The Holy Quran is the primary source of Mohammedan Law and represents the God’s Will communicated to the Prophet through the Angel Gabriel. (See: Masroor Ahmed Vs. State (NCT of Delhi) and Another, and the Full Bench Judgment of this Court in Dagdu Pathan v. Rahimbi Dagdu Pathan 2003 (1) HLR 689). Section 34, Chapter IV in Mulla’s Principles of Mahomedan Law by Hidayatullah, Nineteenth Edition, (for short, “Mulla’s Mahomedan Law”) deals with Interpretation of the Quran. It states that the Courts, in administering Mahomedan law, should not, as a rule, attempt to put their own construction on the Quran in opposition to the express ruling of Mahomedan commentators of great antiquity and high authority.
The Holy Quran recites on the issue of Halala, with which we are concerned in the present appeal, as under:
Sura 230 (i e. Verse 230).
And if he hath divorced her (the third time), then she is not lawful unto him thereafter until she hath wedded another husband. Then if he (the other husband) divorces her, it is no sin for both of them that they come together again if they consider that they are able to observe the limits of Allah. These are the limits of Allah. He manifesteth them for people who have knowledge.
What it means is that if the Talak was “the third time”, such a Talak was pronounced, then they cannot re-marry unless the wife were to have, in the intervening period, married someone else and her marriage had been dissolved either through divorce or death of that person and the iddat of divorce or death has expired. This is considered as “Halala”.
Marriage, according to Muslim Law, is a civil contract, the object of which is to legalize sexual intercourse and the procreation of children. (See: Joygun Nessa Bibi Vs. Mahammad Ali Biswas, ). Divorce is another name of dissolution of marriage under three distinct modes in which a Muslim marriage can be dissolved and the relationship of the husband and the wife terminated. The existence of conjugal relations in the case of Mahomedans has to be determined by reference to the provisions of the Mahomedan Law and not by considerations of equity and good conscience as understood in any other system of law (See: Mst. Zohara Khatoon Vs. Mohd. Ibrahim, ).
10. In Mullas Mahomedan Law, Section 311 provides, three modes of Talak, with which we are concerned in the present appeal, namely Talak Ahsan; Talak Hasan; and Talak-i-badai. Talak “Ahsan” consists of a single pronouncement of divorce (Talak) made during a tuhr, period between two menstrual course, followed by abstinence from sexual intercourse for the period of Iddat. (See. Section 311(1)).
Talak “Hasan” consists of three pronouncements made during successive tuhrs without sexual intercourse during any of the three tuhrs. The Talak becomes irrevocable on pronouncement of divorce during all the three tuhrs. In other words, before the third pronouncement, Talak Hasan is revocable by conduct of the parties. However, once the third pronouncement of divorce is made without sexual intercourse during all the three tuhrs, the divorce becomes irrevocable and in that case after Iddat, the former husband and wife cannot enter into a Nikah unless the wife undergoes the process of Halala. (See. S.311(2).
The third mode of Talak, namely, “Talak-i-badai” consists of two modes. Firstly, it consists of three pronouncements made during a single tuhr. For instance, three pronouncements in one go (Triple Talak) either in one sentence, e.g, “I divorce you three times or in separate sentences, e.g., Talak, Talak, Talak. (See : S. 31 1(3)(i)). The second mode of Talak-i-badai consists of a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage. For instance, “I divorce you irrevocably”. (See: S.31 1(3)(ii)).
A Talak in the “Ahsan” mode becomes irrevocable and complete on the expiration of the period of iddat. (See: S.312(1) in Mulla’s Mahomedan Law) Similarly, a Talak in the “Hasan” mode becomes irrevocable and complete on the third pronouncement, irrespective of the iddat, (See: S.312(2)) and a Talak in the “badai” mode becomes irrevocable immediately it is pronounced, irrespective of the iddat. As the Talak becomes irrevocable at once, it is called talak-i-bain, that is, irrevocable Talak (See: Section 312(3)). Thus, in case of a Talak in the Ahsan mode and in the “Hasan” mode do not become absolute until a certain period has elapsed. In case of these two modes of Talak the husband has an opportunity of reconsidering his decision and he has the option to revoke it before the certain period is elapsed. The essential feature of a talak-ul-bidaat or talak-I-badai is its irrevocability. One of tests of irrevocability is the repetition three times of the formula of divorce within one tuhr. But the triple repetition is not a necessary condition of talak-ul-bidaat, and the intention to render a talak-irrevocable may be expressed even by a single declaration. Thus if a man says : “I have divorced you by a talaka-ul-bain (irrevocable divorce)”, the talak is talak-ul-bidaat or talak-i-badai and it will take effect immediately it is pronounced, though it may be pronounced but once. Here the use of the expression “bain” (irrevocable) manifests of itself the intention to effect an irrevocable divorce.
