Applicability of 'Spes Successionis' under Muslim Law : The Law

Justice Altamas Kabir
Supreme Court of India

The Supreme Court in Shehammal Vs. Hasan Khani Rawther has examined the applicability of the concept of 'Spes Successionis', as contained in Section 6 of the Transfer of Property Act, to persons governed by Muslim law. The relevant extracts of this judgment are reproduced hereinbelow;

16. From the submissions made on behalf of the respective parties and the facts of the case, three questions of importance emerge for decision, namely:- 

(i) Whether in view of the doctrine of spes successionis, as embodied in Section 6 of the Transfer of Property Act, 1882, and in paragraph 54 of Mulla's "Principles of Mahomedan Law", a Deed of Relinquishment executed by an expectant heir could operate as estoppel to a claim that may be set up by the Executor of such Deed after inheritance opens on the death of the owner of the property? 

(ii) Whether on execution of a Deed of Relinquishment after having received remuneration for such future share, the expectant heir could be estopped from claiming a share in the inheritance? 

(iii) Can a Mohammedan by means of a Family Settlement relinquish his right of spes successionis when he had still not acquired a right in the property?  

17. Chapter VI of Mulla's "Principles of Mahomedan Law" deals with the general rules of inheritance under Mohammedan law. Paragraph 54 which falls within the said Chapter relates to the concept of transfer of spes successionis which has also been termed as "renunciation of a chance of succession". The said paragraph provides that the chance of a Mohammedan heir- apparent succeeding to an estate cannot be said to be the subject of a valid transfer or release. The same is included in Section 6 of the Transfer of Property Act and the relevant portion thereof, namely, clause (a) is extracted below :- 

"6. What may be transferred.- Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force. (a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred." 

The provisions of Section 6(a) have to be read along with Section 2 of the Act, which provides for repeal of Acts and saving of certain enactments, incidents, rights, liabilities etc. It specifically provides that nothing in Chapter II, in which Section 6 finds place, shall be deemed to affect any rule of Mohammedan Law. 

18. Inspite of the aforesaid provisions, both of the general law and the personal law, the Courts have held that the fetters imposed under the aforesaid provisions are capable of being removed in certain situations. Two examples in this regard are - 

(i) When an expectant heir willfully does something which has the effect of attracting the provisions of Section 115 of the Evidence Act, is he estopped from claiming the benefit of the doctrine of spes successionis, as provided for under Section 6(a) of the Transfer of Property Act, 1882, and also under the Mohammedan Law as embodied in paragraph 54 of Mulla's "Principles of Mahomedan Law"? 

(ii) When a Mohammedan becomes a party to a family arrangement, does it also entail that he gives up his right of spes successionis. 

The answer to the said two propositions is also the answer to the questions formulated hereinbefore in paragraph 16. 

19. The Mohammedan Law enjoins in clear and unequivocal terms that a chance of a Mohammedan heir-apparent succeeding to an estate cannot be the subject of a valid transfer or release. Section 6(a) of the Transfer of Property Act was enacted in deference to the customary law and law of inheritance prevailing among Mohammedans. 

20. As opposed to the above, are the general principles of estoppel as contained in Section 115 of the Evidence Act and the doctrine of relinquishment in respect of a future share in property. Both the said principles contemplated a situation where an expectant heir conducts himself and/or performs certain acts which makes the two aforesaid principles applicable inspite of the clear concept of relinquishment as far as Mohammedan Law is concerned, as incorporated in Section 54 of Mulla's "Principles of Mahomedan Law". Great reliance has been placed by both the parties on the decision in Gulam Abbas's case (supra). 

While dealing with a similar situation, this Court watered down the concept that the chance of a Mohammedan heir apparent succeeding to an estate cannot be the subject of a valid transfer on lease and held that renunciation of an expectancy in respect of a future share in a property in a case where the concerned party himself chose to depart from the earlier views, was not only possible, but legally valid. Referring to various authorities, including Ameer Ali's "Mohammedan Law", this Court observed that "renunciation implies the yielding up of a right already vested". It was observed in the facts of that case that during the lifetime of the mother, the daughters had no right of inheritance. Citing the decision in the case of Mt. Khannum Jan vs. Mt. Jan Bibi [(1827) 4 SDA 210] it was held that renunciation implies the yielding up of a right already vested. Accordingly, renunciation during the mother's lifetime of the daughters' shares would be null and void on the ground that an inchoate right is not capable of being transferred as such right was yet to crystallise. This Court also held that "under the Muslim Law an expectant heir may, nevertheless, be part of a course of conduct which may create an estoppel against claiming the right at a time when the right of inheritance has accrued". It was observed by the learned Judges that the Contract Act and the Evidence Act would not strictly apply since they did not involve questions arising out of Mohammedan Law. This Court accordingly held that the renunciation of a supposed right, based upon an expectancy, could not, by any test be considered "prohibited". 

21. This Court ultimately held that the binding force of the renunciation of a supposed right, would depend upon the attendant circumstances and the whole course of conduct of which it formed a part. In other words, the principle of an equitable estoppel far from being opposed to any principle of Mohammedan Law, is really in complete harmony with it. 

22. On the question of family arrangement, this Court observed that though arrangements arrived at in order to avoid future disputes in the family may not technically be a settlement, a broad concept of a family settlement could not be the answer to the doctrine of spes successionis. 

