Dissolution of Muslim Dissolution of Muslim MarriageMarriage

TalaqTalaq The definitionThe definition Te authoritiesTe authorities Types of talaqTypes of talaq Pillars of talaqPillars of talaq The statutory provisionsThe statutory provisions CasesCases

The DefinitionThe DefinitionLiterally talaq means freedom from bondage Literally talaq means freedom from bondage

or untying the marriage knot.or untying the marriage knot.According to Jamal J Nasir;According to Jamal J Nasir;

““Talaq is the dissolution of a valid marriage Talaq is the dissolution of a valid marriage contract forthwith or at a later date by the contract forthwith or at a later date by the

husband, his agent or his wife duly husband, his agent or his wife duly authorised by him to do so, using the authorised by him to do so, using the word talaq, a derivative or synonym word talaq, a derivative or synonym

thereofthereof””

The authorities for talaqThe authorities for talaq Al-Baqarah ; 229-232Al-Baqarah ; 229-232 Al-Talaq ; 1-7Al-Talaq ; 1-7 Hadiths of the ProphetHadiths of the Prophet Ijma’Ijma’

Al-QuranAl-Quran

““A divorce is only permissible twice, after A divorce is only permissible twice, after that the parties should either hold together that the parties should either hold together on equitable terms or separate with on equitable terms or separate with kindness” Al-Baq: 229kindness” Al-Baq: 229

““O Prophet! When you divorce women, O Prophet! When you divorce women, divorce them at their prescribed periods”divorce them at their prescribed periods”

at-Talaq: 1at-Talaq: 1

HadithHadith

Of all lawful acts, the most detestable in the Of all lawful acts, the most detestable in the sight of Allah is talaqsight of Allah is talaq

Hukm of TalaqHukm of Talaq WajibWajib

when it is most essential e.g., in the case of talaq by means of when it is most essential e.g., in the case of talaq by means of hakamhakam

HaramHaramwhen the husband divorces his wife during when the husband divorces his wife during haidhaid period or period or during the clean period but just had sex with herduring the clean period but just had sex with her

MakruhMakruhwhen it is not essential. If there is no harm anticipated either to when it is not essential. If there is no harm anticipated either to the husband or to the wifethe husband or to the wife

MubahMubahwhen there is a need for it e.g., wife’s character is bad or there when there is a need for it e.g., wife’s character is bad or there is some harm if the marriage continuesis some harm if the marriage continues

MandubMandubwhen the wife exceeds the religious limit or is not fulfilling the when the wife exceeds the religious limit or is not fulfilling the essential rights of Allah SWTessential rights of Allah SWT

Types of TalaqTypes of Talaq

Talaq SunniTalaq Sunni 1) Talaq al-Ahsan (most approved form of 1) Talaq al-Ahsan (most approved form of

talaq) talaq) 2) Talaq al- Hasan (Proper Divorce)2) Talaq al- Hasan (Proper Divorce)

Talaq Bid’iTalaq Bid’i

Talaq al-AhsanTalaq al-Ahsan

The pronouncement of one The pronouncement of one talaqtalaq in a in a period of purity followed by abstinence period of purity followed by abstinence from sexual intercourse for the period of from sexual intercourse for the period of the ‘the ‘iddahiddah

Talaq al-HasanTalaq al-Hasan

The pronouncement of the The pronouncement of the talaqtalaq three times three times in three consecutive periods of purity, that is in three consecutive periods of purity, that is between three successive menstruations. between three successive menstruations.

1st pronouncement

2nd pronouncement26/1/04 26/2/04 26/3/04

3rd pronouncement

Irrevocable

divorce

Talaq al-Bid’iTalaq al-Bid’i Talaq that is pronounced during the purity Talaq that is pronounced during the purity

period in which after the husband had period in which after the husband had intercourse with the wifeintercourse with the wife

During wife’s mensesDuring wife’s menses The pronouncement of the The pronouncement of the talaqtalaq three times three times

at shorter intervals or even in immediate at shorter intervals or even in immediate succession or by the pronouncement of the succession or by the pronouncement of the three three talaqstalaqs at once e.g, “ at once e.g, “I divorce you with 3 I divorce you with 3 talaq”talaq”

Kinds of Talaq As to Its RevocabilityKinds of Talaq As to Its Revocability

Talaq Raj’ITalaq Raj’I Talaq baainTalaq baain

Baain SughraBaain SughraBaain KubraBaain Kubra

Talaq raj’I (revocable Talaq raj’I (revocable divorce)divorce)

The husband is allowed to revoke the talaq The husband is allowed to revoke the talaq i.e., to ruju’.i.e., to ruju’.

