Dissolution of Muslim Marriage – Modes of Divorce and its Types
INTRODUCTION Marriage unites two souls into one with the grace of god. The rituals and customs of performing marriage are performed as prescribed in one’s own personal law. The bond between a woman and a man is for the time immemorial but sometimes subsistence of Marriage may dissolve earlier.
Dissolution can takes place only by two ways-
(i) By the death of any Spouse.
(ii) By the divorce.
Death is natural phenomena as we all know “Man is Mortal”. There is no hindrance by any person where as divorce is only a way to end the subsistence of Marriage and to separate from each other.
Concept of Divorce under Muslim Law
When marriage is terminated by the decree of Courts or by the act of the parties, such dissolution is termed as Divorce. Divorce has always been considered as a sin by Prophet Muhammad. He criticised the divorce as it prescribes the breach of marital contract which should be avoided by the parties. Prophet Muhammad suggested four ways to avoid the procedure of Divorce:
(a) Admonishment– If the parties want divorce then they should be admonished by their elders and help them to bring the marital bond again.
(b) Suspension of sexual relationship– If admonishment doesn’t work then their sexual relationship will be suspended for the certain period but they must live together.
(c) Physical Hurt– when both the above suggestions don’t proved to be fruitful then light physical hurt should be preferred to both the parties.
(d) Arbitration– If none of the above works, then arbitrators should be appointed from both the sides of party to solve the conflict between the husband and wife.
But suggestions of prophet were not followed by different school and with the passage of time divorce cases are increasing rapidly.
Modes of Divorce- There are two modes of Divorce
Non Judicial divorce
Non Judicial divorce-
Divorce which takes place outside the court is called non judicial divorce. Non judicial divorce can be done by three ways – 1-Divorce by Husband – Husband can give divorce to his wife by following ways (a)Talaq- a Muslim husband can give his wife by pronouncing the word Talaq without stating any reason. It is not necessary that wife should be present at the time of divorce, but divorce can only be effective from the date when wife will known about the pronouncement of Talaq. Talaq can be expressed or implied.
In case of Ahmad Kasim v. Khatun Bibi1, it is said that any Mahomedan of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause.
Agreement between a Mahomedan Husband and wife which provide for future separation in the event of disagreement between them is void as being against public policy2.
Valid conditions for divorce-
Under Shia law, there are four conditions for the husband to be considered competent to pronounce a valid Talaq-
• the husband should be major;
• the husband should be of a sound mind;
• the husband should have acted out of free will;
• there should be an existence of intention of dissolution of marriage. Talaq given by husband in state of intoxication is considered as a valid divorce in Shia Law whereas it is prohibited in Sunni Law.
Talaq is classified into two types-
1-Talaq-ul-Sunnat– it is one of the most approved forms of Talaq as it confirms the traditions of Prophet. It is of two types:
• Talaq-e-ahasan– It can be defined as a single pronouncement of Talaq in the period of ‘tuhr’ or purity. It is followed by the abstinence from any sexual relationship during the period of tuhr and whole of the Iddat period. Iddat is the period during which a wife is prohibited from re-marrying after the dissolution of the first marriage. Talaq-e-Ahsan is considered as the most approved form of Talaq as it is revocable during the period of Iddat. The husband may revoke the Talaq by express words or by conduct including the resumption of Sexual intercourse.
• Talaq-e-hasan– Talaq Hasan is also considered as an approved form of Talaq but comparatively less than Talaq-e-ahasan. It consists of three successive pronouncements of Talaq which are made by the husband during three consecutive periods of Tuhr (purity). During each Tuhr period, no sexual intercourse must have taken place else the pronouncement made during that period 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. When the last pronouncement has been made, the Talaq becomes final and irrevocable.
2- Talaq-e-biddat– It is the disapproved form of Talaq. In Talaq-e-biddat, pronouncement of Talaq was done by saying Talaq three times in a row. Nowadays, it is known as “Triple Talaq”. The only way to reconcile the marriage is through the practice of nikah halala, which requires the woman to get remarried, consummate the second marriage, get divorced, observe the three-month Iddat period and return to her husband. However in Shayara Bano v. Union of India & Others3, The Apex Court struck down the concept of Triple talaq. The Supreme Court by holding that Triple Talaq is unconstitutional implied that mere utterance of Talaq thrice does not result in the dissolution of marriage. Any pronouncement of “talaq” by a Muslim husband to his wife in any manner, spoken or written, will be void and illegal. Five judges bench of Supreme Court that-
• Instant Triple Talaq is Unconstitutional and Arbitrary.
• Triple Talaq was held to be violative of Article 14.
• It violated Islamic law while being used as a tool to oppress the women.
• The bench also asked the Central Government to enact a law in next six months to govern marriage and divorce in the Muslim community.
As per the directions of Supreme Court, Central Government laid a Bill named The Muslim Women (Protection of Rights on Marriage) Bill, 2019.
The Muslim Women (Protection of Rights on Marriage) Bill, 2019
After getting passed in both houses of Parliament, President has given assent to the triple talaq bill passed by Parliament, turning it into a law which makes the practice of instant divorce among Muslims a punishable offence. The Act will replace an ordinance promulgated on February 21, 2019 to the same effect.
