Before encroaching upon the subject, it is better to bear in mind the difference between two terms, ‘contingent’ and ‘conditional.’ While contingent means depending upon certain definite event, for example, if I come back from England or “I get through the law examination,” etc. Whereas, the term ‘conditional’ surely means depending upon the fulfillment of some stipulated condition, like, you give me your black horse, I will give you my white elephant.

Thus, if husband executes in writing that he will provide maintenance (within a specified time) and if he failed to do so, the writing will operate as divorce. It was held that on husband’s failure to provide maintenance, the writing took effect of a divorce. Further, a repudiation of marriage is impermissible if it is qualified by option. Thus, if a husband were to say that he gives Talaq but reserved his right to revoke it in three days, it is held that the option of three days is inoperative but the Talaq is operative. While Sunnis/Hanafis recognize the contingent divorce, Shias do not recognize it. Shias also regard all conditions/options as absolutely void.

Talaq under compulsion or influence of intoxication

The divorce pronounced under compulsion or under intoxication is not valid under Fatimid, Ithna Ashari or Shafi Law. But it is VALID UNDER HANAFI LAW. It is explained that in Turkey, under the Sultans, by a well understood convention a wife who wished to get rid of dissolute husband would go before the Kazi/Quazi with two irreproachable witnesses and depose that her husband had divorced her when drunk, an allegation which he would not be in a position to deny.

ADVERTISEMENTS:

This provision of law can be taken advantage of even by the present day Muslim women. But for taking advantage of this provision, in India, a Muslim woman will have to file a declaratory suit under the provisions of the Specific Relief Act for seeking declaration that her husband under the influence of intoxication had pronounced TALAQ and can obtain a Declaration that the Husband had pronounced Talaq and by reason of which their marriage would stand dissolved.