Distinction between Sunni and Shia Law of Divorce

DISTINCTION BETWEEN SHIA AND SUNNI LAW OF DIVORCE 

INTRODUCTION

Amongst almost all the nations of antiquity, divorce was regarded as a natural corollary of marital rights. Romans, Hebrews, Israelis etc all had divorce in one or the other form. Even though the provisions of divorce were recognised in all religions. Islam is perhaps the first religion of the world which has expressly recognised the termination of marriage by way of Divorce. In England divorce was introduced only hundred years back. In India among Hindus, it was allowed only by Hindu Marriage Act, 1955. Before the passing of this act divorce was not recognised by Hindu Law.

MEANING OF DIVORCE

Talaq in its original sense means repudiation or rejection but under Muslim Law, it means a release from the marriage tie, immediately or eventually. It is generic name foe all kinds of divorce; but is particularly applied to the repudiation by or behalf of husband.

In Moonshee Buzloor Rahim vs Lafleefutoon Nisa, it was said that under Muslim law talaq is the mere arbitrary act of Muslim husband who may repuadte his wife at his own pleasure with or without cause. He can pronounce the talaq at any time. It is not necessary for him to obtain the prior approval of his wife for the dissolution of his marriage.

DIVORCE 

• Under the Muslim Law, a marriage is dissolved by the death of the Husband or wife, or by divorce. After the death of wife, the husband may remarry immediately.
• But the widow cannot remarry before a certain specified period called iddat. The iddat of death is four months and ten days in case of death of husband and if she is pregnant until delivery of the child.
• Both the parties to the marriage contract have an option for divorce, but the husband right in this respect is much greater than that of the wife. The husband can dissolve the marriage tie at his will. A divorce can also take place by mutual agreement. But the wife cannot divorce herself from her husband without his consent. She can, of course, purchase her divorce from her husband and can have the marriage dissolved by tafweez (delegation). Marriage may also be dissolved by judicial decree under the Dissolution of Marriage Act, 1939.

CLASSIFICATION OF DISSOLUTION OF MARRIAGE

1. By Death of a party to the marriage
2. By Divorce

DIVORCE

1. By Husband 
   • Talaq
     • Talaq-ul-sunnat
       • Ahsan
       • Hasan
     • Talq-ul-Biddat
       • Written Divorce
       • Triple Divorce
   • Ila 
   • Zihar
2. By Wife
   • Talaqetafwiz
3. By Mutual Consent
   • Khula 
   • Mubarat 
4. By Judicial Decree under Dissolution of Muslim Marriages Act, 1939
   • Lian
   • Fask

DIFFERENT MODES OF TALAQ

Talaq

1. Talaq-ul-Sunnat – It is talaq which is pronounced in accordance with the traditions of Prophet. It is also known as talaq-ul-raje. It has been further sub-divided into:
   • Ahsan (Most approved mode of talaq) – The Arabic word ‘Ahsan’ means ‘best’ or as Wilson puts it, ‘very proper’. This signifies that the talaq pronounced in the ‘Ahsan’ form is the best kind of talaq. To be in Ahsan form, the procedings of divorce must satisfy certain conditions. These conditions 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) which is period when a woman is free from her mensurating course.
     • He must abstain from intercourse for the period of iddat.
   • Hasan (Good mode of talaq) – In Arabic Hasan means ‘good’. Wilson translates it as ‘proper’. As terms signify, a talaq pronounced in Hasan form is of lesser worth than one pronounced in Ahsan Form. To be in Hasan form the proceedings must satisfy the following conditions. 
     • There must be three successive pronouncements of the formula of divorce;
     • In the case of mensurating wife, the first pronouncement should eb made during a period of tuhr, the second during the next tuhr and the third during the succeeding tuhr;
     • In the case of non-mensurating wife, the pronouncement should be made during the successive interval of 30 days.
     • No sexual intercourse should take place during the periods of tuhr.
2. Talaq-ul-biddat (Disapproved mode of Talaq) – It is sinful form of divorce. It is the irregular mode of talaq introduced by Omeyyads in order to escape the strictness of the law. It is also known as Ta;aq-ul-bain.
   • Written Divorce – When the talaq is in writing it becomes irrevocable immediately.
   • Triple Divorce – Triple divorce is a recognised but disapproved form of divorce and is considered by the Islamic Jurist as an innovation within the field of Shariat. 

HISTORIC JUDGEMENTS

In Sarabhai vs Rabia Bai, it was held that talaq-ul-biddat is theologically improper. It has been maintained that this form of talaq is improper from the moral point of view.

