@ Author
1. Why don't you approach SC and get your position clarified instead of askign same question here in different posts including experts section when it is already so many times already replied by various experts including Lawyers here ?
However read again the clarity of asked subject from SC
“20. The issues which we formulate for decision so as to resolve the controversy between the two divergent views of this Court are as under:
(1) Whether a Muslim husband has the right to divorce his wife without reasons and at his mere whim and caprice.
(2) Whether the Muslim Law mandates pre-divorce reconciliation between the parties.
(3) In proceedings for maintenance instituted by a Muslim wife, if her husband makes a plea in his written statement or in any form before the Court concerned that his marriage was dissolved at an earlier date in the Talaq form, even assuming that the fact of such dissolution at an earlier date is not proved, whether the filing of the written statement containing such a plea or making such a statement in other written form or orally of divorce in the Talaq form amounts to the dissolution of marriage under the Muslim Personal Law from the date on which such a statement was made.
(4) Whether mere assertion either in the pleadings or in the witness box amounts to an acknowledgment of divorce given earlier by the husband and he is not required to prove to have given divorce in accordance with Mahomedan Law sometimes prior to the date of such an assertion.
(5) Whether even otherwise an assertion, either in the pleadings or in the witness box or in some application filed in Court by the husband by itself amounts to divorce in accordance with Mahomedan Law from the date of such assertion if not from an earlier date.
(6) Even if it is found that the statement regarding divorce given earlier was false, can the statement in the Court proceedings, be taken as an acknowledgment of divorce or even otherwise a fresh declaration of divorce.
(7) Whether the husband is required to prove that the Talaq was duly effected/ given.
(8) Whether the husband of a minor or a woman past menopause has the unqualified right to pronounce Talaq at any time either in the Ahsan or Hasan mode. 20A)While dealing with the above formulated issues, we would like to be reminded of the observations made by the Constitution Bench of the Apex Court in the case of "Danial Latifi and another V/s Union of India" (2001) 7 SCC 740 https://indiankanoon.org/doc/1751784/ in the following words:
"20.In interpreting the provisions where matrimonial relationship is involved, we have to consider the social conditions prevalent in our society. In our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Our society is male dominated, both economically and socially and women are assigned, invariably, a dependent role, irrespective of the class of society to which she belongs."
21. It is popularly said that a Muslim marriage is nothing but a civil contract and a large section believes that the husband has an absolute freedom to dissolve the marriage without assigning reasons and at his free will. The Holy Quran as well as the other sources of Personal Law teach us that the process of reaching to the marital tie is certainly a civil contract but once the marriage is solemnised it becomes an institution life long for both husband and the wife and they do not live together by way of a mere contract but in a holy and sacred bond of love, care and mutual respect with equal status to both the partners. It happens, in some cases, that on account of incompatible temperament, extreme divergent upbringings, likes and dislikes or other physical incompatibilities or incapacities, the institution of marriage comes in peril. The Mahomedan Law does recognise the husband tobe on a high pedestal than the wife but that by itself does not mean that he can check-out his wife at his whim and caprice and without assigning any reasons.
Islam recognises the principle of equity between the husband and wife during the subsistence of their marital tie. If the husband and wife are not able to get along as partners or to cohabit with happiness, Islam does not force them to continue in such unhappy and unsettling conditions. However, both the parties are given some chance to reform or mend their ways so as to keep the institution of marriage in-tact and this could be achieved by the process of reconciliation between the parties with the intervention of arbiters.
22. A divorce by the husband is Talaq and it has its oral as well as written forms. The oral form of Talaq can be effected in three modes viz. Talaq-e-Ahsan, Talaq-e-Hasan, Talaq-ul-Biddat or Talaq-e-Badai. The first two forms are conditioned and they are accepted tobe more civilized but while resorting to any of these two forms there are conditions precedent and it is not that the husband is at his free will to resort to any of these modes at any time and without assigning any reasons. If the husband feels that his wife does not care for him, she is incompatible, she does not listen to him, she does not love him, she refuses to cohabit with him, she engages in cruel behaviour, she is unfaithful or for any other reason, he has the right to give Talaq to his wife but by following certain procedure. Firstly, he has to make it known to his wife about any of these reasonsand she must be given time to change her behaviour. If by his direct conversation/ persuasions she does not change her behaviour, the husband has to resort to the process of conciliation by informing to her father or any other parental relations. Two arbitrators, one from wife and one from the husband, are required to be appointed and it shall be the duty of the Arbiters to bring in a settlement between the parties so that they live together happily and inspite of these efforts having been made if the discord still persists to an irreparable level there is no alternative but to separate and it is at this stage that the husband has the right to give Talaq to his wife. The stage of conciliation with the intervention of the arbiters is a condition precedent for effecting Talaq either in Ahsan form or Hasan form.