23. There is little doubt that ordinarily there cannot be a transfer of spes successionis, but in the exceptions pointed out by this Court in Gulam Abbas's case (supra), the same can be avoided either by the execution of a family settlement or by accepting consideration for a future share. It could then operate as estoppel against the expectant heir to claim any share in the estate of the deceased on account of the doctrine of spes successionis. While dealing with the various decisions on the subject, which all seem to support the view taken by the learned Judges, reference was made to the decision of Chief Justice Suleman of the Allahabad High Court in the case of Latafat Hussain Vs. Hidayat Hussain [AIR 1936 All 573], where the question of arrangement between the husband and wife in the nature of a family settlement, which was binding on the parties, was held to be correct in view of the fact that a presumption would have to be drawn that if such family arrangement had not been made, the husband could not have executed a deed of Wakf if the wife had not relinquished her claim to inheritance. It is true that in the case of Mt. Khannum Jan (supra), it had been held by this Court that renunciation implied the yielding up of a right already vested or desisting from prosecuting a claim maintainable against another, and such renunciation during the lifetime of the mother of the shares of the daughters was null and void since it entailed the giving up of something which had not yet come into existence. 

24. The High Court after considering the aforesaid views of the different jurists and the decision in connection with the doctrine of relinquishment came to a finding that even if the provisions of the doctrine of spes succession is were to apply, by their very conduct the Petitioners were estopped from claiming the benefit of the said doctrine. In this context, we may refer to yet another principle of Mohammedan Law which is contained in the concept of Wills under the Mohammedan Law. Paragraph 118 of Mulla's "Principles of Mahomedan Law" embodies the concept of the limit of testamentary power by a Mohammedan. It records that a Mohammedan cannot by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of one-third cannot take effect unless the heirs consent thereto after the death of the testator. The said principle of testamentary disposition of property has been the subject matter of various decisions rendered by this Court from time to time and it has been consistently stated and reaffirmed that a testamentary disposition by a Mohammedan is binding upon the heirs if the heirs consent to the disposition of the entire property and such consent could either be express or implied. Thus, a Mohammedan may also make a disposition of his entire property if all the heirs signified their consent to the same. In other words, the general principle that a Mohammedan cannot by Will dispose of more than a third of his estate after payment of funeral expenses and debts is capable of being avoided by the consent of all the heirs. In effect, the same also amounts to a right of relinquishment of future inheritance which is on the one hand forbidden and on the other accepted in the case of testamentary disposition. Having accepted the consideration for having relinquished a future claim or share in the estate of the deceased, it would be against public policy if such a claimant be allowed the benefit of the doctrine of spes successionis. In such cases, we have no doubt in our mind that the principle of estoppel would be attracted. 

25. We are, however, not inclined to accept that the methodology resorted to by Meeralava Rawther can strictly be said to be a family arrangement. A family arrangement would necessarily mean a decision arrived at jointly by the members of a family and not between two individuals belonging to the family. The five deeds of relinquishment executed by the five sons and daughters of Meeralava Rawther constitute individual agreements entered into between Meeralava Rawther and the expectant heirs. However, notwithstanding the above, as we have held hereinbefore, the doctrine of estoppel is attracted so as to prevent a person from receiving an advantage for giving up of his/her rights and yet claiming the same right subsequently. In our view, being opposed to public policy, the heir expectant would be estopped under the general law from claiming a share in the property of the deceased, as was held in Gulam Abbas's case (supra).

Gift under Muslim Law : The Concept

Justice R.M. Lodha

The Supreme Court in Hafeeza Bibi Vs. Shaikh Farid (Dead) has examined the concept of Gift under Muslim Law and its interplay with the provisions of the Transfer of Property Act and the Registartion Act. The question posed before the Supreme Court in this case was whether an unregistered Gift Deed is a valid gift and a valid conveyance of title. The relevant portions of the judgment are reproduced hereinbelow;

10. As to whether or not the High Court is right in its view that the unregistered gift deed dated February 5, 1968 is not a valid gift and conveyed no title to the defendant 2 is the question for determination in this appeal. 

11. There is divergence of opinion amongst High Courts on the question presented before us. 

12. The Privy Council in the case of Mohammad Abdul Ghani (since deceased) & Anr.v. Fakhr Jahan Begam & Ors. 1922 (49) IA 195 referred to `Mohammadan Law'; by Syed Ameer Ali and approved the statement made therein that three conditions are necessary for a valid gift by a Muslim: 

(a) manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee, either impliedly or expressly; 

(c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively. 

13. In Mahboob Sahab v. Syed Ismail and others (1995) 3 SCC 693, this Court referred to the Principles of Mahomedan Law by Mulla, 19th Edition and in paragraph 5 (pp. 696-697) noticed the legal position, in relation to a gift by Muslim incorporated therein, thus : 

"5. Under Section 147 of the Principles of Mahomedan Law by Mulla, 19th Edn., edited by Chief Justice M. Hidayatullah, envisages that writing is not essential to the validity of a gift either of moveable or of immovable property. Section 148 requires that it is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under Section 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only the gift is complete. Section 152 envisages that where the donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It would, thus, be clear that though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act; for a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject-matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift......." 

14. Section 123 of the Transfer of Property Act, 1882 (for short, `T.P. Act') lays down the manner in which gift of immoveable property may be effected. It reads thus : 

"S.123. Transfer how effected. -- For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered." 

15. However, an exception is carved out in Section 129 of the T.P. Act with regard to the gifts by a Mohammadan. It reads as follows: 

"S.129. Saving of donations mortis causa and Muhammadan Law. -- Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law." 

16. At this stage, we may also refer to Section 17 of the Registration Act, 1908 which makes registration of certain documents compulsory. Section 17 of the Registration Act, to the extent it is necessary, reads as follows : 

"S.17. Documents of which registration is compulsory. – 

(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-- 

(a) instruments of gift of immovable property; (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . ;  (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ." 

17. Section 49 of the Registration Act deals with the effect of non-registration of documents required to be registered. It reads thus: 

"S.49. Effect of non- registration of documents required to be registered.- No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall-- (a) affect any immovable property comprised therein or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882 ), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877 ), or as evidence of any collateral transaction not required to be effected by registered instrument." 

18. Section 17(1)(a) of the Registration Act leaves no manner of doubt that an instrument of gift of immoveable property requires registration irrespective of the value of the property. The question is about its applicability to a written gift executed by a Mohammadan in the light of Section 129 of the T.P. Act and the rule of Mohammadan Law relating to gifts. 

