Talaq

Originally posted by : mohammed k. shaikh
	WHAT ARE THE PROCESS TO FOLLOW IN TALAQ HASAN

Hello,
This is Advocate Martyn.  You have asked about Hasan type of divorce.  I have explained all types of divorce for the benefit of everybody who is seeking talaq.

Talaq are of two types.
One by husband and one by wife.

By husband there is two types of talaq.
One is ILA and another is ZIHAR

Under ILA form, the husband swears upon Allah that he will not have s*xual intercourse with his wife for a period of four months.
Under this form of talaq, he must be of sound mind and he must be above the age of majority as per Indian Majority Act.
 This type of talaq is cancellable by husband having s*xual intercourse with his wife during the period of Iddat.

In the ZIHAR form of talaq, the husband will compare his wife to his mother and abstain having s*x with her.  He can further compare the wife to other persons in prohibited degrees of relationship.  Here also husband should be mentally sane and must have crossed the age of majority as per Indian Majority Act.
Such comparisons with the own mother and other people in the degrees of prohibited relationship should be done in most disrespectful way and should be done in intentional way.  Such comparison must have been done in front of two witnesses.

Next is talaq ul sunnat.  Under this category of talaq there are 2 forms.
One is Ahasan form of talaq.
Another one is Hasan form of talaq.

The Ahasan form of talaq is the most approved form of talaq.  This is actually the best form of talaq.  The meaning of ahasan is best form or proper form of talaq.

To give talaq under ahasan form the following requirement should have been performed and fulfilled.
The formula of talaq should be pronounced in single sentence.
Such pronouncement of formula of talaq must be done in the period of tuhr.
The husband should abstain from having s*xual intercourse with the wife during the period of iddat.

Under this kind of talaq, if the marriage is not consummated and the wife is crossed the age of menstruation and if the husband and wife are away from each other, pronouncement of talaq can be done even during the period of iddat.

The pronouncement of talaq is revocable during the period of iddat, but once if iddat period is over, the pronouncement cannot be revoked.

Another form of talaq is the hasan form of talaq.  Hasan means good.  This is considered as a good form of talaq but not as good as the ahasan form of talaq.
In this form of talaq, the pronouncement of talaq should be done in three consecutive form.  Each pronouncement should be done during the tuhr period.  If the wife is not menstruating then the pronouncement of formula of talaq can be made during three consecutive months.  No s*xual intercourse should take place during these periods of tuhr.

This kind of pronouncement can be revoked before completion of third pronouncement.  But the marriage becomes irrevocable after the period of tuhr.

Another form of talaq is the talaq ul biddat form.

Talaq ul biddat is largely followed now a days in India.  This form is very popular because it gives easy divorce to divorce seeking husband.  Pronouncement of the formula of talaq must be said one go in a single sentence irrespective of periods of iddat and or menstruation.  This type of talaq came into practice as the muslims who were going for trade and commerce during olden times were away from home for long periods, and when they saw beautiful Persian woman, they wanted to marry them, so in order to marry them they had to divorce the old wife, so this form of easy form of talaq came into existence.
The talaq ul biddat is the unapproved rom of divorce and the Koran does not recommend it nor propogate it.  But it continues to be followed by all Indian muslims though Pakistani mulims have foregone from following it.

Talaq by wife are of two types.
Talaq e toufeez.
Under this form of talaq the husband will delegate the authority of giving talaq to another person.  This person can be the wife or some third party.  The delegation of authority is called toufeez.  In this kind of talaq an agreement is made prior to the nikah whereupon it is agreed between the parties to the marriage that the wife will divorce the husband in case he marries again during the lifetime of this wife and other specified conditions.

In talaq e toufeez there are two types of talaq.
Talaq by khula form.
Talaq by mubarat form.

In the talaq by khula form, the wife will ask the husband to give divorce to her.  Under this form there should be offer and acceptance of divorce at the same time.   One cannot make offer at one time and the another cannot make acceptance during another time.  Both has to happen immediate.
Once the offer is accepted, the wife is under compulsion to perform iddat.

