Who Can Give Talaq Under Muslim Law? – Muslims Law – Judiciary Exams

Table of Contents

Muslims Law DISSOLUTION OF MARRIAGE

Talaq is an Arabic word and its literal meaning is to release’, Under Muslim law, Talaq means repudiation of marriage by the husband. In Pre-Islamic Arabia, divorce was used as an instrument of torture. The power of divorce possessed by the husband was unlimited. Such social and moral ills and injustices engaged the attention of Prophet of Islam for removal of prevailing evils and to ensure permanence of marriage without impairing individual freedom.

Every Muslim husband of sound mind, who has attained the age of puberty is competent to pronounce talaq even without assigning any cause.
Guardian of a husband of unsound mind, may pronounce Talaq on behalf of such insane husband if such Talaq is in the interest of the husband.
When husband has no guardian, the Kazi or a Judge has right to dissolve the marriage in the interest of such husband.

Except under Hanafi Law (pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication, etc. is valid and dissolves the marriage), the consent of the husband in pronouncing Talaq must be a free consent.

The words of Talaq must clearly indicate the husbands intention to dissolve the marriage. Therefore, the pronouncement must be express. If Talaq is in express terms, proof regarding the husband’s motive or intention is not necessary.
Where the husband clearly uses the word Talaq he cannot say that he did not mean divorce. But, if the pronouncement is not express and is ambiguous and confusing then it is necessary to prove that husband actually intends to dissolve the marriage.
Formalities under sunni law
According to Sunni law a Talaq may be oral or in writing (Talaqnama).
No specific formula or use of any particular word is required to constitute a valid Talaq. Any expression which clearly indicates the husbands desire to break the marriage is sufficient to dissolve the marriage through Talaq.
A Talaq whether oral or in writing, need not be made in presence of the witnesses. Under Sunni Law, Talaq without witnesses is valid.

According to Shia law, the Talaq must be pronounced orally, except where the husband is unable to speak. If the husband has capacity to utter the words but gives it in writing, the Talaq is void and ineffective under Shia law.
Shia law provides that Talaq must be pronounced in the presence of two competent witnesses. Every male Muslim of sound mind, who has attained the age of puberty, is competent to act as witness. However, in place of one male, two adult female Muslims of sound mind may be substituted to act as witnesses. A Talaq without witnesses or in presence of incompetent witnesses, is void under Shia law.
Shia law requires the use of specific Arabic words in the specific formulae in the pronouncement of Talaq.

In this case it was held about the talaq under intoxication,compulsion, i.e. unintentionally.
Under Sunni law if someone has pronounced talaq then it is valid. It does not matter that person was under intoxication.
Under Shia law , person under intoxication pronouncing talaq is not valid.