19. In the case of Nasib Ali v. Wajed Ali AIR 1927 Cal 197, the contention was raised before the Division Bench of the Calcutta High Court that the deed of gift, not being registered under the Registration Act, is not admissible in evidence. The Calcutta High Court held that a deed of gift by a Mohammadan is not an instrument effecting, creating or making the gift but a mere piece of evidence. This is what the High Court said : 

".........The position under the Mahomedan Law is this : that a gift in order to be valid must be made in accordance with the forms stated above; and even if it is evidenced by writing, unless all the essential forms are observed, it is not valid according to law. That being so, a deed of gift executed by a Mahomedan is not the instrument effecting, creating or making the gift but a mere piece of evidence. It may so happen after a lapse of time that the evidence of the observance of the above forms might not be forthcoming, so it is sometimes thought prudent; to reduce the fact that a gift has been made into writing. Such writing is not a document of title but is a piece of evidence. 

3. The law with regard to the gift being complete by declaration and delivery of possession is so clear that in a case before their Lordships of the Judicial Committee Kamarunnissa Bibi v. Hussaini Bibi [1880] 3 All. 266, where a gift was said to have been made in lieu of dower, their Lordships held that the requisite forms having been observed it was not necessary to enquire whether there was any consideration for the gift or whether there was any dower due. The case of Karam Ilahi v. Sharfuddin [1916] 38 All. 212 is similar in principle to the present case. There also a deed relating to the gift was executed. The learned Judge held that if the gift was valid under the Mahomedan Law it was none the less valid because there was a deed of gift which, owing to some defect, was invalid under Section 123, Transfer of Property Act, and could not be used in evidence. 

4. The next, question that calls for consideration is whether a document like the present one executed by a Mahomedan donor after he made a gift to show that he had made it in favour of the donee is compulsorily registrable under the Registration Act. Under Section 17 of the Registration Act an instrument of gift must be registered. By the expression 'instrument of gift of immovable property' I understand an instrument or deed which creates, makes or completes the gift, thereby transferring the ownership of the property from the executant to the person in whose favour it is executed. In order to affect the immovable property, the document must be a document of transfer; and if it is a document of transfer it must be registered under the provisions of the Registration Act. 

5. The present document does not affect immovable property. It does not transfer the immovable property from the donor to the donee. It only affords evidence of the fact that the donor has observed the formalities under the Mahomedan Law in making the gift to the donee. I am prepared to go so far as to hold that a document like the present one is not compulsorily registrable under the Registration Act, or the Registration Act does not apply to a so-called deed of gift executed by a Mahomedan. But for purposes of the present case it is not necessary to go so far because I hold that this document is only a piece of evidence, and conceding that it should, have been registered, the effect of its non-registration is to make it inadmissible in evidence under Section 49 of the Registration Act........." 

20. In Sankesula Chinna Budde Saheb v. Raja Subbamma 1954 2 MLJ 113, the Andhra Pradesh High Court, after noticing the three essentials of a gift under the Mohammadan Law, held that if a gift was reduced to writing, it required registration under Section 17(1)(a) of the Registration Act. It went on to hold that even if by virtue of Section 129 of the T.P. Act, a deed of gift executed by Mohammadan was not required to comply with the provisions of Section 123 of the T.P. Act, still it had to be registered under Section 17(1)(a) of the Registration Act when the gift related to immoveable property. 

21. A Full Bench of the Andhra Pradesh High Court in the case of Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt. Tayyaba Begum AIR 1962 Andhra Pradesh 199, was called upon to decide on a reference made by the Board of Revenue under Section 55 of the Hyderabad Stamp Act whether the document under consideration therein was a gift deed or it merely evidenced a past transaction. The High Court applied the test - whether the parties regarded the instrument to be a receptacle and appropriate evidence of the transaction; was it intended to constitute the gift or was it to serve as a record of a past event - and held as under : 

"12. We have to examine the document in question in the light of these rules. No doubt, there was recitals therein which relate to past transaction. But that is not decisive of the matter. What is the purpose which it was designed to serve? That the executant did not treat it as a memorandum of a completed hiba is evident from some of the sentences. In the deed, such as "I deemed it necessary to execute a deed also making a declaration in favour of my son...in accordance with the Muslim law", and the last portion of the document. The anxiety of the donor to free the title of the donee to the property from all doubts and to save him from future litigation is clearly exhibited in the last sentence. "I pray that no one may have any kind of doubt regarding the ownership of Syed Ehasan Hussain and that if per chance any doubt at all should arise, this deed of Ekrarnama may prove sufficient." This sentence is expressive of her intention to silence all doubts regarding the ownership of the property with the aid of this document. She did not want anyone to challenge the title of the donee to the house in question. This object could be attained only if it is regarded as a conveyance, a document which effected the transfer by its own force. If, on the other hand, if it is a mere record of a past transaction, that would not have the desired effect. There is one circumstance which gives some indication as to the intention of the executant of the document. The document is attested by two witnesses as required by Section 123 of the Transfer of Property Act. No doubt, this is not conclusive of the matter. But it is indicative of the desire of the executant that it should serve as evidence of the gift and not as a memorandum of a past transaction." 

22. In Makku Rawther's Children: Assan Ravther and others v. Manahapara Charayil, V.R. Krishna Iyer, J. (as His Lordship then 6 AIR 1972 Kerala 27 was) did not agree with the test applied by the Full Bench of Andhra Pradesh High Court and the reasoning given in Tayyaba Begum5 . He held in paragraphs 8 and 9 of the report thus : 

"8. I regret my inability to agree with the reasoning in these decisions. In the context of Section 17, a document is the same as an instrument and to draw nice distinctions between the two only serves to baffle, not to ill mine. Mulla says: 

"The words `document' and `instrument' are used interchangeable in the Act". 

