This article is written by Pratibha Bansal, a student of Banasthali Vidhyapith, Rajasthan; and Nimisha Dublish of the Vivekananda Institute of Professional Studies, GGSIPU. She has discussed the concept of divorce under Muslim law, elucidating different modes of talaq under Muslim law and dissolution of the Muslim Marriage Act, 1939.
It has been published by Rachit Garg.
Table of Contents
Introduction
For understanding the methods of dissolution of marriage, lets first see what is marriage under Muslim law because the only essential for divorce under Muslim law is marriage. The dissolution of marriage is known as divorce.
Different religions define marriage differently, such as:-
- According to the Hindu Marriage Act, 1955 marriage is a religious sacrament.
- Under Muslim Law, Marriage is a contractual relationship between two parties. All the essentials that are required for a contract are present under Muslim Marriage. There is an offer, acceptance, consent, consideration, the capacity of parties, etc. The purpose of such a form of marriage are:-
- Legalising sexual intercourse.
- Procreation of children.
In the case of Shoharat Singh v Jafri Begum, the privy council held that marriage under Muslim law is a religious ceremony. Under Islam, marriage is recognised as a basis of society. Marriage is an institution which leads to upliftment of man and is also a means for the continuance of the human race.
Divorce is the end of such a marital relationship, as under Muslim law there are two modes given for the dissolution of marriage-
- Divorce
- Talaq
In daily life, these two terms are alternatively used, but under Muslim law, if a person seeks “divorce”, he will be governed by the provisions of Dissolution of Muslim Marriage Act, 1939. Whereas, “Talaq” proceedings are governed by Muslim Personal Laws.
After the very infamous case of triple talaq, people have become more curious to know about the Muslim law for talaq. The Supreme Court has already ruled that triple talaq is an illegal practice and that a Muslim marriage cannot be dissolved by this method. If the husband still does so, he shall be punished for up to 3 years of imprisonment. This was one of the biggest developments in family law legislation. Marriage is an institution recognised by Indian legislation as sacred. Similarly, divorce is also recognised by most of the religions practiced in India. Islam was the first religion to expressly recognise divorce, or talaq, as the termination of a marriage. In the pre-Islamic era, the husband was given unlimited powers with regard to divorce, and women were considered the mere property of a man. Due to this, social evils and moral ills rose in society, and talaq became a matter of equity and great concern, especially for women. Majorly, two problems originate from the very concept of talaq under Muslim law, first, the method of divorce (triple talaq); and second, the inequality between husband and wife in the marriage.
Before diving into the laws, let’s first try to understand the basic terms and concepts of talaq.
Divorce under Muslim law
Pre-Islamic era
In pre-Islamic Arab society, husbands used to possess unlimited powers concerning divorce. They had the power to divorce a woman at any time, with or without reason. Divorce by the husband was revocable at the will of the husband and could be granted as many times as he wished. There existed at least four types of methods for the dissolution of marriage that were practised in pre-Islamic Arabia. A woman was free to remarry after divorce, but not before serving the period of iddat. The period of iddat was to determine the legitimacy of the child. But at that time, this wasn’t a strict rule.
Post-Islamic era
After the advent of Islam, the Prophet discouraged such customs of divorce and considered the practice a means to undermine the foundation of society. Since the customs have been in practice since time immemorial, the prophet had to mold the laws and wasn’t able to change them in its entirety. The Prophet allowed the practice of divorce by the husband under some conditions. The reforms marked a new journey in the history of eastern legislation. The right to seek separation on reasonable grounds was given to the women. To place an effective check on the rates of divorce and remarriage, the prophet considered that it should be essential for remarriage that the woman marry another man, consummate the marriage, and follow the period of iddat. Though this idea was brought about to curb remarriages, critics accused the procedure of being a disgusting ordeal and a major show of disrespect for women.
Classification of Dissolution of Marriage
Above the table is provides a brief view about the different kinds of methods for dissolution of marriage under Muslim law.
By Husband
Talaq
Talaq is an Arabic word that means taking off any tie or restraint. In law, it means the dissolution of marriage. There are further two types of law that look at the aspect of divorce differently. In Hanafi law, there is no special pronunciation or phrase that is necessary to be spoken to get talaq, whereas in Ithna Ashari law, there is strict adherence to the form in which talaq must be pronounced. The requirements are that the talaq must be uttered orally in the Arabic language in front of two male witnesses who should be honest and virtuous Muslims. The presence of a wife is not necessary at the time of talaq. It would be deemed that the talaq will take effect on the date when the wife knows it. It is essential to inform the wife about talaq in cases where she has to observe iddat and the dower becomes payable during iddat.
