Author – Ritwick Kundu, LL.B., 2nd year, Bharati Vidyapeeth
Keywords – Social engineering, CrPC, Maintenance, Hindu Marriage Act, Domestic Violence Act, Triple talaq, Shayara Bano case.
Abstract –
Divorce is not a very pleasant topic to discuss because here the separation of two individuals takes place. Still, in some cases where there is a need for the same, the process is long. Social engineering is occasionally required, and divorce is one such topic in law that specifically addresses the vulnerable ones who are unable to hold their marriage.
Introduction
What is Divorce ?
The legal dissolution of a marriage by a court or other competent body. Today, we will talk about one of the complex divorce rules in Muslim laws. Divorce is referred to as ‘Talaq’ in Muslim law which are as follows :-
1) Talaq-i-rajee – is the revocable divorce form.
2) Talaq-e-Bain – is the irrevocable divorce form.
Here, any Mahomedan who is of sound mind and has attained puberty may divorce his wife without any cause. In Sunni law, a talaq under compulsion or intoxication or fraud is also valid but it is void in Shia law.
Apart from this, there are also four types :-
(A) by the will of the husband – talaq-ul-sunnat, talaq-ul-biddat, ila, zihar.
1) Talaq-ul-sunnat –
(i) Talaq-ashsan – means the best and proper form of talaq, which has three conditions :-
(a) Husband makes a single pronouncement of divorce.
(b) Pronouncement is made during a tuhr.
(c) Husband abstains from sexual intercourse for iddat (90 days).
(ii) Talaq Hasan – means the good and proper form of talaq, which has three conditions :-
(a) There are three pronouncements of talaq made during successive tuhrs.
(b) There must be abstinence from sexual intercourse until the third pronouncement.
2) Talaq-ul-biddat –
(i) This form of talaq was introduced later.
(ii) In India it was recognised by the Sunni school.
(iii) There talaq is in the form of instant judgement where the husband says three times the word talaq and the marriage ends. It is so unsocial that many Islamic countries have banned it.
3) Ila – Husband vows abstinence and if he keeps the vow for four months wife gets the right to seek judicial divorce. This type of divorce is in the obsolete stage now-a-days.
4) Zihar – Here, the husband compares the wife to any of his female relations in which the marriage is not possible, this, is unlawful and the wife has a right to withdraw from him unless performed penance.
(B) Talaq- e-tafwid – Husband delegates his power to give talaq to wife or third party. Here, temporary delegation is irrevocable but permanent delegation may be revoked. This form of talaq can also have certain terms & conditions the wife can set for the husband.
(C) Khula – This is by the mutual consent of husband and wife. Khula means to lay down. To release the wife from the husband’s authority. It is an irrevocable divorce in which the wife gives the talaq offer to the husband, the husband must accept it and it can have consideration or compensation.
(D) Mubaarah – Mubaarah is also the same as Khula but the only difference is that in this both the parties target a separation.
As per the judicial proceeding –
Apart from this under Section-2, Muslim Marriage Act, 1939 provides grounds through which a woman can obtain a decree of dissolution of the marriage. The conditions for the same are : –
Ø whereabouts of husband not known for four years.
Ø Impotence, insanity for 2 years or leprosy or a virulent venereal disease.
Ø Cruelty by husband.
Ø Not performing marital obligations without reasonable cause for three years.
Ø Repudiation of marriage by the wife.
Ø Sentence of imprisonment on the husband for a period of seven years.
Ø Any other ground which is recognised as valid for the dissolution of marriage under Muslim law.
Case law(s)
Shayara Bano v/s. Union of India (2017) – In this case the honourable Supreme Court of India held Talaq-ul-biddat as unconstitutional. The act was known as the triple talaq act, i.e., the Muslim women (protection of rights on marriage) act, 2019 criminalises triple talaq with up to 3 years of punishment for the husband.
Conclusion
The majority of Muslim law has given talaq rights to the husband but in the Muslim marriage act, 1939 wife is also having the power to give talaq to her husband. Moreover, types of talaq have their application as per the different Muslim customs. Muslim law is a very unique concept to learn and know about. It is also good to see that the Supreme Court also quashed the not-so-social triple talaq provision and the Government of India have drafted an act out of it, in fact not only restricted but went a step ahead to criminalise and permitted wives to charge for their maintenance as well.
References –
