MUSLIM DIVORCE

FAMILY LAW 2 TERM PAPER

RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW

IIT KHARAGPUR

Submitted By-

M. Blessan

16IP63017

LLB 1st Year

INTRODUCTION

Oh, Allah, the most detestable of all permitted things is divorce-Prophet

In Muslim law, a matrimony is a civil contract, and the husband enjoys special
provisions in comparison to wife regarding divorce.Moreover, a Muslim man
can divorce a woman at his will, and the woman is at the mercy of the husband
in this regard.Also, To perform divorce there is no need of judicial authority,
and the separation can be effected even in the absence of legal
authority.Regarding Muslim women, they women can go for divorce under
dissolution of Muslim Marriage Act 1939, and men have no such power
conferred to them under this Act.

On the other hand, The husband's power to divorce or talaq is not unfettered,
and there are some constraints which include a prohibition on remarrying the
divorced wife and payments of dower to the divorced wife.

Essentials of Talak

Talak is an Arabic word which meansto release from a tether".Any Muslim of

sound mind can divorce a wife at any time without any fault, or necessities by
effecting a talak orally or by written nama

The requirements of talak are as follows

If the words are express and are well understood, then there is no need to
prove intention; on the other hand, if there is ambiguity then intention must
be established.It not necessary the husband needs to pronounce the word in
the presence of the wife.The talak or divorce becomes active once it comes to
the knowledge of the woman.

The word Talaq originally meant "repudiation" or "rejection". In Muslim law, it

means release from a marriage tie, immediately or eventually. In a restricted
sense it means separation effected by the use of certain appropriate words by
the husband and in a wide sense it means all separations for causes originating
from the husband. It is also generic name for all kinds of divorce but it is
particularly applied to the repudiation by or on behalf of husband.

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The following diagram shows various types of divorces

Talaq ul sunnat - It is a Talaq which is effected in accordance with the

traditions of Prophet. It is further divided in two types - Ahasan and hasan.

Ahasan - It is the most approved and considered to be the best kind of Talaq.
The word ahasan means best or very proper. To be of Ahasan form, it must
satisfy the following conditions - the husband must pronounce the formula of
divorce in a single sentence.The pronouncement of divorce must in done when
the wife is in state of tuhr (purity), which means when she is free from her
menses.Husband must abstain from intercourse for the period of iddat.If the
marriage has not been consummated, if the spouses are away from each
other, or the wife is beyond the age of mensuration, Talaq may even be
pronounced while the wife is in menses.

Hasan - Hasan in arabic means "good" and so this form of Talaq is considered
to be a good form of Talaq but not as good as Ahasan. To be in this form, it
must satisfy the following conditions - there must be three successive
pronouncements of the formula of divorce.In case of a menstruating wife, the
three pronouncements must be made in three consecutive tuhrs.In case of a
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non-menstruating wife, the three pronouncements must be made during the
successive intervals of 30 days.no sexual intercourse must take place during
these three periods of tuhr.It can be revoked any time before the third
pronouncement. It becomes irrevocable on the third pronouncement.

Talaq ul biddat - It is a disapproved and sinful form of Talaq. It was introduced

by Ommeyyads in order to escape the strictness of law. To be of this form, it
must satisfy the following conditions -

1. three pronouncements may be made during a single tuhr either in one

sentence (e.g. "I divorce thee thrice." ) or in three sentences (e.g. I
divorce thee, I divorce thee, I divorce thee).

2. a single pronouncement made during a tuhr clearly indicating an

intention to dissolve marriage irrevocably (e.g. "I divorce thee
irrevocably").

It becomes irrevocable immediately when it is pronounced irrespective of

iddat. Thus, once pronounced, it cannot be revoked. One a definite complete
separation has taken place, they cannot remarry without the formality of the
woman marrying another man and being divorced from him.

In Saiyyad Rashid Ahmad vs Anisa Khatoon 1932, one Ghayas Uddin

pronounced triple Talaq in the presence of witnesses though in the absence of
the wife. Four days later a Talaqnama was executed which stated that three
divorces were given. However, husband and wife still lived together and had
children. While the husband treated her like a wife, it was held that since there
was no proof of remarriage, the relationship was illicit and the children were
illegitimate.

It has been said that this type of Talaq is theologically improper. In Fazlur
Rahman vs Aisha 1929, it was held that Quran verses have been interpreted
differently by different schools. Thus, it is legally valid for Sunnis but not for
Shia.

Ila - (Vow of continence) - Where the husband is of sound mind and of the age
of majority, swears by God that he will not have sexual intercourse with his
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wife and leaves the wife to observe iddat, he is said to make ila. If the husband
after having pronounced ila abstains from having sexual intercourse with wife
for four months, the marriage is dissolved with the same result as if there had
been an irrevocable divorce pronounced by the husband. This requires
following conditions -

1. Husband must be of sound mind and above the age of majority.

2. must swear by God or must take a vow.

3. vow must be that he will not have sexual intercourse with his wife.

4. must abstain from sexual intercourse with his wife for four months or
more after taking the vow.

It can be canceled by - resuming sexual intercourse within the period of four

months or by a verbal retraction.
It is not in practice in India.

Zihar ( Injurious Assimilation )- If a husband compares the wife with his

mother or any other female relative within prohibited degree, the wife has a
right to refuse herself to him until he has perfomed a penance such as freeing
a slave or fasting for a month. In default of expiation by penance, the wife has
the right to apply for judicial divorce. Ingredients -

1. husband must be sane and adult

2. husband compares wife to his mother or any other female relative

within prohibited degrees.

