Talaq and Khula: The Rules of Islam and the Legal Process in Bangladesh

Talaq and khula — both are the last step of a household's breaking. Shariah has not forbidden it entirely, but it has strictly fixed its rules and limits so that no one is wronged. In this article the main matters are presented briefly.

Note: This is general information. For a specific case, take the advice of a qualified mufti and a lawyer.

The Sunnah method of talaq

O Prophet! When you divorce women, divorce them with regard to their iddah and count the iddah. — (Surah At-Talaq, 65:1 — in part)

When Abdullah ibn Umar (may Allah be pleased with him) divorced his wife during menstruation, the Messenger of Allah ﷺ was displeased and instructed him to take her back and (if needed) divorce her in a state of purity. (Sahih al-Bukhari 5251; Sahih Muslim 1471) From this the jurists conclude:

• Giving one talaq while the wife is in a state of purity free of menstruation, without intercourse, is the better method.
• Then letting the iddah run its course; during this period there is a chance to take her back (raj'ah).
• Giving three talaqs at once is a sinful act; there are discussions among the madhhabs about its ruling, so in such a situation be sure to go to a qualified mufti.

Divorce is twice; then either retain in a fair manner or release with kindness. — (Surah Al-Baqarah, 2:229)

Asking for divorce without reason

The woman who asks her husband for divorce without any hardship, the scent of Paradise is forbidden to her. — (Sunan Abi Dawud 2226; Jami' at-Tirmidhi 1187)

The hadith is a warning in the case of an unreasonable demand without hardship. In cases of real abuse, deprivation of maintenance or an unbearable situation, it is not wrong for a wife to seek a remedy (What a wife can do if the husband is not just).

What khula is

The wife of Thabit ibn Qays (may Allah be pleased with him) came to the Messenger of Allah ﷺ and said: I find no fault in his character or religiosity, but I fear (ingratitude and disobedience) in Islam. The Prophet ﷺ said: will you return his garden (the mahr)? She said, yes. Then the Prophet ﷺ told Thabit (may Allah be pleased with him): take the garden and give her one talaq. (Sahih al-Bukhari 5273)

The Qur'an also hints at khula:

Then there is no sin on them for what she gives to be free. — (Surah Al-Baqarah, 2:229 — in part)

In essence: khula is generally by mutual consent, in exchange such as the return or giving up of the mahr. If the husband does not consent, there is the possibility of applying to court by legal means.

The rules of the iddah

• For a divorced woman generally three menstrual cycles, for a pregnant woman until the birth of the child (Remarriage of a divorced woman).
• During the iddah, maintenance and housing are the wife's right.

The legal process in Bangladesh (in brief)

Under Section 7 of the Muslim Family Laws Ordinance 1961:

1. After giving talaq, a written notice to the relevant Chairman and a copy to the wife are required.
2. There is a provision for punishment for not giving notice.
3. An arbitration council may be formed for reconciliation.
4. After receiving the notice, the talaq generally takes effect when 90 days have passed (if it has not been revoked within that time); if the wife is pregnant, one must wait until the birth of the child.

(For details and updated rules, take advice from the local office or a lawyer. Registration: The Nikahnama and marriage registration.)

Kinds of talaq in brief

• Talaq al-ahsan: one talaq in a state of purity and letting the iddah run its course — the best method.
• Talaq al-hasan: three talaqs in three periods of purity (one in each period of purity).
• Talaq al-bid'i: three talaqs at once or talaq during menstruation — sinful, but effective in Hanafi fiqh.

The ahsan method is encouraged as the best method, because it leaves a chance for reunion.

Revocable and irrevocable

• Revocable talaq: during the iddah the husband can take her back without a new marriage.
• Irrevocable talaq: after the iddah ends or in special cases one cannot return without a new marriage.

The subtleties of these rulings are detailed; go to a mufti in a specific case.

Khula and separation through the court

• Khula by mutual consent: separation with consideration by the consent of husband and wife.
• Through the court: if the husband does not consent or does wrong, the wife can seek separation in court showing legal grounds (The wife's remedies).
• Talaq by the husband: notice and time limit according to Section 7.

Children and financial matters after divorce

• Hidanah (custody): generally the mother has priority, subject to conditions; the ruling differs at certain ages and situations.
• Maintenance: the child's maintenance is the father's responsibility.
• Mahr and maintenance during the iddah: due to the wife.
• The right of contact: respectful contact of both parents with the child.

Misconceptions

• "Once talaq is said, the household is over." — It depends on the situation and the words; a mufti's decision is needed.
• "If said in anger it does not count." — This idea is not correct in all cases; scholars differ, so be careful.
• "A legal notice is not needed when giving talaq." — In Bangladesh it is.

Before divorce: what to do

Not speaking of talaq in a fit of anger, taking arbitration and the mediation of a scholar (Marital disputes and arbitration) and considering the children's future are the teaching of Shariah. If needed, contact us.