses and the husband shall pay the dower in full to his divorced wife.

READ ALSO: MODERN SOURCES OF MUSLIM LAW

Talaq-e-tafweez

An agreement made between the parties to marriage whereby it is provided that the wife should at liberty to divorce her in specified contingencies is valid. Such an agreement can be entered before or after marriage.  Such delegation of power of divorce to the wife may be permanent or temporary that is for a specified duration. But the condition should not be opposed to public policy and should be a reasonable condition. In such a case a wife may on the happening of the contingency repudiate herself in the exercise of authority delegated to her. Such juristic ideas and devices help women to avoid undesired things like the husband’s bigamous marriage. The wife is exercising such delegating power of Talaq from the husband itself. It is also known as Talaq-ul-tafwid. Tafwid means it is made on behalf of the husband. It is a potent weapon in the hand of a Muslim woman to obtain freedom without the intervention of the court.

READ ALSO: HINDU LAW AND MODERN SOURCES OF HINDU LAW

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