Home case analysis Types of divorce (talaq) in Muslim Law

Types of divorce (talaq) in Muslim Law

July 9, 2024

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This article is written by Shreya Patel. This article covers the concept of marriage and divorce under Muslim Law in India. The article emphasises on the meaning of marriage and divorce under Muslim law, the essentials of Muslim marriage, the different types of divorce in Muslim law and the valid conditions for a divorce (talaq) under Muslim law. This article also discusses many landmark cases on various types of divorce in Muslim law in India.

Table of Contents

Introduction

Marriage and divorce have been integral parts of the ancient stance of Muslim law. The notion of divorces and marriages also holds a historical perspective among Muslims. There are four main sources for the development of Muslim personal laws which are:

the Quran (which is the holy book),
Ijma (consensus),
Sunna (precedent) and
the Qiyas (analogical deductions).

In these four main sources, the Quran is the primary source of the development of Muslim personal laws. All these sources hold great importance and are considered sacred in the Muslim religion. As per the Muslims, these sources are unchangeable.

Marriage is often considered as a social requirement that balances social life by creating some types of obligations and rights that both partners have to oblige to. Women in pre-Islamic Arabia were considered objects and their conditions were miserable and pitiable. During this period, buying and selling of women, marrying real sisters at the time, polygamy, divorcing the wives freely, temporary marriages etc. was very common and prevalent. The status of women in Muslim society only became better after the emergence of the laws made by Prophet Muhammad. Earlier, people were irresponsible towards Muslim women. Despite this, there are many concepts/notions that were followed which were patriarchal in nature, such as polygamy or considering women inferior to men in the aspects of intellectual dominance, masculinity, etc. The laws for Muslim marriages and divorces are shaped by the customs, precedents, legislations and thoughts that were prevalent in the old time.

The Muslims are divided into different sects and have different schools, which also lead to various forms of divorce and marriage. Muslims accept different types of divorces and marriages. The different types of marriages in Muslim religion are Sahih marriage (valid marriage), Muta marriage (temporary marriage), Batil marriage (void marriage), etc. In Muslim marriages, there is always the presence of an offer and the acceptance of that offer, as by nature, a Muslim marriage is considered a civil contract.

The Muslim marriage can be ended by using two means, which are talaq and divorce. Both words are often used as synonyms for the same in the day to day conversation, but both have different meanings when it comes to legal implications. If a divorce is sought by some person, then they are subjected to the provisions of the Dissolution of Muslim Marriage Act, 1939. This Act is a legal structure that governs the process of dissolution of marriage as per Muslim personal laws, while the talaq is governed by laws that are traditional in nature. The rules and regulation for divorce between a muslim couple are outlined under the jurisprudence of Islam. Through ‘Mubarat’ or ‘Khula’, a Muslim marriage can be dissolved with mutual consent. There are various legislations that provide rules and regulations for divorce such as Muslim Women (Protection of Rights on Marriage) Act, 2019, Dissolution of Muslim Marriage Act, 1939 and Muslim Women (Protection of Rights on Divorce) Act, 1986.

Marriage under Muslim Law

Sunnis and Shias are the two main sects in which Muslims are divided. The four main schools of Muslim law are Hanafi, Maliki, Hanabali and Shafi. The Hanafi school is the most prevalent school of thought in India as compared to other schools. As per Ameer Ali, who was a scholar of Islam and a social and political reformer for the protection of society, marriage was considered very significant. The concept of celibacy is not followed in Islam. As per the Muslim religion, marriage is part of the social structure. In order to validate an intimate relationship and to give the status of legitimacy to the children born as the result of the intimate relationship between a woman and a man, marriage is a solemn declaration.

Nature of marriage under Muslim Law

Muslims consider marriage a civil contract. Two parties enter into an agreement with their free consent. There is an offer made by one party that is accepted by the other party, and the rights of the wife and husband are given to them. The husband has more rights as compared to the wife when it comes to the dissolution of marriage. Women are considered inferior and, hence, have fewer rights than men due to the existence of the patriarchal notion.

The Allahabad High Court, in the case of Abdul Kadir vs. Salima (1886), stated that Muslim marriages are very similar to civil contracts. As civil contracts and Muslim marriages have an offer made by one party, acceptance is to be made by the other. There should be free consent at the time of offer and acceptance, and no coercion, fraud or any undue influence should be present in either the offer or the acceptance.

In the landmark case of Anis Begum vs. Muhammad Istafa (1993), the Chief Justice of Allahabad High Court has given a more balanced view that marriage is both a religious sacrament and a civil contract under Muslim law, ending the debate on the nature of the marriage, as there was constant disagreement and debate about whether marriage was only considered a civil contract or merely a religious sacrament.

