Introduction to Muslim Law and Divorce
Under the Muslim Law, only the husband has the right to divorce. He may do so, without providing any reasons and by mere pronouncements of such words that signify his intent to renounce their marriage.
A Muslim wife holds the power to divorce only when the right to divorce is delegated to her by her husband or by mutual agreement i.e. Khula or Mubarat. Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery, insanity or impotency of the husband.
Classification of Dissolution of Marriage
Muslim laws allow dissolution of marriage either on the death of the husband or wife or by divorce. Divorce under Muslim law has been divided into the following categories:
- By Husband-
Talaaq: Talaaq means the dissolution of marriage by the husband with the help of appropriate words. For a talaaq to be valid, the husband should not be minor and should be of sound mind. The consent of the husband in pronouncing talaq should be free. Only under the Hanafi law, a talaaq pronounced under compulsion, coercion, fraud, etc, is valid and dissolves the marriage. Talaaq pronounced under forced or involuntary intoxication is void even under the Hanafi law.
Under the Shia law, a talaaq must be pronounced orally. No specific words are required to constitute a valid talaaq. Any expression which indicates a husband’s intent to dissolve marriage is sufficient. If the husband can speak and still gives talaaq in writing, then the talaaq is considered void. Talaaq under Shia law must be pronounced in front of two witnesses.
When clear and unambiguous words are uttered, the talaaq becomes express. Express talaaq gets split into two categories, namely, talaaq-i-sunnat and talaaq-i-biddat. Further, talaaq-i-sunnat has two forms:
- Talaaq-i-ahasan: Once the husband pronounces talaaq, there has to be a three-month iddat period to factor in three menstrual cycles of the woman. During this period, if the husband resumes cohabitation or sexual intercourse with his wife, the divorce is revoked.
- Talaaq-i-hasan: The husband is expected to utter words of Talaaq three times in successive periods after menstrual cycles. The husband has to make a single declaration of talaaq and then await for another menstrual cycle to pronounce another declaration. The first and second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, the words of talaaq becomes ineffective. If no revocation is made after the first or second declaration, then the husband gets bound to make the third pronouncement and the marriage dissolves.
- Ila: In Ila, the husband takes an oath not to have sexual intercourse with his wife and there is no consummation for a period of four months. The marriage dissolves irrevocably after the expiry of four months. If the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve.
- Zihar: Zihar is a term which literally means “You are my mother”. The husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc, and after such comparison, the husband does not cohabit with his wife for a period of four months. Upon expiry of four months, the wife may either get a decree of divorce or a decree of restitution of conjugal rights. Zihar can be revoked if the husband fasts for a period of two months, provides food to at least sixty people or frees a slave.
- By Mutual Consent-
Khula: Khula: a divorce with mutual consent and at the instance of a wife in which she agrees to return mahr (obligation paid by the groom to the bride at the time of Islamic marriage) or give some consideration to her husband. It allows a woman to initiate a divorce.
Mubarat: In mubarat both, the husband and the wife, are happy to get rid of each other. Among the Sunnis, when the parties to marriage enter into a mubarat all mutual rights and obligations come to an end. The Shias insist that the word mubarat should be followed by the word talaaq pronounced in Arabic unless the parties are incapable of pronouncing the Arabic words, otherwise no divorce would result. Among both, Shias and Sunnis, mubarat is irrevocable.
- By Wife-
Talaaq-i-tafweez: Talaaq-i-tafweez is also known as delegated divorce and is recognized by both, Shias and Sunnis. This is the only way through which a woman can give divorce to her husband but this power of giving divorce needs to be delegated by the husband only. It is a form of agreement which allows the wife to get separated from her husband via divorce.
Lian: Lian, in simple terms means wrong charge of Adultery on wife. When a husband falsely imposes adultery charges against his wife, the wife has the right to sue her husband and also ask for a decree of divorce on these grounds.
Muslim Women on their the Right to Divorce
Muslim Women (Protection of Rights on Marriage) Act, is an Act to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith. The Act makes all declaration of talaq, including in written or electronic form, to be void and illegal. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.
It makes the declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine. The offence will be cognizable only if information relating to the offence is given by:
(i) the married woman (against whom talaq has been declared), or
(ii) any person related to her by blood or marriage.
Dissolution of Muslim Marriages Act, 1939
Section 2 of the Act says that a woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any of the following grounds:
- The whereabouts of a husband have not been known for a period of 4 years.
- The husband has neglected or failed to provide for her maintenance for a period of two years.
- The husband has been sentenced to imprisonment for a period of seven years or upwards.
- The husband has failed to perform his marital obligations, without reasonable cause, for a period of three years.
- The husband was impotent at the time of marriage and continues to be so.
- The husband has been insane for a period of two years, or is suffering from leprosy or a virulent venereal disease.
- The husband treats her with cruelty.
About the Author – Aditya Pratap
Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at firstname.lastname@example.org.
Cases argued by Aditya Pratap can be viewed here.