Sunnis permit both oral and written forms of talaq, whereas Shias insist on oral talaq. The husband holds a supreme position in the relationship and can give no reasoning, go to no court, require no requirement of the wife’s consent, follow no formality or procedure, and just pronounce talaq to set free the relationship. In Alungaprambil Abdul Khader Suhud v. State of Kerala (2006), the petitioner desired to marry under the Special Marriage Act, 1954 and get it solemnised and registered. As per the provisions of the Special Marriage Act, the marriage cannot be solemnised if the spouse is living or there is no such decree passed by a court for the dissolution of the marriage. The petitioner contended that he had given talaq to her earlier wife and that they no longer lived together. He insisted upon the fact that he isn’t required to obtain a decree from a court as per his Muslim personal law and only needs a certificate from the concerned Jama-Ath to show that divorce has taken place as per Muslim personal law. The state said that no such decree from a court is required and that a certificate from the concerned Jama-Ath must be accepted by the state.
There are four modes available before a husband for dissolving the tie of marriage:
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Talaq- ul- Sunnat
This form of talaq is effective in accordance with the traditions established by the Prophet. It is further divided into two parts:-
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Ahsan
It is branded as the most laudable divorce. In this case, the husband repudiates his wife during the period of tuhr, i.e., the period of purity, when the wife is free from the menstrual cycle. In this period, the husband does not have intercourse with his wife and leaves her to the observance of iddat. The parties obtain the right of inheritance as the divorce remains revocable during the iddat. As per Hedaya, this is the most relevant and approved method of divorce because the companions of the Prophet approved of it. Also, the husband has the power to revoke the divorce during the period of iddat, i.e., three months or until the delivery of the child. In Ahsan, if the marriage is not yet consummated, talaq can take place during the menstrual cycle as well. The condition of tuhr is not applicable in cases where the husband and wife are living separately or the wife is beyond the age of menstruation or old age. It does not apply to the written form of talaq. This form of talaq can only be done either through the implied period of cohabitation within the period of iddat or through express words. Once the iddat period lapses without revocation, talaq becomes final and irrevocable.
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Hasan
In this method of talaq, the husband pronounces the word talaq successively three times during the period of tuhr, i.e., purity. In simple terms, it can be said that it is a form of divorce upon divorce. In this case, the first and second pronouncements are revocable, but if they’re followed by the third pronouncement, they become irrevocable. One essential element of Hasan is that the pronouncement should take place during the period of tuhr, and there shall be no intercourse between the couple during that period. In layman’s language, it can be put forth as follows-
- When the wife is serving the period of tuhr and has not yet had intercourse, the husband pronounces talaq. Now, he revokes it by saying words or having intercourse. The wife observes menstruation.
- Again the wife is observing the period of tuhr and before intercourse, the husband pronounces talaq. Followed by intercourse (repudiation). Again the wife observes menstruation.
- Now, during this third period of tuhr if the husband pronounces talaq then it becomes irrevocable and final.
It is to be noted that in a case where the wife does not observe the menstrual cycle, an interval of 30 days is required between each repudiation. Hasan was brought in to put an end to the ill-treatment of her husband, whom he divorced several times, and took her back without any repercussions. Through this method, the husband is given two chances to take his wife back, as after the third pronouncement, talaq becomes irrevocable. Hasan stops the indefinite process of divorcing and repudiating. This acts as protection for women by ensuring that they won’t be used by Arabs indefinitely. The Prophet stopped the Arabs and Muslim husbands from divorcing unlimited times and restricted them to three chances only.
In this form of talaq, husbands do not follow the concept of talaq-us-sunnat and do not pay attention to the period of purity and abstention from intercourse. This method was followed to escape the restrictions imposed by the Prophet on the above-mentioned method of talaq.
Triple divorce is defined by Hedaya as a form of divorce in which the husband repudiates the marriage by saying three divorces in one sentence. He repeats the sentence three times during the period of tuhr. This kind of divorce is not only legal but sinful as well. But in Shia law, it’s not even allowed. The triple form is not an indispensable requirement. A husband may say ‘I divorce you, I divorce you, I divorce you’ in a sentence or say ‘I divorce you’ three times. In cases where the intention is clear, the divorce becomes irrevocable. These forms of divorce are not recognised by Shias. An intermediary marriage is necessary for a reunion. Though Talaq-ul-Biddat is good in law but bad in theology, it is the most practised form in India.
