The Book Of Divorce ( Talaq )

Rule (1420) The Divorcee (male) must be mature, of sound reason, free of compulsion and aware of his decision, thus, divorce by a child, even a teenager, insane, even if his illness is periodic and divorce takes place during his illness, the divorce of one compelled even if he may later agree, and the divorce of a drunk etc., of unsound awareness and intention, is not valid. It is permissible for the guardian of an insane person to divorce on his behalf if it is for his interest, and it is not permissible for the guardian of a child and a drunk person to divorce on their behalf Whether the guardian of a child can waive the time of marriage of a temporary marriage on behalf of a minor, there are two views about it, according to the more clear one it is lawful.

Rule (1421) For a divorce there must be a permanent marriage contract. Thus divorce of a temporary marriage is not valid, and it also is necessary for her not to have been experiencing menstruation or child birth blood discharge if sex is performed with her and that she is not pregnant and that the divorcee is present. If sex is not performed with her or she is pregnant clearly it is lawful to divorce her even if she is experiencing menstruation. The same rule applies if the divorcee is not present who does not know her condition, regardless, the divorcee is the husband or his agent who is authorized to undertake the matters of divorce. It is necessary for the validity of the divorce, precautionary, that a certain period of time must pass so that it is learnt that she according to her experience of menses her condition is changed from one cycle of clean condition to another clean of menses condition, and precautionary, when such period of time is over and she is divorced her divorce is valid even if she may have been experiencing menses during divorce. The same rule applies to a person who is at home but has no way to know about the conditions of his wife to be divorced as regards her menses like one imprisoned etc. In the case of a man who is absent and away from home and is able to know by calculation the condition of his wife his divorce is not valid even if it takes place after the month's period, except if it is discovered that she was not experiencing any menses.

Rule (1422) The stipulation of a month's time in the divorce of an absent person, is for the wife who experiences menses. If she does not experience menses when she is of the age of experiencing menses, it is permissible for the absent husband to divorce her after three months from the time of sex even if one can think of menses taking place at the time of divorce.

Rule (1423) The woman to be divorced must be in a menses-free condition in which she has not had any sex with her husband if he divorces her in a menses free time in which he has done sex with her it is not valid, unless she is a minor or is above the age of experiencing menses, or clearly pregnant, the divorce of such women is valid even if it takes place during a menses free-time in which sex is done to them. The same rule applies to a woman whose husband is absent who does not know about the condition and she is divorced after the period of time mentioned earlier (one month's time), precautionary, such divorce is valid even if it may take place in a menses free time in which he has had sex with her as mentioned before.

Rule (1424) If the wife says that she is free of menses and she is divorced by the husband or his agent and then she says that she had menses during divorce her words are not accepted without testimony and her first words are carried on until the opposite is proved.

Rule (1425) If the absent husband divorces his wife before the time mentioned earlier and it is discovered that the divorce has taken place in a menses free time in which no sex is done, the divorce is valid. If a husband at home divorces his wife in a menses free period in which sex is done and whose pregnancy is not clear, the validity of her divorce is objectionable, precaution to re-doing the divorce should not be ignored. The same rule applies if sex is done during her experiencing menses intentionally or by mistake then is divorced after she is free of menses, in fact, very possibly it is void; if she is divorced on the basis of considering the menses-free state to be still existing a process called (Istishab) or the Istishab of no sex the divorce is valid, apparently, but its validity, in fact depends upon when the conditions are met.

Rule (1426) If a women's menses is confused with her being of the age of experiencing menses but because of accidental reasons or a usual habit of her likes, like during the days that she breast-feeds or at the beginning of her age of maturity it is permissible to divorce her in menses-free time in which sex is done if he was separated from her for three months and if she is then divorced after the said time her divorce is valid even if it is in the menses-free time in which sex is done.

Rule (1427) For divorce it is necessary to specify the woman to be divorced if he has more than one wife, if he has only one wife and says Zawjati Taliq (my wife is divorced,) it is valid, if he has two or more wives and says 'Zawjati Taliq' if he thereby intends a specified one out of the two or three, it is valid and his interpretation is accepted, but if he does it without specifying, the divorce is void according to a strong reason.

Rule (1428) Proxy is permissible for finalizing divorce, regardless, of the principal being absent or at home and likewise about agent.

Rule (1429) The words to formulate divorce are such as: (ANTI TALIQ)(you are divorced, (HIYA TALIQ,) she is divorced, or (Fulanah Taliq), so and so is divorced. By using words like, I divorced so and so or (Tallaq Tuki,) I divorced you, or (Anti Mutallaqah,) you are divorced, or (Fulanah Mutallaqah,) so and so is divorced, is objectionable, in fact, according to a more clear reason it is void.

Rule (1430) Divorce cannot take place by writing or making gestures in the case of people who are able to speak, but in the case of inability to speak it is valid. If one gives his wife the choice and authority to divorce herself and she does choose to divorce herself it is said that such divorce takes place in the revocable form of divorce, and it also is said that divorce in this way never takes place is based on a strong ground. If he is asked, "did you divorce your wife so and so," and he says, "yes," intending thereby imperative way of grammatical expression, the creation of divorce; it is said that divorce in this way takes place and there is the opposite view also and this view is based on stronger ground.

Rule (1431) For the validity of divorce it is necessary not to make it dependent upon a condition that may possibly come into existence or a quality known to come into existence in future, like one's saying, "If 'A' comes you are divorced, or if the sun rises you are divorced," it is void. If a possible condition exists is one of the elements that validate divorce, like one's saying, "If you are my wife you are divorced" or that the quality known to come into existence is not taking place in future but simultaneously with divorce like one's pointing to his hand and say, "If this is my hand you are divorced it is valid."