A Brief on the Concept of Divorce under Muslim law

A Brief on the Concept of Divorce under Muslim law

In Muslim law, ‘Nikah’ or marriage is a contract which underlies a permanent relationship between man and woman with mutual agreement with each other, as compared to Hindu Marriage which is of a sacramental nature.  This type of civil contract can become frustrated any time.  Muslim marriage are considered to be sacred in nature and the dissolution (Talaq) of it is considered a sin by the quran(holy book of muslims). As seen in the case of Ahmad Khan V Khatun bibi[1] , the divorce was given with absolutely no reason. The judges quoted verses from the Holy book –“If Talaq is given without any reason, then it is stupidity” ; another prophet said that such an action would attract the wrath of the divine. But nowhere in the Quran is there an explicit prohibition; merely discouraging the giving of divorce without reason exists.

There exists certain essentials to be competent to give talaq.

  1. One should be a Muslim
  2. Should have a sound mind
  3. Should have attained puberty
  4. Has to be in oral or writing form

For Shias, the divorce necessarily should be given in the presence of 2 witnesses and has to be oral; talaq in written form is not accepted.

There are 3 forms of giving divorce –

1. Husband gives Talaq at his will

The husband need not give any reason for the giving of divorce. As seen in the case of Rashid Ahmed V Anisa Khatoon[2], Even such a divorce that is pronounced as a result of outburst of anger or other emotions is also a valid divorce. The divorce can also be contingent in nature. As seen in the case of Bachchoo v Bismillah[3], the husband provided in writing that if he didn’t pay the prefixed maintenance amount on time, then he would divorce her. This is a valid divorce

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There exists different modes of giving Talaq by the Husband

2. Talaq -us – Sunnat

This is an approved form of Talaq which has been recognized by the prophet.

  1. Talaq Ahsan – this is a single pronouncement of talaq during the period of tuhr (period when the wife doesn’t menstruate). This can be revoked by performing sexual intercourse.
  2. Talaq hasan – in this, 3 pronouncements of talaq is made (single pronouncement made per Tuhr). This can also be revoked by performing sexual intercourse.

3. Talaq – us- Biddat

This is a relatively newer form which has not been approved by the prophet simply because it was introduced much later. 3 pronouncements can be made together (Triple Talaq) or a single pronouncement indicating irrevocable divorce.

In the landmark case of Shamim Ara V State of UP[4], the court held that the marriage itself is not dissolved and the husband had to continue paying maintenance because he could not prove before the court his pronouncement of divorce. The factum of pronouncing the divorce should be proved. It was alright if the divorce was given in the absence of the wife, but the said pronouncement had to be communicated to the wife.

In another landmark case of Shayara Bano V UOI[5], the petition challenged the validity of talaq- ul- Biddat, polygamy and Nikah Halala; whether they were an essential religious practice. Triple talaq was held unconstitutional by the court because the Quran had not allowed it and said that it was in violation of article 14,15 and 21.

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Besides giving talaq, a Muslim Husband can repudiate the marriage by other means which are called constructive divorce

  1. Ila – this is a vow or an oath of abstinence from the wife. The husband makes a oath that he shall not have sexual intercourse with his wife for 4 months. After 4 months of no consummation, the marriage stands dissolved irrevocably. but in case there is consummation in 4 months, marriage doesn’t dissolve.
  2. Zihar – in this, the husband makes an injurious assimilation or an unlawful comparison of his wife. He compares his wife with a person that is within his prohibited relationship, like his sister or mother. After this comparison, the husband does not have sexual intercourse with his wife for 4 months. After 4 months expires, Zihar is completed.
  3. Divorce by mutual consent – two forms of this divorce is Khula and mubarat, where the wife parts with some part of her Dower or some other property. In khula, the wife offers a consideration to the husband to divorce her. In Mubarat, either the Husband or the wife can offer consideration for divorce. The consideration can be anything. Among the Sunnis, when the parties enter into Mubarat, all the mutual rights and obligations of marriage comes to an end
  4. Divorce by wife – Divorce can also be permanently or temporarily delegated ( Talaq-i-Tafweez)  by the husband to the wife or a third party. In the case of Hamidoolla V Faizunissa, the husband and wife entered into an agreement that in case he doesn’t pay her the Dower on demand or if he treated her with cruelty, then she can divorce him. Here, there was delegation to the wife. In the case of Ayatutmessa Bebbe V karam Ali[6]
    , husband said that if he gets involved in a second marriage, then the wife could divorce him; this is another case of delegation of power of divorce to the wife.
  5. Lian – if the husband has put forward false charges of adultery or unchastity against his wife, this is said to be an assassination of character of the wife. On grounds of false accusation, the wife is entitled to ask for divorce. This can be revoked once the husband stops accusing his wife. In the case of Nurjahan V karim ali[7], if the wife hurts the feelings of the husband with her behavior and the husband retorts with an allegation of adultery, then such an allegation (even if false) can’t be used as ground for asking divorce.
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[1] (1932) 59 Cal 833

[2] AIR 1932 PC 25

[3] 1936 All LJ 203

[4] (2002) 7 SCC 578

[5] (2017) 9 SCC

[6] (1909) 36 Cal 25

[7] AIR 1977 Cal 90

Author: Palguna M,
School of Law Christ University 2 year

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