2-Divorce by wife– Wife is entitled to give divorce but power of wife is not absolute. It depends on the will of the husband. The Muslim Personal Law (Shariat) Application Act, 1937 is applicable to Muslims residing in India. Section 2 of the Act states the various modes in which a Muslim wife can ask for a divorce. In case of Maharam Ali v. Ayesa Khatun4, it was held that an agreement between husband and wife by which the husband authorizes the wife to divorce her from him in the event of his marrying a second wife without her consent is valid. There are three ways through which wife can give divorce which are as follows:
(a) Ila–Ila has no practical importance in India and seen in very rare cases. In Ila, the husband swears by god, not to have sexual intercourse with his wife for duration of at least four months. After expiry of such period, the marriage is treated as irrevocably dissolved.
The husband may revoke his oath before the expiry of four months by resuming sexual intercourse with the wife. If husband did not cohabit with his wife after four months then wife is entitled to file the suit of restoration of conjugal rights.
(b) Zihar–In Zihar, the husband compares or treated his wife with his mother, sister or any other within a prohibited degree by making a declaration to this effect. The wife is entitled to refuse cohabitation to the husband if husband does not cohabit with her within four month.
Husband can revokes the declaration 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 above mentioned process, the wife can approach the court for seeking regular divorce.
(c) Lian– Lian can be define as the husband accusing his wife of committing adultery. It entitled the wife to claim judicial divorce on the grounds of being falsely charged with committing adultery. In the case of Nurjahan v. Kazim Ali5, it was held that if the husband is hurt by a bad behaviour of his wife and then hits an allegation of infidelity against her, then the response of the husband cannot be used as a false charge of adultery and no divorce will be granted.
(d) Talaq-i-Tafweez– It permits the husband to delegate his power of giving Talaq to any third person or to the wife herself. It is called Talaq-i-Tafweez. This agreement can also be in the favour of the wife who then will have the freedom to take the divorce when she wants to. For instance, a stipulation permitting the wife to pronounce Talaq if the husband marries another woman is a valid stipulation. 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.
3- Divorce by Mutual Consent
Muslim law recognizes divorce/Talaq by mutual consent of the parties. It is of two kinds:
(a) Khula–Khula is a right of divorce purchased by the wife from her husband. It means a divorce at the wife’s instance in lieu of which she agrees to give some consideration to the husband for her release from the marriage tie. 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.
(b) Mubarat–Mubarat means release. It involves divorce by mutual consent of both parties. Either party may make the offer of divorce or once an offer has been accepted by the other party, the divorce becomes irrevocable.
In the case of both Khula and Mubarat, the divorce is irrevocable and marital life cannot be resumed by re-conciliation without a formal re-marriage. In both cases, once the divorce has been effected, the wife is required to undergo period of Iddat.
The Dissolution of Muslim Marriages Act, 1939 (hereinafter referred as the “Act“) provides certain grounds to a Muslim wife for obtaining divorce from a court of law. The Act applies to the whole of India and after abrogation of Article 370 except it is applicable in the state of Jammu and Kashmir also. Section 2 of the Act specifies the following grounds on which a Muslim wife can obtain a decree for dissolution of the marriage:
• That the husband’s whereabouts have not been known for a period of four years provided that, in such case, the decree shall not take effect for six months from its date and the husband may re-appear during this period and get the decree revoked by satisfying the Court that he is prepared to perform conjugal duties
• That the husband neglected or failed to provide maintenance to the wife for a period of two years;
• that the husband has been sentenced to imprisonment for a period of 7 years or more and the sentence has become final;
• That the husband has failed to perform his marital obligations for a period of 3 years without reasonable cause;
• That the husband was impotent at the time of marriage and continues to be so, provided that, in such case, before passing the decree, the court may pass an order, upon an application filed by the husband, requiring the husband to satisfy, within a period of one year from the passing of the order, that he has ceased to be impotent.
If the husband satisfies the court to this effect, no decree on ground of impotency shall be passed;
• That the husband has been insane for a period of 2 years or is suffering from a virulent venereal disease;
• That the wife had been given in marriage, by her father or guardian, 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;
• That the husband treats her with cruelty; and,
• on any other ground recognized as valid for dissolution of marriage under Muslim law
In Gul Mohd. Khan v. Hasina6, the wife filed a suit for dissolution of marriage on the ground of impotency. The husband made an application before the court seeking an order for proving his potency. The court allowed him to prove his potency.
In K.C. Moyin v. Nafeesa7, Kerala high court held that a Muslim Woman cannot repudiate her marriage outside the Act of 1939
Conclusion Divorce is considered as the evil of society. all the personal laws also condemn it. But certain circumstances arises, separation or divorce is need of the hour and beneficial for both the parties. In Muslim law, somewhere right of giving divorce is for husband only but after the dissolution act of 1939 took place, it give more rights to women for divorce.
1- MULLA Principles of Mahomedan Law
1- (1932) 59 Cal. 833
2- Bai Fatima v. Alimahomed (1913) 37 Bom. 280
3-AIR 1985 SC 945
4-(1915) 19 Cal. W.N. 910
5-AIR 1977 Cal 90
6-AIR 1988 J K 62
7-AIR 1973 Ker. 176
Edited by Anjuri Tyagi