Dissolution of Marriage under Muslim Law
Marriage is a process by which union of two people is culturally and legally recognized. This kind of joining of each other is a strong bond that may last until the death. In other words , marriage is a contract based upon a voluntary private agreement by a man and woman to become spouses. According to Islam, it has clear outlook of Marriage and it’s dissolution. The term ‘Nikah’ is used for marriage and its original meaning is that the physical relationship between man and woman. It is also secondarily to refer to the contract of marriage which that relation powerful.
At the same time, Parties to such marriage can at any time, step a way from the matrimonial obligations by pronouncing the word of Talaq as per the personal law. There are different forms of talaq under muslim law. Talaq will occur by pronouncing any one of these forms. But in Islamic law, though it is allowed, it is regarded as a most detestable among the permitted things and Islam does not encourage it at all, other than in a situation where there is no better option but divorce.
Talaq Under Muslim law
In Islam, Talaq is regarded as termination of marriageable obligations of each other and exception to the status of marriage. The prophet (s) declared that the most detestable of all permitted things is divorce. Despite of choice of relationship is option in Islam, it never promotes it at all, other than in any inevitable circumstances. The base of divorce in Islamic law is that mentally and physically inability of the spouses to carry on rest of their life together. Because when it is impossible for the parties to carry on their union with mutual understanding and affection, then it is better to permit them with a view to getting separated once and for all, than to compel them to continue unsatisfied life.
Conditions for Valid talaq
- Capacity : Every Muslim husband who attained age of majority, has power to pronounce the word of relationship. Guardian of the husband the same power to pronounce talaq on behalf of such unsound mind husband in the interest of the husband. Likewise Qazi or Judge may pronounce talaq in the absentia of guardian.
- Free consent : For pronouncing talaq, consent of husband should be free. A consent is said to be free when it is not caused by coercion, undue influence, compulsion, fraud or misrepresentation. But under hanafi law talaq pronounced under compulsion is valid.
- Oral or in writing : Talaq may be either orally or in writing. Both of these forms are approved under sunni law. But in shia law, talaq in writing will not be approved unless the husband is physically incapable of pronouncing it.
- Whether talaq may be oral or in writing form, it need not be made before witnesses under sunni law unlike shia law. Talaq without witnesses is valid as per sunni law whereas there should be at least two men as witnesses. In place of a man, two women will be considered.
- Express word : where the husband clearly uses the word talaq, it is no use of saying that ‘I didn’t mean divorce by this word’. Mere this word causes the talaq. On the other hand, if the pronouncement is not as ecpressive and ambiguous then it is necessary to prove what was his real intention at the time of pronouncement of Talaq.
There can be two broad categories of divorce;
1) Judicial divorce
2) Extra judicial divorce
It is a formal separation between husband and wife. It is court that directly separates the spouses where there is no direct involvement of both husband and wife. Under Muslim law, generally power of divorce is vested in husband, but in the case of judicial divorce, it doesn’t depend upon the will of the husband. In this mode, a Muslim woman can claim judicial divorce under dissolution of marriage act 1939. This act deals with circumstances in which a woman can obtain divorce and it defines the grounds for divorce. There are several grounds in which judicial divorce can be pronounced. Grounds on which muslim woman can claim divorce under this act, are;
1) Wherabouts of the husband are not known for a period of four years.
2) Failure to maintain for a period of two years.
3) Husband has been sentenced to imprisonment for a period of seven years.
4) Failure to perform marital obligations for a period of three years
5) Important at the time of marriage.
6) Insanity, leprosy or virulent venereal diseases.
7) Repudiation of marriage.
8) False accusation of adultery.
9) Husband treats wife with cruelty.
A Muslim married woman, under muslim law, shall be entitled to obtain decree for dissolution of marriage on any grounds mentioned above.
Extra judicial divorce
Extra judicial divorces may take a wide variety of forms. It depends upon the will of the husband or wife or mutual agreement. It is a unique aspect of Muslim law that husband has the unilateral power of pronouncing divorce on his wife without assigning any reason, literally at his whim, even in a jest, or in a state of intoxication.
