Dishonored Cheques

Punishment on Bouncing of Cheques

The Negotiable Instruments Act 1881, defines cheque as “ cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand.” The cheque is, therefore, explicitly defined as a bill of exchange, drawn on a specified banker which contains an unconditional order in writing drawn on a specified banker, signed by the drawer, requiring the banker to pay on demand a sum certain in money to or to the order of, a specified person or to the bearer, and which does not order any act to be done in addition to the payment of money.


Cheque is payable to or to the order of a certain person or bearer. According to law, a person may not necessarily be a natural person. It can as well be a corporate body, constituted or registered under law, capable to enter into contract and carry on its functions or business.


The cheque is one in which there is a drawer, a banker and a payee. On presentation of the cheque, the banker has either to honour the cheque or refuse its payment on any valid ground. Besides, other grounds, the cheque is dishonoured when there is insufficient amount available in drawer’s account or not drawn properly to hinder the honouring of the cheque presented which is generally called bouncing of a cheque.


Before 1997, bouncing of cheque, had been a civil wrong in Pakistan for which the affectee could file a suit in civil court for recovery of the cheque amount or deal with the drawer in any manner. However, the position changed in respect of  financial institutions and banks on the enactment of the Banking  Companies (Recovery of Loans, Advances, Credits and Finances) Act 1997 (XV of 1997) by which the bouncing of cheque is made a criminal offence liable to punishment. According to Sub-section 4 of Section 19 of the said Act, whoever dishonestly issues a cheque which is dishonoured shall be punishable with imprisonment which may extend to one year or with fine or both. The aforesaid Act was later repealed by the Financial Institutions (Recovery of Finances) Ordinance 2001(XLVI of 2001). The new Ordinance contains a similar provision in Sub-section (4) of Section 20 which reads as follows -


“ Whoever dishonestly issues a cheque towards re-payment of a finance or fulfilment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to one year, or with fine or with  both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque”.


The above provision specifically applies in the cases where the cheque for recoupment of loans in favour of the financial institution is issued but dishonoured on account of lack of fund in the drawer’s account and thus to be treated as having dishonestly issued a cheque towards re-payment which is dishonoured on presentation.


It is obvious that a person who dishonestly issues cheques towards repayment of finance or fulfilment of obligations to the financial institutions or banks is made liable for punishment. But no such provision exists in any law if the general public is cheated or defrauded through issuance of cheques which are never honoured. Persons who indulge in such nefarious practice must be penalized under criminal law besides facilitating the public to recover the amounts due. In order to penalize the unscrupulous persons for their dishonest acts of issuing cheques for meeting their promises or obligations which are dishonoured on presentation on account of lack of deposits in their accounts, it is expedient that a new Section be added in the Pakistan Penal Code to provide punishment for such acts.


Commission’s deliberation

The Secretariat placed the proposal before the Commission in its meeting held on 18 May 2002 and the Commission taking serious notice of ever increasing complaints and litigations in courts due to bouncing of cheques in private transactions, recommended the addition of a new offence of bouncing of cheque in the Pakistan Penal Code reading as follow: 


“489-F Whoever dishonestly issues a cheque towards re-payment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years and with fine, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque”.


The Commission further, recommended a consequential amendment in the Code of Criminal Procedure 1998 for making such offence cognizable by police, non-bailable and compoundable. A draft Ordinance containing the proposed amendment at Appendix -I is referred to the Government for amending the Pakistan Penal Code.

                                                                                                                       Appendix -I




 further to amend the Pakistan Penal Code 1860 and the Code of Criminal Procedure 1898

 WHEREAS it is expedient further to amend the Pakistan Penal Code 1860 (Act XLV of  1860) and the Code of Criminal Procedure 1898 (Act V of 1898) for the purpose hereinafter appearing;  


AND WHEREAS the President is satisfied that circumstances exist which render it necessary to take immediate action;

NOW, THEREFORE, in pursuance of the Proclamation of Emergency of the Fourteenth day of October, 1999, and the Provisional Constitution Order No.1 of 1999, read with the Provisional Constitution (Amendment) Order No. 9 of 1999, and in exercise of all powers enabling him in that behalf, the President of the Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance: -

1. Short title and commencement. --(I) This Ordinance may be called the Criminal Law (Amendment ) Ordinance 2002.  

(2) It shall come into force at once.  