Another form is ‘one irrevocable divorce’. In this form, the husband may say talaq a hundred times, and it will be considered final. Intentions can be shown in writing as well. Talaq becomes irrevocable under the following circumstances-
- Ahsan talaq becomes irrevocable when the period of iddat is completed and served.
- Hasan talaq comes into force when the third pronouncement is made to the wife. Iddat does not influence the form of talaq.
- Talaq-ul-Biddat also becomes irrevocable when it is pronounced.
- In the case of unconsummated marriage, talaq becomes final and irrevocable at the very time of its pronouncement.
- A written talaq becomes irrevocable at the very moment of its execution unless it is ambiguous or not clear.
After getting to know the whole process of talaq under this method, one must understand the meaning of implied and contingent divorce. In cases where the husband clearly says to his wife that he is severing the bonds and relations with her and that we have no connection with each other from now on, where the intent is clear, it shall be an implied divorce. The intent and words should be very clear, and there should be no scope for ambiguity in the word construction. When talaq is pronounced by the husband, it should affect the future of both husband and wife. When talaq is affected by future events or vice versa, it is considered contingent divorce, also called talaq-e-taliq. Shia law hasn’t recognised implied and contingent divorce. In the case of Hamad Ali v. Imtiazan (1878), the distinction between implied and contingent divorce was discussed. In the case of Bashchoo v. Bismillah (1935), the husband gave an undertaking to his wife that he would be paying all the expenses and maintenance within a specified period, and if he failed to do so, the wife could file a divorce case against him. He failed to manage the expenses and maintenance, in return for which his wife filed for divorce. The Allahabad High Court held that these proceedings would be valid and lawful as there was an implied written statement (undertaking) given by the husband. Hence, divorce can proceed between the parties.
2. Talaq-ul- Biddat
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Ila (Vow of Continence)
The situation wherein a husband who is of sound mind and has attained the age of majority swears in the name of God that he will not have sexual intercourse with his wife and leaves her to observe iddat, he is said to make Ila.
If the husband resumes sexual intercourse within the iddat period being observed by wife, it will lead to cancellation of Ila It is pertinent to note that Ila is not practised in India.
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Zihar (injurious Assimilation)
A husband must be of sound mind and above the age of 18 years to be eligible to use this mode dissolution of marriage. If he compares his wife to his mother or any of the female within prohibited degrees, the wife has a right to refuse to have sexual intercourse with him. Such refusal can be accepted until he has expiated himself from penance prescribed by law. Muta marriage(practised among Shias) which admits no other sort of divorce may be dissolved by zihar.
Such form of divorce is no longer in use anymore.
Talaq by the wife
Divorce given by wife under the husband’s delegated power.
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Talaq-e-tafweez
This is the only way through which a woman can give divorce to his husband, however, such power to give divorce needs to be delegated by the husband only. It is a form of an agreement made either before or after marriage providing that wife will be privileged to get separated from her husband via divorce under the specified condition as:-
- In case the husband marries a second wife
- The husband is unable to maintain her for a specified period of time any other condition that must not be opposed to public policy.
If the conditions agreed in the agreement by the husband are well practised by him then, the wife without any prejudice to Law can dissolve her marital ties.
The fact that husband delegates the power to the wife does not dispossess him of his right pronounce talaq.
Divorce by Mutual Consent
Although the practice of giving Divorce by mutual consent was not recognised in the Muslim Law, it was only available to the Muslim women after the enactment of Dissolution of Muslim Marriages Act, 1939.
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Khula
The literal meaning of khula is “to lay down” before the law. The husband lays down his right over his wife. It signifies an arrangement entered into to dissolve a connubial connection in lieu of compensation paid by the wife to her husband out of her property, everything that can be given as dower.
Khula is a divorce with mutual consent and at the instance of a wife in which she agrees to give some consideration to her husband. It is basically a “redemption” of the contract of marriage.
Essentials
- There must be an offer from the wife’s side
- Offer must be accepted by the husband with the consideration for it.
- Observance of the iddat period is necessary.
Under Shia law, husband can’t revoke divorce once accepted whereas the wife has been given the power to reclaim the consideration during the iddat period.
2. Mubarat
It signifies mutual discharge from the marital tie. The most essential element is that the mutual consent of both the partners is required in regards to the dissolution of marriage.
In this mode of divorce-
- Offer can be made from either of the sides.
- Acceptance of offer makes divorce irrevocable.
- Iddat is necessary
Under Shia law, parties can dissolve their marriage, if it is not possible for them to continue their marriage by way of mubarat.
The last mode mentioned in the above table for dissolution of marriage is, by way of judicial separation.