Essentials of marriage under Muslim Law

Capacity to marry

In order to be eligible for marriage, a person must have reached puberty and be of sound mind as per the Quran. The man’s puberty is considered to be fifteen years old, as per Muslim law. In the event of dower, divorce or marriage, the Indian Majority Act, 1875, is not applicable to Muslim religion. The Prohibition of Child Marriage Act, 2006, on the other hand, is applicable to all religions and is secular in nature.

Offer and acceptance

The next essential for a valid marriage is the presence of an offer, i.e., ijab and acceptance, i.e., qubul. The offer and the acceptance have to be made in one meeting only. The acceptance should be after the offer has been made. The offer and acceptance should be within a particular time frame that is prescribed for the offer to be accepted.

Consent of the parties

There should be no undue influence, ill-will, coercion or fraud at the time of offer and acceptance. Both parties must agree to marry with mutual consent.

Mehr

In Muslim marriage, the wife has to pay a consideration at the time of marriage. This type of consideration is formally referred to as ‘Mehr’. This consideration acts as a mark of respect by the husband for his wife. Mehr is one of the crucial aspects of a Muslim marriage. A marriage will not be considered valid without mehr.

No legal impediment

No legal impediment should be present. If any hindrances are found, the marriage will not be considered valid. Hindrances like those mentioned below should not be present:

Absolute impediment

Consanguinity (marriage between people who share blood relations is prohibited), a marriage between a Muslim male and his grandmother, daughter, mother, niece, aunt, or granddaughter cannot take place.
Affinity (prevents the man from marrying all relations of women with whom he is married.
Fosterage (prevention of relationship with foster relatives).

Relative impediments

Unlawful conjugation
Polygamy
Lack/Absence of proper witnesses

When an idda or iddat is not yet completed by a woman (the woman has to undergo an idda/iddat period after the divorce is pronounced), the death of the husband has taken place. This iddat period helps in avoiding the confusion of paternity related issues if the wife is pregnant. A period of three lunar months is to be observed as the iddat period for the women who are non-menstruating. An iddat period of three menstruation courses is to be observed by a woman who is menstruating.
Marriage with an individual who is not Muslim

	Marriage with Non-Muslim	Shia Law	Sunni Law
Woman	Not valid	Void	Irregular
Man	Not valid	Void	Irregular

Types of marriages under Muslim Law

Temporary marriage (Muta marriage)

Muta marriage is also known as pleasure marriage or temporary marriage. This kind of marriage is followed and practised by the Ithna Ashari, who belong to the Shia sect. Muta marriage is not practised by other Muslim sects. An Ithna male can marry as many wives as he wants. The women can be Jewish, Muslim or a fire worshipper. On the contrary, Muslim women are allowed to marry only Muslims. All the terms and conditions have to be mentioned when the couple is entering into the contract of marriage, also known as ‘nikah nama’. Any terms cannot be entered afterwards and will be considered invalid.

Following are the characteristics of Muta marriage (temporary marriage):

A contract must exist that the marriage is temporary in nature.
The presence of an offer and acceptance must be there by the parties.
The specifications related to dower must be made.
The duration for which the marriage is to be continued must be mentioned in detail. If there is no such specification, then the marriage is considered permanent in nature.
The rights to mutual inheritance are not given to the parties.
The maintenance to the wife is only liable if there is any specification about the same in the contract of marriage.
The wife will be entitled to dower in full if the consummation of marriage has taken place and if the marriage is not consummated, then the wife is entitled to only half dower.
The wife will also have to observe iddat period if the consummation of marriage has taken place.
The right to refuse procreation is with the husband; the permission of the wife is not required.
The right to inherit the property of both parents is given to the offspring. The offspring have to be legitimate.
The temporary marriage ends when mentioned in the contract, unless any extension is made. The extension has to be mentioned in the marriage contract.

Sahih (valid) marriage

A marriage is considered a Sahih marriage when all the required and mandatory legal formalities are fulfilled. Both the Sunni and Shia accept this type of marriage.