An instrument of gift is one whereby a gift is made. Where in law a gift cannot be effected by a registered deed as such, it cannot be an instrument of gift. The legal position is well-settled. A Muslim gift may be valid even without a registered deed and may be invalid even with a registered deed. Registration being irrelevant to its legal force, a deed setting out Muslim gift cannot be regarded as constitutive of the gift and is not compulsorily registerable." 

9. Against this argument counsel invoked the authority of the Andhra Pradesh Full Bench. One may respect the ruling but still reiect the reasoning. The Calcutta Bench in AIR 1927 Cal 197 has discussed the issue from the angle I have presented. The logic of the law matters more than the judicial numbers behind a view. The Calcutta Bench argued: 

"The essentials of a gift under the Mahomedan law are ..... A simple gift can only be made by going through the above formalities and no written instrument is required. In fact no writing is necessary to validate a gift; and if a gift is made by a written instrument without delivery of possession, it is invalid in law ..... That being so, a deed of gift executed by a Mahomedan is not the instrument effecting, creating or making the gift but a mere piece of evidence ..... Under Section 17 of the Registration Act an instrument of gift must be registered. By the expression 'instrument of gift of immovable property' I understand an instrument or deed which creates, makes or completes the gift thereby transferring the ownership of the property ..... The present document does not affect immovable property. It does not transfer an immovable property from the donor to the donee which only affords evidence of the fact that the donor has observed the formalities under the Mahomedan law in making the gift ..... I am prepared to go so far as to hold that a document like the present one is not compulsorily registrable under the Registration Act, or the Registration Act does not apply to a so-called deed of gift executed by a Mahomedan." 

These observations of Suhrawardy, J. have my respectful concurrence. So confining myself to this contention for the nonce, I am inclined to hold that Ext. B1 is admissible notwithstanding Ss. 17 and 49 of the Indian Registration Act. This conclusion, however, is little premature if I may anticipate my opinion on the operation of Section 129 of the Transfer of Property Act expressed later in this judgment. Indeed, in the light of my interpretation of Section 129, Ext. B1 needs to be registered. For the present I indicate my conclusion, if the law of gifts for Muslims were not to be governed by Section 129." 

23. The Full Bench of Jammu and Kashmir High Court in Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel and others AIR 1974 Jammu & Kashmir 59 had an occasion to consider the question whether in view of the provisions of Sections 123 and 129 of the T.P. Act, the rule of gifts in Mohammadan Law stands superseded; and whether it is necessary that there should be a registered instrument as required by Sections 123 and 138 of the T.P. Act in the case of gifts made under that Law. The Full Bench noticed the statutory provisions and also decisions of different High Courts including the decision of Calcutta High Court in the case of Nasib Ali3. The Full Bench held as follows : 

"14. The ratio of the above cited authorities is therefore in favour of the proposition that an oral gift made under the Muslim law would not be affected by Section 123 of the Transfer of Property Act and the gift if it has otherwise all the attributes of a valid gift under the Muslim Law would not become invalid because there is no instrument in writing and registered. Therefore the answer to the question formulated would be in the negative i.e. that Sections 123 and 129 of the Transfer of Property Act do not supersede the Muslim law on matters relating to making of oral gifts, that it is not essential that there should be a registered instrument as required by Sections 123 and 138 of the Transfer of Property Act in such cases. But if there is executed an instrument and its execution is contemporaneous with the making of the gift then in that case the instrument must be registered as provided under Section 17 of the Registration Act. If, however, the making of the gift is an antecedent act and a deed is executed afterwards as evidencing the said transaction that does not require registration as it is an instrument made after the gift is made and does not therefore create, make or complete the gift thereby transferring the ownership of the property from the executant to the person in whose favour it is executed." 

24. The Single Judge of the Andhra Pradesh High Court in the case of Chota Uddandu Sahib v. Masthan Bi (died) and others AIR 1975 Andhra Pradesh 271, was concerned with the question about the gift by Mohammadan. The Single Judge referred to some of the decisions noticed above and few other decisions and held in paragraph 10 of the report thus : 

"10. Under Section 129 of the Transfer of Property Act, nothing in Chapter VII relates to gifts of movable property made in contemplation of death or shall be deemed to affect any rule of Mohammadan Law. According to the Mohammedan Law, there can be a valid gift, if three essentials of the gift are satisfied. (1) a declaration of the gift by the donor, (2) the acceptance of the gift express or implied by or on behalf of the donee and (3) delivery of possession of the subject of gift by the donor to the donee. If these conditions are complied with the gift is complete. According to Muslim law it is not necessary that there should be a deed of gift in order to make it a valid gift, but of course, if there is a deed it should be registered. But if the deed is merely a memoranda of an already effected gift, then it stands on a separate footing. In view of this specific provision of Muslim Law, which is saved by Section 129, it cannot be held that the gifts amongst muslims also should satisfy the provisions of Chapter VII. . . . . . . . . . . . Hence if all the formalities, as prescribed by Muslim Law, regarding the making of gifts are satisfied, the gift is valid notwithstanding the fact that it is oral and without any instrument. If there is a contemporaneous document it should be registered. But if the gift is antecedent and the deed is subsequent merely evidencing the past transaction, it does not require registration, because it does not by itself make or complete the gift. . . . . . . . . ." 

25. In the case of Amirkhan v. Ghouse Khan (1985) 2 MLJ 136, one of the questions that arose for consideration before the Madras High Court was : whether the gift of the immoveable property by Mohammadan, if reduced to writing, required registration. The Single Judge of the Madras High Court concluded that though a Mohammadan could create a valid gift orally, if he should reduce the same in writing, the gift will not be valid unless it is duly registered. 

