This article is written by Shreya Roushan, pursuing Certificate Course in Introduction to Legal Drafting: Contracts, Petitions, Opinions & Articles from LawSikho.
The concept of marriage and divorce under Muslim law is developed through ancient perspectives and from a historical point of view among Muslims. The source of development of these are personal laws, which happen to be Quran (holy book of Muslim), Sunna (precedent), Ijma (consensus) and Kiyas (analogical deductions), among these four sources Quran is the primary source. It is considered to be so fundamental and sacred in the Muslim world that it is immutable according to Muslims. Marriage is considered a civil contract under Muslim law, unlike sacrament under Hindu law. It is necessary for the establishment of a family, which is considered a fundamental entity of society. Under Muslim Law, marriage is only the halal or legal way for the intimate relationship between men and women and legitimacy of children. It is a social necessity that regulates social life through the creation of certain rights and duties which both the partners are required to fulfil.
In Pre-Islamic Arabia condition of women was very pitiable, they were seen as objects, polygamy, buying and selling of women, temporary marriage for the fulfilment of lust, marrying two real sisters simultaneously, freely divorcing wife etc. was prevalent. In short, people were unaccountable towards women. It was only after the emergence of laws/rules made by Prophet Muhammad, in Muslim society status of women became better, but certain patriarchal notions are still prevalent such as polygamy and the notion that men are considered superior to women due to their masculinity and intellectual superiority etc. These thoughts, customs, precedents, Ijtihad (independent individual reasoning based on justice, equity and good conscience) and legislations have shaped the modern Muslim Law of marriage and divorce.
Due to the division of Muslims into various sects and different schools, there are more than one type/form of marriage accepted among Muslims. There are different types of marriages such as Muta marriage, Sahih marriage, Batil marriage. Before entering into the union of marriage there are certain essential conditions that must be fulfilled by both the prospective husband and the prospective wife, such as the age of majority, consent of the parties, Mehr etc. As Muslim marriage is a civil contract by nature, there must be an offer from one party and acceptance from another party. Divorce under Muslim law is divided into different categories such as divorce my husband (Talaq-ul-Sunnat, Talaq-ul-Biddat, Ila, Zihar), divorce by wife (Talaq-e-Tafweez), divorce by mutual consent (khula, mubarat) and divorce by judicial decree under The Muslim Dissolution of Marriage Act, 1939 (lian, fask).
Marriage under Muslim Law
Muslims are broadly divided into two major sects Shias and Sunnis and there are four schools of thought under Muslim law, Hanafi, Hamabil, Maliki, and Shafi. Out of these four, the Hanafi school is dominant in India. Due to these different sects and schools of thought, there are different types of marriages and divorce that are accepted in Muslim society. Different types of marriages are Muta marriage, Sahih (valid) marriage, Batil (void) marriage, Fasid (irregular) marriage.
According to Ameer Ali (political and social reformer and scholar of Islam), marriage is necessary for the protection of society. It is an organisation that protects society from foulness and unchastity. According to Abdur Rahim(Indian jurist), marriage is an institution that partakes in both the nature of devotional arts (ibadat) and dealing among men (Mumlat). Thus, under Muslim law marriage is a solemn pact that gives validity to the intimate relationships between men and women and legitimises children born out of that wedlock.
Nature of marriage
The nature of marriage under Muslim law is the same as a civil contract. It is entered into by both the parties by their free volition. In its formation it also takes the form of contract as there is offer and acceptance between the parties, giving same right to husband and wife. But during the dissolution of marriage, the husband is given more rights than the wife as they are considered superior to women due to the patriarchal notion that men are physically and intellectually superior to women. Though generally marriage under Muslim law is considered a civil contract, some people also treat it as a religious sacrament.
In the case of Abdul Kadir vs Salima, it was observed that the character of Muslim marriage is similar to that of a civil contract, as like civil contract marriage under Muslim law requires of offer (Ijab) from one side and acceptance (Qubul) from another side, which must be out of the free will, without any coercion, undue influence and fraud on the part of both the parties. In case of both the parties being minor, they have the right to either set aside or follow the terms of marriage. When they become major, as it is in the case of a contract, unless and until it is opposed to public policy it is right of the parties to enter into antenuptial/prenuptial agreement, though it is not socially acceptable there is also a provision for breach of contract of marriage. However, there is a constant debate regarding the nature of marriage, some consider it as purely a civil contract while others consider it as a religious sacrament. Chief Justice Sir Shah Suleman, in the case of Anis Begum vs Muhammad Istafa, gave a more balanced view about this unending debate by stating that marriage under Muslim law is both civil contract and religious sacrament.