Following are the characteristics of sahih marriage (permanent marriage):

The parties are legally recorded as partners and obtain the status of wife and husband.
The right to inheritance is mutual between the marriage parties. The wife has the right to maintenance under Section 125 of the Code of Criminal Procedure, 1973 for both her children and herself.
The husband cannot marry the sister of the wife after the marriage is dissolved due to the death of the wife, divorce between the parties, etc.
All the essential conditions are followed in this kind of Muslim marriage.
The children conceived out of this kind of marriage have a legitimate status.
The parties in marriage can add other conditions as per their convenience in the contract of marriage. These terms and conditions should not be against public morals and public policy as per Muslim laws and society.
Under the Sunni sect, the acceptance as well as the proposal must take place in presence of 2 male witnesses and in one meeting only. It can also be two females and one male. For the Shia sect, the presence of witnesses is not a requirement.

Batil (void) marriage

A marriage is a batil marriage when all the essential conditions that are absolute in nature or impediments that are relative are not performed at the time of the Muslim marriage. This marriage is also known as a void marriage. For a marriage to be valid, the parties should have the capacity to enter into the marriage contract. In batil marriages, there is a lack of capacity; hence, the marriage is regarded as void. The Sunnis and Shias both accept this kind of marriage.

A marriage is considered void on the basis of many reasons. A marriage between the parties that share a prohibited relationship (for instance, a blood relative) is void. A marriage is also a batil marriage if it takes place between parties that are related by affinity to each other. For example, an aunt or sister. As per Shia law, if marriage takes place during the iddat period, then it is also a void marriage.

Following are the characteristics of a batil marriage (void marriage):

As this marriage is a void marriage, no legal rights or duties arise from it.
The parties do not confirm their status as husband and wife.
As the marriage is not considered valid, the children that are born out of this wedlock are considered illegitimate in nature.
The offence of bigamy or polygamy is not committed if the parties enter into other marriages, as the marriage is void in nature. The parties are free to enter into other valid marriages.

Fasid (irregular) marriage

When a relative impediment is violated and a marriage takes place, this is known as a fasid or irregular marriage. This type of marriage is neither void nor valid by nature. This type of marriage can be converted into a valid marriage by removing the irregularity. Both Sunnis and Shias accept this type of marriage, except the Ithna Ashari school of the Shia sect.

Following are the characteristics of fasid marriage (irregular marriage):

If the parties that are in a fasid marriage want to dissolve the marriage, then they will have to terminate the marriage by using legal procedures (judicial proceedings).
The right to maintenance is to be given to both children and wives.
A confirmation by both parties that the marriage has taken place is needed for the marriage to become effective.
The right to terminate the marriage is with both wife and husband at any time.
If the death of the husband takes place or divorce happens, then the iddat period is to be observed by the wife.
The right to inheritance is given to the kids that are born out of this wedlock and are considered legitimate.
The mutual right of inheritance is not with the husband and wife.

Divorce under Muslim Law

During the time of pre-Islamic Arabs, the husbands possessed unlimited powers of divorce. The husbands could at any time have the right to divorce their wives without giving any reasons for doing so. The divorce could also be revoked by the husbands as per their preference and as many times as the husband wanted. The husband, when still living with the wife, can make a promise that he will not enter into any sexual relations with her.

The divorce provisions are acknowledged by all religions. Islam is one of the first religions to expressively recognize the dissolution of marriage. The concept of divorce was introduced in England only around a hundred years ago, while Muslims have been practising talaq earlier than this period.

The Urdu word for divorce is ‘talaq’. There are a set of predetermined special rights where the husband can take action and enunciate his intent to divorce. The process of legally dissolving the marriage between husband and wife is referred to as divorce. The process of divorce mainly depends on the sects (Shia or Sunni) that the couple belongs to. Islam also uses the way of divorce to end the marital life between the couple.

The concept of divorce in Islam is very different from that in Hindu marriages. Marriage is considered a contract in Muslim law. Divorce for the Muslim couple is governed by their personal laws. A dissolution of marriage takes place by divorce or when the husband or wife’s death takes place. Marriages are considered a civil contract, and divorce means ending the civil contract, which entails that consent is also equally important in cases of divorce as it is in marriage. As per the personal laws, the parties involved in a marriage can, at any time, back away from the marriage through the means of talaq. The wife, under Muslim law, cannot, on their own accord, divorce their husband.

The right to divorce is given to the Muslim wife only when the husband gives the right himself or through a mutual agreement between the husband and wife. This mutual agreement is known as ‘Mubarat’. Nevertheless, the legislation has now provided Muslim women with statutory rights to give divorce to their husbands. This right is extended under the Dissolution of Muslim Marriages Act, 1939. Before the Act came into existence, there were no rights under which a Muslim wife could seek a divorce from her husband. Only in the case of false charges of impotency, adultery and insanity could the Muslim wife seek divorce. Many crucial grounds in relation to the basis that can be used by the Muslim wife to seek divorce and get her marriage dissolved with a court order were introduced in the Act. The modern concept of divorce by mutual consent is now present in Islam, which is also very famously known as the break down theory of divorce.

