Divorce (talaq)

Literally, the word "divorce" (talaq) means to abandon a thing or get rid of a thing. When an animal tied with a string is untied it is called talaq. If the tied with a string she camel is untied, the Arabs mention this state as: talaqa al-naqata talaqan (The she-camel has been released). Or "Divorce means the dissolution of marital relationship between the spouses (zaujayn) personally or through an agent or a deputy or a delegate, with specific words or allegorically, immediately or consequently. When there remains no love and affection and unity among the spouses (zaujayn) and there is no alternative except "divorce" (talaq) then separation in the manner prescribed by Shari`ah is better. However, separation among the spouses (zaujayn) is not act liked by Allah. It is mentioned in the saying of the Messenger of Allah that: Among the lawful matters the most disliked in the sight of Allah is the divorce.

Quranic concern on the prevalent customs regarding divorce

In Pre-Islamic Arabia, men could abandon their wives at whim by simply declaring, You are to me like my mothers back (58:2). The Quran with its key agenda to lift from them (humanity) their burdens and shackles that were upon humanity (before) (7:157) had to deliver the women from the curse of arbitrary divorce, conjugal oppression and lifelong bondage. At a higher plane, it recognizes the serious emotional and financial implications of a divorce for either or both the spouses, as well as the offspring of a broken marriage. It, therefore, discourages divorce by a set of well-guarded stipulations, but allows it if the alternative was life-long unhappiness for the family. The Quran, however, does not consider divorced women as a social burden. It protects their financial interest and those of the children born to them from their broken marriages, permits them to remarry and treats them practically like any other unmarried women.

Context of the Revelation

In the immediate context of the revelation, the Quran abolishes the pre-Islamic custom that permitted a man to abandon his wife indefinitely by an oath, but retain her in wedlock, thus preventing her remarriage or freedom. It therefore declares Those who vow (to abstain) from their wives must wait for four months. Meanwhile if they go back, (remember,) God is Most Forgiving and Merciful (2:226).

Kinds of Divorce
There are three kinds of divorce in Islam. First is retractable divorce (Rajiee). If the divorced is pronounced only once then the husband and wife can get back to each other and resume marital relations without any outside intervention. The second divorce is still retractable but with outside intervention (Bain). The husband and wife cannot resume marital responsibilities until the marriage contract Nikah is renewed with new dowry.

The third pronouncement makes it non-retractable. It makes the marriage nullified for good. The same couple cannot rejoin in marriage contract except that the wife marries another man and then that person divorces her by his own choice, not as a premarital contract or implicit or explicit understanding, or after his natural death. The Quran states that:

So if a husband divorces his wife (irrevocably), he cannot, after that, remarry her until after she has married another husband and he has divorced her. In that case there is no blame on either of them if they reunite, provided they feel that they can keep the limits ordained by Allah. Such are the limits ordained by Allah which He makes plain to those who understand.

The final divorce is required by the Quran and by the Sunnah to be given at least twice, onc e during each month period. The second divorce can be given in the second month after wifes second purification period. The third and the final divorce could be given in the third month. The husband has the right to retract divorce in the first two instances while third divorce is not revocable as explained above. This is what the Prophet had asked Ibn Umar to do when he divorced his wife during her monthly cycle. Nisaee r reports that the Prophet became exceedingly angry when a person pronounced three divorces in one sitting. Such an act is abominable and tantamount to playing with the Book of Allah SWT.

1. Talaaq ur Rajee
Talaaq ur Rajee is that type of divorce where the husband divorces his wife in clear and explicit terms. For example, he says I divorce you, or You are divorced. Once the husband utters such words, the wife becomes divorced and she has to sit in Iddah (waiting period). The iddah will be three menstrual cycles if she experiences menses, three months if she does not experience menses or at child birth if she is pregnant. The husband now has the choice of revoking his divorce before the expiry of the Iddah period. The husband may revoke his divorce by verbally expressing his desire to take her back into his nikaah or by having physical contact with .If the husband does not revoke the divorce during the Iddah period, the divorce becomes irrevocable. Now, if he wishes to take her back (ie after the Iddah period has lapsed), he can only do so by peforming a new Nikah.

2. Talaaq al Baain
Talaaq ul Baain is an irrevocable divorce where the husband uses ambiguous or vague words to divorce his wife. In other words, he uses such words which could mean divorce or which could also mean something else. For example, the husband tells his wife Pack your bags and get out or You are no more my wife or Go to your father s house. In all these cases where vague words are used, Talaaq ul Baain will only take place if the husband has the intention of divorce at the time of uttering these words. If he merely uttered these words out of anger or he had some other meaning besides divorce in mind, divorce will not take place. Once the husband has issued one or two Talaaqul Baain, the nikaah has been broken and she has to sit in Iddah. If the husband wishes to take back his wife, a new Nikaah will have to be performed.