It will be seen that in all disputes between the husband and the wife the judges are to be appointed from the respective people of the two parties. These judges are required first to try to reconciliate the parties to each other failing which divorce is to be effected. Therefore, though it is the husband, who pronounces the divorce, he is as much bound by the decision of the judges as is the wife. This shows that the husband cannot repudiate the marriage at his will. The case must be first referred to two judges and their decision is binding. Talaq must be for reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by the arbitrators, one from the wifes family and the other from the husbands. If the attempts failed, Talaq may be effected. In other words, an attempt at reconciliation by two relations, one each of the parties, is an essential condition precedent to Talaq.
23. Even if the reconciliation process has been gone through and found to be ineffective or in-vain, the husband has to follow the prescribed procedure for Talaq by Ahsan or Talaq by Hasan mode. Section 11 and 12 of the Compendium deal with proper and improper Talaq whereas section 2 prescribes the conditions governing the essence of Talaq. Even written Talaq in terms of section 3 has several forms. Section 5 has set out the conditions for effectiveness of Talaq and it has laid down the situations where the Talaq would not be effective. The Muslim Law, thus, recognises effective/ proper as well as ineffective/ improper Talaq and while exercising the right of Talaq it is imperative that the husbands action of invoking this right meets these requirements. Lest, the Talaq will be ineffective or invalid or improper. The utterances/pronouncements aimed at Talaq-e-Ahsan or Talaq-e-Hasan are required to be made during a specific period i.e. a Tuhr (period between menstruation) followed by abstinence from s*xual intercourse during the period of Iddat. In the later form three pronouncements are required to be made during successive Tuhrs and no intercourse taken place during any of the three Tuhrs.
Thus, the period of Iddat varies from 90 to 130 days. A Talaq in Ahsan mode becomes irrevocable and complete on the expiration of the period of Iddat, whereas a Talaq in Hasan mode becomes irrevocable and complete on the third pronouncement irrespective of Iddat. Until Talaq becomes irrevocable the husband has the option to revoke it which may be done either expressly or impliedly as by resuming s*xual intercourse. In a non-consumated marriage pronouncing a single Talaq even though the wife is in menstruation, will be Talaq-e-Hasan. Pronouncing three Talaqs in three months on a minor or a woman past menopause is also Talaq-e-Hasan. These modes are required tobe followed so as to rule out the possibility that the wife has conceived and if the divorced woman is pregnant, her Iddat period is till the end of pregnancy. The Iddat period, thus, varies in three different forms depending on the physical conditions of the wife and these are three menstruation courses. After the date of divorce if she is subject to menstruation, three lunar months after she is divorced if she is not subject to menstruation and if she is in enceinte at the time of her divorce the period between the divorce and the delivery of her child or the termination of her pregnancy whichever is earlier. The pronouncement of Talaq by the husband in the oral form or giving Talaq in writing has to necessarily satisfy all these conditions of pronouncing the Talaq at a particular time and such a Talaq must be valid and effective. It is not that on his sweet will the husband has the unqualified prerogative to exercise this right of pronouncing Talaq. Uncontrolled use of divorce without regard to the restrictions established by the Shariat is a sin. To divorce the wife, without reason, only to harm her or revengeful due to the non-fulfilment of the husbands unlawful demands by the wife or her guardians and to divorce her in violation of the procedure prescribed by the Shariat is Haram (absolutely prohibited).
The Holy Quran expressly forbids a man to seek divorce so long as she remains faithful and obedient to him. However, it is also true that if there is no temperamental compatibility between the parties or the man feels that he cannot, as husband, fulfill the woman’s rights or because of mutual difference of nature, Gods limits cannot be maintained, keeping the marriage in-tact, in such situation compel the parties by legal restrictions to continue the marital life may be more harmful for the society. It is, thus, clear that the Islam discards divorce in principle and permits it only when it has become altogether impossible for the parties to live together in peace and harmony. Divorce is permissible in Islam only in cases of extreme emergency. Mere registration of divorce, even if proved, will not render valid a divorce which is otherwise invalid under the Muslim Law. Even if there is any reasonable cause for the divorce yet there must be evidence to show that there was an attempt for a settlement prior to the divorce and when there was no such attempt to arrive at a settlement by mediators, there cannot be a valid divorce under the Islamic Law."