In the case of Musst. Rebun Nessa vs. Musstt. Bibi Ayesha & others (2011), the Gauhati High Court stated that, as per the holy book of the Quran, there should be a reasonable cause for talaq. The couple must try to reconcile first using arbitration, where two arbitrators, one from each side of the family along with the couple, try to resolve their problems. Only if the attempt at reconciliation fails should the couple move ahead with the talaq. Divorce between the married couple cannot take place due to small issues that can be solved through discussion. Only when grave matters are in question should the option of talaq be used by the married couple.

Conditions for a valid divorce in Muslim Law

There are some conditions that must be fulfilled for a valid divorce under Muslim law. These conditions differ as per Shia and Sunni laws. However, two main important conditions that are common are free consent and capacity.

Free consent

Free consent is one of the most important conditions that are required for a valid divorce. The husband’s consent must be free at the time of pronouncing the divorce. The only exception is seen in Hanafi law, where divorce is pronounced under undue influence; coercion, fraud, compulsion, intoxication, which is voluntary in nature, etc. are valid for dissolving the marriage.

Capacity

The Muslim husband must have the capacity to pronounce a divorce. The Muslim husband who has attained the age of puberty and is of sound mind can, without any reason/ cause, pronounce a divorce. If the husband is of unsound mind, then the guardian, on behalf of the unsound husband, can pronounce a talaq. The divorce should be pronounced in such a condition only if it is in the interest of the Muslim husband. The judge or kazi, also has the right to dissolve the marriage on behalf of the Muslim husband if there is no guardian who can take these kinds of decisions for the husband.

Express words

The intention of dissolving the marriage must be expressly and clearly indicated by the husband. The divorce should be pronounced in express words. The need to have proof or any evidence of divorce, the motive of the husband and his intention is not necessary if the talaq is in express words. When there is a clear utilisation of the word talaq, the husband cannot deny in any way that he has no intention of dissolving the marriage. The intention to dissolve the marriage is to be proved by the husband only if the pronouncement of the talaq was ambiguous in nature and was not expressed clearly.

Valid Divorce under Sunni law

The talaq (divorce), as per the Sunni law, can be in writing or oral. The written form of talaq is through the ‘talaqnama’, which is also known as divorce papers. Under the Sunni law, there are no specific words or actions that are to be taken in order to consider a talaq a valid divorce. When the husband clearly expresses the desire to end the marriage (dissolve the marriage), it is considered adequate to dissolve the marital relationship. The talaq does not require the presence of any witnesses under Sunni law. Any type of divorce, whether it is in writing or oral, can be considered a valid divorce without witnesses under Sunni law.

Valid divorce under Shia law

There are different formalities for a valid divorce under the Shia law as compared to the Sunni law. In Shia law, in order to consider a divorce valid, the oral pronunciation of the word ‘talaq’ is necessary. There is an exception to this condition where the husband cannot speak. Oral pronunciation is very important. If the husband gives the divorce in writing when he is able to speak, the talaq will be considered void in nature.

Contrary to Sunni law, in Shia law, witnesses are mandatory when the talaq is being pronounced. There should be two competent witnesses. A Muslim male who has attained the age of puberty and is of sound mind is considered competent to become a witness. If there is no such Muslim male present, then two female adults (female Muslims) who have a sound mind can also be considered competent witnesses. As per Shia law, if the witnesses are not competent in nature or are not present at the time of divorce, the talaq will be considered void. The specific use of Arabic words is a mandatory requirement for a valid divorce under Shia law.

Types of divorce (talaq) under Muslim Law

The two main ways by which the muslim can dissolve marriage is by divorce or when the death of one party takes place, then automatically the marriage is dissolved. There are four main types of divorce among Muslim. The four types are:

Divorce by husband

The husband can divorce his wife using 4 methods of divorce. The four ways a Muslim husband can give divorce are as follows:

Talaq

A Muslim husband can give talaq to his wife anytime during their marriage with the intention of dissolving the marriage. All the conditions are to be fulfilled by the husband at the time of pronouncing the divorce. The Talaq is further divided into two modes, which are:

Talaq-ul-Sunnat

The talaq-ul-sunnat is often referred to as talaq-ul-raje. In this form of divorce, there are always chances of reconciliation and compromise. Both Shias and Sunnis recognise and approve talaq-ul-sunnat as a valid form of divorce. Talaq-ul-Sunnat is further divided into two types:

Ahsan

In this type of divorce, the announcement is to be made in a single sentence for divorce by the husband. The announcement of the divorce must be made when the wife is not having a menstrual cycle and it has to be done during the tuhr period. The announcement is to be made only once.
Iddat is to be observed by the women after the divorce. The iddat period of three months is to be observed in order to represent the Muslim wife’s three menstrual cycles. If the wife is pregnant, then the iddat period will continue until the birth.
During the period of iddat, the husband cannot enter into sexual intercourse with the wife. If he does, then the divorce will be revoked. The revocation will be considered an implied revocation rather than irrevocable.
Ahasan, as a type of divorce, is the most approved mode of talaq. This mode of divorce is considered the most proper form of talaq.
The mode of divorce can be pronounced, when the wife is having a menstrual cycle, but for the divorce to be considered valid, the couple must not have consummated their marriage.

Hasan

The Hasan is less approved as compared to Ahsan. In this type of divorce, revocation can take place.
There should be the pronunciation of the word ‘talaq’ three times in successive tuhrs.
All three announcements should be made when the wife is free from the menstrual cycle and in a state of purity.
When the age of menstruation is crossed by the wife, the announcement is to be made in thirty days with an interval between the three pronouncements.
Sexual intercourse between the husband and wife should not take place during the period of announcement that is to be made three times. If the couple indulges in sexual intercourse, then the divorce is revoked.
The divorce is irrevocable after the pronouncement is made for the third time.

Talaq-ul-Biddat

Talaq-ul-Biddat is considered sinful and is not an approved form of divorce. This form of divorce is not considered a proper way to dissolve a marriage. Talaq-ul-biddat is also called talaq-ul-bain.
Talaq-ul-Biddat is also referred to as triple talaq, wherein after pronouncing the word talaq three times, the talaq is irrevocable immediately.
Only the Sunni law recognises this form of divorce. The Shias and Malikis do not recognise or use this type of divorce.
If the parties want to marry each other again, the female will have to perform the ‘nikah halala’ which means she will have to first marry another male and divorce him in order to marry again.

In India, this form of divorce is considered unconstitutional. The Supreme Court in the case of Shayara Bano vs. Union of India (2017) recognised triple talaq as unconstitutional. The Chief Justice of Allahabad High Court in the case of Rahmat Ullah vs. State of UP (1994) observed that Talaq ul-Biddat is a type of divorce that is irrevocable in nature. This type of divorce is an instant divorce, where it takes place in only a single sitting or when pronounced in tuhr. Talaq ul-Biddat does not give any reconciliation chance or a waiting period nor does it allow Allah’s will for reunion, which can be possible by getting rid of differences and helping the married couple reconcile. This is opposite to what is stated in the holy book of the Quran.

Ila

The next form of divorce is ila. In this type of divorce, the power to pronounce the divorce is given to the husband, who states that he will not enter into any sexual intercourse with his partner (wife) and will follow a vow of continence for four months.
After such pronouncement, the iddat period is to be observed by the wife. The revocation of ila will take place if, during the iddat period, the husband and wife indulge in a sexual relationship.
The divorce will become irrevocable only when the Iddat period is completed.
This mode of divorce is not followed or practised in India.

Zihar

Zihar is also a constructive divorce, similar to Ila.
Under such divorce, the wife is compared by the husband with some other female, who shares a relationship that is prohibited and also does not indulge in any sexual relationship with the wife.
In this case, the wife will have the right to ask for judicial remedies. The wife cannot seek a judicial divorce in such a case.
The husband has to be an adult (attained the age of 18 years) and should be of sound mind when making such comparisons.
The husband can make amendments by feeding sixty people, observing a fast for two months or freeing a slave to revoke zihar. The time period for revocation is four months. After the completion of four months, the zihar is completed.
India does not practise this type of divorce.

In the case of Masroor Ahmad vs. The State (Govt of NCT of Delhi) & Anr. (2022), it was observed by the Delhi High Court that both Ila and Zihar are absent virtually in India as a form of divorce. In place of Ila and Zihar, Lian is found to be a mode of divorce used in India, when a wife is charged with false adultery by the husband and the husband is then not able to prove the same. The wife has the right to seek divorce from the Muslim husband in this case. When the wife files the suit for divorce, the husband has the chance of taking back the allegation of adultery. In this case, the suit will fail. If the husband is adamant about the charges of adultery, then in order to support the charges, he has to take an oath (four oaths). The wife will also, in her defence take four oaths and prove her innocence in front of the court. This entire process is known as the dissolution of marriage by the mode of lian.

