The institution of marriage is union between man and woman. The marriage can be dissolved only by two ways which are death of one of the spouse or by divorce. The term ‘Divorce’ refers to the legal dissolution of the marital union between husband and wife. In India, divorce law and procedure generally varies from community to community to which the couple belongs. The essence of divorce in Islam is the inability of the spouses to live together.
Modes of Divorce in Muslim Law-
In Muslim law, the Urdu term “Talaq” is used for divorce. Under Muslim law, there are to modes of divorce, which are:
• Non Judicial Divorce
• Judicial Divorce
Non Judicial Divorce under Muslim Law:
Divorce under Muslim law may be classified into four kind as follows:
1. Talaq by husband–
A Muslim husband can give divorce to his wife at any time without stating any reason. The presence of wife is not necessary during the pronouncement of divorce but it will came in to effect only when wife will know about such pronouncement. Talaq may be oral or in writing.
In Ahmad Kasim v. Khatun Bibi, it was held that any Muslim, who is of sound mind, has attained puberty, may divorce his wife whenever he desires without assigning any cause.
Valid Conditions for divorce:
Under Shia law, there are four conditions for a Muslim man to be considered competent for pronouncement of a valid talaq-
• The husband should be major;
• The husband should be of a sound mind;
• There should be free consent of husband;
• There should be intention to dissolve the marriage must exist.
The pronouncement of Talaq by a husband in intoxicated state is considered as valid under Sunni law but invalid under Shia law.
Talaq by a Muslim husband can be categorized into the following kinds:
(A) Talaq-ul-Sunnat –
This kind of Talaq is approved by Muslims and conforms the traditions of the Prophet Mohammad.
It is sub classified into two kinds:
(i) Talaq Ahsan –
This kind of Talaq consists of a single pronouncement of talaq in the period of ‘Tuhr’ or purity. It is followed by abstinence from sexual intercourse during the period of tuhr and whole of the Iddat period. This kind of Talaq is considered as the most approved form of talaq as it can be revoked during the period of Iddat. The husband may revoke the talaq by express words or by conduct including the resumption of sexual intercourse.
(ii) Talaq Hasan –
Talaq Hasan is lesser approved form of Talaq compared to talaq Ahsan. This kind of Talaq consists of three successive pronouncements of talaq which are made by the husband during three consecutive periods of Tuhr. During each Tuhr period, no sexual intercourse must have taken place during each Tuhr period, if it take place then, such pronouncement shall not be considered as valid. In a case where the wife has crossed the age of menstruation, the three pronouncements have to be made at successive intervals of 30 days. After the last pronouncement, the talaq becomes final and irrevocable.
(B) Talaq-ul-Biddat –
Talaq-ul-Biddat is a sinful and disapproved form of talaq. It is not recognized in Shias Law. It consists of three successive pronouncements of talaq made in a single Tuhr and these three pronouncements may also be made in a single sentence. Hence, it is also known as triple talaq.
In case of Shayara Bano vs. Union of India and other, the Hon’ble Supreme Court of India held that the practice of triple talaq is unconstitutional and illegal as it is violative of Article 14 of the Constitution of India.
2. Talaq by wife:
Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 recognizes the modes by which a Muslim wife can pronounce divorce to his husband which are as follows:
(i) Ila –
In Ila, the husband swears by god not to have sexual intercourse with his wife for a period of at least four months. The marriage is treated as irrevocably dissolved after the expiry of such time period. The husband may revoke his oath before the expiry of four months by resuming sexual intercourse with the wife.
(ii) Zihar –
In Zihar, the Muslim man compares his wife with his mother, sister or any other female within a prohibited degree by making a declaration to this effect. The wife is entitled to refuse cohabitation to the husband till he revokes the declaration by undergoing proper atonement by either doing the work of a slave or fasting for two months or feeding 60 poor persons. If the husband refuses to undergo the atonement process, the wife can approach the court for seeking regular divorce.
(iii) Lian –
In Lian, the husband accusing his wife of committing adultery. It makes the wife entitled to move court to claim a judicial divorce on the grounds of being falsely charged with committing adultery.
Under this form of Talaq, the husband can delegate his power of giving talaq to any third person or to the wife herself. An agreement permitting the wife to pronounce divorce on herself is considered as valid but the option to pronounce divorce is not absolute or unconditional and the conditions imposed on the exercise of such right are reasonable and not against public policy. This form of talaq is considered as one of the most potent weapons in the hands of a Muslim wife to obtain divorce without court intervention.
Talaq by Mutual Consent-
Under Muslim law, parties can take divorce/talaq by mutual consent. It is of two kinds:
(i) Khula –
Khula refers to the right of divorce purchased by the wife from her husband. It means a divorce at the wife’s instance in lieu of compensation to the husband for her release from the marriage. In such case, the husband shall have the right to sue the wife for payment of the consideration agreed upon. Since Khula takes place at the wife’s instance, it is not a divorce by mutual consent in the true sense.
(ii) Mubarat –
The term ‘Mubarat’ means release. It involves divorce by mutual consent of both parties. Either spouse may make the offer of divorce and after acceptance of such offer by the other party, the divorce becomes irrevocable.
In Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori, the Hon’ble Supreme Court held, that, “The ‘Khula’ is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return.”
The Section 2 of The Dissolution of Muslim Marriages Act, 1939 provides certain grounds to a Muslim wife for obtaining a decree for dissolution of the marriage from a court of law. The grounds are:
• The husband have not been known for a period of four years.
• The husband neglected or failed to provide maintenance to the wife for a period of two years.
• The husband has been sentenced to imprisonment for a period of 7 years or more and the sentence has become final.
• The husband has failed to perform his marital obligations for a period of 3 years without reasonable cause.
• The husband was impotent at the time of marriage.
• The husband has been insane for a period of 2 years or is suffering from a virulent venereal disease.
• The marriage was done by father or guardian of Muslim woman, before attaining the age of 15 years but she repudiated the marriage before attaining the age of 18 years and the marriage was not consummated.
• The husband treats his wife with cruelty.
• On any other ground recognized as valid for dissolution of marriage under Muslim law.
MULLA Principles of Mahomedan Law
Ahmad Kasim Molla v. Khatun Bibi 1931 AIR 1933 Cal 27
Shayara Bano and others v. Union of India and others, Writ Petition (C) No. 118 of 2016.
Juveria Abdul Majid Patni v. Atif Iqbal Mansoori Criminal WP No. 4250 of 2012
The Dissolution of Muslim Marriages Act, 1939
Author: Vikas Kumar Rathour,
PSIT College of Law