The position of Talaq-e-Biddat in Arabian States

Muslim Law in India and Abroad, by Tahir Mahmood and Saif Mahmood[1], records the following position about the abrogation of the practice of talaq-e-biddat as a means of divorce, through statutory enactments in Arabian countries.

(i)               Algeria:

It is a theocratic State, which declares Islam to be its official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:

Code of Family Law 1984

Article 49. Divorce cannot be established except by a judgment of the court, preceded by an attempt at reconciliation for a period not exceeding three months.

(ii)             Egypt:

It is a secular State. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:

Law of Personal Status 1929

Article 1. A Talaq pronounced under the effect of intoxication or compulsion shall not be effective.

Article 2. A conditional Talaq which is not meant to take effect immediately shall have no effect if it is used as an inducement to do some act or to abstain from it.

Article 3. A Talaq accompanied by a number, expressly or impliedly, shall not be effective except as a single revocable divorce.

Article 4. Symbolic expressions of talaq, i.e., words which may or may not bear the implication of a divorce, shall not effect a divorce unless the husband actually intended it.

(iii)          Iraq:

It is a theocratic State, which declares Islam to be its official religion. The majority of Iraq’s Muslims is Shias. On the issue in hand, it has enacted the following legislation:

Code of Personal Status 1959

Article 35. No divorce shall be effective when pronounced by the persons mentioned below:

(a) one who is intoxicated, insane or imbecile, under duress, or not in his senses due to anger, sudden calamity, old age or sickness;

(b) a person in death-sickness or in a condition which in all probabilities is fatal and of which he actually dies, survived by his wife.

Article 37. (1) Where a Talaq is coupled with a number, express or implied, not more than one divorce shall take place.

(2) If a woman is divorced thrice on three separate occasions by her husband, no revocation or remarriage would be permissible after that.

Article 39. (1) When a person intends to divorce his wife, he shall institute a suit in the Court of Personal Status requesting that it be effected and that an order be issued therefor. If a person cannot so approach the court, registration of the divorce in the court during the period of Iddat shall be binding on him.

(2) The certificate of marriage shall remain valid till it is cancelled by the court.

(iv)           Jordan:

It is a secular State. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:

Code of Personal Status 1976

Article 88. (1) Talaq shall not be effective if pronounced under intoxication, bewilderment, compulsion, mental disorder, depression or effect of sleep.

(2) Bewildered is one who has lost senses due to anger or provocation, etc., and cannot understand what he is saying.

Article 90. A divorce coupled with a number, expressly or impliedly, as also a divorce repeated in the same sitting, will not take effect except as a single divorce.

Article 94. Every divorce shall be revocable except the final third, one before consummation and one with consideration.

Article 98. Where an irrevocable Talaq was pronounced once or twice, renewal of marriage with the consent of parties is not prohibited.

(v)             Kuwait:

It is a theocratic State, which declares Islam to be the official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place:

Code of Personal Status 1984

Article 102. Talaq may be effected by major and sane men acting by their free will and understanding the implications of their action. Therefore, Talaq shall not take effect if the husband is mentally handicapped, imbecile, under coercion, mistake, intoxication, fear or high anger affecting his speech and action.

Article 109. If a Talaq is pronounced with a number (two, three) by words, signs or writing, only one Talaq shall take effect.

(vi)           Lebanon:

It is a secular State. Muslims constitute its majority, which is estimated to be 54% (27% Shia, and 27% Sunni). On the issue in hand, it has enacted the following legislation:

Family Rights Law 1962

Article 104. A divorce by a drunk person shall have no effect.

Article 105. A divorce pronounced under coercion shall have no effect.

(vii)        Libya:

It is a theocratic State, which declares Islam to be its official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:

Family Law 1984

Article 28. Divorce is termination of the marriage bond. No divorce will become effective in any case except by a decree of a competent court and subject to the provision of Article 30.

Article 29. Divorce is of two kinds revocable and irrevocable. Revocable divorce does not terminate the marriage till the expiry of Iddat. Irrevocable divorce terminates the marriage forthwith.