2. Insertion of new Section 489-F, Act XLV of 1860. In the Pakistan Penal

 Code 1860 (Act-XLV of 1860), after Section 489-E, the following new Section shall be inserted, namely;-

“ 489-F Dishonestly issuing a cheque.- Whoever dishonestly issues a cheque towards re-payment of a loan or fulfillment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which  may extend to three years and with fine, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque.”.




Sexual Harassment

The Protection Against Harassment of Women at Workplace Act 2010 provides has been drafted to make professional, academic and public spheres safer for women to function in.


The Act intends to penalize the following sexual notions: any unwelcome sexual advance, request for sexual favors or other verbal or written communication or physical conduct of a sexual nature or sexually demeaning attitudes, causing interference with work performance or creating an intimidating, hostile or offensive work environment, or the attempt to punish the complainant for refusal to comply to such a request or is made a condition for employment.


Section 3 of the Act makes it incumbent on each organization to constitute an Inquiry Committee in order to inquire into complaints under this Act. The Committee consists of three members of whom at least one member shall be a woman. One member shall be from senior management and one shall be a senior representative of the employees or a senior employee where there is no CBA. One or more members can be co-opted from outside the organization if the organization is unable to designate three members from within as described above.


The procedure of holding an inquiry has been prescribed under section 4 of the Act and is as follows:


Inquiry Committee, within three days of receipt of a written complaint, shall–

(a)    communicate to the accused the charges and statement of allegations leveled against him, the formal written receipt of which will be given;

(b)   require the accused within seven days from the day the charge is communicated to him to submit a written defense and on his failure to do so without reasonable cause, the Committee shall proceed ex-parte; and

(c)    Inquire into the charge and may examine such oral or documentary evidence in support of the charge or in defense of the accused as the Committee may consider necessary and each party shall be entitled to cross-examine the witnesses against him.


 The following provisions inter alia shall be followed by the Committee in relation to inquiry:

(a)    The statements and other evidence acquired in the inquiry process shall be considered as confidential;

(b)   An officer in an organization, if considered necessary, may be nominated to provide advice and assistance to each party;

(c)    Both parties, the complainant and the accused, shall have the right to be represented or accompanied by a Collective Bargaining Agent representative, a friend or a colleague;

(d)   Adverse action shall not be taken against the complainant or the witnesses;

(e)   The inquiry Committee shall ensure that the employer or accused shall in no case create any hostile environment for the complainant so as to pressurize her from freely pursuing her complaint; and

(f)     The Inquiry Committee shall give its findings in writing by recording reasons thereof.


 The Inquiry Committee shall submit its findings and recommendations to the Competent Authority within thirty days of the initiation of inquiry. If the Inquiry Committee finds the accused to be guilty it shall recommend to the Competent Authority.


The Government has also appointed Ombudsman at federal and provincial levels. The Ombudsman exercises the same powers and has the same functions as that of the inquiry committee. An employee has an option to either approach the inquiry committee of her office or the Ombudsman.

The possible punishment for sexual harassment is as follows:

Minor penalty include:

censure; (b) withholding, for a specific period, promotion or increment; (c) stoppage, for a specific period, at an efficiency bar in the time-scale, otherwise than for unfitness to cross such bar; and (d) recovery of the compensation payable to the complainant from pay or any other source of the accused.


Major penalties: (a) reduction to a lower post or time-scale, or to a lower stage in a time-scale; (b) compulsory retirement; (c) removal from service; (d) dismissal from service; and (e) Fine. A part of the fine can be used as compensation for the complainant. In case of the owner, the fine shall be payable to the complainant


An accused may file an appeal against his punishment with the Ombudsman.