One special thing about khula type of divorce is, the pre-agreed amount that should be given by wife to her husband should be immediately given by wife to her husband when she asks for khula.  But if the wife does not pay the amount agreed before marriage to the husband, the pronouncement of talaq does not make it invalid.  The talaq will be valid, and the husband can claim the amount later on.

The second type of divorce under talaq e toufeez is MUBARAT.
This type of talaq happens when both the husband and wife want separation or talaq from each other.  This is more like mutual consent divorce, the wife will ask divorce and the husband will agree to give divorce.  

There are two more forms of talaq and these are as per the Musim Dissolution Marriage Act of 1939 where there will be a judicial decree given to both husband and wife.
Lian talaq.
Fask talaq.

Under the lian type of talaq the husband should have pressed false charged of adultery against the wife.  Then the wife can approach court of law seeking divorce.  However if the husband retracts from the charges that he made towards his wife, then the marriage will continue.

The wife should file regular suit for dissolving marriage or judicial separtion.  Such judicial separation cannot be revoked.

Lian type of talaq is applicable to only sahih type of nikahs and not the fasid type of nikahs.
The second type of divorce under judicial decree is fask talaq.
Fask means cancellation.  In this type of talaq the muslim lady will approach the qazi and asks him to dissolve the marriage because it is,
Irregular type of nikah.
If Nikah was within prohibited degrees of marriage.
If the nikah was contracted by non-muslims and those people have converted to islam.
One important thing to be noted here is, before enactment of Muslim dissolution marriage act of 1939, this was the only way through which a woman could to take divorce.

But after enactment of Muslim Dissolution of Marriage Act of 1939, following grounds also became available for divorce.
Absence of husband for peiod of 4 years.  however if the husband returns within 6 months of passing of decree, he can seek restitution of marriage like before.
Failure to maintain wife for period of two years.  Poverty and incapcity to maintain is inexcusable.
If husband gets imprisoned for seven years or more.
If husband fails to perform marital obligations for period of three years.
If the husband is impotent and continues to be so even after marriage.
Insanity (two years), leprosy and or venereal disease.
Repudiation of marriage for a girl who was married off before the age of fifteen.  She can repudiate the marriage when she turns eighteen years of age.
Cruelty by husband like beating, abusing.
Husband asking wife to lead immoral life.
Husband sells the property which is in the name of wife without the consent of such wife.
Husband fails to treat equally the wives.
Husband obstructs to practice her religion.
Plus all the above grounds allowed by muslim personal law which is the shariat. 

Sir

I am thakful for your kind reply on my query regarding TALQ HASAN. My Query was about the process to be followed in this type of TALAQ. It appears that following steps be followed in TALAQ Hasan

 1)  arbitration / reconcliation

 2)  Talaq with valid reasons by Husband in presence of two male muslim witnesses in the office of KAZI

 3)  Talaq Deed(written Staement by husband duly signed by two winesses ) and KAZI certificate be sent to wife address as she is not residing with her husband since long

 If no further steps is taken by wife for reconciliation,then

 4) after one month 2nd Talaqnama be sent to wife in like maner

 5) similarly after one month, 3rd Talaqnama along with the amount of Meher be sent to wife and TALAQ becomes irrevocable.

But in  Hoa'ble Court, Factum of Divorce is required to be proved including the conditions precedent therefor , by evidence both oral and documentary. But question is here ,How a person can prove that Arbitration and or Reconciliation attempt were made but failed as no body  from wife side will adduce any evidence

I may kindly solicit your advice

It appears that opposiite party is not willing to let you go? Am I correct?

In that case, she will contest this divorce, you will have to prove what  you are saying during cross in court only.  That I cannot teach here.  You hire services of advocate of unshakable repute and vast knowledge in matrimonial laws and proceed accordingly.