Sunday, 21 October 2018

DISSOLUTION OF MARRIAGE AND CUSTODY OF CHILDREN UNDER ISLAMIC LAW (PART 1)

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A marriage contracted in accordance with Islamic law can be dissolved through a number of ways. Just like customary marriage, an Islamic marriage can be dissolved either judicially or through extra-judicial means.

The recognised modes for extra-judicial dissolution of marriage under Islamic law include the following:
1. Talaq
2. Illa
3. Zihar
4. Talaq-i-tafweed
5. Lian
6. Khul’I (this falls under both judicial and non-judicial means of ending a marriage)

DISSOLUTION OF MARRIAGE THROUGH TALAQ
Talaq is derived from an Arabic word which means to set free or release. It is used to depict the idea of setting a woman free from the marriage bond. Talaq as a means of ending a marriage is only available to the husband. Islamic law prescribes some conditions which must be complied with for Talaq to effectively dissolve a marriage.

Talaq is an oral pronouncement made by the husband stating that he is divorcing his wife. The word 'Talaq' must not necessarily be used, but words which are unambiguous which leaves the wife in no doubt that her husband wants to divorce her are sufficient. Words or phrases such as 'I divorce you', 'I separate from you' and all other words which reveal an unequivocal intention to bring the marriage to an end would qualify as a valid pronouncement of talaq.

Talaq when written by a dumb man or when expressed through signs is also valid. In situations where a husband resides in a place different from where his wife resides, the talaq would still be valid if it is communicated through a messenger to his wife.

Talaq would only be valid if it is accompanied by an intention to actually divorce your wife. Thus, when talaq is pronounced and the husband has no requisite intention to divorce his wife, then the talaq is not valid and the marriage cannot be dissolved by the pronouncement of talaq. The pronouncement of talaq made under involuntary intoxication or under intoxication induced by the consumption of food prescribed by Islam as lawful would not be considered a valid pronouncement of talaq capable of dissolving the marriage. When talaq is pronounced under intoxication induced by the consumption of food considered to be unlawful under Islam, then such a pronouncement would be valid and capable of dissolving the marriage. An example of this is Talaq pronounced under the influence of alcohol; consumption of alcohol is prohibited in Islam, therefore a pronouncement of talaq under the influence of alcohol is valid since the husband in disregard of holy injunction went ahead to consume alcohol and should therefore face the consequence of his disobedience.

Talaq pronounced under duress is invalid because the presence of duress implies the absence of intention and without intention to divorce, talaq pronounced remains invalid.

Talaq pronounced in anger may be valid depending on the circumstances. 
When the talaq is pronounced at a time when the anger is at its initial stage such that it cannot be said that the anger beclouded the husband's reasoning, in such a way that he could not have known or meant what he was saying, then such a pronouncement of talaq is valid to dissolve the marriage.

When talaq is pronounced at a time when the anger is at its peak such that the reasoning of the husband has been overpowered by his anger to the extent that he does not understand the implications of his words or even if he understands the implications of his words, does not mean those words, then such pronouncement of talaq is invalid and cannot dissolve his marriage. In this case, he is likened to an insane man, and the pronouncement of talaq by an insane man is not valid.

 In an instance where talaq is pronounced in a state of anger which is in between initial anger and the peak of anger, such pronouncement in a state of anger is valid if it is clear that though the words were spoken in a fit of anger, the anger did not rob him of his reasoning abilities such that he can be equated with an insane man who does not know what he is doing. 

Talaq should be pronounced when a woman is in a state of purity, free from her monthly flow. After talaq is pronounced, then she has to observe iddah which is the waiting period. For women who still have their monthly flow, the waiting period is three monthly periods, for women who have reached menopause, it is three months and for a pregnant woman it is until she gives birth. The woman is supposed to spend the waiting period in her husband's house. The purpose of the waiting period is to afford the husband an opportunity to reconsider his opinion and take back his wife. There should be no sexual intercourse during the waiting period, where the couple engage in sex during the waiting period then the divorce is deemed revoked. If he takes back his wife at any time during the waiting period then the talaq is deemed revoked, if however, he decides to take back his wife after the end of the waiting period then he would have to marry his wife again by doing another nikah. Where the husband does not take back his wife within the waiting period, she becomes free to marry another man.

During the waiting period (iddah), the woman would still have the right of inheritance if the man dies, since the marriage is not yet over. A woman is also entitled to maintenance during the waiting period by her husband.

The acceptable mode of pronouncing talaq is to pronounce talaq just once, talaq pronounced just once is effective to validly end the marriage, triple pronouncement of talaq is usually looked upon with disapproval.

It should be noted that talaq can only dissolve a marriage which is considered valid under Islamic law.

DISSOLUTION OF MARRIAGE THROUGH ILA
This is a constructive way of dissolving a marriage; this is because the husband does not expressly say that he has divorced his wife, but the implications of his actions results in a divorce.  When a man decides to dissolve his marriage through this means, he takes an oath not to have sexual intercourse with his wife for a period of four months. It is important that the woman in respect of whom the oath is made is not a nursing mother.  If at the expiration of four months there is no sexual relations between the husband and his wife, the woman can apply to the court to dissuade her husband from continuing to abstain from any sexual relations with her, if the time given the man within which to resume sexual relations with his wife expires and he fails to comply with the order, the court can dissolve the marriage. If within four months there is sexual relations between them, then the oath is cancelled and the marriage would not be dissolved.

In part 2 of this article, (Insert Link) we examine the Zihar, the Talaq-i-tafweed, the Lian and the Khul’I modes of dissolving an Islamic marriage. We also examine who gets the custody of children in the light of a dissolved Islamic marriage. 

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