Extra judicial divorce can be classified into three parts;
1) By husband : Talaq-ul-Sunnat, uTalaq-ul-Biddat, Illa and Zihar
2) By wife: Talaqi-thafweez, Lian and Khula
3) By mutual agreement : Mubarat
Talaq-ul-sunnat is also known as Talaq-ul-raje. The term raje means revocable. This kind of pronouncement of talaq is revocable in course of iddat period. That’s why it’s called approved method of divorce. The advantage Of this form that the divorce can be revoked at any time before the completion of her iddat period for there is a small amount of possibility of compromise and reconciliation between spouses. Generally this form of talaq is pronounced either in the form of Ahsan or Hassan.
It is most proper form of talaq in which the husband expresses divorce in single sentence during the period of tuhr ( It is a period between two menstruations). Single pronouncement of talaq and sufficient opportunity to the spouses for reconciliation are the main two reasons for considering this form as most proper form of talaq.
However husband can revoke the divorce during the iddat period. The revocation may be through express or implied. Cohabitation with wife during the iddat period is an implied form and it indicates that he decides to go on relationship with his wife. On the other hand, if the period of iddat expires and he doesn’t revoke it within iddat period, then the talaq becomes irrevocable.
In the form of Hasan, the husband pronounces the formula of talaq three times during three successive tuhrs. Though this form of talaq is also approved , but not as good as Ahsan because utterance of word of relationship is repeated in the successive tuhrs .
Methods to be followed in Hasan:
1) Husband makes a pronouncement of talaq during the period of time. Then he revokes it either by words or having intercourse with her.
2) Again he makes another pronouncement of talaq during the second tuhr. Then he again revokes it
3) Again he makes third pronouncement of talaq during the third tuhr.
By the pronouncement of third talaq, it becomes final and cohabitation after these three talaq is unlawful under Muslim marriage law.
Talaq ul biddat is also known as Talaqul Vain. The marital obligations between spouses will come to an end as soon as the words of talaq are pronounced for it closes all accounts with each other for lack of possibilities of reconciliation .between husband and wife. Sunni law recognizes both talaq-ul-sunnat and talaq ul biddat, whereas Shia law permits talaq ul sunnat only.
This kind of divorce may be pronounced in single declaration or by triple declaration.
A husband may declare a pronouncement of irrevocable divorce with a view to Separating permanently by saying ‘ I divorce you in irrevocable’. After the pronouncement is made the marriage comes to an end permanently. Then the wife has to observe iddat period in the wake of it.
The husband may declare three pronouncements of divorce during a period of tuhr , saying ‘ I divorce you thrice’. Triple pronouncements of divorce may be in one sentence for instance ‘ I divorce you thrice or I pronounce my first, second and third talaq ‘. No sooner it pronounces than it becomes irrevocable and subsequently the divorced wife observes the prescribed iddat period.
But in Indian context, this form of divorce is struck down by the Supreme Court holding it to be unconstitutional with reference to the case of Shayara Banu V union of India. A man who pronouncing triple talaq, will be punished with imprisonment up to 3 years.
In addition to Talaq, husband can repudiate his marriage by the way of Illa. In Illa, the husband takes an oath that he will have nothing to do with his wife and abstain from society for a period of a four months. The marriage stands dissolved if there is no consummation between couples during that specified period. After the expiry if term of four months she can consult the court to get the decree of judicial divorce. On the other hand, where the husband resumes the cohabitation during that period Illa will be cancelled and as a result, husband ought to observe fasting for a period of two months continuously or provide foods sixty people or free a slave, in the wake of breach of words.
In the mode of Zihar, husband expresses his dissatisfaction to carry on with his wife by comparing her with a woman within the degree of prohibited relationship. For instance, a husband would say to his wife that ‘ Since today you are like my mother or sister ‘. This word also indicates the displeasure of husband to go on relation with his wife. After the expiry of term of four months, she can consult the court with a view to getting the decree of judicial divorce.
