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DIVORCE UNDER MUSLIM LAW

The following article is written by Shruti Sharma, a dedicated fifth-year law student at PDM University, during her internship at LeDroit India, discussing Divorce law under Muslim law.

(As per Baillie – Digest of Mohammadan Law part 1), the term divorce involves all separation originating from the husband and repudiation for Talaq in the limited sense, namely, of separation effected by the use of appropriate words.

TALAQ: The literal meaning of Talaq is “the taking off of any tie or restrain “Under Muslim law, as per Hedaya, Talaq means “to release “. By Muslim law, Talaq means repudiate of marriage by the husband. the divorce arises by the act of the parties themselves or through a decree of a court of law.

Under Muslim law a wife cannot on her own accord, she can only give a divorce only when her husband has delegated her right to do so under an agreement. However, the legislature has extended statutory rights to Muslim women to give divorce to their husbands under the Dissolution of Muslim Marriages Act of 1939

Gauhati High Court held in the case of Musstt. Rebun Nessa v. Musstt Bibi Ayesha and others have observed that the correct law of Talaq as ordained by the Holy Quran is that

  • Talaq must be for a reasonable cause
  • It must be preceded by an attempt of reconciliation between the husband and wife by two arbiters, one from the wife’s family and the other from the husband. If any attempt fails the Talaq may be affected.

Therefore, there are two broad categories of divorce/ Talaq in Muslim Muslim law are

  1. Extrajudicial Divorce / Talaq in Muslim law
  2. judicial divorce/ talaq under statutory law

EXTRAJUDICIAL DIVORCE

Extrajudicial divorce depends upon the will of husband and wife or when it is done by mutual agreement. Various rights are provided to the wife and husband. However, the rights of divorce are provided to the husband only, the wife has very low authority regarding the right to divorce. Extrajudicial divorce has various parts such as

By husband- talaq-Ul-Sunnat,talaq-Ul-Biddat,lla and Zihar

By wife- Talaq-I-Tafweez, khula by mutual Agreement- Mubarak

DIVORCE BY HUSBAND

There are four ways a husband can get a divorce.

  • Talaq-ul-Sunnat

This form of divorce is based on Muslim Personal Laws. It is further subdivided into the following categories:

  • Ahsan
    • The husband has to make an announcement of divorce in a single sentence when the wife is free from the menstrual cycle. After divorce women have to observe Iddat for a certain period, during which the husband cannot indulge in any form of sexual intercourse, if he indulges then revocation of talaq becomes implicitly revocable, otherwise, it becomes irrevocable. This type of talaq can be pronounced even when the wife is undergoing menstruation, but for that marriage must not be consummated between the parties. It is the most approved form of talaq.
  • AHasan

It is a less approved form of Talaq Ahasan. There is a provision for revocation of divorce. The word talaq is to be pronounced three times simultaneously.

  • Three announcements should be made in the three states of purity if the wife has not crossed the age of menstruation. If the wife has crossed the age of menstruation, a pronouncement must be made at the 30-day interval between the successive pronouncements. During the period of three pronouncements, no sexual intercourse should take place, if it happens divorce is revoked. After completion of the iddat period, this type of divorce becomes irrevocable.
  • Talaq-ul-Biddat
    • it is this disapproved/sinful form of divorce. It is also known as triple talaq, after pronouncing talaq three times it becomes irrevocable immediately. This form of divorce is only recognized under Sunni Law and not by Shias and Malikis. Parties can remarry only after performing nikah halala by the female partner, under which she has to marry another man and then get divorced from him. This type of divorce is unconstitutional in India, through the judgment of the Supreme Court in the case of Shayara Bano vs Union of India and Others.
  • Ila
    • It is a form of divorce under which the husband has the power to pronounce that he would not indulge in sexual intercourse with his wife. After this pronouncement, the wife is required to observe iddat. If the husband cohabits with the wife during this period, then the Ila is revoked. Once the period of iddat is over, divorce becomes irrevocable. This type of divorce is not practiced in India.
  • Zihar
    • It is also a constructive divorce like Ila. In this form of divorce, the husband compares his wife with a woman who comes under a degree of prohibited relationship, such as his mother, sister, etc, and pronounces that she is like his mother or sister. For doing this the husband must be of sound mind and above the age of eighteen years. The wife has the right to seek judicial remedies such as restitution of conjugal rights, cohabitation, etc., but cannot seek judicial divorce. A husband can revoke such divorce by observing two months fast, feeding sixty people, and freeing a slave. This type of divorce is no longer in practice.

