divorce for women under muslim law

This article that’s written by Anubhav Pandey talks – How Muslim Women can Divorce Her Husband as per the Muslim Law/Shariya law.

In Muslim Sharia law or Muslim law divorce is considered to be evil but sometimes, this evil becomes necessary. Here is a detailed article on what should Muslim women do to divorce with her husband in India.

Muslim law
Muslim women in India can get a divorce from their husband through two customary ways-

  • One is through their personal Sharia law through Tafweez and Lian.
  • The other through the statutory provision under Dissolution of Muslim Marriage Act, 1938.

However, divorce through personal Sharia law has to be under the scrutiny of Quazi, mostly guided under the regulations of All India Muslims Personal Law Board (AIMPLB).

Talaq-i-Tafweez

  1. Islam gave wife a right to initiate the process to come out of marital bond or seek for divorce on the grounds recognized under Muslim Law (or Shariya law). It is no more exclusive domain of a husband to end the marriage contract by unilaterally pronouncing Talaq.
  2. Though, the wife does not have a right to pronounce Talaq unless such a power is delegated to her by her husband at the time of contracting marriage, all the same she is given a right to seek divorce through intervention of Qazi (court) on the grounds pleaded by her, or by mutual consent on the terms agreed by the parties.
  3. This is the exercise of the right of divorce by Talaq by the wife through the power delegated to her by her husband who is of age at the time of the marriage or even after.
  4. The delegation of the right of divorce by the husband in favor of the wife may be conditional or unconditional. But, it is not however revocable. [1]
  5. It has also been held that the mere fact that the husband has delegated to the wife the power of pronouncement of her own Talaq did not deprive the husband of his right to pronounce Talaq.
  • In Talaq-i Tafweez, wife needs to purchase divorce from her husband as husband’s consent is essential for tafweez.
  • In Talaq-i-Tafweez, husband delegates his right of giving divorce to any person, as an agent even to his wife, and that person is possessed with the right of pronouncing a divorce on behalf of the husband.
  • A divorce through Talaq-i-Tafweez might be dependent upon the contingency of happening or not happening of a condition and that condition is mostly when men are cruel to their wife or incapable of taking care of her financially.
  • The right of re-marriage of the divorced couple whose marriage is dissolved Talaq by the wife must naturally depend upon the mode of talaq chosen by the wife.

“The doctrine of the delegation of the power of divorce is based on an incident mentioned in the Quran wherein the Prophet told his wives that they were at liberty to live with him or to get separated from him as they choose.”[2]

 

Lian

It is an allegation of adultery to the wife by the husband who entitles her to file a suit for dissolution of the marriage and get a divorce if she proves the charge to be false. According to the Muslim law, till a decision is passed by the Judge, the marriage subsists and there are mutual rights of inheritance if, either should happen to die before the decree is passed.

  • In order to dissolve such a marriage under the doctrine of Lian, the court has got to determine judicially whether a charge of adultery was or was not unjustly made and whether the husband has retracted from the allegations or not.
  • The Muhammadan law of evidence being no longer in force and the ordinary Civil Courts having taken the place of Qazis, these Courts are the authorities that should make a decree for dissolution of marriage on being satisfied according to the ordinary rules of evidence that, a false imputation was made by the husband. It is unnecessary to comply with the formalities of Lian according to the strict Muhammadan law.
  • Where a Muhammadan husband falsely accused his wife of adultery and on the wife’s bringing a suit for the dissolution of the marriage he admitted the falsity of the charge but, attempted to justify his making the charge at the time, it’s sufficient to presume that husband has retracted from his allegation.

 Here is the procedure of divorce under Muslim law of Lian-

  •  Allegation of adultery (zina) by the husband upon wife.
  • A regular suit to be filed by the accused wife before the Family court.
  • If husband retracts or justifies the allegations are proved and a proper ground for divorce is justified.
  • However, if the husband insists on his charges of adultery committed by his wife then, further, four oath are to be taken by the husband and subsequently four oath by the wife to prove her innocence and if proven, she is entitled to divorce.

This was the procedure on how to get a divorce from husband by Muslim women in India by the method of Lian.

Remarriage: The remarriage of the couple whose marriage is dissolved by Lian is perpetually prohibited. There is total prohibition of remarriage.

  • It may be pointed out that remarriage of the couple whose marriage is dissolved by Lian is possible under the Special Marriage Act if the conditions set out therein are fulfilled. Such a marriage under the Special Marriage Act is perfectly valid in law.[3]

Dissolution of Muslim Marriage Act,1939

Tafweez and Lian are not the only two modes which confer on the Muslim wife the right to seek divorce and that too through the instrumentality of the Court. Impotency of the husband has also been recognized as a ground for dissolution[4].