Then if he breaks his words and cohabits with his wife, he ought to observe fasting for a period of two months continuously or provide foods sixty people or free a slave. This form of divorce is unknown in India and no case of Zihar has come before Courts in India
Talaq by Wife
It is also known as delegated talaq Under Muslim law, the husband has the unilateral power of pronouncing talaq on his wife. At the same time, he has also a right to delegate his power of talaq on his wife or other third party. The power of delegation may be absolutely , conditionally, temporarily or permanently. A permanent delegation power is revocable whereas temporarily delegation power is not. According to Muslim law, a Muslim woman has no power enough to divorce her husband unless the power is obtained from her husband.
It is a judicial talaq taken by wife from her husband through a court on the basis of wrong charge of adultery on wife. Where the husband imposes false charge of adultery on wife, she can consult court with a view to denying the wrong charges and suing against him. Judicial separation via mode of lian is irrevocable.
In Zaffar hussain V Ummat ur Rahman case, Allahabad high court held that a wife under Muslim law is entitled to file a suit against her husband for dissolution of marriage and can obtain decree on the ground that she was falsely charged with adultery by husband.
It is a procedure by which a woman has power to give divorce to her husband by returning dower or anything else that she received from husband for her irelease from marriage tie. As matter of fact, Khula is form of divorce purchased by wife from her husband.
There must be an offer from the wife and the offer must be accepted with the consideration for release by the husband. She is required to observe iddat after Khula.
As soon as the offer is accepted by husband, it becomes irrevocable and cohabitation with wife becomes unlawful. If she fails to fulfill her promise, the husband has right to claim the consideration legally.
By Mutual Agreement
It is also termed as Mubarat which means release from marital obligations. In this form, there should be a mutual consent for the termination of marriageable obligations of spouses and discharge from marriage claims If the offer of Mubarat is accepted, it becomes irrevocable. The offer may be either from the side of husband or wife. It’s formalities are the same as Khula, where there is an offer from one party and acceptance from another.
Important Case laws
• Shayara Banu V Union of India;
This case is better known as Triple talaq case. In this case, the petitioner Shayara Bano, had been married to her husband named Rizwan Ahmed. In 2016, husband divorced her through instant triple talalq. Then she filed a writ petition against him in the Supreme Court pleading to declare the practice of triple talalq as unconstitutional as it infringes the fundamental rights of women enshrined in articles 14,15,21and 25.
The constitution Bench of the Supreme Court, by a 3:2 majority, declared that The practice of instantaneous Triple talaq is unconditional under Article 14 read with Article 13(1) of the Indian constitution.
Shah bano bheegam V Union of India
Mohd Ahmedkhan who was a lawyer, married to Shahbabh bheegham in 1932 and they lived together for 43 years and they had 5 children. Later on, she was disowned by her spouse and was tossed out from her marital home together with her children. Husband gave her triple talaq as defence not to provide maintenance. The magistrate directed the husband to pay maintenance under section 125 of Crpc.
Under Muslim law, There are many modes through which marriage can be solemnised and divorce can be initiated for dissolution of marriage. Islam has clear outlook about divorce and though it is allowed, it is considered as detestable among permitted things. The base of divorce in Islam is that physically or mentally inability of spouses to go on their relationship in a good way. It is given as a last option where he or she has no other better option but divorce. Where marriage is in danger it is better to get separated than to compel them to live together. Some modes of talaq are disapproved in Indian context. By 2017th judgement, Supreme Court held that triple talaq is unconditional in the case of Shayara Bano V Union of India.
• FAMILY LAW By Dr. Paras Diwan
• Lectures on Family law By Rega Surya Rao
• AIR 2017 9 SCC 1 (SC)
• 1985 AIR 945
(I am Fahad. AP, a law student of Markaz law college at Knowledge city, calicut, currently pursuing B.A.LL.B. Apart from being a law student, I’m a independent junior research scholar at World Institute for Research in Advanced Sciences (WIRAS).My interest towards judiciary. Sometimes my focus bend towards the English literature too. I like to write and create my own space in field of creative writing and research writing too. Actually it’s credit goes to parents, teachers and friends as they support me while at any negative circumstances.)
Author: FAHAD Ap,
Markaz law college, 3rd year LL.B