Essentials of Muslim marriage
Capacity to marry
According to the Koran, a person who is to be married must be of sound mind, attained the age of puberty. In Muslim society age of puberty for a man is considered to be 15 years. The Indian Majority Act 1875 does not apply to Muslims in case of marriage, dower or divorce, but The Prohibition of Child Marriage Act 2006 is secular and it is applicable to all irrespective of religion, thus according to it the age of majority for a girl is 18 years and for a boy is 21 years.
Offer and acceptance
There is an offer (Ijab) from one party and acceptance (qubul) from the other party, the acceptance is subsequent to the terms of the contract and both the offer and the acceptance must happen at one time on the same occasion. If an offer is made at a particular time and it is accepted after some days/months/years, it is not accepted.
Consent of the parties
Both the parties must consent to the terms of the contract in the same sense without any fraud, undue influence, coercion or ill-will.
It is a consideration payable to the wife during Muslim marriage, as a mark of respect to her from her husband. Mehr is one of the fundamental criteria for the legitimacy of Muslim marriage.
No legal impediment
For the validity of marriage, there should not be any legal hindrance, some of which are the following:
It renders marriage null and void.
Prohibition to marry some of the blood relations, such as a male Muslim cannot marry his mother, grandmother, daughter, granddaughter, niece, aunt or great-aunt (mother and father side both) and sisters full, consanguine or uterine.
It prevents a man from marrying all relations of the woman with whom he married, such as once wife’s mother, grandmother, grandmother’s mother, etc.
It prevents relationships with relations of a foster mother, such as foster grandmother, foster mother’s daughter etc.
These conditions render the marriage irregular; if irregularities are removed then the marriage becomes valid.
A Muslim male cannot marry women who are related to each other by consanguinity, affinity or fosterage, had they been the opposite gender it would have been unlawful marriage. If the first wife dies, marriage with her ends, then he can marry another. In Sunni Law, unlawful conjugation is merely irregular but under Sharia Law it is void.
Marriage with women undergoing Idda/Iddat
Idda/Iddat is a period observed by women after the death of her husband or divorce, to remove the confusion of paternity in case she is pregnant. The time of observance of Idda/Iddat depends on the manner in which marriage is dissolved. If the marriage is dissolved by divorce a menstruating woman is required to observe Idda/Iddat for a period of three menstruation courses, while a non-menstruating woman is required to observe Idda/Iddat for a period of three lunar months. If a woman is pregnant then the period of Idda/Iddat continues till the delivery of the baby. In case of dissolution of marriage due to the husband’s death, a woman is required to observe Idda/Iddat for four lunar months and ten days. If a woman is pregnant at the time of her husband’s death then the period of Idda/Iddat is either four lunar months and ten days or until delivery, whichever is earlier. Under Shia Law marrying a woman during the period of Idda/Iddat is void.
Marriage in violation of the doctrine of equality
It is a belief in Muslim society that a man should marry a woman of equal rank, for example, a high ranked marry a high-rank woman. There are several conditions of equality under different sects and schools of Muslim law. Though marriage is not invalid on account of violation of the doctrine of equality, it is merely an irregular marriage.
Polygamy is allowed in Muslim law, but it is restricted to marrying four wives. Thus, one marries a fifth woman while already having four wives, the marriage will be considered irregular and not void.
Marriage with Non-Muslim
Muslim women cannot marry non-Muslim (kitabiya), but under Sunni law, a Muslim man is allowed to marry a Christian or Jew. However, under Shia Law marriage with a non-Muslim is void.
Marriage with Non-Muslim
Types of marriages
The validity of a marriage depends on the conclusion of the marriage contract, no writing is necessary while making a contract, it can be oral or written. The different types of marriages are following:
Temporary marriage (Muta marriage)
This type of marriage is practised among Ithna Ashari of the Shia sect, it is also known as ‘pleasure marriage’, while all other Muslim sects discard this type of marriage. Ithna male can marry any number of wives, who must be Muslim, Jewish or a fire worshipper but Ithna female is restricted to marry only Muslims. At the time of entering into the contract, all the terms of the marriage must be mentioned and any term entered afterwards is not valid.
