Duhaime's Law Dictionary


Talaq Definition:

Muslim law: The right given to a Muslim man to divorce his wife by mere unequivocal statement.

Related Terms: Idda, Khula, Zihar

Also presented as talãk.

The unilateral repudiation of a marriage by a Muslim husband.

It is a reflection of the authority which the husband has over his wife at all times, pursuant to Muslim law.

As Pearl and Menski point out:

“[T]he consent of the wife is not required.”

In Moonshee, Justice Colville wrote words that smack of historical gender bias at its worse:

“The matrimonial law of the Mahomedans, like that of every ancient community, favors the stronger sex.”

To effect talaq, all a Muslim husband need do is to unequivocally state his action of divorcing his wife such as “you are divorced” or “I divorce you”. The husband must then abstain from sexual intimacy with his wife for the applicable period of idda, after which the divorce is final as a matter of right - no court order need follow or is otherwise required.

Some varieties of Muslim law add the additional requirement that it be uttered in Arabic and in the presence of two male Muslim witnesses.

In accordance with traditional Muslim law, a talaq can be pronounced using an agent or can be done in writing.

In Ahmed Kasim Molla, the husband sent the talaq by registered mail to his wife. The package was returned to him by the postal authorities with the cryptic anonymous note: REFUSED. Still, the Indian court held the talaq to be valid.

Verma writes that in most schools of Muslim law:

“A talaq is valid even though it is uttered in sport or jest or inadvertently or by a mere slip of the tongue or even by mistake or carelessness (but that) a talaq pronounced in sleep would not be valid....

“A talaq may be pronounced to take effect on the happening of any contingency or the fulfillment of any condition or at a future time.”

In this regard, one finds the curious institution of al-mashi’at in which the husband delegates to the wife the ability to invoke his talaq at any future time.

In Muslim law, particularly in those jurisdictions which have altered the strict code of law as set out in an interpreted with reference to the Koran, divorces may also be obtained from courts of law.

REFERENCES

  • Ahmed Kasim Molla v Khatun Bibi 1932 ILR 59 Cal. 833
  • Blanc, F.-P. and Milliot, L., Introduction à l’Étude du Droit Musulman (Paris : Dalloz, 2001), pages 350-351
  • De Seife, R., The Shar’ia: An Introduction to The Law of Islam (London: Austin & Winfield, 1994)
  • Pearl, D. and Menski, W., Muslim Family Law (London: Sweet & Maxwell, 1998), page 280-281
  • Verma, B.R., Islamic Law-Personal Being Commentaries on Mohammedan Law in India, Pakistan and Bangladesh, 6th Edition (Allahabad, India: Law Publishers, 1986), pages 208-209
  • Note: some aspects of fundamental Muslim law as set out in the Koran, which serves as the equivalent of the common law to Muslims, have been altered by statute. However, as the Koran is the common law equivalent to Muslims, in the absence of statute law to the contrary, the traditional Muslim law as set out in the Koran apply. Some countries, such as Saudi Arabia, have no statute law whatsoever and rely entirely on the antiquated law of the Koran. Others, such as Pakistan, have substantially altered the basic Muslim law by way of a wide variety of statutes.

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