Second/Third Marriage

Muslim men have a right under law to enter into four marriage contracts and subsequently take four women as wives, at the same time. The concept is known as polygamy and we find its roots in the sharia law however the right to enter into a subsequent marriage is subject to the following conditions provided under Rule 6 of Muslim Family Law Ordinance 1961;


a)      the husband shall make an application to the Chairman/Union Council, listing down his desire to re-marry and reasons for the proposed marriage. He shall also specify if consent has been acquired by the previous wife or/wives;


b)      on receipt of the application the Chairman/Union Council shall request the existing wife/wives to nominate a representative, collectively constituting an Arbitration Council;


c)        eventually the Arbitration Council if satisfied that the proposed marriage is necessary and just shall only then grant permission to the husband to enter into a new marriage. contract Without prejudice to its general powers to consider what is just and necessary, the Arbitration Council shall consider the following circumstances amongst others when ascertaining the necessity and justness of the proposed marriage: sterility, physical infirmity, physical unfitness for the conjugal relation, willful avoidance of a decree for restitution of conjugal rights, or insanity on the parts of the existing wife.


Seeking permission from the Arbitration Council is integral. If the husband fails to seek permission from the Arbitration Council prior to entering into a new marriage contract whilst already married, Rule 20(3) of the Family Court Act, 1964 accords the right to the Union Council/Arbitration Council or aggrieved party, that includes aggrieved wives to file a complaint in the Family Court identifying his non-compliance with the procedure to enter into Polygamy as detailed above.


In the event the husband is convicted pursuant to the complaint for not acquiring prior permission from the Arbitration Council under Rule 20(3) of the Family Court Act, 1964 he is likely to face the following consequences:


a)      his new marriage contract will not be registered under the Muslim Family Law Ordinance 1961;


b)      he shall immediately pay the entire amount of the dower, whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and


c)       simple imprisonment for a period which may extend to one year and with fine of five hundred thousand rupees.


Drafting and validity of Wills

Testator and his competence The essential requirements for the capacity of a testator along with the views of jurists on the issue may be mentioned as below:


 Every Muslim of a sound mind either male or female is competent to make a will and there is consensus of the Muslim jurists on the point. A will, therefore, made by an insane, lunatic or idiot person cannot be considered as valid(21): According to Fatawa Alamgiri a will made by a person who is incompetent to perform a gratuitous act is void but if a will is made by a lunatic during his lucid interval it is valid(22). The same is the position in law which treats a will made by a lunatic as void but if it is made during his lucid interval is valid(23) Regarding the age of majority as an essential ingredient for the capacity of the testator the divergence between the Schools is very great. Some jurists they take the age of majority as an essential ingredient for the competency of a testator. Therefore, according to their view a will made by a minor is void(24). While some others are of the view that a will made by a minor may be considered as valid. Those who consider a will made by a minor as valid they themselves have divergence of opinion regarding the age of the minor and state of his understanding, the detail of which may be mentioned as below: The majority of the Maliki jurists they generally do not regard a will made by a minor as valid. However, some of the Maliki jurists they regard the will of a minor as valid if it is made for a pious purpose while others are of the opinion that it should not be restricted to these purposes alone. They give the absolute right to a minor who can comprehend his act to make a will for any purpose recognized by Shariah(25). The Shafeis and Shias they also agree generally with the Malikis(26).


The Hanafis on the other hand, they do not consider a will made by a minor as valid excepting few who consider it valid if it is made by a minor who is approaching to his puberty or if it is made concerning his funeral arrangements . It is expressed in Fataw-i-Alamgiri that “a will made by a person under puberty whether he is Murahik (one approaching puberty) or not is unlawful according to us”(27). The same view is expressed in Radd-ul-Mukhtar that “a will of minor either he can comprehend his act or not is void”. So a will made by a minor either mummayiz or ghair mummayiz is invalid according to the majority of the jurists, as they take the age of majority of the testator as an essential ingredient for his competence to make a valid will. The Shafeis(29) they also agree with the views of Hanafia on this issue. The law favours the views of Hanafis and Shafeis and does not recognize the will a minor irrespective of it either he can comprehend his act or not. In law any person under 18 years of age is considered as minor and transactions made by him during his minority will be considered as invalid(30).