Characteristics of muta marriage
- There must be a contract.
- There must be an offer and acceptance between the parties.
- Dower must be specified.
- Duration of marriage must be specified, hours/days/weeks/months/years, if the term is unspecified union is stipulated to be permanent.
- Parties do not have the right to mutual inheritance.
- Unless specified in the marriage contract, the wife is not liable for maintenance.
- If marriage is consummated, the wife is entitled to full dower, if it is not consummated, she is entitled to half dower.
- In case of the consummation of marriage, the wife is required to observe Idda/Iddat.
- Even without the permission of the wife, the husband has the right to refuse procreation.
- Offsprings have the right to inherit the property of both the parents and hence, have the status of legitimate children.
- Unless extended, Muta marriage ends with the expiry of the term of marriage mentioned in the contract.
The different aspects of permanent marriages are following:
Sahih (valid) marriage
A marriage between two parties, where all the necessary legal formalities are fulfilled is called Sahih (valid) marriage. This type of marriage is accepted by both Shia and Sunni sects.
Characteristics of Sahih (valid) marriage
- The status of husband and wife is recorded at the parties.
- There exists a mutual right of inheritance between the parties.
- Due to any reason such as death, divorce etc., if marriage is dissolved, then the husband is barred from marrying her wife’s sister.
- It confers upon children borne out of this wedlock, a legitimate status.
- In addition to the above-mentioned terms and conditions, any terms and obligations can be added to the marriage contract, which must not be opposed to public policy in Muslim society.
Batil (void) marriage
When there is a violation of absolute or relative impediments while performing the marriage, it is still called Batil (void) marriage. Though it is still called marriage, as both the parties have performed the necessary formalities of marriage. This type of marriage is void because the parties totally lack the capacity to marry each other, and there are not any legal provisions described in Muslim Law through which their marriage could become valid. This type of marriage is recognised in both Shia and Sunni sects.
Characteristics of Batil (void) marriage
- It is not a marriage as no legal rights and obligations occur from it.
- The status of husband and wife is not confirmed by the parties.
- Children born out of such marriage are illegitimate.
- Both the parties are free to enter into another marriage without committing the offence of polygamy and bigamy.
Fasid (irregular) marriage
Marriage performed in violation of relative impediment is called Fasid (irregular) marriage. It is neither a valid nor void marriage, but it can be validated by removing the relative impediment (irregularity). This type of marriage is also accepted by both the Shia and Sunni sects, except the Itna Asari school of the Shia sect.
Characteristics of Fasid (irregular) marriage
- Until and unless terminated by law it continues to exist.
- Both wife and children and liable to be maintained.
- The marriage becomes effective after confirmation.
- Both the husband and the wife have the right to terminate the marriage at any time.
- Wife is required to observe Idda/Iddat, in the course of death of husband or divorce with hum.
- Children born out of this wedlock are fully legitimate and have the right of inheritance.
- Husband and wife do not have the right of mutual inheritance.
Divorce under Muslim Law
The only essential condition for divorce under Muslim Law is marriage between two parties. There are different forms and ways through which marriage can be dissolved under Muslim Law, which are following:
Divorce by husband
There are four ways a husband can give divorce.
This form of divorce is based on Muslim Personal Laws. It is further sub-divided into the following categories:
- Husband has to make an announcement of divorce in a single sentence when the wife is free from the menstrual cycle.
- After divorce women have to observe Iddat for a certain period of time, during which the husband cannot indulge in any form of sexual intercourse, if he indulges then revocation of talaq becomes impliedly revocable, otherwise, it becomes irrevocable.
- This type of talaq can be pronounced even when the wife is undergoing menstruation, but for that marriage must not be consummated between the parties.
- It is the most approved form of talaq.
- It is a less approved form of Talaq Ahasan.
- There is a provision for revocation of divorce.
- The word talaq is to be pronounced three times simultaneously.
- Three announcements should be made in the three states of purity if the wife has not crossed the age of menstruation.
- If the wife has crossed the age of menstruation, pronouncement must be made at the 30 days interval between the successive pronouncements.
- During the period of three pronouncements, no sexual intercourse should take place, if it happens divorce is revoked.
- After completion of the iddat period, this type of divorce becomes irrevocable.
- it is this disapproved/sinful form of divorce.
- It is also known as triple talaq, after pronouncing talaq three times it becomes irrevocable immediately.