Divorce by wife

Talaq-e-Tafweez

The other name of talaq-e-tafweez is delegated divorce.
Both the Shia and Sunni sects recognise this kind of divorce by wife.
The husband who is of sound mind and has attained the age of 18 years has the power to delegate this right to his wife. The power can be conditional or absolute in nature, or it can be permanent or temporary in nature.
The parties can enter into such an agreement before the marriage has taken place or after the marriage. This type of divorce is also known as a contractual agreement.
The wife can seek a divorce if the conditions that are mentioned in the agreement are not fulfilled.
Delegating such a right to divorce to the wife does not deprive the husband of his divorce rights that he already has. The husband will have all the rights to pronounce the divorce intact.

In the case of Sadiya Begum vs. Attaullah AIR 1933 Cal 885, both the wife and husband had entered into an agreement where the right to divorce was given to the wife, with the condition that the husband wanted to marry again for the second time. This type of talaq was considered a delegated talaq and was upheld as a valid form of agreement. The option of using the right to divorce herself was given to the wife in this case. This right would be active when a condition that was previously specified takes place. In the current case, it was the second marriage of the husband, which was the condition for exercising the right to divorce herself. It is totally the decision of the wife to use this right. If the wife chooses to not exercise the right even when the husband marries for the second time, which will be considered a violation of the agreement, the marriage will not be dissolved and will continue.

Lian

When the husband falsely charges the wife with adultery, this type of divorce takes place.
The divorce must be on the grounds of false adultery charges against the wife by the husband.
The Muslim husband must be 18 years of age or older and of sound mind when he is imposing the charges of adultery on the wife.
The court has to pass the dissolution decree for the marriage to be dissolved. The divorce becomes irrevocable in nature when the decree is passed.
If the husband wants to prevent the divorce, then he can withdraw the charges of false adultery against his wife. This has to be done before the court passes the decree.

In the case of Nurjahan Bibi vs. Kajim Ali (1976), the wife filed the suit for divorce on the basis that her husband had charged her with false adultery and bad character. The Muslim wife can bring in such a suit and seek divorce through Section 2 (ix) of the Dissolution of Muslim Marriages Act, 1939.

Divorce by mutual consent

Khula

Khula means ‘laying down’; in this type of divorce, the authority is laid down to the wife by the husband.
Khula required mutual consent from both sides. The wife will pay some consideration from her property in return for her release from the husband.
For the husband’s benefit, the wife releases her rights and mehr. The wife in this type of divorce purchases the divorce from her husband in exchange for consideration.
The wife first makes the offer, which is then accepted by the husband. In Khula, like other divorces, the iddat period is to be observed.

Mubarat

The word mubarat means ‘mutual release’, the parties discharge/release their marital rights.
The parties, in order to become free from each other, mutually divorce each other.
Mubarat and Khula have similar formalities. Like Khula, in Mubarat there is also an offer and acceptance that takes place.
Like all other types of divorces in Muslim law, in Mubarat, the Iddat period is also to be observed.

Divorce by judicial decree under Dissolution of Muslim Marriages Act, 1939

Faskh

A Muslim married couple can file for divorce if they find themselves incompatible with each other.
The basis on which divorces can be filed by the wife is mentioned in Section 2 of the Dissolution of Muslim Marriage Act, 1939.

The grounds for divorce by wife are:

For four years, the husband’s whereabouts are not known as per Section 2(i) of the Act. Provided that for a period of six months, a decree passed on this ground will not be effective. If, during the period of these six months, the husband agrees to fulfil his marital duties by an authorised agent or physically appears before the court stating the same, then the decree can be cancelled by the court.
The husband is impotent when the marriage takes place and continues to be so as per Section 2 (v) of the Act. Provided that the husband will be given one year by the court to prove that he is no longer impotent before the decree is passed on this ground. If the husband is able to prove that he is impotent, then the court will not pass the decree.
For the period of two years, the husband has failed to maintain the wife.
The husband is sentenced to seven years or more in imprisonment, provided that an official order cannot be passed on this ground until the court has given a final sentence.
For three years, the husband has failed to perform the marital obligations, and there is no reasonable cause for the same.
The husband suffers from virulent venereal disease, leprosy or insanity (for a period of two years).
The husband is very cruel to the wife and imposes physical assault or makes statements that are defamatory in nature and affect the wife’s reputation.
If the wife at the time of marriage is under the age of 15, then when she turns 18, she can deny the marriage’s validity, as long as the consumption of marriage has not taken place.