As regard the capacity of a person who is condemned to death for an offence there is no provision both in Shariah & Law to deprive him of making a valid will. 4. As regard the difference of religions of the testator and legatee, a will made by the testator will be considered as valid according to the majority of the jurists(31) except Shafia(32) who do not consider it as valid.


Alongwith this agreement of the majority of jurists there is divergence of opinion among them on the issues mentioned below:

a) If a Zimmi makes a will of one third of his property to mourners or singers or to erect a church it will be void and if he makes a will to send certain muslims on Hajj or to construct a Masjid for the muslims then it will be valid only if the persons are specified but in case they are not specified it is void. This is the view of Imam Abu Yousaf and Muhammad but according to Imam Abu Hanifah it is absolutely valid under all circumstances.

b) When an alien mustamin makes a will to a muslim or a zimmi for the whole of his property it will be valid unless his legal heirs are residing in Dar-ul-Islam. Then in this case it will be valid only to the extent of one third of his property and the excess will pass on 39 to his heirs but if he has no heirs then it will be valid in the whole of his property.

c) If a Christian or a Jew makes a will to built Church or Synagogue and dies, then such building would descend to the legal heirs of the testator, as according to Abu Hanifa’s view the erection of this nature of will be equivalent to Waqf or for a pious purpose and will be treated as valid. However, according to the disciple’s views all such erections are sinful in their nature and therefore, are not valid(35).


d) A will made in favour of a murderer who has intentionally caused the death of testator is not valid and there is consensus of the jurists of this point. However, the difference does lie among the jurists in case of unintentional murder and it has a detail which may be mentioned as follows:


i)                    According to Imam Abu Hanifah if the cause of death is unintentional or by mistake it will be void. Unless it is caused by a minor or insane person(36).

ii)                   According to Shia law it is absolutely void (37).


e) If a will is made by an apostate who has converted his faith to Christianity, Judaism or any other religion than Islam, it is void according to Imam Abu Hanifah but valid in the views of Abu Yousaf and Muhammad. However in case of a female apostate it is valid according to the views of all Hanifi jurists as according to their views she is not liable to put to death for her apostasy(38).


f) The will of a person who commits suicide is valid according to the Hanifi doctrine(39) whereas it is invalid under the Shia Law(40)


g) In law it is considered to be valid if it is made before the Commission of suicide but if it is made after doing any act towards the Commission of suicide it is void. As it has been held in the case of Mazhar Hussain Vs. Bodha Bibi that “the will made by the deceased who made the will first and afterwards took poison is valid”(41) Essentials of Legatee or Devisee (The Musa Lahu) In principle any person who is capable of holding property may be a valid legatee under a will and there is a consensus of the Muslim jurists on the point(42). However, the divergence among the jurists on the issue may be discussed as follows:

i)        According to the Hanafi doctrine the legatee must be in existence at the time of making the will and if he is not alive at the time of making the will, it will not be valid; as it is stated in Fatawai Alamgiri(43)that "there is no will for a non -existent or a dead''.- under the Shia Law(44) it is not necessary that the legatee must be in existence at the time of making the will however he should come into existence before the testator’s death.


ii)       According to the majority of jurists(45) a will in favour of nonMuslim is valid and their views are based on the tradition that the Messenger of the Allah sent various gifts to Abu Sufyan Ibn-eHarb and Sufyan bin Ibn-e-Ummayyah for the purpose of distributing them among the poors of Makkah and this was the time when they had not yet embraced Islam. On the basis of this Hadith the Hanafi jurists(46) are of the view that gifts and will can be made both to the muslims and non-muslims. However, Shafeis(47) are of the view that no will can be made in favour of non-muslim absolutely.


iii)     No will can be made to an apostate (a person who has renounced Islam), and on this issue there is consensus(48) of all the schools; however, in case of a women apostate there is divergence of opinion. Some of the jurists they hold that she will be treated like a male apostate and a will made in her favour will also be invalid. While others they hold a different view and are of the opinion that in case of a women apostate it is valid.