- This form of divorce is only recognised under Sunni Law and not by Shias and Malikis.
- Parties can remarry only after performing nikah halala by the female partner, under which she has to marry another man and then get divorced from him.
- This type of divorce is unconstitutional in India, through the judgement of the Supreme Court in the case of Shayara Bano vs Union of India and Others.
- It is a form of divorce under which the husband has the power to pronounce that he would not indulge in sexual intercourse with his wife.
- Subsequent to this pronouncement, the wife is required to observe iddat.
- If the husband cohabits with the wife during this period, then the Ila is revoked.
- Once the period of iddat is over, divorce becomes irrevocable.
- This type of divorce is not practised in India.
- It is also constructive divorce like Ila.
- In this form of divorce, the husband compares his wife with a woman who comes under a degree of prohibited relationship, such as his mother, sister etc, and pronounces that she is like his mother or sister.
- For doing this the husband must be of sound mind and above the age of eighteen years.
- The wife has the right to seek judicial remedies such as restitution of conjugal rights, cohabitation etc., but cannot seek judicial divorce.
- Husband can revoke such divorce by observing two months fast, feeding sixty people and freeing a slave.
- This type of divorce is no longer in practice.
Divorce by wife
- It is also known as delegated divorce.
- The husband has the power to delegate such power to the wife, he must be of sound mind and above 18 years of age.
- This type of talaq is also called an agreement, which may be entered between the parties before or after marriage.
- If the terms of an agreement are not fulfilled, the wife can ask for a divorce.
- It is the only way through which a woman can ask for a divorce.
- The right of the husband to divorce his wife remains intact, it does not deprive the husband of his right to pronounce the divorce.
Divorce by mutual consent
- It means ‘laying down’, where the husband lays down the authority over his wife.
- This is done through mutual consent between husband and wife, where the wife pays the consideration from her property to the husband, for her release.
- Wife releases Mehr and other rights for the benefit of her husband.
- Thus, divorce is purchased from husband by wife.
- There is an offer from the wife, which is accepted by the husband.
- Women are required to observe iddat after Khula.
- It means ‘release’, it releases/discharges parties from marital rights.
- Divorce is with mutual consent among parties to become free from one another.
- Its formalities are the same as Khula, where there is an offer from one party and acceptance from another.
- Women are required to observe Iddat.
Divorce by judicial decree under Muslim Dissolution of Marriage Act, 1939
- This type of divorce occurs when a wife is falsely charged with adultery by her husband.
- She can move to court to file a regular suit for dissolution of marriage, under the Muslim Dissolution of Marriage Act, 1939.
- The ground of divorce must be a false charge of adultery on the wife, his husband.
- The husband imposing charge must be sane and above 18 years of age.
- Marriage is not dissolved until dissolution degrees are passed by the court, once it is passed divorce becomes irrevocable.
- The husband can prevent divorce by the withdrawal of false assertion of adultery on the wife, before passing of the decree by the court.
- If husband and wife feel that they are not compatible together, they can file for divorce.
- Section 2 of The Dissolution of Marriage Act, 1939, states grounds on the basis of which the wife may sue for divorce.
- Whereabouts of husband not known for 4 years.
- Husband has failed to maintain wife for two years.
- Husband is sentenced for imprisonment of 7 years or more.
- Husband has failed to perform marital obligations for three years, without any reasonable cause.
- The husband is impotent.
- Husband is suffering from insanity (for two years), leprosy or virulent venereal disease.
- Wife being married before 15 years, rejects the validity of marriage after attaining the age of 18 years, provided marriage must not be consummated.
- Husband treats her with cruelty, such as imposing physical assault. making defamatory statements that affect her reputation etc.
Rights conferred by personal laws based on religion is not absolute. For instance, the two most popular and important judgments of the Supreme Court in this regard are discussed hereinafter, in the case of Mohd. Ahmed Khan vs Shah Bano, Shah Bano at the age of 62 was divorced by her husband Mohammed Ahmed Shah, and she along with her five children were disowned and tossed out from her marital home. When she approached Madhya Pradesh High Court to restore her maintenance amount of rupees 200 which was halted by her husband, and to increase its amount to rupees 500, she was divorced by her husband through instant triple talaq or Talaq-ul-Biddat, who used it as a defence not to pay maintenance as she no longer was his wife. But the court granted maintenance to Shah Bano under Section 125 of CrPC on the grounds that she is unable to earn and maintain herself. Though it was against the provisions of Islamic law, Section 125 of CrPC override the personal law and gave effect to the judgement.
