Dr.

Shakuntala Misra
National Rehabilitation
University

Under the Supervision of – “Mrs. Susmita Rajput”

Academic Session – 2024 – 2025
Topic – “Divorce Under Muslim Law”

Submitted To Submitted By

Mrs. Susmita Rajput Pranav Singh Sisodiya

Faculty of Law B. Com LL. B (Hons) VIth Semester

DSMNRU, Lucknow. DSMNRU, Lucknow.

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Table of Content
Cover Page---------------------------------------------------------------------------------------------------I
Acknowledgement----------------------------------------------------------------------------------------III
Divorce Under Muslim Law------------------------------------------------------------------------------1
Classification of Divorce----------------------------------------------------------------------------------1
Modes of Divorce (Talaq)---------------------------------------------------------------------------------1
Expressed Talaq--------------------------------------------------------------------------------------------1
Implied Talaq-----------------------------------------------------------------------------------------------2
Delegated Talaq---------------------------------------------------------------------------------------------2
Constructive Talaq-----------------------------------------------------------------------------------------3
Khula---------------------------------------------------------------------------------------------------------4
Doctrine of Faskh-------------------------------------------------------------------------------------------4
Divorce By Mutual Consent------------------------------------------------------------------------------4
Judicial Divorce at the Suit of Wife----------------------------------------------------------------------6
Difference Between Sunni Law and Shia Law on the Laws of Divorce----------------------------7
Conclusion-------------------------------------------------------------------------------------------------IV
Bibliography------------------------------------------------------------------------------------------------V

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Acknowledgement
I would like to acknowledge and give my warmest thanks to my supervisor (“Mrs. Susmita
Rajput”) who made this work possible. Her guidance and advice carried me through all the
stages of writing my project. I would also like to thank my classmates for letting my defense
be an enjoyable moment, and for your brilliant comments and suggestions, thanks to you.

I would also like to give special thanks to my family for their continuous support and
understanding when undertaking my research and writing my project. Your prayer for me was
what sustained my this far.

Finally, I would like to thank God, for letting me through all the difficulties. I have experienced
your guidance day by day. You are the one who will let me finish my degree. I will keep on
busting you for my future.

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Divorce Under Muslim Law

Talaq in its Original sense means repudiation or rejection, but under Muslim Law, it means a
release from the marriage tie, immediately or eventually. Talaq is an act of repudiation of
marriage by the husband in exercise of his power which has been conferred on him.

Classification of Divorce

Under Muslim Law, a marriage is dissolved either by the death of the husband or wife or by
divorce. After the death of a wife, the husband may remarry immediately but after the death of
husband, a widow cannot remarry before a certain specified period called Iddat expires.

Modes of Divorce (Talaq)

I. Expressed Talaq
1. Talaq – ul – Sunnat  It is a talaq which is effected in accordance with the
traditions of prophet. It is approved and revocable kind of divorce. It has been sub-
divided into :
a) Ahsan – Most Approved mode of Talaq. The word ‘ahsan’ means ‘best’. The
Conditions of Ahsan Talaq are as follows:-
 The husband must pronounce the formula of divorce in a single
sentence.
 The Pronouncement of divorce must be in a state of purity (Tuhr). It is
a period where a women is free from her menstrual course.
 He must abstain from Intercourse for the period of Iddat.

A Pronouncement made in the Ahsan form is revocable during Iddat. After the expiration of
the Iddat the divorce becomes Irrevocable.

b) Hasan – It is an approved mode of Talaq. The Arabic word ‘Hasan’ means

‘Good’. The Talaq pronounced in Hasan form is of lesser worth than the one
pronounced in Ahsan form. The Conditions of Hasan Talaq are as follows:-
 There must be three successive Pronouncement of formula of divorce
 Pronouncement of Talaq be in three successive Tuhr’s.
 In the case of non- menstruating wife, the pronouncement should be
made during the successive Intervals of 30 Days.

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 No sexual Intercourse should take place during these three successive

Tuhr.
2. Talaq – ul – Biddat  It is an unapproved and Irrevocable kind of divorce. It is
also known as Talaq – e – Bein. Talaq-ul-Biddat is further divided into two types:-
a) Triple Talaq – Three pronouncement made during a single tuhr either in on
sentence e.g – “ I divorce thee thrice” or in separate sentence e.g – “I divorce
thee, I divorce thee, I divorce thee”.

Case Law - Shayara Bano v. Union of India 1

In the above-mentioned case, the Triple Talaq was held unconstitutional by the Supreme Court.
The Court stated that, “that this form of Talaq is manifestly arbitrary in the sense that the marital
tie can be broken capriciously and whimsically by a Muslim man without any attempt at
reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the
Fundamental Right contained under Article 14 of the Constitution of India.