iv)     A will in favour of a child in the mother’s womb is valid according to Hanafi doctrine(49) provided he is born within six months of the will. They are of the opinion that if a child is born within six months of the date of making the will he will be treated as a legatee in existence and is competent to take the will. According to Shiah(50) and Maliki(51) doctrines there is no limitation as to time when the child should born. All that is necessary is that the legatee must be in existence before the death of the testator(s). The law favours and recognizes the position of Hanafi doctrine(52) on this issue, as it has been decided by the Lahore High Court in one of it's case titled chano bibi vs Mohammad Riaz(53) that for 41 the validity of a will the legatee must be in existence at the time of making the will or should be born with in six months of the death of the testator


v)       A will can be made for any legal, pious or charitable purpose. It can be made in favour of poor generally or in favour of a particular body of them. According to the Hanafi doctrine(54) it is lawful to make a will in favour of poor christians as there is no sin contrary to constructing a church for which there is a sin and therefore it is illegal and this principle applies to the poor of all religions and faiths in their views. However, according to Shia(55) a will can only be made in favour of muslim poor.


vi)     It is lawful to make a will in favour of a Masjid but according to Imam Abu Hanifah no will can be made to make a graveyard or for constructing inns for the passers-by. However, according to his two disciples it can be validly made for all such purposes.


vii)   A will can also be made either to an identified individual or in favour of a class for example a will in favour of someone by name or by description as a will in favour of certain students, patients, a family or a group or for the construction of a certain houses or institutions or hospitals for a particular purpose. According to the Hanafi doctrine(56) a will can also be made in favour of unspecified class or a group of people.


Subject of Will (Legace) and its Validity Any property moveable or immovable which is capable of being transferred and which exists at the time of the testator’s death can be the subject of a will. It is also necessary for the validity of legace that it must be owned and possessed by someone in his individual capacity. In other words, we can say that the following conditions are necessary for the validity of legace to make a valid will:

a) The property must be capable of being transferred.

b) The testator must be the owner of the property.

c) The property must be in existence at the time of testator’s death. It is not necessary, however, that the subject of will must be an existence at the time of making the will as in the case of Bai-us-Salam and there is consensus of the jurists on this issue, along with some difference in some minor matters(57). 42

d) A will can also be made in rights of Easements which can be capable of transfer e.g. right of way, right of water, light etc. and there is consensus of the jurists on this issue(58)

e) Although the Quran does not impose any restriction on the extent of the disposition of the property, however, there is complete unanimity of jurists both Sunni and Shia that a will can only be made to the extent of one third of the total property belonging to the testator and this limitation is based on the address made by the Messenger of Allah at the time of Hajjahtul-Wadah which states:


“O people, verily Allah has specified the shares of each heirs in the property of the deceased, it is not permissible to make a will in favour of heirs nor should it exceed to one third(59).


Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. During divorce or marriage annulment proceedings, the issue of child custody often becomes a matter for the court to determine. In most cases, both parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent.


In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated. Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child's housing, educational needs and food. In most cases, the non-custodial parent still has visitation rights. Many of the religions practicing in India have their own personal laws and they have their different notion of custody.'


Custody Under Muslim Law:

The first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody so long as she is not disqualified. This right is known as right of hizanat and it can be enforced against the father or any other person. The mother's right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right''

'Son—''Among the Hanafis, it is an established rule that mother's right of hizanat over her son terminates on the latter's completing the age of 7 years. The Shias hold the view that the mother is entitled to the custody of her son till he is weaned. Among the Malikis the mother's right of hizanat over her son continues till the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis remains the same.''


Daughter- Among the hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Malilikis, Shafiis and the Hanabalis the mother's right of custody over her daughters continues till they are married. Under the Ithna Ashari law the mother is entitled to the custody of her daughters till they attain the age of 7. The mother has the right of custody of her children up to the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate. Mother cannot surrender her right to any person including her husband, the father of the child. Under the Shia school after the mother hizanat belongs to the father. In the absence of both the parents or on their being disqualified the grandfather is entitled to custody. Among the Malikis following females are entitled to custody in the absence of mother:

1. maternal grandmother

2. maternal great grandmother

3. maternal aunt and great aunt

4. full sister

5. uterine sister

6. consanguine sister

7. paternal aunt


Father's right of hizanat- All the schools of Muslim law recognize father's right of hizanat under two conditions that are:

• on the completion of the age by the child up to which mother or other females are entitled to custody.