On no other ground, however valid or reasonable it may be, the Muslim law allows the Muslim women to snap the marital tie on her own accord. It is in order to relieve the Muslim women from the miseries of misfit marriages, the Dissolution of Muslim Marriage Act 1939 came into existence. Both the customary obligations and statutory obligations are put forwarded on a parallel plane before granting a divorce.

As per the rules, here are the ways in which a Muslim woman in India can divorce under Dissolution of Muslim Marriage Act, 1939 –

  • When a husband goes missing for a period of 4 months, that is to say, the whereabouts of the husband have not been known for a period of four years. If a woman files for a divorce under this provision on 1.01.2017 and her husband appears within 6 months of pronouncement of the decree, i.e within 30.06.2017 by himself or through his agent and satisfies the court that he is willing to perform his conjugal duties, the court will set aside the divorce.
  • A divorce can be granted when the husband has neglected or has failed to provide for her maintenance for a period of two years.
  • When the husband has been sentenced to imprisonment for a period of seven years or upwards. No divorce is to be granted until and unless the sentence is proved by the proper court.
  • When the husband was impotent at the time of the marriage and continues to be so provided the court will call the husband in this case to justify his stand.
  • When the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease. (a disease that is contracted and transmitted by sexual contact, or that are transmitted via semen, vaginal secretions, or blood during intercourse)
  • When woman having been given in marriage by her father or another guardian before she attained the age of fifteen years, recalled the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated (when sexual relationship have not yet been established).
  • Cruelty toward wife is also a ground for divorce. Cruelty is when the husband does any one of the following-
  • Habitually assaults her or makes her life miserable by cruelty even if such conduct   does not amount to physical ill-treatment.
  • Associates with women of evil repute or leads an infamous life.
  • Attempts to force her to lead an immoral life.
  • Disposes of her property or prevents her exercising her legal rights over it.
  • Obstructs her in the observance of her religious profession or practice.
  • If he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.

Conversion of Muslim Women, Not an Absolute Ground for Divorce Under Muslim Law

The renunciation of Islam by a married Muslim woman of her conversion to a faith other than Islam does not by itself dissolve her marriage, provided that after such renunciation, or conversion, the woman will be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned above. Provided further that, this will not apply to a woman converted to Islam from some other faith who re-embraces her former faith.

There is yet another provision for divorce under Muslim law-

Zihar: This is a mode in which the husband compares his wife to his mother or any other female within prohibited degree giving the right to the wife to refuse herself to her husband until he makes an expiation and in default to apply for a judicial divorce from the Qazi. This form of divorce is unknown in this country and no case of Zihar has come before Courts in India.

Kula: This form of dissolution of Muslim marriage is based upon consensus between the party where the initiative comes from the wife who pays some consideration to the husband to secure his consent by relinquishing her mahar wholly or in part.

Suggestive Read: Muslim laws for women

Rights of Muslim Women After Divorce

A divorced woman is entitled to –

  • A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.
  • Where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children.
  • An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or at any time thereafter according to Muslim law.
  • All the properties that are given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.[5]

Common Mistakes which Muslim Women Do After Getting a Divorce

  1. Don’t panic: After pronouncing of talaq, there is a particular period of Iddat for 3 menstrual cycle or 3 lunar months or the entire duration of pregnancy until the child is delivered. In that period of Iddat the wife has the right to stay at her husband’s house and even claim maintenance.
  2. Women should not at once borrow money from her parents. She should try to get a credit card as if the divorce is eventually happening. Husband’s liability in that credit will exist if not for full then for most of the part.
  3. Do not commit Adultery: Women out of emotional imbalance often fall into this trap. Mostly it is found that men seeking divorce often come in sexual relation with other women during the period of Iddat, just to make sure that their wife commits adultery and much proper ground for divorce is established. [6]

 

That’s all about How Can Muslim Women Divorce With Her Husband as per the Muslim law. What do you think, are Muslim women equally empowered to grant divorce as described in the Muslim law or there is another side of the coin we’re yet to see?  Comment  below. And yes, Don’t forget to Share.

 

References:

[1] MANU/JK/0455/2015, Mohd.Naseem Bhat V Bilqees Akhtar and Ors
[2] Carroll Lucy and Kapoor Harsha, “Talaq-i-Tafwid: The Muslim Woman’s

Contractual Access to Divorce”, Published by Women Living Under Muslim Laws in 1996,
[3] Justice, Kader,S.k, “Dissolution of Muslim marriage and remarriage of the divorced couple”,  (2004) 1 LW (JS) 41
[4] Altafen v. Ebrahim (27 All. L.J. 811)
[5] MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986
[6] http://timesofindia.indiatimes.com/life-style/relationships/man-woman/6-mistakes-women-make-in-a-divorce/articleshow/19033796.cms

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