No school of the Sunnis prescribes any formalities for talak. On the other hand, the Shias insist that divorce must be pronounced orally and in the presence of two competent witnesses.
The specific formula of divorce must be pronounced. It is interesting to note that the Shias do not require the presence of witnesses for marriage, but insist on the presence of two competent witnesses for divorce, while the Sunnis do not require any witnesses for divorce, though insist on the presence of two competent witnesses at the time of marriage.
The Sunnis permit divorce in writing, too, but the Shias insist that talak should be oral, unless the husband is physically incapable of pronouncing it orally. The Ithana Asharis also require that certain Arabic words must be used in the formula of divorce, though mispronunciation is tolerated, and vernacular is permitted if the husband does not know Arabic language. Among the Hanafis, the talak may be oral or in writing, so long as the intention is clear, no specific form is necessary. Any words may be used.
The Supreme Court has held that talaq to be effective has to be pronounced. The term “pronounce” means to proclaim, to utter formally, to utter rhetorically, to declare to articulate.
Thus, the words like these, “Thou art divorced”, or “I have divorced thee”, are enough, and will result in the dissolution of marriage. When the words clearly denote talak, the intention of the husband is inconsequential.
Thus, when a man says to his wife, “I have divorced you, either in her presence, or in her absence, it means that the man has divorced his wife. Not merely this, in the proceeding for maintenance, or in the written statement in the wife’s suit for restitution of conjugal rights or in proceedings under Section 488 Cr. P.C. (in the new code this is Section 125) if the husband takes the plea that he had pronounced talak on his wife, that is enough and results in divorce.
The Supreme Court in Shamim Ara v. State of U.P. and anr., has now ruled that plea taken in written statement cannot at all be treated as pronouncement of talaq from the date of filing of written statement in the court followed by delivery of a copy thereof to the wife. In this case wife filed for maintenance for herself and the child of the marriage under section 125 of the Code of Criminal Procedure. The husband filed written statement on 5.12.1990 stating that he had divorce his wife on 11.7.1987.
The particulars of alleged talaq were neither pleaded nor have neither circumstances under which nor the persons in whose presence such talaq was pronounced been stated. Except for his own evidence no other evidence was adduced by the husband to prove the alleged talaq.
If the words used in the pronouncement of talak are not clear or are ambiguous, then the proof of intention is necessary. Thus, if words like, “Thou art my cousin, my uncle’s daughter, if thou goest”, or, “I give up all relations and will have no connection of any sort with you” are used, the proof of intention to divorce is necessary.
It is not necessary that the talak should be pronounced in the presence of the wife; nor is a notice of divorce required. It is also not necessary that it should be addressed to her. But the wife must be named; if she is not named, talak will not be valid.
Although for the validity of talak the presence of the wife is not necessary, for certain purposes communication of talak is required. Since, on divorce, dower becomes payable and the wife has to undergo the idda, the communication of talak is necessary.
The period of limitation for the purpose of recovery of her deferred dower will start running only from the date when the communication of talak reaches her. She can also claim maintenance from her husband till such time the communication of talak reaches her.
Talak in Writing:
As has been stated earlier, the Sunnis recognize written talak which may be in two forms: manifest talak, and unusual talak. When the talaknama (the writing of talak is properly written so as to be legible and clearly indicating to whom and by whom it is addressed, it is in the customary form. This is known as manifest talak. It may be executed in the presence of the kazi, the wife’s father, or any other relations or witnesses.
If the talaknama is not subscribed in the aforesaid manner, it is called unusual, and the intention to divorce has to be proved. If the talak is manifest, it operates to dissolve the marriage immediately and irrevocably, as in a talak-ul-bain, even though not communicated to the wife but the communication of written talak is necessary, for the purposes for which the communication of oral talak is required.
A Sunni husband may also make a written acknowledgement of divorce, in which case, the divorce is operative, at least, from the date of acknowledgement.
As has been already stated, the Shias recognize written divorce only when the husband is physically incapable of pronouncing oral talak.
All schools of the Sunnis and the Shias agree that every Muslim male of sound mind who has attained puberty, may pronounce divorce. A minor has no capacity of pronouncing talak under any circumstances. It seems that under certain circumstances the guardian of a minor may pronounce talak on his behalf.
The most curious aspect of the Hanafi law of talak is that a divorce pronounced under compulsion, or in a state of voluntary intoxication, or to satisfy or please one’s father or some other person, or in jest, is valid.
The Fatwai Alamgiri puts it thus: “A talak pronounced by an adult and sane Muslim male is valid, even though pronounced under compulsion, or even when it is uttered in sport or jest or inadvertently by a mere slip of tongue”. It is necessary that at the time of pronouncement of talk the husband must be awake. Ameer Ali observes that for the validity of a talak pronounced under compulsion, three conditions are necessary:
(i) The compeller must be in a position to do what he threatens to,
(ii) There is a strong possibility of threat being carried out, and
(iii) The threat involves some imminent and serious danger to the man. The Shia law does not recognize a divorce pronounced under compulsion, not obtained by fraud, or given under influence. The Malikis and the Shafis also do not recognize a talak pronounced under compulsion or threat.
Among the Hanafis there is some controversy whether a divorce pronounced under intoxication is valid. In India, it seems to be the established view that talak pronounced under voluntary intoxication is valid. The Shafis seem to agree with the Hanafis. The Shias and the Malikis do not recognize a divorce pronounced under intoxication, voluntary or otherwise.
The Prophet once said that in three things, viz., marriage, divorce and manumission, “jesting is not allowed to dissuade from trifling with such solemn affairs of life”. From this tradition a rule of law is deduced that a divorce pronounced in jest or sport is valid. The juristic principle on which this rule is founded is the hypothesis that divorce from the point of view of wife means restoration of her liberty.
This is also the basis of the Hanafi doctrine of recognition of divorce under compulsion. The Shafis, the Malikis, the Hanbals and all the schools of the Shias, are against such divorce and do not accord recognition to it.
All schools of law agree that a talak pronounced by one who happens to be delirious, or in a faint, or a sleep, or unconscious, or lost in astonishment is invalid. A dumb person may pronounce divorce by signs, but if he is literate, he should do so in writing.
However, for pronouncement of divorce by husband under the Muslim law an effort to reconcile is not a pre-condition.
Return of benefit under contract of Marriage:
Where a Muslim husband gives talak to his wife who is willing to live with him, and has no intention to break that marriage, the husband is liable to return the articles received from the wife at the time of marriage.