26. In the case of Md. Hesabuddin and others v. Md. Hesaruddin and others AIR 1984 Gauhati 41, the question with regard to gift of immoveable property written on ordinary unstamped paper arose before the Gauhati High Court. That was a case where a Mohammadan mother made a gift of land in favour of her son by a gift deed written on ordinary unstamped paper. The Single Judge of the High Court relying upon an earlier decision of that Court in Jubeda Khatoon v. Moksed Ali, AIR 1973 Gauhati 105 held as under: 

"..... But it cannot be taken as sine qua non in all cases that wherever there is a writing about a Mahomedan gift of immovable property, there must be registration thereof. The facts and circumstances of each case have to be taken into consideration before finding whether the writing requires registration or not. The essential requirements, as said before, to make a Mahomedan gift valid are declaration by the donor, acceptance by the donee and delivery of possession to the donee. It was held in Jubeda Khatoon v. Moksed Ali, AIR 1973 Gau 105 (at p. 106)- 

"Under the Mahomedan Law three things are necessary for creation of a gift. They are (i) declaration of gift by the donor, (ii) acceptance of the gift express or implied by or on behalf of the donee and (iii) delivery of possession of the subject of the gift by the donor to the donee. The deed of gift is immaterial for creation of gift under the Mahomedan Law. A gift under the Mahomedan Law is not valid if the above mentioned essentials are not fulfilled, even if there be a deed of gift or even a registered deed of gift. In other words even if there be a declaration of acceptance of the gift, there will be no valid gift under the Mahomedan Law if there be no delivery of possession, even though there may be registered deed of gift." In that case there was a deed of gift which was not produced during trial. Still it was found in that case that had the defendants produced the deed of gift, at best it would have proved a declaration of the gift by the donor and acceptance thereof by the donee. It was further held that despite this the defendants would have to lead independent oral evidence to prove delivery of possession in order to prove a valid gift. Therefore it was found in that case that deed of gift under the Mahomedan Law does not create a disposition of property. Relying on this it cannot be said that whenever there is a writing with regard to a gift executed by the donor, it must be proved as a basic instrument of gift before deciding the gift to be valid. In the instant case a mere writing in the plain paper as aforesaid containing the declaration of gift cannot tantamount to a formal instrument of gift. Ext. A (2) has in the circumstances of the present case to be taken as a form of declaration of the donor. In every case the intention of the donor, the background of the alleged gift and the relation of the donor and the donee as well as the purpose or motive of the gift all have to be taken into consideration. In the present case, it is recited in the said writings that the 3rd defendant has been maintaining and looking after the donor and that the other children of the donor were neglecting her. The gift was from a mother to a son and it was based on love and affection for the son in whose favour the gift was made. Therefore, it cannot be held that because a declaration is contained in the paper Ext. A (2) the latter must have been registered in order to render the gift valid. Admittedly, the 3rd defendant has been possessing the land and got his name mutated in the revenue records with respect to the land. It is therefore implied that there was acceptance on behalf of the donee and also that the possession of the property was delivered to the donee by the donor. It should be remembered that unless there was possession on behalf of the 3rd defendant, no mutation would have taken place with regard to the property. It may be repeated that Ext. A (2) has to be taken in the present case as a mere declaration of the donor in presence of the witnesses who are said to have attested the writing." 

27. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are; (i) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession. Though, the rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing. Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition (edited and revised by Tahir Mahmood) at page 182 states in this regard that writing may be of two kinds : (i) it may merely recite the fact of a prior gift; such a writing need not be registered. On the other hand, (ii) it may itself be the instrument of gift; such a writing in certain circumstances requires registration. He further says that if there is a declaration, acceptance and delivery of possession coupled with the formal instrument of a gift, it must be registered. Conversely, the author says that registration, however, by itself without the other necessary conditions, is not sufficient. 

28. Mulla, Principles of Mahomedan Law (19th Edition), Page 120, states the legal position in the following words : 

"Under the Mahomedan law the three essential requisites to make a gift valid : (1) declaration of the gift by the donor: (2) acceptance of the gift by the donee expressly or impliedly and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129 Transfer of Property Act, excludes the rule of Mahomedan law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case." 

29. In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan Law. 

30. In considering what is the Mohammadan Law on the subject of gifts inter vivos, the Privy Council in Mohammad Abdul Ghani1 stated that when the old and authoritative texts of Mohammadan Law were promulgated there were not in contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of possession of land, and that could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed. 

31. Section 129 of T.P. Act preserves the rule of Mohammadan Law and excludes the applicability of Section 123 of T.P. Act to a gift of an immovable property by a Mohammadan. We find ourselves in express agreement with the statement of law reproduced above from Mulla, Principles of Mahomedan Law (19th Edition), page 120. In other words, it is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered under Section 17 of the Registration Act. Each case would depend on its own facts. 

32. We are unable to concur with the view of the Full Bench of Andhra Pradesh High Court in the case of Tayyaba Begum. We approve the view of the Calcutta High Court in Nasib Ali3 that a deed of gift executed by a Mohammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence, such writing is not a document of title but is a piece of evidence. 

33. We also approve the view of the Gauhati High Court in the case of Md. Hesabuddin. The judgments to the contrary by Andhra Pradesh High Court, Jammu and Kashmir High Court and Madras High Court do not lay down the correct law.

Talaq & Halala under Muslim Law : Bombay High Court explains

Justice D.B. Bhosale
Bombay High Court

The Bench comprising Justice D.B. Bhosale and R.Y. Ganoo of the Bombay High Court in Sabah Adnan Sami Khan v. Adnan Sami Khan have explained the concept of 'triple talak' under Muslim Law. 

The High Court examined the above concepts in the following terms;

7. The Holy Quran is the primary source of Mohammedan Law and represents the God’s Will communicated to the Prophet through the Angel Gabriel. (See: Masroor Ahmed Vs State (NCT of Delhi) and Anr, and the Full Bench Judgment of this Court in Dagdu Pathan Vs Rahimbi Dagdu Pathan, 2003 (1) HLR 689). Section 34, Chapter IV in Mulla’s Principles of Mahomedan Law by Hidayatullah, Nineteenth Edition, (for short, “Mulla’s Mahomedan Law”) deals with Interpretation of the Quran. It states that the Courts, in administering Mahomedan law, should not, as a rule, attempt to put their own construction on the Quran in opposition to the express ruling of Mahomedan commentators of great antiquity and high authority.