Case laws on Divorce (Talaq) under Muslim Law

The rights that the personal laws grant are established based on religion. These rights are not absolute in nature. The two landmark judgements by the Supreme Court of India in relation to this can be discussed to get a clear idea of this notion.

In the case of Mohd. Ahmed Khan vs. Shah Bano (1985), at the age of sixty-two, Shah Bano’s husband had divorced her and she and her five children were disowned by the husband and thrown out of her marital house. Shah Bano then approached the High Court of Madhya Pradesh in order to restore the amount of her maintenance, which was two hundred rupees. The husband stopped her from doing the same. Shah Bano also wanted to increase the maintenance amount to five hundred rupees as she was divorced using the triple talaq (Talaq-ul-Biddat). The husband used the triple talaq as a defence to not pay the maintenance as Shah Bano was no longer his wife. Under Section 125 of the CrPC, the court granted Shah Bano maintenance on the grounds that, as she was not able to maintain and earn for herself, she is liable for maintenance. This was against Islamic provisions.

The same happened in the case of Shayara Bano vs. Union of India (2017). Shayara Bano, who was married to Rizwan Ahmed, was divorced by a divorce letter that was sent to her when she was at her parent’s house visiting them. She was also a victim of domestic violence. The letter was for talaq-ul-biddat which means triple talaq, a talaq that is instant divorce. A petition was filed by Shayara Bano before the Supreme Court of India to declare that triple talaq, polygamy and nikah halala are unconstitutional. The Supreme Court considered the plea of triple talaq to be unconstitutional. The Court also held that the government has to formulate new provisions for the same and until then, an injunction against pronouncing triple talaq by the husbands on their Muslim wives should be there.

The triple talaq violated Article 14 of the Constitution and is unconstitutional in nature. The Talaq-ul-Biddat discriminates between Muslim men and women, as only men under Muslim personal laws have the right to pronounce triple talaq. The discrimination in religion can also be seen, as other religions have no such type of divorce that is cruel and unjust to women. Article 21 of the Constitution is also violated on the grounds that the right to live with human dignity is violated by triple talaq. With the practice of triple talaq as a form of divorce, women in the Muslim religion are subject to behaviour that is cruel and derogatory. The triple talaq does not give a chance to any kind of reconciliation procedure to the married couple.

The case of Shamim Ara vs. State of Uttar Pradesh (2002) is one of the landmark cases when it comes to divorce under Muslim law. In this case, Shamim Ara, who is the petitioner, has filed a suit against her husband. The wife has claimed that her husband has deserted her and has also not supported her family by providing any financial support. The husband claims to have given the wife a triple talaq in 1987. The key issue in this case is the validity of the talaq by the husband. There were various questions, like, did the talaq take effect when the husband pronounced it but the wife was not present but there were witnesses or did the effect take place when the husband gave the divorce in writing to his wife in the year 1990? It was also noted that there was no validity to the divorce. The Supreme Court decided that the divorce was not valid in the end. The wife was not present when the talaq was given and it was later communicated to her through writing. This is considered unfair to the wife and such a divorce will not be recognized legally.

Justice Krishna Iyer observed in the case of Yousuf vs. Sowramma (1970) that it is a false notion that males under Muslim laws have arbitrary power that is unilateral in nature when it comes to the dissolution of marriage. The view is not in line with instant divorce and is not in accordance with the rules and regulations laid down by Islam. The holy book of the Quran has forbidden expressly that a Muslim husband cannot find excuses to divorce his wife. If the wife is obedient and loyal to the husband, then the husband should not find reasons that are false in nature to divorce her. There is no power given to the Muslim man under the rules and laws of Islam to divorce the wife whenever he wants.

In the case of Danial Latifi vs. Union of India (2001), the Supreme Court ruled that when a talaq is pronounced under the personal laws of a Muslim, it should act in accordance with the natural justice principles and the reasons for obtaining the divorce must be given by the husband. The communication of the talaq must take place as per the rules laid down in Muslim personal laws to consider it a valid divorce. The liability of the husband will not end with the completion of the Iddat period. In the case of destitution of wife and vagrancy, the wife must be maintained by the husband. The husband has to make just and reasonable provisions for the wife, even when it is after the customary period.

As per the prescribed form laid down by the divorce laws and rules for Muslim husbands, a Muslim husband may give the right to divorce to his wife; this was held in the case of Hamidoolla vs. Faizunnissa (1882). In the case of Shaikh Taslim vs. the State of Maharashtra and Other (2022), it was held by the Bombay High Court that the dissolution of the marriage can be done by the family court with mutual consent between a Muslim couple and as per the Muslim personal law.