A husband who has divorced his wife by A husband who has divorced his wife by means of talaq means of talaq raj’iraj’i has a right to take her has a right to take her back as long as she is still in her period of back as long as she is still in her period of ‘‘iddahiddah

There is no need for a new There is no need for a new aqadaqad and and mahrmahr if if the husband wishes to take back the wifethe husband wishes to take back the wife

The wife is entitled to The wife is entitled to nafqahnafqah during the during the ‘‘iddahiddah

Talaq Ba’in (Irrevocable divorce)Talaq Ba’in (Irrevocable divorce)

Ba’in Sughra eg. Khulu’. This divorce cannot Ba’in Sughra eg. Khulu’. This divorce cannot be revoked but the parties can remarry each be revoked but the parties can remarry each other other

Ba’in Kubra is talaq by three talaqs. This talaq Ba’in Kubra is talaq by three talaqs. This talaq puts an end to the marriage without possibility puts an end to the marriage without possibility of remarrying, unless the woman has been of remarrying, unless the woman has been lawfully married to another person and has lawfully married to another person and has been divorced after consummation -refer to been divorced after consummation -refer to surah al-Baqarah ; 230surah al-Baqarah ; 230

Pillars of TalaqPillars of Talaq

HusbandHusband Wife Wife SighahSighah

–Intention (in the case of Intention (in the case of kinayah divorce) kinayah divorce)

HusbandHusband

Sound mindSound mind MajorityMajority voluntarilyvoluntarily

Talaq shall be void if uttered in any of Talaq shall be void if uttered in any of the following casesthe following cases

By the minorBy the minor By the insane or the mentally disordered By the insane or the mentally disordered

personperson By a person under coercionBy a person under coercion A person in a state of rage (full anger)A person in a state of rage (full anger) The fainting or sleeping personThe fainting or sleeping person

Hadiths Hadiths ““The persons are immune from the The persons are immune from the

responsibility of shari’ah; sleeping person till responsibility of shari’ah; sleeping person till he is awake, child until he has attained the he is awake, child until he has attained the age of majority, the lunatic until he regains age of majority, the lunatic until he regains

his senses”his senses” ““The man who has become the The man who has become the

master(husband) of woman alone can master(husband) of woman alone can pronounce talaq”pronounce talaq”

““It is not accountable on my ummah if it is It is not accountable on my ummah if it is because of mistake, forgetfulness and because of mistake, forgetfulness and

anything which is forced on him”anything which is forced on him”

Wife Wife

Must be legal or lawful wifeMust be legal or lawful wife No requirements of majority/sound mindNo requirements of majority/sound mind If she is in her ‘If she is in her ‘iddahiddah of a revocable divorce of a revocable divorce If she has not completed her ‘If she has not completed her ‘iddahiddah

SighahSighah

Explicit (Sarih)Explicit (Sarih) Implicit (Kinayah)Implicit (Kinayah) In WritingIn Writing

Sarih pronouncementSarih pronouncement

A clear pronouncement using the word A clear pronouncement using the word divorcedivorce

e.g. I divorce youe.g. I divorce you It is effective even without intentionIt is effective even without intention ““There are 3 things whether taken seriously There are 3 things whether taken seriously

or in jest are treated as serious that is or in jest are treated as serious that is marriage, divorce and ruju’marriage, divorce and ruju’” ”

narrated by Abu Hurairahnarrated by Abu Hurairah

Kinayah PronouncementKinayah Pronouncement

Indirect pronouncement of divorce using Indirect pronouncement of divorce using words other than the word divorcewords other than the word divorce

Only effective with intentionOnly effective with intention E.g. Husband said to the wife;E.g. Husband said to the wife;“ “ Go back to your parents house forever”Go back to your parents house forever”

Talaq in WritingTalaq in Writing The Shafi’e said ‘it is a kinayah form of The Shafi’e said ‘it is a kinayah form of

divorcedivorce Will be effective if couple with intentionWill be effective if couple with intention E.g. Husband writes “I divorce you”E.g. Husband writes “I divorce you” No intention no divorceNo intention no divorce If uttered will be effective even without If uttered will be effective even without

intentionintention Similar view by Malikis & HanbalisSimilar view by Malikis & Hanbalis

Hanafis: Hanafis: Two kinds:Two kinds:

– A clearly addressed to the wifeA clearly addressed to the wife– E.g. ‘to my wife Aminah, you are divorced’E.g. ‘to my wife Aminah, you are divorced’

Divorce is effective even without intention (it Divorce is effective even without intention (it is considered as sarih) is considered as sarih) – If a general statement but not addressed to the If a general statement but not addressed to the

wife e.g. husband writes on a paper “ You are wife e.g. husband writes on a paper “ You are divorced”divorced”

– This requires intentionThis requires intention

Some issues relating to Some issues relating to talaqtalaq

TalaqTalaq pronounced during the state of pronounced during the state of intoxicationintoxication

In the state of angerIn the state of anger In the state of jestIn the state of jest Pronouncement of 3 Pronouncement of 3 talaqstalaqs SMS divorceSMS divorce

Divorce pronounced in intoxicated Divorce pronounced in intoxicated conditioncondition

According to Hanafis, Malikis, Safiis and a According to Hanafis, Malikis, Safiis and a narration from Hanbali jusrist, if the husband narration from Hanbali jusrist, if the husband drinks on his own wishes and for pleasure, drinks on his own wishes and for pleasure, talaqtalaq is valid. However, is valid. However, talaqtalaq is not valid if he is not valid if he is forced to drink or intoxication is due to is forced to drink or intoxication is due to certain medicationcertain medication

A narration from Imam Ahmad ibn Hanbal, A narration from Imam Ahmad ibn Hanbal, some companions like Uthman Ibn ‘Affan and some companions like Uthman Ibn ‘Affan and Umar Abd Aziz are of the view that Umar Abd Aziz are of the view that talaqtalaq is is not valid because the husband is not able to not valid because the husband is not able to think or act as normal person. He has lost his think or act as normal person. He has lost his mind and like a sleeping or insane person.mind and like a sleeping or insane person.