By the death of the husband or wife
The death of a person is a natural thing, and it is the most unexpected circumstance. If the husband or wife dies, then naturally the marriage comes to an end. In the event of the death of a wife, the husband can remarry immediately. There’s no restriction on the man as regards marriage. In the case of the husband’s death, the period of iddat is to be followed by the widow. The period of iddat is 4 months and 10 days, and in the case of pregnancy, she has to wait until the delivery of the child to remarry.
Dissolution of Muslim Marriage Act, 1939.
Further, there are two ways-
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Lian
Lian can simply be described as the wrong charge of adultery on wife by her husband. Whenever a husband imposes false adultery charges on his wife, then a wife can sue him and can also obtain a divorce on the same ground under the Act, by filing a regular suit for dissolution of marriage. In case of Zafar Husain v Ummat – ur – Rahman, Allahabad High Court held that a wife under Muslim law is entitled to file a suit against her husband for dissolution of marriage and can obtain decree on the ground that she was falsely charged with adultery by him.
Essentials
- A husband must be adult and sane.
- He charges his wife of adultery.
- Such a charge must be false.
- False charges do not ipso facto (by that fact itself) dissolve the marriage, it just provides a ground to the wife to move to the court to dissolve the marriage.
- Marriage will continue until the decree for dissolution of marriage is passed by the court.
- Judicial seperation via mode of lian is irrevocable.
- This mode is applicable only to Sahih marriages not on fasid ones.
Retraction can be made by the husband before the end of the trial, admitting that he made the charge of adultery against her wife and such charge was false.
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Faskh
Quran says that husband and wife are duty bound to respect each other and treat each other respectfully and obey all lawful orders of each other.
If both of them find that they can’t live as husband and wife further, they can approach qazi who after careful examination may terminate their marriage.
Section 2 of Dissolution of Muslim Marriage Act, 1939 states nine grounds on which a Muslim wife can obtain a decree of divorce:-
Absence of Husband– whereabouts of the husband are not known from the past four years. Dissolution of marriage decree on this ground will take effect after six months from the date of such decree is passed, and during that period if the husband appears in person or through an authorizes agent. Court if satisfied from same may set aside the said decree.
- Failure to maintain- If a husband fails to provide maintenance to his wife for two years. There is no defence available before husband on the ground of poverty, failing health or unemployment.
- Imprisonment of a husband- If the husband is imprisoned for seven years or more.
- Failure to perform marital duties- If, without any reasonable cause, the husband is unable to perform his marital obligations for three years.
- Impotency of husband- husband was impotent at the time of marriage and continues to be so. If the husband within one year from the date of the order obtained by wife for dissolution of marriage on the grounds of impotency on application satisfies the Court that he ceased to be impotent. If the husband satisfies the court, then no decree shall be passed on this ground.
- Insanity, leprosy or venereal disease- If the husband is insane or suffering from leprosy, or any venereal disease from a period of two years, judicial divorce by wife can be claimed on the same ground.
- Repudiation of marriage by wife- If a girl is married before the age of 15 years by her father or guardian, then under Muslim law she has been provided with a right to repudiate such marriage after attaining the age of 18 years provided that marriage is not consummated. She is entitled to a decree of divorce for same.
- Grounds of dissolution recognised by Mohammedan Law- Wife is also entitled to obtain a divorce on the ground recognised valid under the law.
- Cruelty by husband- if the husband treats his wife with cruelty, then she can approach the Court and claim for a decree of judicial separation on the same ground.
Some of the ways through which grounds for cruelty could be claimed as follows.
- Physical assault.
- Making defamatory statements affecting her reputation.
- Forces her to lead an immoral life.
- Obstructing her from practising her religion.
- Husband having more than one wife and does not treat them equally.
Talaqnama
Talaqnama is talaq given in the written form. Talaq via talaqnama can be provided in the absence of wife and also there is no necessity to be signed in the presence of Qazi or wife’s father.
- Husband has to execute a proper deed.
- A deed must contain the name of the women whom he has divorced and his name.
Points to be considered for a valid talaq
- Talaq pronounced under intoxication is not recognised valid under Muslim law.
- For a valid talaq, intention is not an essential element.
- Husband may give talaq by mere words without any talaqnama or deed.
Talaq made during death illness
- An ailing Muslim (generally men) has been given the power to pronounce talaq, just to prevent his right of inheritance moving to his wife after his death.
- If the man pronounces irrevocable talaq in death illness and dies before the expiry of the iddat period, a wife is entitled to claim her share.
- In case the husband dies after the expiry of the iddat period than there is no right of inheritance.