In Falzur Rehman vs Aisha, the validity of triple divorce was questioned. It was agued that this type of divorce is against the Quranic Law and the court is bound to give effect to the rule and it also opposed to a tradition of the Prophet. It was held that the Quranic verses have been differently interpreted by different Schools.

In Rashid Ahmad vs Anisha Khatoon, one Ghyas Uddin, pronounced the triple talaq in the presence of witness, though in the absence of the wife. Four days later, the talaqnama was executed which stated that the three divorces (irrevocable divorce i.e., talaq-ul-biddat) were given. It was not proved that there was re-marriage between the parties, or intermediate marriage and a subsequent divorce after actual consummation. The husband and wife lived together and five children were born to them. Ghyas Uddin treated Anisha Khatoon as his wife and children as legitimate. As there was no intermediate marriage, the bar to remarriage created by the divorce was not removed. Keeping in view, the above-mentioned circumstances, remarriage could not be presumed and the children born after the triple divorce were held to be illegitimate

RECENT TREND 

In Shayara Bano vs Union of India, the Apex Court considered the constitutional validity of ‘triple talaq’ (talaq-ul-biddat). The judgement has been pronounced by the Constitutional Bench by 3:2 majority. The majority of the judges held that the exercise of triple divorce by the Muslim husband against his wife in one go is arbitrary and therefore violative of Article 14 of Indian Constitution. The Muslim Women (Protection of Rights on Marriage) Act, 2019 passed by Parliament, a Muslim male cannot divorce his wife arbitrarily by way of talaq-ul-biddat and the only way to divorce the wife will be the strict adherence to the procedure given in holy Quran. 

(ii) Ila (Vow of Continence)

Where a husband had attained majority and is of sound mind, swears by God that he will not have sexual intercourse with his wife and leaves his wife, to observe iddat he is said to make Ila. Ila is not practiced in India. 

Ingredients of Ila

1- The husband must be of sound mind and must have attained majority.

2-He swears by God or takes a vow.

3-That he will not have sexual intercourse with his wife.

4-In pursuance of the vow he abstains from sexual intercourse with his wife for four months or more.

Cancellation of Ila 

(i) The husband resuming sexual intercourse within the period of four months, or

(ii) A verbal retraction thereof.

(iii) Zihar (Injurious Assimilation)

“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 to him until he has performed penance. In default of expiration by the penance, the wife has right to apply for a judicial divorce.

Ingredients of Zihar

(1)- Husband must be sane and adult.

(2)-He compares his wife to his mother or any other lady within the prohibited degree.

(3)- then the wife has the right:

(a) to refuse to have sexual intercourse with him till he has expiated himself from penance prescribed by law, such as-

(i)- freeing a slave

(ii)- fasting for two months

(iii)- feeding sixty poor persons

(b)-to apply to the court for an order requiring him either to perform a penance or to decree her a regular divorce.

Legal Effects of Zihar

(1)- Sexual Intercourse becomes unlawful.

(2)- Husband is rendered liable to expiation by penance.

(3)- The wife can claim judicial separation if the husband persists in wrong doing.

(2) Wife

Talaq-e-tafweez-Talaq by the wife under the Husband’s Delegated power- The doctrine of ‘tafweez’ or delegation of power is an important topic of the Muslim Law of divorce. A husband may, either himself, repudiate his, wife or delegate this power her to a third party, or even to his wife. Such a delegation of power is called tafweez. It is noteworthy that in case of talaq-e-tafweez, the wife does not divorce her husband- and this she cannot do under Muslim Law-but divorces herself on behalf of her husband under his power delegated to her by him.

(3) Mutual Consent

(i) Khula (Divorce at the request of wife) Redemption

Khula or redemption literally means “to lay down”. In law it means laying down by a husband of his right and authority over his wife.

Essentials of Khula

(i) There must be an offer of divorce from the wife.

(ii) The offer must be accepted with the consideration for the release. 

(iii) The offer must be accepted by the husband.

(ii) Mubarat

(Divorce by Mutual Agreement) Mutual Release-Mubarat is also form of dissolution of marriage contract. It signifies a mutual discharge from the marriage claims. In Mubarat the aversion is mutual and both the sides desirably separate. In this mode of divorce, the offer may be either from the side of wife or from the side of husband. When an offer of Mubarat is accepted, it becomes an irrevocable divorce.

(4) By Judicial Decree under the Dissolution of Muslim Marriage Act, 1939

(i) Lian (False charge of Adultery)

Where a husband charges his wife of adultery and the charge is false, the wife is entitled to sue the husband and obtain a decree of divorce which is called Lian. 