Article 30. All divorces shall be revocable except a third-time divorce, one before consummation of marriage, one for a consideration, and those specified in this law to be irrevocable.

Article 31. A divorce shall be effective only if pronounced in clear words showing intention to dissolve the marriage. Symbolic or metaphorical expression will not dissolve the marriage.

Article 32. A divorce pronounced by a minor or insane person, or if pronounced under coercion, or with no clear intention to dissolve the marriage, shall have no legal effect.

Article 33. (1) A divorce meant to be effect on some action or omission of the wife shall have no legal effect.

(2) A divorce given with a view to binding the wife to an oath or restrain her from doing something shall have no legal effect.

(3) A divorce to which a number is attached, by express words or a gesture, shall effect only a single revocable divorce, except when it is pronounced for the third time.

Article 35. The marriage may be dissolved by mutual consent of the parties. Such a divorce must be registered with the court. If the parties cannot agree on the terms of such a divorce, they shall approach the court and it will appoint arbitrators to settle the matter or reconcile them.

Article 47. A divorce must be pronounced in a court and in the presence of the other party or his or her representative. The court shall before giving effect to a divorce exhaust all possibilities of reconciliation.

(viii)      Morocco:

 It is a theocratic State, which declares Islam to be its official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:

Code of Personal Status 2004

Article 79. Whoever divorces his wife by Talaq must petition the court for permission to register it with the Public Notaries of the area where the matrimonial home is situate, or where the wife resides, or where the marriage took place.

Article 80. The petition will mention the identity of spouses, their professions, addresses, number of children, if any, with their age, health condition and educational status. It must be supported by a copy of the marriage agreement and a document stating the husband’s social status and financial obligations.

Article 81. The court shall summon the spouses and attempt reconciliation. If the husband deliberately abstains, this will be deemed to be withdrawal of the petition. If the wife abstains, the court will notify her that if she does not present herself the petition may be decided in her absence. If the husband has fraudulently given a wrong address for the wife, he may be prosecuted at her instance.

Article 82. The court will hear the parties and their witnesses in camera and take all possible steps to reconcile them, including appointment of arbitrators or a family reconciliation council, and if there are children such efforts shall be exhausted within thirty days. If reconciliation takes place, a report will be filed with the court.

Article 83. If reconciliation attempts fail, the court shall fix an amount to be deposited by the husband in the court within thirty days towards payment of the wife’s post-divorce dues and maintenance of children.

Article 90. No divorce is permissible for a person who is not in his senses or is under coercion or provocation.

Article 92. Multiple expressions of divorce, oral or written, shall have the effect of a single divorce only.

Article 123. Every divorce pronounced by the husband shall be revocable, except a third-time divorce, divorce before consummation of marriage, divorce by mutual consent, and divorce by Khula or Talaq-e-Tafweez.

(ix)           Sudan:

It is a theocratic State, which declares Islam to be its official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place:

Law on Talaq 1935

Article 1. A divorce uttered in a state of intoxication or under duress shall be invalid and ineffective.

Article 2. A contingent divorce which is not meant to be effective immediately and is used as an inducement or threat shall have not effect.

Article 3. A formula of divorce coupled with a number, expressly or impliedly, shall effect only one divorce.

Article 4. Metaphorical expressions used for a divorce shall have the effect of dissolving the marriage only if the husband actually meant a divorce.

(x)             Syria:

It is a secular State. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:

Code of Personal Status 1953

Article 89. No divorce shall take place when the man is drunk, out of his senses, or under duress. A person is out of his senses when due to anger, etc. he does not appreciate what he says.

Article 90. A conditional divorce shall have no effect if not actually intended and used only as an inducement to do or abstain from doing something or as an oath or persuasion.

Article 92. If a divorce is coupled with a number, expressly or impliedly, not more than one divorce shall take place.

Article 94. Every divorce shall be revocable except a third-time divorce, one before consummation, a divorce with a consideration, and a divorce stated in this Code to be irrevocable.