“Iddat” has been described in Mulla’s Mahomedan Law, as the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death to remain in seclusion, and to abstain from marrying another husband. The abstinence is imposed to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage. When the marriage is dissolved by divorce, the duration of the iddat, if woman is subject to menstruation, is three course; if she is not so subject, it is three Lunar months. If the woman is pregnant at the time, the period terminates upon delivery. When the marriage is dissolved by death, the duration of the iddat is four months and ten days. If the woman is pregnant at the time, the iddat lasts for four months and ten days or until delivery, whichever period is longer (See: Section 257, Chapter XIV in Mulla’s Mahomedan Law). The period of iddat prescribed by Muslim Law is 90 days.
As the Talak becomes irrevocable at once, it is called Talak-i-bain, that is, irrevocable Talak. (See: S.312, Mulla’s Mahomedan Law). Thus it is clear that a Talak can be revoked by conduct before it becomes irrevocable. The Talak is, however, complete on the expiration of the period of iddat. Until the talak becomes irrevocable, the husband has the option to revoke it which may be done either expressly, or implied as by resuming sexual intercourse. Every mode of Talak, when is complete, it becomes irrevocable. The question that we have to consider is whether in case of every irrevocable talak, irrespective of its mode, for remarriage with the same husband the wife requires to observe the “Halala”.
14. The Delhi High Court in Masroor Ahmed’s case, after considering different forms of Talak, so also the provisions of Sections 311 and 312 in Mulla’s Mohamedan Law, in paragraphs 26 and 27 of the judgment held thus:
26. …There are views even amongst the sunni schools that the triple talaq pronounced in one go would not be regarded as three talaqs but only as one. Judicial notice can be taken of the fact that the harsh abruptness of triple talaq has brought about extreme misery to the divorced women and even to the men who are left with no chance to undo the wrong or any scope to bring about a reconciliation. It is an innovation which may have served a purpose at a particular point of time in history but, if it is rooted out such a move would not be contrary to any basic tenet of Islam or the Quran or any ruling of the Prophet Muhammad.
Talak in writing is a written mode of Talak reduced in a Talaknama which may only be the record of the fact of an oral Talak or it may be the deed by which the divorce is effected. The deed may be effected in the presence of a Qazi or the wife’s father or of two witnesses. In the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce (Talak-i-bain) and takes effect immediately on its execution. Talak by a delegation is permissible and it is called as a Talak by Tafweez.
Written Talaq may have several forms and some of them are (a) Kitabat-e-mustabinath (legible writing). It is of two kinds – Mustabinah Marsumah (formal legible writing and Mustabinah Ghair Marsumah (informal legible writing) Kitabat-emustabinath Marsumah which is a formal divorce- deed or letter which is written with a title and the addressee’s name.
A Talak may be effected orally (by spoken words) or by a written document called a Talaknama. A Talaknama may only be the record of the fact of an oral Talak; or it may be the deed by which the divorce is effected. Section 313 in Mulla’s Mahomedan Law provides that in the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce that is, talak-i-bain, and takes effect immediately on its execution. Deed of Divorce in writing constitutes a valid divorce (Rasul Bakhst v. Bholon and Ors. AIR 1932 (Lah. 498). Under Hanafi Law, divorce of wife by a written document is irrevocable (Hayat Khatun v. Abdullah Khan AIR 1937 Lah.270). As most Sunni’s are Hanafis the presumption is that a Sunni is governed by Hanafi Law. It is thus clear Talaknama may be only the record of the fact of an oral Talak or it may be the deed by which the divorce is effected. (See: S.310(2)).