3. Talaaq e- Mughallazah
Talaaq-e- Mughallazah is when the husband issues three divorces to his wife. Once the husband issues his wife with three divorces (Talaaqur Rajee or Talaaqul Baain), their nikaah is completely broken. She cannot marry him until Halaalah has taken place. Halaalah is a process where in the wife completes her Iddah, thereafter she marries another man and consummates her marriage with him. The second husband then divorces her or passes away. She again has to observe her Iddah from this second marriage. After this, she may again marry her first husband. The majority of the classical scholars maintain that two witnesses are recommended but not required by the Islamic law. There are many incidents reported in the authentic books of Hadith where the Prophet (PBUH) invalidated the marriages without asking for two witnesses. Moreover, the majority opinion also maintains that the three divorces will come into effect even if a husband pronounced them in one sitting though such a divorce is against the Sunnah.

Fasakh (marriage annulment)

Fasakh means to annul a marriage. A decision on fasakh may be made only by the Court after hearing the wife's complaint. "A married woman shall be entitled to apply to the Court for and obtain a decree of fasakh on any one or more of the following grounds:1. husband has neglected or failed to provide for her maintenance for a period of three months; 2. husband has been sentenced to imprisonment for a period of three years or upwards and such sentence has become final; 3. husband has failed to perform, without reasonable cause, his marital obligations for a period of one year; 4. husband was impotent at the time of the marriage and continues to be so; 5. that the husband is insane or is suffering from some chronic disease the cure of which would be lengthy or impossible and which is such as to make the continuance of the marriage relationship injurious to her; 6. husband treats her with cruelty, that is to say 7. habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment; 8. associates with women of ill repute or leads an infamous life; 9. attempts to force her to lead an immoral life; 10. obstructs her in the observance of her religious profession or practice; 11. lives and cohabits with another woman who is not his wife; or 12. if he has more wives than one, does not treat her equitably in accordance with the requirements of the Muslim law; and

13. on any other ground which is recognized as valid for the dissolution of marriage by fasakh under the Muslim law.

Khulaah
Khulaah is the prerogative of a wife as divorce is a male privilege. A wife does not have to have a lengthy list of genuinely Islamic reasons to initiate the process of Khulaah. She also does not need consent from her husband to do so. As divorce is a right of husband Khulaah constitutes a thorough choice of a wife. We do not see any restrictions placed upon a wife in this regard by the Prophet (PBUH) himself. Jamilah bint Salul got Khulaah through the Prophet (PBUH) just because she did not like her husband. The Prophet (PBUH) asked her to return the garden which she took as dowry from him. Unlike divorce, Khulaah can be demanded during wife s monthly cycle or during even pregnancy and delivery periods. The wife becomes master of her own affairs and enjoys an absolute independence after the Khulaah. The husband does not have the right to revoke the Khulaah or demand a return to normalcy in marital relations. They can remarry with a new dowry and new Nikah contract if she agrees to it during her Iddah. The Iddah in this case is only one monthly cycle and not three as is the case with Talaaq. Although the majority of scholars maintain that the Iddah of Khulaah is three monthly cycles as is the case with the Talaaq, many known authorities such as Ibn Umar, Ishaq, Ibn Taymiyyah and others argue that Khulaah is different than Talaaq and its Iddah is just one monthly cycle.

Legislation of a Time-frame for a divorce to take effect as norm for humanity

The Islamic law requires a cooling period so that decisions about divorce are not made in hurry or based upon instantaneous emotional outbursts but based upon thoughtful considerations. Some scholars require presence of two witnesses for the divorce to be lawful. They argue that as

marriage cannot be contracted except in the presence of two witnesses, it cannot be nullified without the presence of two witnesses. This was the opinion of Imam Ali bin Abi Talib, Imran bin Hussain from among the Companions and Ata, Ibn Sireen, Imam Muhammad al-Baqir and Ibn Juraij among the Successors. Many scholars had followed them in maintaining such a view in an effort to make divorce harder to come by. This group of scholars supports their position by the following verse of Surah al-Talaaq: O Prophet! When ye do divorce women, divorce them at their prescribed periods, and count (accurately) their prescribed periods: and fear Allah your Lord: and turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some open lewdness, those are limits set by Allah: and any who transgresses the limits of Allah, does verily wrong his (own) soul: thou knowest not if perchance Allah will bring about thereafter some new situation. Thus when they fulfil their term appointed, either take them back on equitable terms or part with them on equitable terms; and take for witness two persons from among you, endued with justice, and establish the evidence (as) before Allah. Such is the admonition given to him who believes in Allah and the Last Day. And for those who fear Allah, He (ever) prepares a way out.

