Talaq in its crude sense implies dismission. Literally, it implies "setting free" “letting loose” or removing any “ties or restraint". In Muslim Law, it implies freedom from the subjugation of marriage and not from some other bondage. Legally, it implies dissolution of marriage by the Muslim husband utilizing suitable words.
Divorce under Muslim law may be divided into two categories:
1. Extra-judicial divorce
- Divorce by the husband
- Divorce by the wife
- Divorce by the mutual understanding or agreement of both the husband and the wife
2. Judicial divorce
Divorce given by the husband may further be divided under the following heads:
Written Divorce Triple Talaq
Ila (Vow of continence)
‘Ila’ literally means “oath” or “vow”. Ila is an oath taken by a husband in God's name to refrain from having sex with his wife. The Qur'anic basis of this concept is verse 226 of the Surat-al-Baqarah:
Those who forswear their wives (by pronouncing Ila') must wait for four months; then if they change their mind, Lo! Allah is forgiving, merciful. And if they decide upon divorce, then God is surely hearing, knowing. (2:226-227)
In Ila, the husband takes an oath not to engage in sexual intercourse with his wife. Following this oath, if the husband has abstained from sexual intercourse there is no consummation for a period of four months, then after the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve. There is no limit prescribed for the longest period but the shortest period of vow of abstinence must be four months. If the husband swears to abstain for a period of three months, no Ila shall take effect. But to say “By God, I will not approach you for two months, and two months after these two months” is Ila, because of the definiteness of the period of four months. If a period of more than four months is mentioned, Ila would be valid even if it is pronounced during menstruation but if it is pronounced to be perpetual, it would be valid only if pronounced during tuhr (the period of purity between menstruations). Ila made under compulsion or intoxication would be valid as in the case of talaq under similar circumstances.
This form of divorce is mentioned in the section 2 of the Shariat Act, 1937 but it is very rare in India and hence of no practical importance. Ila is a constructive form of divorce. According to Abdul Rahim, “In some cases the conduct of the husband will have the effect of repudiation, though he did not use the word talaq or any other expression with the intention of dissolving the marriage. This is when he swears that he will have nothing to do with his wife and in pursuance of such oaths abstains from her society for four months. The legal effect of such a conduct would be a single irrevocable divorce”.
The words expressing ila are either express or implicative. The express terms are:
- ”I swear by god that I will not approach you”
- ”I swear by god that I will not cohabit with you”
The implicative expressions are:
- ”I swear by god that I will not touch you”
- ”I swear by god that I will not approach your bed”
- ”I swear by god that I will not enter upon you”
Capacity to make Ila: A husband who is
(i) of sound mind, and
(ii) who has attained puberty can make Ila.
Dissolution of marriage on subsequent conduct: Marriage between the parties may be dissolved only if the oath is followed by subsequent conduct of the husband. In Bibi Rehana Khatun v. Iqtidar-uddin, after the marriage ceremony was over, the parents of the bridegroom pushed him into a room where his wife was waiting for him. The husband was not interested in that marriage. Immediately after entering into the room, he took a vow in the presence of his wife that, he would never have sexual intercourse with her. Soon after giving this statement, he came out of the room and repeated the vow in the presence of his mother and his mother’s sister. His father then came out of another room and he again repeated that vow. The court refused to accept the version of the husband. The court said that, the husband has failed to establish that there had been a divorce in the Ila form. A vow is a solemn affirmation. It should not be taken in a moment of excitement.
Views of different schools: According to the Ithana Asharis, this form of divorce can be used only after the consummation of marriage. If the husband resumes intercourse with his wife, or has retracted from it before the expiry of the period of four months, the Ila does not take place and stands cancelled. If the husband assents of Ila after four months, then the cancellation will be valid only if the wife assents to it. Under Ithna Asharia (Shia) school, Ila, does not operate as divorce without order of the court of law. According to this school, after the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband. If the husband does not cohabit even then, the marriage is dissolved by a decree of the court. If she does not obtain the decree of court, the marriage does not dissolve. As per Ismaili law, Ila can be made only during a period of tuhr when there was no sexual intercourse during it. In Sunni law, legal proceedings are not required. The Maliki, the Shafi'i and the Hanbali schools state that if more than four months pass without his having sex, the wife will raise the issue before the judge so that he may order the husband to resume sexual relations. If the husband declines, the judge will order him to divorce her. If the husband declines again, the judge will pronounce her divorce, and in all situations the divorce will be revocable. (Farq al-zawaj of al-Khafif)
Thus we can conclude that, before the expiry of the period of four months, Ila may be revoked in two ways:
(i) If the husband resumes sexual intercourse with his wife before the expiry of the period of four months
(ii) If the husband expressly remarks that he has revoked lla
- Durr-ul-Mukhtar (Dayal’s English ed.,) 236; cf: Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn. 2008, p.73, Central Law Publications, Allahabad
- Durr-ul-Mukhtar, 234,236; cf: DR. Nishi Purohit- The Principles of Mohammedan law, 2nd edn. 1998, p.199, Orient Publishing Company, Allahabad
- Durr-ul-Mukhtar, 121; cf: DR. Nishi Purohit- The Principles of Mohammedan law, 2nd edn. 1998, p.199, Orient Publishing Company, Allahabad
- Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn. 2008, p.72, Central Law Publications, Allahabad
- AIR 1943 All 184
- Dr. M.A. Qureshi- Muslim Law, 2nd edn. 2002, p.86, Central Law Publications, Allahabad
- Tyabji – Muslim Law, 4rth edn., p. 175
- Baillie, II, 147-151