Subsequently, The Triple Talaq Act i.e, The Muslim Woman (Protection of Rights on
Marriage) Act,2019 criminalizes ‘Triple Talaq’ with upto 3 Years of Punishment for husband.

b) Single Talaq – A Single pronouncement made during a Tuhr clearly Indicating

an Intention Irrevocable to dissolve the marriage e.g, “I divorce thee
Irrevocably”.
II. Implied / Contingent Divorce
Under the Muslim Law, a husband can authorize his wife to dissolve her marriage on
the happening of certain circumstances and the Contingency must be reasonable.
Case Law – Bachoo v. Bismillah2
In this case, the husband agreed to pay his wife maintenance within a specified time and in
default the writing of deed in respect thereof operate as a divorce.
III. Delegated Divorce / Talaq – e- Tafweez
In This, a husband may either himself repudiate his wife or delegate this power of
repudiating her to third party or even to his wife. In this, an agreement is made either
before or after the marriage providing that the wife would be at liberty to divorce herself

1
(2017) 9 SCC 1.
2
(1936) AIR 387 ALL.

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from her husband under certain conditions but that condition must be reasonable and
not opposed to public policy.
It is noteworthy that in case of Talaq-e-Tafweez, the wife does not actually divorce her
husband but she divorces herself on behalf of her husband under his power delegated
to her by him.
IV. Constructive Divorce

There are three types of Constructive Divorce namely –

1. Ila – In this, a husband who has attained majority and is of sound mind, swears by God
that he will not have sexual Intercourse with his wife and leaves the wife, to observe
Iddat. Where the husband having made ILA abstains from Intercourse with his wife for
four months, the marriage is dissolved.
Cancellation of Ila – Ila is cancelled by the husband resuming sexual intercourse within
the period of four months.
2. Zihar – In Zihar, if the husband (who is sane and adult) compares his wife to his mother
or any other female within a prohibited degree, the wife has a right to refuse herself
(means refuse to have sexual intercourse) until he has performed penance.
In Default of expiration by penance, the wife has a right to apply for a judicial divorce.
3. Lian – Husband charges his wife of adultery or denies the paternity of her child. This
is called divorce by Lian
The Right of Lian is given to wife in the following conditions:-
 Such Charage must be false.
 Such false charges does not Ispo Facto dissolve the marriage, it only gives an
opportunity to the wife to move to the court and to dissolve the marriage.
 She must file a regular suit for dissolution of marriage.
 The Judicial Seperation due to Lian is Irrevocable.
 Lian is applicable only to Sahih (Valid) marriage not to Fasid (Irregular) ones.

Case Law – Zafar Hussain v. Ummat Ur Rehman3

In this case, it was held that a Muslim Wife is entitled to bring a suit for divorce against her
husband is obtain a decree on the ground that the latter falsely charged her with adultery.

3
AIR 1919 ALLAHABAD 182.

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V. Khula
In Law, Khula means ‘Laying down by a husband of his right and authority over his
wife. Khula is a divorce with the consent and at the Instance of wife, in which she gives
or agrees to give a consideration to the husband for her release from the marriage tie.
Essentials of Khula –
 There is an offer from the wife.
 The offer is accompanied by some consideration or Compensation by the wife
to the husband in lien of her release from the marital bond.
 The offer must be accepted by the husband.
Once the offer is accepted, it operates as a single Irrevocable divorce (Talaq – e – Bain)

VI. Mubarat – Such Divorce is also known as Divorce by Mutual agreement. It signifies a
Mutual discharge from the marriage claims.
In Mubarat, both the husband and wife desires separation. Thus, it involves an element
of Mutual Consent. The offer is a Mubarat at divorce may proceed from the wife or it
may proceed from the husband, but once accepted, the dissolution is complete and it
operates as a Talaq – E – Bain as in the case of Khula.

Doctrine of Faskh

Faskh means cancellation, abolishment, revocation etc. Before the passing of dissolution of
Marriage Act, 1939, there was no piece of Legislation under which a Muslim Lady could ask
for dissolution of her marriage. Muslim Ladies could only apply for dissolution of marriage
under doctrine of Faskh. The main grounds for dissolving the marriage at the Instance of wife:
 That the marriage is Irregular.
 That a person having an option to avoid a marriage has excercised his option.
 That marriage was performed within prohibited degrees.