• In the absence of mother or other females who have the right to hizanat of minor children.

• Father undoubtedly has the power of appointing a testamentary guardian and entrusting him with the custody of his children. Other male relations entitled to hizanat are:

1. nearest paternal grandfather

2. full brother

3. consanguine brother

4. full brother's son

5. consanguine brother's father

6. full brother of the father

7. consanguine brother of the father

8. father's full brother's son

9. father's consanguine brother's son

Among the Shias hizanat belongs to the grandfather in the absence of the father.''



When Right if Hizanat may be lost by Hazina or Hazin. All the schools of Muslim law agree that a hazina should be:

i) of sound mind

ii) good moral character

iii) living at such a place where there is no risk, morally or physically to the child

iv) of such a age which would qualify her to bestow on the child the care it may need (not applicable to the mother)'

The Shia law is very categorical and lays down that a person who has ceased to be muslim is not entitled to the cutody of the child. Also hazina who marries a person not related to the child within the degrees of prohibited relationship forfeits her right of hizanat. The cardinal principal of hizanat in muslim law is the “welfare of the child”. The rights of hizanat cannot be lost on account of her poverty or want of funds to maintain the child. Also neither the father nor the mother has the right to remove the child from the matrimonial home. Hazin may be deprived of the custody of the child if he is a minor or of unsound mind. Also hazin who is leading an immoral life or who is a profligate has no right to the custody of the child.



Modes of Divorce:

A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally, this is done by talaaq. But he may also divorce by Ila, and Zihar which differ from talaaq only in form, not in substance. A wife cannot divorce her husband of her own accord. She can divorce the husband only when the husband has delegated such a right to her or under an agreement. Under an agreement the wife may divorce her husband either by Khula or Mubarat. Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery, insanity or impotency of the husband. But the Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the basis of which a Muslim wife may get her divorce decree passed by the order of the court.


There are two categories of divorce under the Muslim law:

1.) Extra judicial divorce, and

2.) Judicial divorce.


Conditions for a valid talaaq:

1) Capacity: Every Muslim husband of sound mind, who has attained the age of puberty, is competent to pronounce talaaq. It is not necessary for him to give any reason for his pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaaq by a minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic then talaaq pronounced by him during “lucid interval” is valid. The guardian cannot pronounce talaaq on behalf of a minor husband. When insane husband has no guardian, the Qazi or a judge has the right to dissolve the marriage in the interest of such a husband.


2) Free Consent: Except under Hanafi law, the consent of the husband in pronouncing talaaq must be a free consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc., is valid and dissolves the marriage.


Involuntary intoxication: Talaaq pronounced under forced or involuntary intoxication is void even under the Hanafi law.


Shia law:

Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and ineffective.


3) Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may be simply uttered by the husband or he may write a Talaaqnama. No specific formula or use of any particular word is required to constitute a valid talaaq. Any expression which clearly indicates the husband’s desire to break the marriage is sufficient. It need not be made in the presence of the witnesses.


According to Shias, talaaq, must be pronounced orally, except where the husband is unable to speak. If the husband can speak but gives it in writing, the talaaq, is void under Shia law. Here talaaq must be pronounced in the presence of two witnesses.


4) Express words: The words of talaaq must clearly indicate the husband’s intention to dissolve the marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage.


Express Talaaq (by husband):

When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is express. The express talaaq, falls into two categories:

• Talaaq-i-sunnat,

• Talaaq-i-biddat.

Talaaq-i-sunnat has two forms:

• Talaaq-i-ahasan (Most approved)

• Talaaq-i-hasan (Less approved).


Talaaq-i-sunnat is considered to be in accordance with the dictats of Prophet Mohammad.