8. The Holy Quran recites on the issue of Halala, with which we are concerned in the present appeal, as under : Sura 230 (i e. Verse 230).

“And if he hath divorced her (the third time), then she is not lawful unto him thereafter until she hath wedded another husband. Then if he (the other husband) divorces her, it is no sin for both of them that they come together again if they consider that they are able to observe the limits of Allah. These are the limits of Allah. He manifesteth them for people who have knowledge”.

What it means is that if the Talak was “the third time”, such a Talak was pronounced, then they cannot re-marry unless the wife were to have, in the intervening period, married someone else and her marriage had been dissolved either through divorce or death of that person and the iddat of divorce or death has expired. This is considered as “Halala”. 

9. Marriage, according to Muslim Law, is a civil contract, the object of which is to legalize sexual intercourse and the procreation of children. (See: Smt Joygun Nessa Bibi Vs Muhammad Ali Biswas, AIR 1938 Calcutta 71). Divorce is another name of dissolution of marriage under three distinct modes in which a Muslim marriage can be dissolved and the relationship of the husband and the wife terminated.The existence of conjugal relations in the case of Mahomedans has to be determined by reference to the provisions of the Mahomedan Law and not by considerations of equity and good conscience as understood in any other system of law (See: Zohara Khatoon Vs Mohd Ibrahim, AIR 1981 SC 1243).

10. In Mullas Mahomedan Law, section 311 provides, three modes of Talak, with which we are concerned in the present appeal, namely Talak Ahsan; Talak Hasan; and Talak-i-badai. Talak “Ahsan” consists of a single pronouncement of divorce (Talak) made during a tuhr, period between two menstrual course, followed by abstinence from sexual intercourse for the period of Iddat. (See. Section 311(1)). Talak “Hasan” consists of three pronouncements made during successive tuhrs without sexual intercourse during any of the three tuhrs. The Talak becomes irrevocable on pronouncement of divorce during all the three tuhrs. In other words, before the third pronouncement, Talak Hasan is revocable by conduct of the parties. However, once the third pronouncement of divorce is made without sexual intercourse during all the three tuhrs, the divorce becomes irrevocable and in that case after Iddat, the former husband and wife cannot enter into a Nikah unless the wife undergoes the process of Halala. (See. S.311(2). The third mode of Talak, namely, “Talak-i-badai” consists of two modes. Firstly, it consists of three pronouncements made during a single tuhr. For instance, three pronouncements in one go (Triple Talak) either in one sentence, e.g, “I divorce you three times or in separate sentences, e.g., Talak, Talak, Talak. (See : S. 311(3)(i)). The second mode of Talak-i-badai consists of a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage. For instance, “I divorce you irrevocably”. (See: S.311(3)(ii)). 

11. A Talak in the “Ahsan” mode becomes irrevocable and complete on the expiration of the period of iddat. (See: S.312(1) in Mulla’s Mahomedan Law) Similarly, a Talak in the “Hasan” mode becomes irrevocable and complete on the third pronouncement, irrespective of the iddat, (See: S.312(2))and a Talak in the “badai” mode becomes irrevocable immediately it is pronounced, irrespective of the iddat. As the Talak becomes irrevocable at once, it is called talak-i-bain, that is, irrevocable Talak (See: S.312(3)). Thus, in case of a Talak in the Ahsan mode and in the “Hasan” mode do not become absolute until a certain period has elapsed. In case of these two modes of Talak the husband has an opportunity of reconsidering his decision and he has the option to revoke it before the certain period is elapsed. The essential feature of a talak-ul-bidaat or talak-i badai is its irrevocability. One of tests of irrevocability is the repetition three times of the formula of divorce within one tuhr. But the triple repetition is not a necessary condition of talak-ulbidaat, and the intention to render a talak-irrevocable may be expressed even by a single declaration. Thus if a man says : “I have divorced you by a talaka-ul-bain (irrevocable divorce)”, the talak is talak-ul-bidaat or talak-i-badai and it will take effect immediately it is pronounced, though it may be pronounced but once. Here the use of the expression “bain” (irrevocable) manifests of itself the intention to effect an irrevocable divorce.

12. “Iddat” has been described in Mulla’s Mahomedan Law, as the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death to remain in seclusion, and to abstain from marrying another husband. The abstinence is imposed to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage. When the marriage is dissolved by divorce, the duration of the iddat, if woman is subject to menstruation, is three course; if she is not so subject, it is three Lunar months. If the woman is pregnant at the time, the period terminates upon delivery. When the marriage is dissolved by death, the duration of the iddat is four months and ten days. If the woman is pregnant at the time, the iddat lasts for four months and ten days or until delivery, whichever period is longer (See: Section 257, Chapter XIV in Mulla’s Mahomedan Law). The period of iddat prescribed by Muslim Law is 90 days.

13. As the Talak becomes irrevocable at once, it is called Talak-i-bain, that is, irrevocable Talak. (See: S.312, Mulla’s Mahomedan Law). Thus it is clear that a Talak can be revoked by conduct before it becomes irrevocable. The Talak is, however, complete on the expiration of the period of iddat. Until the talak becomes irrevocable, the husband has the option to revoke it which may be done either expressly, or implied as by resuming sexual intercourse. Every mode of Talak, when is complete, it becomes irrevocable. The question that we have to consider is whether in case of every irrevocable talak, irrespective of its mode, for remarriage with the same husband the wife requires to observe the “Halala”.

