Section 2(a) of the Act defines a “divorced woman” to mean a Muslim woman who was married according to Muslim law and has been divorced or has obtained divorce from her husband in accordance with Muslim law.
Where wife initiates maintenance proceedings plea taken by husband of a previous divorce cannot be treated as pronouncement of divorce/talaq. Whether divorce has taken place to disentitle her under the Act has to be proved.
Mere statement in written statement or affidavit is not enough. Section 2(b) defines “iddat period” in respect of the divorced woman as: (i) three menstrual courses after the date of divorce, if she is subject to menstruation, (ii) if she is not subject to menstruation, three lunar months after divorce, and (iii) if she is enceinte, at the time of her divorce, the period between the divorce and the delivery of her child or the termination of pregnancy whichever is earlier. That, the definition of iddat is a result of hasty draftsmanship overlooking some fundamental aspects of iddat, would be clear from the following:
(a) No period of idda is provided when marriage is not consummated.
(b) In ahsan form of talak, the idda is not after divorce. When a husband pronounces talak on his wife during a period of purity, the spouses are required not to have sexual intercourse during the period of idda which follows immediately after the pronouncement of marriage.
If parties thus abstain, talak becomes final after the expiry of the period of idda. Thus, in this form there is no idda after divorce: rather completion of period of idda results in divorce. Idda is thus, a period of probation during which parties are free to reconcile. In this form parties are also free to remarry. (This can be done only twice).
In hasan form of talak there are three successive pronouncements of talak during three periods of tuhr (purity). It is only on the third pronouncement that divorce becomes final. It is only in talak-ul-biddat that, strictly speaking, idda follows divorce. Talak-ul-biddat was forbidden by Prophet and considered it to be the most cursed one. But it is this form of divorce which the Act tends to promote.