Similarly, in the case of Shayara Bano vs Union of India, Shayara Bano married to Rizwan Ahmed, was a victim of domestic violence, while she was visiting her parents, Rizwan Ahmed sent her a divorce letter of Talaq-ul-Biddat declaring instant divorce. She filed a petition before the Supreme Court to declare triple talaq, nikah halala, and polygamy to be unconstitutional. Although the court took into account only the plea of triple talaq declaring it to be unconstitutional and it also held that until the government formulates a law regarding instant triple talaq, there would be an injunction against the pronouncement of triple talaq by husbands on their wives.
Talaq-ul-Biddat or triple talaq is unconstitutional as it violates Article 14 of the Constitution in two ways; firstly, it discriminates Muslim women from Muslim men on the basis of gender, as only Muslim men have the right to declare triple talaq, and secondly, it is discrimination on the basis of religion, women of no other religion are subject to cruelty and unjust behaviour of triple talaq except Muslim women. Talaq-ul-Biddat also violates Article 21 of the Constitution on the grounds of the right to live with human dignity, Muslim women are subject to derogatory and cruel behaviour of the Talaq-ul-Biddat, which reduces their presence to mere unwanted beings in the eyes of their husband and society. A divorce that is arbitrary, without justified reasoning and a reconciliatory process is never allowed by the Koran. Thus, personal laws of Muslims are given prominence unless and until they are against the right of women to live a dignified life or are unconstitutional.
Changes brought by the Muslim Women (Protection Of Rights On Marriage) Act, 2019
The Muslim Women (Protection Of Rights On Marriage) Act, 2019 brought the following changes:
- Section 3- Pronunciation of triple talaq on wife by husband in any manner (including electronic), by words either spoken or written, is void or illegal.
- Section 4- Any person who pronounces talaq to his wife in a manner prescribed in section 3, shall be subject to imprisonment extendable to 3 years or shall be liable to a fine.
- Section 5- Muslim women who are being divorced can seek allowance from their husband to maintain themselves and children dependent on them.
- Section 6- Muslim women divorced by husband are entitled to seek custody of their minor child.
- Section 7- Magistrate can grant bail to the accused after hearing both the parties, if he feels that reasonable ground exists for granting bail. The offence is compoundable and there is also an option of compromise at the instance of a married Muslim wife, which will drop the charges on the basis of fulfilment of certain terms and conditions.
Need for Uniform Civil Code (UCC)
Implementation of the Uniform Civil Code is the need of the hour. Article 44 of the Indian Constitution talks about the creation of the Uniform Civil Code for all the citizens of India. The creation and implementation of UCC will bring drastic changes in the Muslim personal laws, this is the reason it is being opposed by the Muslims. It will lead to the permanent abolition of triple talaq, all the marriages will be dissolved through Court proceedings. The practice of polygamy will be abolished and monogamy will be the norm. It will also bring change in maintenance provisions; Muslim women will be able to claim maintenance for a lifetime. Civil contractual nature of marriage will be abolished. Registration of marriage will be compulsory practice, and implementation of UCC will also lead to a violation of the period of iddat. These changes are pro-women and are actively welcomed by Muslim women, as it will lead to the positive betterment of women and society as a whole. But these changes are opposed by Muslims as a whole because they feel the imposition of UCC as an imposition of Hindu law over their personal laws, which is the wrong notion. Uniform Civil Code will be secular in nature containing essentials of all the diverse religions in India. Thus, Uniform Civil Code is necessary for strengthening national unity and integrity among citizens of India.
Under the Muslim Law, there are more than one form of ways through which marriage can be solemnized and divorce can be initiated for dissolution of marriage. To cater to the needs of changing circumstances along with Muslim personal laws certain legislations are brought by the Government of India such as the Muslim Dissolution of Marriage Act, 1939, the Muslim Women (Protection of Rights on Marriage) Act, 2019 etc., to govern Muslim marriage and divorce. However, apart from these legislations and personal laws, there is a need for the Uniform Civil Code for creating single informed laws governing all the citizens of the nation to strengthen national unity and integrity.
- Partha Pratim Paul, Talaq Is a Reasonable and Justified System of Divorce for Muslim Women in India, 2 INDIAN J.L. & Just. 98 (2011)
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