14. The Delhi High Court in Masroor Ahmed’s case, after considering different forms of Talak, so also the provisions of Sections 311 and 312 in Mulla’s Mohamedan Law, in paragraphs 26 and 27 of the judgment held thus: 

“26. ... .... ... There are views even amongst the sunni schools that the triple talaq pronounced in one go would not be regarded as three talaqs but only as one. Judicial notice can be taken of the fact that the harsh abruptness of triple talaq has brought about extreme misery to the divorced women and even to the men who are left with no chance to undo the wrong or any scope to bring about a reconciliation. It is an innovation which may have served a purpose at a particular point of time in history but, if it is rooted out such a move would not be contrary to any basic tenet of Islam or the Quran or any ruling of the Prophet Muhammad.

27. In this background, I would hold that a triple talaq (talaq-e-bidaat), even for sunni muslims be regarded as one revocable talaq. This would enable the husband to have time to think and to have ample opportunity to revoke the same during the iddat period. All this while, family members of the spouses could make sincere efforts at bringing about a reconciliation. Moreover, even if the iddat period expires and the talaq can no longer be revoked as a consequence of it, the estranged couple still has an opportunity to re-enter matrimony by contracting a fresh nikah on fresh terms of mahr etc.”

15. The Full Bench in Dagdu Versus Rahimbi Dagdu Pathan (supra) had an occasion to consider the provisions in Chapter II and III of Part-I of a Compendium of Islamic Laws published by the All India Muslim Personal Law Board, dealing with the conditions of effectiveness of Talak so also Chapter XVI in Mulla’s Mahomedan Law dealing with the subject Divorce. The Full Bench, after considering section 310, Chapter XVI in Mulla’s Mahomedan Law in respect of Talak in writing, made the following observations:

“Talak in writing is a written mode of Talak reduced in a Talaknama which may only be the record of the fact of an oral Talak or it may be the deed by which the divorce is effected. The deed may be effected in the presence of a Qazi or the wife’s father or of two witnesses. In the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce (Talak-i-bain) and takes effect immediately on its execution. Talak by a delegation is permissible and it is called as a Talak by Tafweez. 

Written Talaq may have several forms and some of them are (a) Kitabat-e-mustabinath (legible writing). It is of two kinds – Mustabinah Marsumah (formal legible writing and Mustabinah Ghair Marsumah (informal legible writing) Kitabat-emustabinath Marsumah which is a formal divorcedeed or letter which is written with a title and the addressee’s name.”

16. A Talak may be effected orally (by spoken words) or by a written document called a Talaknama. A Talaknama may only be the record of the fact of an oral Talak; or it may be the deed by which the divorce is effected. Section 313 in Mulla’s Mahomedan Law provides that in the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce that is, talak-i-bain, and takes effect immediately on its execution. Deed of Divorce in writing constitutes a valid divorce (Rasul Bakhst Vs Bholon and others, AIR 1932 (Lah.498). Under Hanafi Law, divorce of wife by a written document is irrevocable (Hayat Khatun Vs Abdullah Khan, AIR 1937 Lah.270). As most Sunni’s are Hanafis the presumption is that a Sunni is governed by Hanafi Law. It is thus clear Talaknama may be only the record of the fact of an oral Talak or it may be the deed by which the divorce is effected. (See: S.310(2)).

17. At this stage, it is also necessary to refer to the rules of revocable and irrevocable Talak and they are in sections 17,18,19 and 20 in Chapter III of Part-I of a Compendium of Islamic Laws, published by the All India Muslim Personal Law Board, dealing with the conditions of effectiveness of Talak, (See: Dagdu Vs Rahimbi Dagdu Pathan) which read thus :

“Section 17 : In a revocable Talaq the husband can take back the wife during “Iddat” without her consent and without a remarriage; but after the expiry of “Iddat” she will become irrevocable divorced and can be lawfully taken back only by a fresh marriage. 

Section 18 : Revocable may be either by conduct – e.g., if the husband had had coitus, kissing and caresses with the wife – or by spoken words, e.g. If the husband says that he has taken back his wife and informs her of the same. Revocation by words is preferable in the presence of witnesses (two men or a man and two women).

Section 19: An irrevocable Talaq, whether express or implied, (words of complication are explained hereinafter) is of two kinds; bainunat-e-khafifah (minor separation) and bainunat-e-ghalizah (major separation). Less than three Talaqs effect bainunat-e-khafifah, otherwise there will be bainunat-e-ghalizah. 

Section 20 : In bainunat-e-khafifah though the wife goes out of the marital bond but the parties may by mutual consent remarry during or after the “Iddat”. In bainunat-e-ghalizah remarriage is possible only where after the expiry of “Iddat” the woman has married another man who has either died or divorced her and the “Iddat” of death or divorce has expired.”

From perusal of these sections, it is clear that once Talak becomes irrevocable, the wife can be lawfully taken back only by a fresh marriage. Revocation during iddat may be either by conduct or by spoken words. An irrevocable Talak is of two kinds: Bainunat-e-khafifah (minor separation); and Bainunat-eghalizah (major separation). Less then three Talaks effect minor separation, otherwise there will be major separation. If it is minor separation (Bainunat-e-khafifah) the parties may by mutual consent remarry during or after the iddat. However, in case of major separation (Bainunat-e-ghalizah) they cannot remarry unless Halal formality is complied with by the wife.

18. Thus, in our opinion, where Talak becomes irrevocable through any mode between the parties, for re-marriage between them, it is not necessary that the Halala must be observed. In other words, merely because a talak has become irrevocable, does not mean that in case of every irrevocable Talak, irrespective of its mode, for re-marriage between the same couple, it is necessary that the Halala formality must be complied with by the wife.