The ahasan talaaq: consists of a single pronouncement of divorce made in the period of tuhr (purity, between two menstruations), or at any time, if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period if iddat. The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce and does not apply to talaaq in writing. Similarly, this requirement is not applicable when the wife has passed the age of menstruation or the parties have been away from each other for a long time, or when the marriage has not been consummated. The advantage of this form is that divorce can revoked at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may effected expressly or impliedly.


Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says I have retained thee” the divorce is revoked. Resumption of sexual intercourse before the completion of period of iddat also results in the revocation of divorce.


The Raad-ul-Muhtar puts it thus: “It is proper and right to observe this form, for human nature is apt to be mislead and to lead astray the mind far to perceive faults which may not exist and to commit mistakes of which one is certain to feel ashamed afterwards”


The hasan talaaq:

In this the husband is required to pronounce the formula of talaaq three time during three successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be made after the interval of a month or thirty days between the successive pronouncements. When the last pronouncement is made, the talaaq, becomes final and irrevocable. It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during the period of tuhr. Example: W, a wife, is having her period of purity and no sexual intercourse has taken place. At this time, her husband, H, pronounces talaaq, on her. This is the first pronouncement by express words. Then again, when she enters the next period of purity, and before he indulges in sexual intercourse, he makes the second pronouncement. He again revokes it. Again when the wife enters her third period of purity and before any intercourse takes place H pronounces the third pronouncement. The moment H makes this third pronouncement, the marriage stands dissolved irrevocably, irrespective of iddat.



It came into vogue during the second century of Islam. It has two forms: (i) the triple declaration of talaaq made in a period of purity, either in one sentence or in three, (ii) the other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise. This type of talaaq is not recognized by the Shias. This form of divorce is condemned. It is considered heretical, because of its irrevocability.



Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. 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. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the court of law. 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.



In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete.


After the expiry of fourth month the wife has following rights:

(i) She may go to the court to get a decree of judicial divorce

(ii) She may ask the court to grant the decree of restitution of conjugal rights.

Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce. It can be revoked if:

(i) The husband observes fast for a period of two months, or,

(ii) He provides food at least sixty people, or,

(iii) He frees a slave.


According to Shia law Zihar must be performed in the presence of two witnesses.


Divorce by mutual agreement:

Khula and Mubarat: They are two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or a part of some other property. A verse in the Holy Quran runs as: “And it not lawful for you that ye take from women out of that which ye have given them: except (in the case) when both fear that they may not be able to keep within the limits (imposed by Allah), in that case it is no sin for either of them if the woman ransom herself.” The word khula, in its original sense means “to draw” or “dig up” or “to take off” such as taking off one’s clothes or garments. It is said that the spouses are like clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of each other.


In law it is said is said to signify an agreement between the spouses for dissolving a connubial union in lieu of compensation paid by the wife to her husband out of her property. Although consideration for Khula is essential, the actual release of the dower or delivery of property constituting the consideration is not a condition precedent for the validity of the khula. Once the husband gives his consent, it results in an irrevocable divorce. The husband has no power of cancelling the ‘khul’ on the ground that the consideration has not been paid. The consideration can be anything, usually it is mahr, the whole or part of it. But it may be any property though not illusory. In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the proposal may emanate from either side. In mubarat both, the husband and the wife, are happy to get rid of each other . Among the Sunnis when the parties to marriage enter into a mubarat all mutual rights and obligations come to an end.


The Shia law is stringent though. It requires that both the parties must bona fide find the marital relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word talaaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words. Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required.


Divorce by wife:

The divorce by wife can be categorized under three categories:

(i) Talaaq-i-tafweez

(ii) Lian

(iii) By Dissolution of Muslim Marriages Act 1939.


Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently . A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. The power of talaaq may be delegated to his wife and as Faizee observes, “this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India”.


This form of delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v. Shahmai, under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law’s house without paying the amount. The wife exercised the right and divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to her. Delegation of power may be made even in the post marriage agreements. Thus where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable and not against public policy . It should be noted that even in the event of contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of contingency does not result in automatic divorce.



If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian. This was held in the case of Nurjahan v. Kazim Ali by the Calcutta High Court.