The validity of the contingent talaq was given some thought by the High Court of Allahabad in the case of Bachchoo vs. Bismillah (1936). There was a dispute between the Muslim couple in which the Muslim husband filed a suit for the restitution of conjugal rights. The talaqnama was presented by the wife, which expressed that when the husband defaulted under any conditions mentioned, the deed would automatically be counted as the talaq kamil. (absolute divorce). The court found that the husband had failed to fulfil the conditions and considered the divorce effective and valid. The Court also dismissed the suit for the restitution of conjugal rights.

Muslim Women (Protection of Rights on Marriage) Act, 2019

The Muslim Women (Protection of Rights on Marriage) Act, 2019, was introduced with the intention of providing protection to Muslim women who are married and to prohibit the husband from pronouncing talaq and other related matters. This Act now makes the triple talaq declaration a cognizable offence in nature.The key provisions under the Act are:

Section 3 of Muslim Women (Protection of Rights on Marriage) Act

This Section states that triple talaq, when given by a Muslim husband to his wife, will be considered void. A triple talaq given in any form, either electronic, written, spoken or in any other way, will be illegal and void in nature.

Section 4 of Muslim Women (Protection of Rights on Marriage) Act

As triple talaq is unconstitutional and illegal in nature, pronouncing such talaq will result in punishment. Section 4 of the Act talks about the punishment for pronouncing the triple talaq. An imprisonment of three years, which can be extended, is given along with a fine to the Muslim husband who divorces his wife using triple talaq.

Section 5 of Muslim Women (Protection of Rights on Marriage) Act

This Section states that the Muslim wife is entitled to a subsistence allowance. The Muslim wife who is divorced is entitled to an allowance from her husband for her and her dependent children.

Section 6 of Muslim Women (Protection of Rights on Marriage) Act

This provision is related to the children’s custody. When the husband pronounces the talaq to his wife, in that case the wife is entitled to custody of the minor children.

Conclusion

The Muslim religion has more than one type of marriage and divorce. The dissolution of marriage can take place using various types of divorce, some of which are followed in India and some are not. Under Muslim law, a marriage is regarded as a civil contract, contrasting with Hindu laws that consider marriage a sacrament. Marriage is regarded as fundamental and is vital for the establishment of a family. Marriage is considered the sole way for establishing an intimate relationship that will be considered legal or halal between women and men and for the children’s legitimacy.

There are certain types of divorces that are no longer practised due to their rigidity. Muslim laws have changed time and again in order to accommodate changing circumstances. The government has introduced acts like the Muslim Women (Protection of Rights on Marriage) Act, 2019 or the Muslim Dissolution of Marriage Act, 1939. The divorce laws in India for Muslims are a blend of legal principles and Islamic principles. With the declaration of triple talaq as unconstitutional, the Muslim laws in India are adapting and changing with time.

Frequently Asked Questions (FAQs)

Is it allowed for a Muslim woman to start a divorce procedure in India?

A Muslim woman can start a divorce procedure in India as per Muslim personal laws. Muslim wives are given rights to divorce their husbands in some types of divorces under Muslim law. Talaq-e-tafweez is a type of divorce that allows Muslim women to start a divorce procedure along with approaching the court if the right is denied.

Are there specific legal requirements that are to be fulfilled in the case of divorce under Muslim personal law?

There are some essential legal requirements which are to be fulfilled, such as the husband should be of sound mind at the time of pronouncing the divorce and should have attained the age of puberty, etc.

Can a Muslim wife file for divorce if her husband is mentally ill under Muslim law?

A wife has the right to file for divorce and dissolve the marriage if the husband is mentally ill. In order to file for divorce, the husband must have been suffering from mental illness for at least two years, as per Section 2(vi) of The Dissolution Of Muslim Marriages Act, 1939.

Is child custody one of the aspects of divorce under Muslim law?

Child custody is also one of the most vital aspects of Muslim law. The custody of the child is given after taking into consideration the best interests of the child.

What is meant by the doctrine of halala?

If the wife wants to go back to her husband after Khula, she will first have to marry another man, dissolve that marriage and remarry again. The Muslim wife can remarry after reconciliation with the husband.

What is Iddat and is it mandatory to be observed?

Iddat is very important and mandatory after the divorce. If the wife is pregnant, then the iddat period will be until the end of the pregnancy. And if there is no pregnancy, then the iddat period of three months is necessary to observe.

Can remarriage take place before the Iddat period is completed?

Remarriage cannot take place if the period of iddat is yet to be completed. A Muslim woman has to complete the iddat period as a condition for a valid divorce.

References

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