19. Where the husband has repudiated his wife by three pronouncements (Triple Talak), as provided for in the Hasan mode of Talak (See: S.311(2)) and in Talak-i-badai by three pronouncements (See: S.311(3)(i)), it is not lawful for him to marry her again until she remarries another man and the later divorced her or he dies after actual consummation of the marriage. In other words, in case of a Talak in the Hasan mode and a Talak in Talak-i-badai by the three pronouncements mode, remarriage is possible only if Halala is observed by the wife. A Talak in the Ahsan mode and a Talak in the Talak-i-badai by a single pronouncement mode, Halala need not be observed. Where the husband has repudiated his wife by three pronouncements, even if re-marriage between them is proved, the marriage is not valid unless it is established that the bar to remarriage by observing Halala was removed. The mere fact that the parties have remarried does not raise any presumption as to the fulfillment of Halala formality. (See: Akhtaroon–nissa Vs Shariutoollah Chowdhry, (1867) 7 WR 268). 

20. That takes us to consider “Khula”. In Moonshee Buzu – Ul-Rahem Vs Luttee Fatoonisa (1961) 8 MIA 399, Khula is defined as “a divorce by khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. It signifies an arrangement entered into for the purpose of dissolving a connubial connection in lieu of compensation paid by the wife to her husband out of her property. 

21. Section 319, Chapter XVI in Mulla Mahomedan Law deals with “Khula and Mubara’at”. In this section, it is stated that a marriage may be dissolved not only by talak, which is the arbitrary act of the husband, but also by agreement between the husband and wife. A dissolution of marriage by agreement may take the form of Khula or Mubara’at. A divorce by Khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In such a case, the terms of the bargain are matters of arrangement between the husband and wife, and the wife may, as the consideration, release her dower and other rights, or make any other agreement for the benefit of the husband. A Khula divorce is effected by an offer from the wife to compensate the husband if he releases her from her marital rights, and acceptance by the husband of the offer. Once the offer is accepted, it operates as a single irrevocable divorce (talak-i-bain, that is, Irrevocable divorce) (Ss.311(3), 312), and its operation is not postponed until execution of the Khulanama (Deed of Khula).

22. Mubara’at means mutual release. A Mubara’at divorce like Khula, is a dissolution of marriage by agreement, but there is a difference between the origin of the two. When the aversion is on the side of the wife, and she desires a separation, the transaction is called Khula. When the aversion is mutual, and both the sides desire a separation, the transaction is called Mubara’at. The offer in a Mubara’at divorce may proceed from the wife, or it may proceed from the husband, but once it is accepted, the dissolution is complete, and it operates as a Talaki- bain as in the case of Khula. As a talak, so in khula and mubara’at, the wife is bound to observe the iddat. 

23. Khula is a form of divorce recognised by the Muslim Law. It is virtually a right of divorce purchased by the wife from her husband. It is complete from the moment when the husband repudiates the wife. There is no period during which such a divorce can be revoked at the instance of the husband. Thus, a divorce by Khula is complete if the following conditions are satisfied : (i) if it is at the instance of the wife or there must be an offer from the wife; (ii) she gives or agrees to give a consideration to the husband for her release; and (iii) acceptance by the husband of the offer. Over and above this, under Sunni law, the husband must be adult and of sound mind. A proposal by Khula made by the wife may be retracted by her at any time before the acceptance by the husband and the proposal stands revoked if the wife rises from the meeting where the proposal is made. Abu Hanifa has provided three days of options for wife to accept or revoke Khula but does not allow this option to husband but his disciples are of the opinion that the option is for the both sides. (See: Principles of Muslim Law by Yawer Qazalbash, page 135) Under Hanafi law, no form is necessary but only intention must be proved besides the proposal, acceptance and consideration. In case of a divorce by Mubara’at, offer may be either from the side of wife or from the side of husband. When an offer for mubara’at is accepted it becomes irrevocable divorce. (Talak-Ul-bain). No particular form is required under Sunni law but mutual agreement must be made at the same time and the word Mubara’at must be clearly expressed in the proposal and if ambiguous expressions are used intention must be proved. Under Sunni law, when the parties enter into a mubara’at all mutual rights or obligations came to an end. Thus, Khula is redemption of the contract of marriage while Mubara’at is a mutual release from the marriage tie. In Khula the offer is made by the wife and its acceptance is made by the husband, whereas in Mubara’at any of the two may make an offer and other accepts it. In Khula, a consideration passes from wife to husband, whereas in Mubara’at the question of consideration does not arise.

24. In Asaf A.A.Fyzee, Outlines of Muhammadan Law, Fifth Edition in Chapter IV dealing with divorce by consent after defining Khula and Mubara’at so also after narrating the distinguishing factors between the two, the learned author has concluded the discussion stating that “Khula and Mubara’at operates as a single irrevocable divorce. Therefore, marital life cannot be resumed by mere reconciliation; a formal remarriage is necessary. In either case iddat is incumbent on the wife and, in the absence of agreement to the contrary, the wife and her children do not lose the rights of maintenance during the period”. The learned author has not made any reference to Halala formality in case of remarriage of the couple. In either case, iddat only is incumbent on the wife. 

26. Thus, a Khula divorce is effected by an offer from the wife to compensate the husband if he releases her from her marital rights, and acceptance by the husband of the offer. Once the offer is accepted, it operates as a single irrevocable divorce (Talak-i-bain, that is, irrevocable divorce), and its operation is not postponed until execution of Khulanama. In our opinion, merely because Khula becomes irrevocable (talak-i-bain) on complying with all the three conditions, (that is, i. it should be at the instance of the wife or there must be an offer from the wife; ii. the wife gives or agrees to give a consideration to the husband for her release; and iii. acceptance by husband of the offer) does not mean that the rigors of irrevocable divorce by Triple pronouncements are applicable and Halala is mandatory. There is a clear distinction between “Triple Talak” and “talak by single pronouncement” and, therefore, the Talak by single pronouncement cannot be treated as a talak by triple pronouncement, only because at some stage it becomes irrevocable (talak-i-bain). If a talak is the talak by single pronouncement, in our opinion, Halala need not be observed.