DIVORCE BY WIFE

TALAQ-E-TAFWEEZ

  • It is also known as delegated divorce. The husband has the power to delegate such power to the wife, he must be of sound mind and above 18 years of age. This type of talaq is also called an agreement, which may be entered between the parties before or after marriage. If the terms of an agreement are not fulfilled, the wife can ask for a divorce. It is the only way through which a woman can ask for a divorce. The right of the husband to divorce his wife remains intact, it does not deprive the husband of his right to pronounce the divorce.

KHULA

  • Khula is a procedure based on traditional jurisprudence that allows a Muslim woman to initiate a divorce by releasing Mehr and other rights for the benefit of her husband. Thus, divorce is purchased from husband to wife. There is an offer from the wife, which is accepted by the husband. Women are required to observe iddat after Khula.
DIVORCE BY MUTUAL AGREEMENT

Ø Mubarak – It means ‘release’, it releases/discharges parties from marital rights. Divorce is with mutual consent among parties to become free from one another. Its formalities are the same as Khula, where there is an offer from one party and acceptance from another. Women are required to observe Iddat.

JUDICIAL DIVORCE

Judicial divorce is a formal separation between husband and wife. As court separates husband and wife according to the established custom and law. Act performed under the Dissolution of Muslim Marriage Act, of 1939.

THE DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939

An act to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by married Muslim women on their marriage tie

Section 2 of Dissolution of Muslim Marriage Act,1939 states nine grounds on which a Muslim wife can obtain a decree of divorce.

—A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:

  1. That the whereabouts of the husband have not been known for four years;
  2. That the husband has neglected or has failed to provide for her maintenance for two years;
  3. That the husband has been sentenced to imprisonment for seven years or upwards;
  1. That the husband has failed to perform, without reasonable cause, his marital obligations for three years;
  1. that the husband was impotent at the time of the marriage and continues to be so;
  2. that the husband has been insane for two years or is suffering from virulent venereal disease
  3. That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated
  4. The husband treats her with cruelty, that is to say,
  1.  Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
  2.  Associate with women of evil repute leads an infamous life, or
  3.  Attempts to force her to lead an immoral life, or
  4.  Disposes of her property prevents her from exercising her legal rights over it, or
  5.  Obstructs her in the observance of her religious profession or practice, or
  6.  If he has more wives than one, does not treat her equitably by the injunctions of the Quran.
  1. on any other ground that is recognized as valid for the dissolution of marriages under Muslim law   Provided that
  1.  No decree shall be passed on the ground
  2.  Until the sentence has become final;
  3.  A decree passed on the ground
  4.  Shall not take effect for six months from the date of such decree, and if the husband   appears either in person or through an authorized agent within that period and satisfies the court that he is prepared to perform his conjugal duties, the court shall set aside the said decree; and
  5.  Before passing a decree on the ground
  6.  The court shall, on application by the husband, make an order requiring the husband to satisfy the court within one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the court within such period, no decree shall be passed on the said ground.
LANDMARK CASES
·        Shayara bano vs Union of India,

Shayara Bano’s case led to the ban of the Muslim practice of Triple Talaq. It is a process of divorce under the “Sharia Law”, where a Muslim man can instantly divorce his wife by pronouncing the word “TALAQ” three times, without any state intervention. The means of communication might be in any form i.e. written, oral, or maybe electronic, which further enhanced a Muslim woman’s vulnerability during this sort of unilateral and arbitrary divorce. “Talaq” is the Arabic word for Divorce.There are three types of divorce under Sharia Law from which only “Talaq-ul-Biddat” is irrevocable. It is mainly prevalent among India’s Muslim communities that follow the Hanafi School of Law. Under this law, Muslim women can’t divorce their husbands whereas husbands can.Women need to move a court proceeding for divorce under the Muslim Personal Law (Shariat) Application Act,1937. For 15 years, Shayara Bano had been married to Rizwan Ahmed.In 2016, through oral triple talaq (talaq -e biddat), Rizwan divorced her. A Writ Petition was then filed by her in the Apex Court saying, “As a violation of Articles 14,15,21 and 25 of the constitution, performance of the practices of – talaq-e-biddat, polygamy, nikah-halala – should be held unconstitutional.”

·        Mir Khursheed Rasool v. State of Maharashtra (2022)

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 decided on 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 based on mutual consent of the talaq. The issue involved in the case is 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.”

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

Under Muslim law, there are various ways through which a dissolution of marriage can be performed. Muslim law is very biased in terms of women’s rights so there is a need to amend the circumstances along with Muslim personal laws as certain laws have been introduced by the government of India through the Dissolution of Marriage Act, 1939 After the 2017 judgment 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 as 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 individuals and under Muslim law, talaq is an ancient practice and is not recognized as a sinful act, unlike under Hindu law.

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