AMITY UNIVERSITY, UTTAR PRADESH

Divorce under muslim law

 DIVORCE UNDER MUSLIM LAW

When we talk about Muslim law we understand that it is a codified law and is
governed by the Muslim Law (Shariat) of 1937 and all the laws related to Divorce,
Maintenance, inheritance etc are governed by it.

The Quran is primarily the source from which Muslim law is derived. Although
there are two primary groupings among the Muslim community:

Community of Shia ( Shia Law)

Community of Sunnis ( Sunni law)

Both of these communities are governed and regulated by their own laws, but the
laws that govern them are primarily derived from the Quran as it is believed that
the Quran is the Word of God and that anyone who is a Muslim must abide by this
law.

DIVORCE

The Muslim Marriages Act of 1939 governs divorce under Islamic law. According
to the law, divorce may occur in one of two situations:

1. By wife: When in a marriage the wife wants to give divorce to the husband
she can do it in 3 ways which are also known as the Judicial Divorce:
 Talaq-i tafweez
It is one of the most important forms of divorce under Muslim Law
because it gives to Muslim women a right to divorce their husband
without going to court of law

 Lian
If the husband levels false charges of unchastity or adultery against
his wife then this amounts to character assassination and the wife has
got the right to ask for divorce on these grounds. Such a mode of
divorce is called Lian.

 Dissolution of Muslim marriage act

Section 2 of the Act deals with dissolution of marriage. As per this- A woman
married under Muslim law shall be entitled to obtain a decree for divorce 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 a period of
four years
 2. That the husband has neglected or has failed to provide for her maintenance
for a period of two years
3. That the husband has been sentenced to imprisonment for a period of seven
years or upwards
4. That the husband has failed to perform, without reasonable cause, his marital
obligations for a period of three year
5. That the husband was impotent at the time of the marriage and continues to
be so
6. If the husband has been insane for a period of two years or is suffering from
leprosy or a virulent veneral disease
7. That she, having been given in marriage by her father or other guardian
before she attained the age of fifteen years, repudiated the marriage

2. By Husband: When the husband gives the divorce to the wife it is called as
Extra Judicial Divorce and the ways are as follows:
Talaq-i-Sunnat
Talaq-i- Biddat
Talaq-i-Hasan
Talaq-i-Ahasan
Ila
Zihar

There are four modes available before a husband for dissolving the tie of

marriage:

1. Talaq- ul- Sunnat

This form of talaq is effective in accordance with the traditions established by
the Prophet. It is further divided into two parts:-

 Ahsan

It is known as the best form of talaq as the name clarifies the same. The procedure
followed by the husband is as follows –

 He has to make a pronouncement of divorce in a single sentence, such

pronouncement must be made in a purity state(when a woman is free
from her menstrual cycle).

 A husband must not indulge in any form of sexual intercourse during

the iddat period(period of chastity a Muslim woman is bound to observe
after the dissolution of marriage, either by the death of her husband or by
divorce) and if he does so, then it will be considered as implied
revocation of talaq. It is pertinent to note that once the iddat period has
expired, the divorce becomes irrevocable.

 When the partners have not consummated, talaq-e-Ahsan can be

pronounced even if the wife is in her menstruation.

 Hasan

The Arabic meaning of Hasan is good, therefore divorce pronounces through

Hasan mode is a good but lesser worth than the one pronounced in Ahsan.
Husband has to make three successive pronouncements for divorce.

 In the case of a menstruating wife, such three pronouncements should be

made in three consecutive tuhr(state of purity).
  In the case of a non-menstruating wife, pronouncement should be made
at three successive intervals of 30 days.
No sexual intercourse should take place during these periods of three
pronouncements and if such an act takes place then the process of divorce will be
revoked.

Talaq Hasan becomes irrevocable on the third pronouncement irrespective of

iddat period.

 Ila (Vow of Continence)

The situation wherein a husband who is of sound mind and has attained the age of
majority swears in the name of God that he will not have sexual intercourse with
his wife and leaves her to observe iddat, he is said to make Ila.

If the husband resumes sexual intercourse within the iddat period being observed
by wife, it will lead to cancellation of Ila It is pertinent to note that Ila is not
practised in India.