VII. Judicial Decree

Section 2 of the Dissolution of Muslim Marriage Act, 1939 provides Nine Grounds through
which a woman can obtain a decree of dissolution of her marriage by Judicial Decree under
dissolution of Muslim Marriage Act, 1939. The Grounds are -:

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1. Absence of Husband – If the husband is not known for a period of 4 years, a woman
according to Muslim Law, shall be entitled to obtain a decree of divorce. But a decree
passed on this ground will not take effect for a period of 6 months from the date of such
decree; and if the husband appears within that period, the court must set aside the said
decree.
2. Failure to Give Maintenance – If the Husband has neglected or has failed to provide
for her maintenance for a period of 2 years, a married Muslim woman can obtain a
decree of for divorce.
3. Imprisonment of Husband – If the husband has been sentenced to Imprisonment for
a period of seven years or upward, the wife is entitled to the decree of court dissolving
her marriage. But no decree can be passed on this ground unless the sentence has
become final.
4. Failure to perform Marital Obligation - If the husband had failed to perform, without
reasonable cause, his marital obligations for a period of three years, the wife can get
her marriage dissolved by means of a decree.
5. Impotency of Husband – If the husband was impotent at the time of the marriage and
continues to be so the wife is entitled to Judicial divorce for the dissolution of her
marriage.
Before passing the decree, the court shall on application, make an order requiring the
husband to satisfy the court within a period of one year from such order that he has
ceased to be impotent & if he does so satisfy, then no decree shall be passed on this
ground.
6. Insanity, Leprosy or Venereal Disease – If the husband has been insane for a period
of two years or is suffering from Leprosy or Venereal Disease, the wife may claim a
Judicial Divorce.
7. Repudiation of Marriage by Wife (Khayal – ul – Buloog) – If a girl, having been
given in marriage by her father or other guardian before attaining the age of 15 years,
repudiated the marriage before attaining the age of 18 years and the marriage is not
consummated, she is entitled to a decree of divorce.
8. Cruelty of Husband – Judicial divorce can be claimed by Muslim wife, if the husband
treats her with cruelty as stated below-:
 Habitually assaults her or makes her life miserable by cruelty or bad conduct.
 Associates with women of ill – repute or leads an Infamous life.

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 Attempts to force her to lead an immoral life.

 Disposes of her property or prevent her from using it
 Obstructs her in the observance of her religious profession or practice.
 If he has more wives than one: does not treat her equitably in accordance with
Quaran.
9. Grounds of Dissolution recognized by Mohemmedan Law – This clause covers by
Ila, Zihar, Khula, Mubarat and talaq – e – tafweez. It includes any other ground which
is recognized as valid for the dissolution of marriage under Muslim Law.
10. Conversion of Spouse to Another Religion - Under Muslim law, the conversion of a
spouse to another religion has significant legal implications for the marital relationship.
In traditional Islamic jurisprudence, if a Muslim husband converts to another religion,
the marriage is automatically dissolved, as apostasy is considered a severe breach of
faith. On the other hand, if a Muslim wife converts to another religion, the marriage is
generally considered voidable, allowing the husband the option to either continue the
marriage or seek its dissolution. This distinction underscores the gendered nature of
classical Islamic legal interpretations. However, contemporary interpretations and
applications of these laws can vary significantly depending on the country and the
specific legal school or framework in place, reflecting a broader spectrum of legal and
cultural attitudes towards religious conversion and marital rights within the Muslim
world.

Difference Between Shia and Sunni on Laws of Divorce

Sunni Law Shia Law

 No prescribed form of divorce  Divorce must pronounce orally.
available. It may be in writing or
orally.
 Witness is not necessary.  Two witnesses must be there
 If divorce has been under  Shia law does not recognize this
compulsion of Intoxication. Divorce manner of divorce
is valid.

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 It may be express, implied,  Only Expressed and delegated form

contingent, delegated or of divorce are recognized under Shia
constructive. law.
 Talaq – e – bein is recognized  Talaq – e - bein is not recognized
 After Talaq, Immediate remarriage  Marriage will be considered as void.
will be considered as Irregular.

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Conclusion
To Conclude, I would like to say that Divorce under Muslim law follows the rules of Sharia
and aims to fairly handle the rights and duties of both husband and wife. There are several
types of divorce, including Talaq (initiated by the husband), Khula (requested by the wife), and
Mubarat (mutual agreement). The preferred form, Talaq-e-Sunnat, includes a waiting period
called Iddah to allow for thoughtful consideration and the chance to reconcile. Legal reforms,
especially in countries with large Muslim populations, are working to make traditional Talaq
fairer by protecting financial rights and respecting both spouses. For example, the Indian
Supreme Court's 2017 decision in the Shayara Bano case banned instant triple Talaq (Talaq-e-
Biddat), showing a move towards balancing religious practices with modern principles of
fairness and gender equality.

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Bibliography
Primary Sources 
Books

Aquil Ahmad’s, “Mohammedan Law” (27th ed., Central Law Agency 2022).

Tahir Mahmood & Saif Mahmood’s, “Introduction to Muslim Law” (2nd e.d., Lexis Nexis
Publications 2023.)

Secondary Sources 
 https://monad.edu.in/img/media/uploads/Divorce%20under%20Muslim%20Law.pdf

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