(2) Faskh (Cancellation of Marriage)

Faskh literally means the cancellation, abolishment, recession, revocation, abrogation annulment by wife if she feels that she is being ill-treated by husband. The following are the main grounds for dissolving the marriage at the instance of wife;

(i)- that the marriage is irregular.

(ii)- that a person having an option to avoid marriage has exercised his option.

(iii)- that marriage was performed within prohibited degree or fosterage: or

(iv)- that the marriage having been contracted by non-Muslim the parties have adopted Islam.

DISTINCTION BETWEEN SHIA ANS SUNNI LAW OF DIVORCE

(1)- Capacity for Talaq

SHIA LAW

• Under Shia Law every Muslim who is of sound mind and has attained the age of puberty is competent to pronounce talaq.

SUNNI LAW

• Under the Sunni Law every Muslim who is of sound mind and has attained the age of puberty is competent to pronounce talaq even without assigning reasons.

(2) Free Consent

The husband’s assent to pronounce Talaq must be a free consent, with the exception of Hanafi Law, which allows for the dissolution of marriages where Talaq is said under duress, coercion, undue influence, fraud, and other circumstances.

(3) Oral or Writing

SHIA LAW

• The Talaq must be proclaimed orally in accordance with Shia law, unless the spouse is unable to speak. Shia law declares the Talaq null and void if the husband has the capacity to speak but provides it in writing.

SUNNI LAW

• According to Shia Law, the talaq may be oral or in written. (Talaqnama).

(4)- Presence of witness

SHIA LAW

• Talaq must be administered in the presence of two qualified witnesses, according to Shia law. Every male Muslim who has reached puberty and is of sound mind is qualified to testify. Two Muslim adult women of sound mind may, however, serve as witnesses in place of one man. According to Shia law, a talaq that takes place without witnesses or with unreliable witnesses is null and invalid.

SUNNI LAW

• Under the Sunni Law, talaq without witness is valid.

(5)- Intention of Party

SHIA LAW

• Under Shia Law intention is a necessary ingredient to be proved by the husband to file for talaq.

SUNNI LAW

• Under Shia Law there is no need to prove the intention of the husband for talaq.

(6) Recognition of types of talaq

SHIA LAW

• The Shia Law insist on the presence of two witness when any injurious assimilation is made to wife.
• Shia Law only permits Talaq-ul-Sunnat and not Talaq-ul-Biddat.
• Under the Shia Law, the conditions necessary for the effectuation of valid talaq are also requisites for the performance of Khula accordingly; that is, the husband must be (i) adult (Baligh), (ii) of sound mind (Aqil), (iii) free agent (Mukhtar) and (iv) have intention to divorce her.

SUNNI LAW

• In Shia Law Talaq-ul-Sunnat and Talaq-ul-Biddat both are permitted.

• Under the Sunni Law, only two requisites are essential foe Khula which are husband must be (i) adult, and (ii) of sound mind.

LEGAL CONSEQENCE OF DIVORCE

(i)- the parties become entitled to contract another marriage. If the marriage was consummated, the wife may remarry another husband after the completion of her Iddat, if the marriage was not consummated, she is free to marry immediately. If the marriage was consummated, and the husband had four wives at the date of divorce including divorced wife, he may marry another wife after competion of Iddat of the divorced wife.

(ii)- Mutual rights of inheritance ceases after the divorce becomes irrevocable.

(iii)- Cohabitation becomes unlawful after the divorce has become irrevocable and the children born of such an intercourse are illegitimate and cannot be legitimate by acknowledgement.

(iv)-the wife become entitled to maintenance during Iddat of divorce but not during the iddat of death.

(v)-Dower should be payable immediately if the marriage was consummated and if the marriage was not consummated, and the amount of dower was specified in the contract, she is entitled to half of that amount. If no amount was specified all that she is entitled to is a present of three articles of dress.

CONCLUSION

Under the Muslim Law, there are more than one form of ways through which marriage can be solemnized and divorce can be initiated for dissolution of marriage. To cater to the needs of changing circumstances along with Muslim personal laws certain legislations are brought by the Government of India such as the Muslim Dissolution of Marriage Act, 1939, the Muslim Women (Protection of Rights on Marriage) Act, 2019 etc., to govern Muslim marriage and divorce. However, apart from these legislations and personal laws, there is a need for the Uniform Civil Code for creating single informed laws governing all the citizens of the nation to strengthen national unity and integrity.

Author: Animesh Nagvanshi,
ICFAI, Dehradun and 3rd Year/ Student