Islamic Divorce

Under Muslim Law, couples get married to have a contractual relationship. All the necessary things that are required for a contract are present under Muslim Marriage. There is an offer, acceptance, consent, consideration, the capacity of parties, etc. Therefore, the main purpose behind the marriage is to legalize sexual intercourse and to procreate children.

Types of Muslim Divorce

Under Muslim Law, a Muslim marriage can be dissolved either by the death of the husband or wife or by way of divorce. A divorce can also take place by mutual agreement. There are different types of divorce for the people of Islam which include extra-judicial divorce, judicial separation, and judicial divorce. Both husband and wife are entitled to seek divorce on various grounds. Even though the concept of divorce is now recognized by all religions, Islam was the first religion in the world to expressly recognize the dissolution of marriage by way of divorce

When divorce is obtained then all the marital obligations come to an end. Under Muslim law, two modes are under practice.

  1. Divorce
  2. Talak

The Dissolution of Muslim Marriages Act, 1939 deals with the situations in which Muslim women in India can obtain divorce. Talak proceedings are governed by Muslim personal laws. Talak is generally a dissolution of marriage by husband using appropriate words by following the procedure laid down by law.

Forms of Talaq

Talaq-i-biddat or the triple talaq was a form of divorce where the husband divorces the wife in an instant manner. This form of talaq was considered unconstitutional as per the judgment of the Supreme Court[1] and that this form of Talaq is violating Article 14 of the Constitution of India. Thus, this form of talaq has been currently removed from practice.

There are two forms of express talaq that are still valid under the law.

Talaaq-i-sunnat – This form is considered to be in accordance with the orders of Prophet Mohammed. Under this form comes the Talaaq-i-ahasan and  Talaaq-i-hasan.

  1. Talaaq-i-ahsan –  This is the best known form of talaq that is in practice. This requires a single pronouncement of divorce and this should be pronounced by the husband only when the wife is not in her period or menstrual cycle. It is also followed by a period of sexual abstinence during the time of iddat. Resumption of sexual intercourse or resuming cohabitation with his wife before the period of iddat will result in revocation of divorce under the law.
  2. Talaq-i-hasan – This is the form of divorce where three pronouncements should be made by the husband during successive tuhrs. It should also be followed by complete abstinence of sexual intercourse for not less than four months. In case if the wife has become old and has crossed the age of menstruation, then the pronouncement may be made after the interval of a month or thirty days between the successive pronouncements. This so-called method, which is Talaq Hasan, becomes irrevocable automatically on the third pronunciation irrespective of iddat period. This method is less approved than the Ahsan method.
  • Ila- This is a vow of continence where this form of constructive divorce and it will be effected when the husband takes oath that he will be in abstinence from sexual intercourse for not less than four months.  After four month, the marriage will be dissolved. In case, if the husband resumes cohabitation within that time, Ila is said to be cancelled and the marriage does not dissolve. However under Shafia law, this vow does not operate as divorce but gives the right to his wife to demand judicial divorce.
  •  Zihar- This is a form of Inchoate divorce. To effect divorce under this method, the husband must be of unsound mind and should be above the age of 18. In this case, if the husband compares his wife to someone within the prohibited degrees of relationship, then the wife is given the right to abstain from sexual activities until he has performed penance. After such comparison, the husband does not have sexual intercourse for a period of four months and after the expiration of the said period, Zihar is complete.

On the account of expiry of the above mentioned four months the wife has a right to

  1.  go to the court to get a decree of judicial divorce
  2. Go to the court and ask for granting of the decree for restitution of conjugal rights.

Muslim Divorce by Mutual Consent

Divorce can be obtained with a mutual agreement from both the spouses through the modes of Khula and Mubarak.

Khula – Khula meaning “Lay down” it is said that the husband lays down his right over his wife. The marriage can be dissolved by a divorce contract called “Khula” where the conditions are laid down for mutual separation. Here the wife can agree to give some consideration to her husband. In this form, the wife can decide to relinquish her dower entirely or partially. However, the consent of the husband must be without coercion and must be free to enter into a khula. There are few essentials for this contract to be fulfilled.  There must be an offer and must be from the wife’s side and it has to be accepted by the husband with the consideration for it. The main part is to observe the iddat period.  For Shia muslims, the husband cannot revoke divorce once accepted because only the wife has been given the power to reclaim the consideration during the iddat period.

Mubarat- This is another type of mutual consent divorce in Islam where both spouses desire divorce. The proposal may be initiated from either side and both the spouses are equally willing to get separated. It essentially signifies the mutual discharge from the marital bond. In this form of divorce the offer can be made from both the sides and acceptance of that offer in itself will make the divorce irrevocable. Like all other modes, Iddat is a necessary element. Among the Sunni muslims no specific form is necessary but the Shia muslims insist on a form where the word mubarat should be followed by the word talaq, and only then the divorce would result. Shia muslims specifically insist that the pronouncement must be in Arabic unless the parties are not capable of pronouncing the Arabic words. Intention to dissolve the marriage should be clearly expressed. Among both Shias and Sunnis, mubarat is irrevocable.

The divorce can be initiated by wife by three categories:

  1. Talaaq-i-tafweez
  2. Lian
  3. Faskh.

Talaq-i-tafweez

Shia muslims and Suni muslims recognize this methoed of divorce. The Muslim man in this scenario can delegate the power of divorcing from his wife or any other person absolutely or he can impose conditions. That can be for a permanent period or for a temporary period or conditionally. If the delegation of power is permanent, then it is revocable but a temporary delegation of power cannot be revoked.  After the power has been assigned to his wife, she has absolute rights to use it and after that the divorce becomes valid and it is the final step.  The main criteria is that the delegation of power must be made in favour of the person to whom the power is delegated, and its purpose has to be stated properly.

Dissolution of Muslim marriage Act, 1939

Lian

An Islamic woman has been given this right to seek divorce from her husband on the basis of character assassination. When the husband falsely accuses his wife of adultery or unchastity, this law gives the right to an Islamic woman to get a divorce on these grounds.  This type of divorce in Islam is only given to woman only if the allegations made by the husband are false and voluntary. In case when a wife hurts the feelings of her husband with her unchaste behaviour and the husband hits back an allegation of infidelity, then what the husband says about the bad behaviour of his wife, cannot in that case be used by the wife as a false charge of adultery and no divorce cannot be granted for the wife under Lian.[2]

If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the decree of divorce on the ground of Lian.

Faskh

This is a simple mode of divorce where the husband and wife are bound to treat each other with respect and obey all lawful orders of each other. These are given in Quran and in this case if both the husband and wife feel that they cannot live with each other over a point of time, then they can terminate their marriage after an examination through Qasi

Further Section 2 of Dissolution of Muslim Marriage Act, 1939 has given nine grounds on which a Muslim wife can obtain divorce[3]

  1. If the husband fails to maintain his wife for two years
  2. If the husband has been imprisoned for more than seven years
  3. If the husband is Impotent
  4. If the husband fails to carry away his marital duties
  5. If the husband is suffering from any kind of communicable venereal disease
  6. If the husband is not of sound mind and is suffering from Insanity
  7. Cruelty by the husband
  8. Repudiation of her marriage after the wife has attained 18 years
  9. A muslim is also recognized by Mohameddan law on the grounds mentioned under the act

[1] Shayara Bano v. Union of India AIR 2017 9 SCC 1 (SC)

[2] Nurjahan v. Kazim Ali

[3] https://indiankanoon.org/doc/209038/