Instructions on Divorce (Talaq) In Islam As Per Quranic Verses:

Do not divorce a woman during her menstrual periods. Divorce can only be given during purified period known as tuhr. Woman can be divorced if she is pregnant. It should be noted that divorce will be still valid if it is granted against these quranic instructions. However they are discouraged After having divorce, woman should stay to her husband's home till the end of iddah i.e. three menstrual periods. She should not leave her husband's home nor should her husband force her to leave home. While divorcing a woman, man should witnessed two persons. Please note that witnessing is better for both parties. Otherwise divorce will be legally valid without witness too. Iddah period of old women is three lunar months if she is no more menstruating.

During iddah period, husband is responsible to bear expenses of his divorced wife. If divorced wife is pregnant, the man is responsible to bear all her expense till delivery and expense of his child after birth as well.

When does divorce become invalid?

In some cases, uttering the words of divorce become invalid. Among these cases is when the husband is: 1. 2. 3. 4. Drunk. Forced to utter them by someone else. In a complete loss of temper to the extent that he is unaware of what he is saying. In an abnormal state of mind, such as temporary madness, epilepsy or in a coma.

In such cases, divorce is null and void.

Post divorce procedures

After divorce, it is obligatory for the woman not to get married to another man, except after three complete menstruation cycles, if she is not pregnant. If she is, then she has to wait till she gives birth, so that the paternity of the child is not confused. This period of time is termed as iddah. However, even if the woman no longer has menstruations (e.g. after menopause), she should still wait for three months. So there is more to the 'iddah than just the issue of paternity.

Conclusion
The Quran deals with the process of divorce in a balanced and phased manner comprising a three month time frame, so that this most agonizing experience in a persons life is faced in a balanced, phased and harmonious manner, and there is no bitterness and ill feelings between the erstwhile spouses. Islam disapproves of divorce immensely, and in this connection it has cautioned its followers to be very careful, and has pointed out the steps that the spouses have to take for reconciliation in the event of disagreement between them. It has also laid down the correct procedure of giving divorce if it becomes inevitable to do so. In this connection the basic point to note is that Islam has permitted only the divorce to be given on one occasion, but a very large number of Muslims is unaware of these teachings of lslam and because of the moral and social corruption a number of people put divorce to wrong and improper use by giving three divorces at one and the same time, and feel sorry, afterwards. In view of this situation, an urgent necessity is felt to educate the people about the Islamic teachings concerning divorce and to show to them its correct procedure. This pamphlet has been written mainly with this purpose in view, but it can be useful from this angle too that those critics, who deride the Islamic shariah laws after seeing wrong procedures of divorce generally followed by the Muslims, would be able to see what was the procedure really laid down by Islam and what procedure is actually being followed by many of its followers.

Divorce (Talaq) Laws in Pakistan

A marriage is like a civil contract which can either be executed or dissolved just like any other contract. Islam and Quran has stressed both partners to live in peace and harmony, however it is a natural process that some disagreements between spouses arise during the course of marriage. It is always encouraged in Islam to resolve such disagreements by acting fairly and kindly if however in the event such disagreements are not resolved then the Islam has recognized the spouses legal right to dissolve a marriage contract and hence both are entitled with religious rights to dissolve a marriage contract. In Pakistan, the establishment and dissolution of marriage takes place under different laws and ordinances promulgated on different occasions by different governments. 1. The Muslim Personal Law (Shariat) Act, 1937 2. The West Pakistan Muslim Personal Law (Shariat) Act, 1962 These Acts were enacted with the object of replacing customs with Muslim Personal Laws in certain specified areas where the parties were Muslim. 3. The Dissolution of Muslim Marriages Act, 1939 This act consolidates and clarifies the provisions of Muslim Law relating to the valid grounds for dissolution of marriage in a suit filed by the wife.

4. The Guardian & Wards Act, 1890

10

In Pakistan the Guardian & Wards Act, 1890, is applicable to custody and guardianship cases while keeping in view the personal law to which the minor is subject. Personal law is that which is applicable to a person on the basis of his/her religious conviction. 5. The Muslim Family Law Ordinance, 1961 This ordinance advanced womens right to some extent. For the first time a uniform mode of divorce and marriage were prescribed. Khula and the delegated right of divorce for women were also recognized. Other matters like dower and maintenance are also dealt under this law. 6. The West Pakistan Family Courts Act, 1964 This Act was designed to establish Family courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs.