TalaqTalaq pronounced during the state of anger- pronounced during the state of anger-Generally there are three stages of angerGenerally there are three stages of anger

TalaqTalaq is not effective if the anger has caused a is not effective if the anger has caused a damage in the mind and thinking of the person that damage in the mind and thinking of the person that makes him like a madman who didn’t mean what he makes him like a madman who didn’t mean what he said and didn’t know what he saidsaid and didn’t know what he said

If the anger is outside his normal behaviour but If the anger is outside his normal behaviour but does not reach the stage of a mad person, talaq is does not reach the stage of a mad person, talaq is effective according to effective according to jumhurjumhur but Ibnu Qayyim is of but Ibnu Qayyim is of the view that it is not validthe view that it is not valid

If the anger had not affected a person’s mind and If the anger had not affected a person’s mind and thinking, so much so that he knew what he said thinking, so much so that he knew what he said then the then the talaqtalaq is valid is valid

The state of jestThe state of jest According to According to jumhurjumhur, (Syafi’i and Hanafi) , (Syafi’i and Hanafi)

talaqtalaq that is pronounced during the state of that is pronounced during the state of jest is valid. Their argument is based on the jest is valid. Their argument is based on the hadith reported by Abu Hurairah r.a. hadith reported by Abu Hurairah r.a.

““There are three things in which it makes There are three things in which it makes no difference whether it is said seriously or no difference whether it is said seriously or in jest, namely, marriage, divorce and in jest, namely, marriage, divorce and ruju’”- ruju’”- Ibn MajahIbn Majah

However, According to Imam Ahmad However, According to Imam Ahmad and Malik, and Malik, talaqtalaq is not effective as it is is not effective as it is

considered as indirect or considered as indirect or kinayah talaqkinayah talaq. . They argued based on ayah 227 of surah They argued based on ayah 227 of surah

al-Baqarah al-Baqarah ““But if their intention is firm for divorce But if their intention is firm for divorce

Allah heareth and knowth all things” al-Allah heareth and knowth all things” al-baq: 227baq: 227

Hadith: “Your deeds are taken into Hadith: “Your deeds are taken into account based on your intention”account based on your intention”

The effect of three talaq that is The effect of three talaq that is pronounced in single seatingpronounced in single seating

Zahiri and 4 Sunni schools;Zahiri and 4 Sunni schools; 3 Talaq is effective3 Talaq is effective Shi’ah Imamiyah – Talaq is not effective Shi’ah Imamiyah – Talaq is not effective

b’cos against the traditionb’cos against the tradition Zaidiyyah, Some Zahiris, Ibn Ishak, Ibn Zaidiyyah, Some Zahiris, Ibn Ishak, Ibn

Taimiyyah & Ibn Qayyim – One Talaq is Taimiyyah & Ibn Qayyim – One Talaq is effective effective

WitnessesWitnesses Although Although talaqtalaq is pronounced without is pronounced without

witness it is still valid as witness it is still valid as talaqtalaq is the right of is the right of the husband and there is no need to be the husband and there is no need to be confirmed or witnessed by 2 personsconfirmed or witnessed by 2 persons

According to Shi’ah witnesses is According to Shi’ah witnesses is wajibwajib

The Statutory ProvisionsThe Statutory Provisions

Section 47 of the IFLA, 1984Section 47 of the IFLA, 1984 Section 48Section 48 Section 54Section 54

Please refer to the provisions of the Please refer to the provisions of the IFLA, 1984IFLA, 1984

CasesCases Pendakwa Mahkamah Melaka v Ismail JaafarPendakwa Mahkamah Melaka v Ismail Jaafar Re Mohd Hussin bin Abdul Ghani and AnorRe Mohd Hussin bin Abdul Ghani and Anor Re Muhammad Husin And HazimahRe Muhammad Husin And Hazimah Mohamed bin Mohd Ali v RoslinaMohamed bin Mohd Ali v Roslina Norriya v Abdul ManafNorriya v Abdul Manaf Hasmah v JuhariHasmah v Juhari Haji Hanafiah v RokiahHaji Hanafiah v Rokiah Mustapha Batcha v RahmahMustapha Batcha v Rahmah Mohd Zuhdi v NorsharifahMohd Zuhdi v Norsharifah Zaiton v Abdul RazakZaiton v Abdul Razak