Legal effects of divorce
- Mutual rights of inheritances cease.
- Cohabitation becomes illegal, and children born after such intercourse will be illegitimate.
- Dower becomes immediately payable.
- Parties can contract another marriage.
- Wife is entitled to maintenance during the iddat period.
Changes brought by Muslim Women Protection Act, 2019
Section 3
Section 3 made it invalid and unlawful for the husband to pronounce triple talaq to his wife in any way, whether electronically, orally, or in writing.
Section 4
As per this Section, any person who pronounces talaq to his wife in the manner given in Section 3 of the Act is subject to imprisonment for 3 years along with a fine.
Section 5
Section 5 allows Muslim women to ask for maintenance and money from their spouses after divorce to support themselves and their children.
Section 6
As per this Section, custody of minor children can be contested by women as well. After divorce, both parents have equal rights over the children, and hence both of them contest in court of law for the custody of the children.
Shayara Bano v. Union of India (2017)
Facts of the case
In this case, the petitioner, Shayara Bano, filed a petition in court assailing the divorce pronounced by her husband, Rizwan Ahmed. He said I will give talaq, talaq, talaq in front of witnesses on 10th October 2015. He added that he frees his wife from all ties, and there is no relation between husband and wife left. He also said that from today on, I’m haraam and have become naamharram, and you are free to use your life your way. The petitioner contended that this talaq should be considered void ab initio. She also contended that triple talaq should be declared unconstitutional and illegal. As it is not part of Shariat’s Muslim Personal Law. The Supreme Court passed several orders and also asked the Central Government to provide for a high committee report recommending a ban on triple talaq. It also invokes the UN Charter of 1945. The UN Charter aims for the equality of both men and women, but triple talaq violates it. The Law Commission also stepped in and provided various suggestions and recommendations to deal with the issue of triple talaq.
Contentions from the petitioner’s side
It was submitted that talaq was not recognised in the Shariat Application Act, 1937. Also, it was not encouraged by the Prophet. With the advent of time, talaq emerged as a custom and didn’t have Quranic sanctions. He urged the ban of triple talaq as it violates Articles 14 and 15. Muslim women also have the right to live and make their own life decisions.
Contentions from the respondent’s side
The respondent contends that the Shariat Act doesn’t codify Muslim personal law, but it forms the basis of customs. In Muslim law, marriage is a private contract that cannot be questioned by any legislation. They pointed out that the definition of law in the Constitution does not cover personal laws at all. They brought attention to Article 25 of the Constitution, which empowers the Parliament to make laws on secular activities.
Judgement of the Court
The Supreme Court, with a ratio of 3:2, declared triple talaq unconstitutional and gave six months to the Indian Parliament to deal with the legislation to handle triple talaq and the global advancement of Islamic family law in India. A detailed guideline was provided in the 264 page judgement to deal with the issue of triple talaq and future steps to be taken to advance the laws. The judgement was divided into seven parts, which were given by the five judges of the Indian Supreme Court.
Mir Khursheed Rasool v. State of Maharashtra (2022)
Facts
In this case, the dispute between the husband and wife was resolved amicably by the way of settlement. Respondent 2 lodged an FIR under Sections 498A, 406, 504, and 34 of the IPC related to the marriage. The respondent alleged ill-treatment during their short matrimonial life. The parties reached a decision of divorce through a “Deed of Divorce by way of Mubaratnama.” The child’s custody was with Respondent 2, and she cannot claim any future maintenance or claim on the petitioner’s property. She received Streedhan property and one-time maintenance of Rs. 5 lakh. She withdrew all her cases, and the petition was allowed on the basis of mutual consent of the talaq.
Issue involved in the case
Whether the FIR filed by the respondent should be withdrawn or not if the disputes have been settled by mutual decision of divorce through a “Deed of Divorce by way of Mubaratnama.”
Judgement of the Court
The Bombay High Court said that the disputes have been settled between the parties by way of mutual talaq. Both parties agreed to the terms. Hence, the complaints filed against the petitioner would not serve any fruitful purpose and were to be quashed. The Court accepted the request of both the parties and the case was allowed.
Conclusion
After the 2017 judgement of the supreme court held and declared triple talaq unconstitutional, under Muslim law, both husband and wife are given equal rights to dissolve their marital relationship.
When two people enter into a marital relationship, they might not know each other so well, as they got to know each other after living together. And after that, if there is no compatibility between the two, living apart is the best choice to be made.
Bad relations may spoil the life of both the individuals and under Muslim law, talaq is an ancient practice and is not recognised as a sinful act, unlike under Hindu law.
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