This article is written by Pratibha Bansal, a student of Banasthali Vidhyapith, Rajasthan. She has discussed the concept of divorce under Muslim law, elucidating different modes of talaq under Muslim law and dissolution of Muslim Marriage Act,1939.
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-
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.
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.
There are four modes available before a husband for dissolving the tie of marriage:
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:-
It is known as the best form of talaq as the name clarifies the same. The procedure followed by the husband is as follows –
- He has to make a pronouncement of divorce in a single sentence, such pronouncement must be made in a purity state(when a woman is free from her menstrual cycle).
- A husband must not indulge in any form of sexual intercourse during the iddat period(period of chastity a Muslim woman is bound to observe after the dissolution of marriage, either by the death of her husband or by divorce) and if he does so, then it will be considered as implied revocation of talaq. It is pertinent to note that once the iddat period has expired, the divorce becomes irrevocable.
- When the partners have not consummated, talaq-e-Ahsan can be pronounced even if the wife is in her menstruation.
The Arabic meaning of Hasan is good, therefore divorce pronounces through Hasan mode is a good but lesser worth than the one pronounced in Ahsan. Husband has to make three successive pronouncements for divorce.
- In the case of a menstruating wife, such three pronouncements should be made in three consecutive tuhr(state of purity).
- In the case of a non-menstruating wife, pronouncement should be made at three successive intervals of 30 days.
No sexual intercourse should take place during these periods of three pronouncements and if such an act takes place then the process of divorce will be revoked.
Talaq Hasan becomes irrevocable on the third pronouncement irrespective of iddat period.
2. Talaq-ul- Biddat
This form of talaq is introduced by “Umayyads” in order to escape from the strictness of Law. This is a sinful form of talaq, as it is recognised among the Hanafis. Sunni law recognises this mode of talaq, though recognised as sinful by that too. Whereas Shias and Malikis do not recognise this mode.
- Three pronouncements made in a single tuhr either in a single sentence or in separate sentences eg. “Talaq, talaq, talaq” or “I divorce thee, I divorce thee, I divorce thee.”
- Single pronouncement clearly indicates an intention to dissolve a marriage and makes it irrevocable. It is usually pronounced as – “I divorce thee irrevocably”.
Partners separated through triple talaq can’t remarry without the formality of the woman marrying another man and getting divorced from him, this process is called Nikah Halala.
In the recent judgement of Shayara Bano vs Union Of India And Ors., Supreme Court of India declared that the practice of triple talaq is unconstitutional, as this form of Talaq is violative of the fundamental right provided under Article 14 of the Constitution of India.
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.
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.
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.
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.
- 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.
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.
Further, there are two ways-
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.
- 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.
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 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.
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.