Article 117. Where a person divorces his wife the court may, if satisfied that he has arbitrarily done so without any reasonable cause and that as a result of the divorce the wife shall suffer damage and become destitute, give a decision, with due regard to the husband’s financial condition and the amount of wife’s suffering, that he should pay her compensation not exceeding three years’ maintenance, in addition to maintenance payable during the period of Iddat. It may be directed to be paid either in a lump sum or in instalments as the circumstances of a case may require.

(xi)           Tunisia:

It is a theocratic State, which declares Islam to be its official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has enacted the following legislation:

Code of Personal Status 1956

Article 31.

(1) A decree of divorce shall be given:

• with the mutual consent of the parties; or
• at the instance of either party on the ground of injury; or
• if the husband insists on divorce or the wife demands it.

The party causing material or mental injury by the fact of divorce under clauses (ii) and (iii) shall be directed to indemnify the aggrieved spouse.

(2) As regards the woman to be indemnified for material injury in terms of money, the same shall be paid to her after the expiry of Iddat and may be in the form of retention of the matrimonial home. This indemnity will be subject to revision, increase or decrease in accordance with the changes in the circumstances of the divorced wife until she is alive or until she changes her marital status by marrying again. If the former husband dies, this indemnity will be a charge on his estate and will have to be met by his heirs if they consent to it and will be decided by the court if they disagree. They may pay her in a lump sum within one year from the former husband’s death the indemnity claimable by her.

Article 32 (1) No divorce shall be decreed except after the court has made an overall inquiry into the causes of rift and failed to effect reconciliation.

(2) Where no reconciliation is possible the court shall provide, even if not asked to, for all important matters relating to the residence of the spouses, maintenance and custody of children and meeting the children, except when the parties specifically agree to forgo all or any of these rights.

The court shall fix the maintenance on the basis of all those facts which it comes to know while attempting reconciliation. All important matters shall be provided for in the decree, which shall be non-appealable but can be reviewed for making additional provisions.

(3) The court of first instance shall pass orders in the matters of divorce and all concerning matters including the compensation money to which the divorced wife may be entitled after the expiry of Iddat. The portions of the decree relating to custody, maintenance, compensation, residence and right to visit children shall be executed immediately.

(xii)        United Arab Emirates:

It is a theocratic State, as the Federal Constitution declares Islam to be the official religion. The Constitution also provides for freedom of religion, in accordance with established customs. Muslims of the Shia sect constitute its majority. On the issue in hand, it has the following legislation in place:

Law of Personal Status 2005

Article 140(1). If a husband divorces his wife after consummation of a valid marriage by his unilateral action and without any move for divorce from her side, she will be entitled to compensation besides maintenance for Iddat.

The amount of compensation will be decided with due regard to the means of the husband and the hardship suffered by the wife, but it shall not exceed the amount of one year’s maintenance payable in law to a woman of her status.

(2) The Kazi may decree the compensation, to be paid as a lump sum or in instalments, according to the husband’s ability to pay.

(xiii)      Yemen:

It is a theocratic State, which declares Islam to be the official religion. Muslims of the Sunni sect constitute its majority. On the issue in hand, it has the following legislation in place:

Decree on Personal Status 1992

Article 61. A divorce shall not be effective if pronounced by a man who is drunk, or has lost his senses, or has no power of discernment, if this is shown by his condition and action.

Article 64. A divorce to which a number is attached, whatever be the number, will effect only a single revocable divorce.

Article 65. The words saying that if the wife did or failed to do something she will stand divorced will not effect a divorce.

Article 66. The words that if an oath or vow is broken it will effect a divorce will not dissolve the marriage even if the said oath or vow is broken.

Article 67. A divorce can be revoked by the husband during the Iddat period. After the expiry of Iddat, a direct remarriage between them will be lawful.

Article 71. If a man arbitrarily divorces his wife without any reasonable ground and it causes hardship to her, the court may grant her compensation payable by the husband not exceeding maintenance for one year in accordance with her status. The court may decide if the compensation will be paid as a lump sum or in instalments.

Reference

As quoted by Supreme court in Shayra Bano v. Union of India (2017)

[1] Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2012 edition)