 Zihar (injurious Assimilation)

A husband must be of sound mind and above the age of 18 years to be eligible to
use this mode dissolution of marriage. If he compares his wife to his mother or any
of the female within prohibited degrees, the wife has a right to refuse to have
sexual intercourse with him. Such refusal can be accepted until he has expiated
himself from penance prescribed by law. Muta marriage(practised among
Shias) which admits no other sort of divorce may be dissolved by zihar.

Such form of divorce is no longer in use anymore.

Talaq by the wife

Divorce given by wife under the husband’s delegated power.

 Talaq-e-tafweez

This is the only way through which a woman can give divorce to his husband,
however, such power to give divorce needs to be delegated by the husband only. It
is a form of an agreement made either before or after marriage providing that wife
will be privileged to get separated from her husband via divorce under the
specified condition as:-

1. In case the husband marries a second wife

2. The husband is unable to maintain her for a specified period of time any
other condition that must not be opposed to public policy.
If the conditions agreed in the agreement by the husband are well practised by him
then, the wife without any prejudice to Law can dissolve her marital ties.

The fact that husband delegates the power to the wife does not dispossess him of
his right pronounce talaq.

This is the only way through which a woman can give divorce to his husband,
however, such power to give divorce needs to be delegated by the husband only. It
is a form of an agreement made either before or after marriage providing that wife
will be privileged to get separated from her husband via divorce under the
specified condition as:-

1. In case the husband marries a second wife

2. The husband is unable to maintain her for a specified period of time any
other condition that must not be opposed to public policy.
If the conditions agreed in the agreement by the husband are well practised by him
then, the wife without any prejudice to Law can dissolve her marital ties.

The fact that husband delegates the power to the wife does not dispossess him of
his right pronounce talaq.

DIVORCE BY MUTUAL AGREEMENT

Khula and Mubarat: They are two forms of divorce by mutual

consent but in either of them, the wife has to part with her dower or a part of
some other property.

Although the practice of giving Divorce by mutual consent was not recognised in

the Muslim Law, it was only available to the Muslim women after the enactment
of Dissolution of Muslim Marriages Act, 1939.

1. Khula
The literal meaning of khula is “to lay down” before the law. The husband lays
down his right over his wife. It signifies an arrangement entered into to dissolve
a connubial connection in lieu of compensation paid by the wife to her husband
out of her property, everything that can be given as dower.

Khula is a divorce with mutual consent and at the instance of a wife in which she

agrees to give some consideration to her husband. It is basically a “redemption” of
the contract of marriage.

Essentials

 There must be an offer from the wife’s side

 Offer must be accepted by the husband with the consideration for it.

 Observance of the iddat period is necessary.

Under Shia law, husband can’t revoke divorce once accepted whereas the wife has
been given the power to reclaim the consideration during the iddat period.

2. Mubarat

It signifies mutual discharge from the marital tie. The most essential element is

that the mutual consent of both the partners is required in regards to the dissolution
of marriage.

In this mode of divorce-

 Offer can be made from either of the sides.

 Acceptance of offer makes divorce irrevocable.

  Iddat is necessary
Under Shia law, parties can dissolve their marriage, if it is not possible for them to
continue their marriage by way of mubarat.

The last mode mentioned in the above table for dissolution of marriage is, by way
of judicial separation.

CONDITIONS OF A VALID ‘TALAAQ’

1. Capacity:
Every Muslim husband of sound mind, who has attained the age of
puberty, is competent to pronounce talaaq. It is not necessary for him to
give any reason for his pronouncement. A husband who is minor or of
unsound mind cannot pronounce it. Talaaq by a minor or of a person of
unsound mind is void and ineffective. However, if a husband is lunatic
then talaaq pronounced by him during "lucid interval" is valid.

2. Free Consent
This simply means that the consent of the husband in pronouncing
talaaq must be a free consent. Under Hanafi law, a talaaq, pronounced
under compulsion, coercion, undue influence, fraud and voluntary
intoxication etc., is valid and dissolves the marriage.
** Hanafi school is one of the four schools of Islamic Law. The
Hanafi school considers divorce by all persons except minors, lunatics
and idiots as valid.