When does oral talaq become effective?

Question: When does oral talaq become effective? [DJS 2015]

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Answer

A talaq may be effected (1) orally (by spoken words) or (2) by a written document called a talaqnama.

No particular form of words is prescribed for effecting a talaq. If the words are expressed (saheeh) or well understood as implying divorce no proof of intention is required. If the words are ambiguous, the intention must be proved.

The talaq doesn't need to be pronounced in the presence of the wife or even addressed to her. In a Calcutta case of Furzund Hussein v. Janu Bibee, (1878) 4 Cal. 588, the husband merely pronounced the word "talak" before a family council and this was held to be invalid as the wife was not named. This case was cited with approval by the Judicial Committee in the case of Rashid Ahmad v. Anisa Khatoon, (1932) 59 I.A. 21, where the talaq was valid though pronounced in the wife's absence, as the wife was named.

The words should refer to the wife. The talaq pronounced in the absence of the wife takes effect though not communicated to her, but for purposes of dower it doesn't need to come to her knowledge, and her alimony may continue till she is informed of the divorce.

As the divorce becomes effective for purposes of dower only when communicated to the wife, the period of limitation under Art. 104 for the wife's suit for deferred dower run from the time when the divorce came to her notice, under the Act of 1908.

Words of divorce

The words of divorce must indicate an intention to dissolve the marriage. If they are express (saheeh ), e.g., "Thou are divorced," "I have divorced thee," or "I divorce my wife forever and render her haram from me", they indicate an intention to dissolve the marriage and no proof of intention is necessary.

But if they are ambiguous, e.g ., "Thou art my cousin, the daughter of my uncle, if thou goest", or "I give up all relations and would have no connection of any sort with you", the intention must be proved.

Pronouncement of the word talaq in the presence of the wife or when the knowledge of such pronouncement comes to the knowledge of the wife results in the dissolution of the marriage. The intention of the husband is inconsequential.

In the presence of the competent witness

A divorce must be pronounced orally in the presence of competent witnesses and a talaq communicated in writing is not valid unless the husband is incapable of pronouncing it orally. (Obiter) Under Hanafi Law, a talaq is valid whether oral or in writing.

Under Shia Law divorce must be pronounced only in Arabic and that too in a specific form. It is not however necessary that the husband himself must know Arabic. He can engage the services of an agent who knows Arabic to pronounce the same on his behalf. It is only if nobody knows Arabic is available that in specific circumstances it may be pronounced in any other language.

As observed in Dilshada Masood v. Gh. Mustaffa, 1986 J&K 80: This is an established principle of Shia Law that pronouncement of talaq (divorce) must be uttered orally in the presence and hearing of two male witnesses who are Muslims and of approved probity. It is not however necessary nor has it been provided anywhere in the text of Shia Law that the divorce must be pronounced in the presence of ‘Imam’. The only mandatory requirement for a valid divorce is that it must be orally pronounced in Arabic in the presence and hearing of two ‘Aadil’ witnesses.