Husbands Right of Divorce or Talaq & the Legal Procedure A husband has a unilateral right of divorce or talaq and he cannot be alienated from this right but can be restricted through the marriage contract which is also known as Nikkahnama. According to the Muslim Personal Law (Shariat) and Muslim Family Law Ordinance the husband can pronounces talaq orally as well as by way of deed of divorce. Husband is bound to send a written notice by registered post to the Union Council or concerned government office in charge for issuance of divorce certificates. In the notice the husband has to mention the address of his ex-wife in order to enable the government office to issue the notice to her and it shall constitutes Arbitration Council within the 30 days of receipt of notice for the purpose of reconciliation or settlement if possible. This legislation was introduced to protect women from an instant and unrecorded divorce so that a woman should be absolutely clear about her marital status and have a documentary proof that she is properly divorced. It is important to receive a notice of talaq from the concerned government office. Notice of talaq can be served on a wife with the permission of government office through her father, mother, adult brother or sister but no other relatives. If this is not possible because

11

her whereabouts are not known and notice cannot be served on her through her immediate family, the husband can still serve the notice through a newspaper approved by the concerned government office. In case divorce notice is served through the concerned government office, a reconciliation period of 90 days time or three months (except if the parties have divorced each other for the third time) also known as iddat period. And the two parties can reconsider their views and reunite during this waiting time. However if the iddat period which is of 90 days is over and no reconciliation occurs then the divorce becomes effective and marriage is terminated. If the wife is expecting when the husband pronounced the divorce, the divorce will not be effective and then the waiting period is till delivery of her child plus the iddat period.

Talaq-e-Tafweez and Mubarat (Mutual Divorce) & the Legal Procedure

In both of these forms of divorce there is no need to approach courts, meaning that marriage can be dissolved rapidly, cheaply and with few procedural problems. In this case both husband and wife sign a mutual divorce deed and send a notice under the Muslim Family Law Ordinance to the concerned government office, however the government office is bound to follow the procedure of issuance of notices before the issuance of dissolution of marriage certificate.

Wife Right of Divorce or Khula & the Legal Procedure

A wife can unilaterally dissolve her marriage only if the right of divorce has been unconditionally delegated to her by the husband in the marriage contract or nikkahnama. If such right of divorce is not delegated then in such circumstances wife can dissolve her marriage by apply for khula from the Family Courts of Law, which is also known as dissolution of marriage by way of judicial divorce.

12

Therefore, if the wife is not delegated the right or divorce in her nikkahnama then she would need to apply for khula that s granted by the court. To apply for khula the wife would need to file a suit for khula in the Family Court on the grounds that she feels she can no long live with her husband within the limits prescribed by Allah and such a statement on oath made in her suit would be sufficient to establish her case for Khula.

Dissolution of Muslim Marriage Act 1939- Judicial khula may also be granted without the husbands consent if the wife is willing to forgo her financial rights. Grounds for Judicial Divorce- Grounds on which a woman may seek khula include: 1. Desertion by husband for four years 2. Failure to maintain for two years 3. Husband contracting a polygamous marriage in contravention of established legal procedures 4. Husbands imprisonment for seven years 5. Husbands failure to perform marital obligations for three years 6. Husbands continued impotence from the time of the marriage 7. Husbands insanity for two years or his serious illness 8. Husbands cruelty (physical or other mistreatment) 9. Wifes exercise of her option of puberty if she was contracted into marriage by any guardian before the age of 16 and repudiates the marriage before the age of 18 10. Any other ground recognized as valid for the dissolution of marriage under Muslim Law

The family court will issue decree and send notification to union council or government office which proceeds as if it received the notice of talaq and once the iddat period is over the khula becomes effective.

At the time of filing of khula suit the wife usually has to return haq mehr and other benefits received from the husband.

Are laws of divorce in Pakistan any different than in Shariah Laws?

13

A verbal talaq is not recognized by the law of Pakistan and as well as the husbands failure to send written notice to the government office is considered as no divorce in law. But according to shariah, divorce once pronounced (three times) by the husband and khula once obtain from the court of law is effective and binding.

Child Custody after Divorce:

In Pakistani Laws the physical custody of a child is given to the mother whereas father is responsible for the material support of the child e.g. he has to pay for the food and other expenses of the child. The father has the right to custody after the mothers t erm ends by the court of law i.e. after the age of seven years, the mothers right over the son ends whereas girls are given to mothers until they attain puberty. One important aspect of this law is that the conduct of the mother is of great importance, and if that is found objectionable, e.g. if the woman remarries to a person who is not a mahram for the child then she may not be given custody rights. And in case of the absence of both parents, the grandparents are offered the custody of the child. Whereas, in some cases the consent of the child is also considered in order to choose between either of the parents.

Conclusion:
It is necessary to make reforms in the family law in order to address the concerns like the transfer of right to divorce from husband to wife at the time of marriage has been included in the Family Law, but it has not yet been practiced. So there is still need to establish mechanisms for its application. Ensuring the property rights of women after divorce is of great importance. For instance, whatever property that the husband and wife gained during their life together, should be split into half once they get divorce. There is a need to ensure for post-divorce guaranties like child custody, property rights etc. for women in our societies. Otherwise women chose to stay in a marriage even if it is a violent relation or harmful for them.

14