3. then the wife has a right - a) to refuse to have sexual intercourse with
him till he has expiated himself by penance, b) to apply in court for an
order directing him for a penance or to decree her a regular divorce.

Legal Effects - Zihar by itself does not terminate the marriage nor does it
cause the wife to lose her right to maintenance even in case of default of
penance. It causes the following -

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 1. sexual intercourse becomes unlawful

2. husband is liable for penance

3. wife can claim judicial separation if the husband persists in wrong doing.

The comparison must be done intentionally and with disrespect. If the

husband makes a comparison to show respect to his wife, an expiation is not
necessary.
This form has become obsolete.

By Wife
Talaq e tafweez - A husband may delegate his power to give Talaq to any third
party or even to his wife. This delegation is called tafweez. An agreement made
either before or after the marriage providing that the wife is at liberty to
divorce herself from her husband under certain specified conditions (e.g.
husband taking a second wife), is valid, provided that such power is not
absolute and unconditional and that the conditions are reasonable and are not
opposed to public policy.

In Mohd Khan vs Mst Shahmali AIR 1972, there was a pre-nuptial agreement
in which the defendant agreed to live in plaintiff's parental house after
marriage and if he left the house, he would pay a certain sum to the plaintiff,
the default of which the condition would act as divorce. It was held that the
condition was not unconscionable or opposed to public policy.
Note that a wife does not divorce her husband but gets herself divorced from
the husband.

Ameer Ali gives three kinds of tafweez

Ikhtiar - giving her authority to Talaq herself.

Amr-bayed - leaving the matter in her own hands.

Mashiat - giving her the option to do what she likes.

Khula - Divorce at the request of wife - A wife has a right to buy her release
from marriage from her husband. It must satisfy the following conditions -

1. . there must be an offer from the wife.

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 2. the offer must be accepted with consideration (evaz) for the release.

3. the offer must be accepted by the husband

It becomes effective as well as irrevocable (Talaq ul bain) as soon as it is

accepted by the husband and the wife is bound to observe iddat.

As a consideration for release by the husband, everything that can be given in

dower can be given. If the wife fails to give the consideration that was agreed
upon at the time of Khula, divorce does not become invalid but the husband
has the right to claim the consideration.

In Moonshee Buzloor Rahim vs Lateefutoon Nissa, Khula was defined as a

divorce by consent in which the wife gives or agrees to give a consideration to
the husband for her release from the marriage tie. Khula is thus the right of
divorce purchased by the wife from her husband.

Mubarat - Divorce by mutual agreement - It is a form of dissolution of

marriage contract, where husband and wife both are averse to the marriage
and want to separate. It requires following conditions

1. Either of husband or wife can make the offer.

2. The other one must accept it.

3. As soon as it is accepted, it become irrevocable and iddat is necessary.

Since it is a mutual agreement, there is no question of consideration

As soon as it is accepted, it become irrevocable and iddat is necessary. Since it

is a mutual agreement, there is no question of consideration.

By Judicial Decree

Lian - False charge of adultery - When the husband charges the wife with
adultery and the charge is false, the wife is entitled to sue for and obtain
divorce. In Zafar Hussain vs Ummat ur Rahman 1919, the Allahabad HC
accepted the doctrine of Lian. The following conditions must be satisfied

1. Husband, who is adult and sane, charges his wife with adultery or denies
the paternity of her child.

2. Such charge is false.

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 3. The marriage is a Sahih marriage.

Features of Lian -

Such false charge does not dissolve the marriage automatically but only gives a
right to the wife to sue for divorce. The marriage continues till the decree is
passed.

1. Such false charge does not dissolve the marriage automatically but only
gives a right to the wife to sue for divorce. The marriage continues till
the decree is passed.

2. Wife must file a regular suit and just an application will not suffice.

3. Judicial separation due to Lian is irrevocable.

4. Lian is applicable only to Sahih marriage and not to Fasid ones.

Retraction - A husband may retract the charge. However, the retraction must
be bona fide and unconditional. It must be made before the closing of
evidence.

Fask - Cancellation - Muslim law allows a lady to approach a qazi for dissolving
the marriage under the following conditions

1. if the marriage is irregular.

2. if the person having an option to avoid a marriage has exercised his

options.

3. if the marriage was within prohibited degrees or fosterage.

4. if the marriage has been contracted by non-Muslims and the parties

have adopted Islam.

Before the enactment of Muslim Marriage Dissolution act, this was the only
way for a muslim woman to repudiate a marriage.

Judicial Divorce - Section 2 of Muslim Marriage Dissolution Act 1939 gives the
following grounds to wife belonging to Shia as well as Sunni sects, upon which
she can ask for divorce -

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 1. Absence of husband - 4 yrs. Decree passed on this ground will take affect
only after 6 months of passing and if the husband shows up during the 6
months he can request the court to set the decree aside.

2. Failure to maintain - for 2 yrs. Cause is immaterial. Poverty, incapacity is

no excuse. There is no agreement among HCs regarding the conduct of
wife. In Fazal Mahmood vs Ummatur Rahman AIR 1949, Peshawar
HC held that if a wife is not faithful or obedient, the husband is under no
obligation to maintain her and her suit for divorce was dismissed.
However, in Mst Nur Bibi vs Pir Bux AIR 1950, Sind HC held that a wife is
entitled to divorce if the husband has failed to maintain her for two
years preceding the suit even though she may not be entitled to
maintenance owing to her bad conduct.

3. Imprisonment of husband - for 7 yrs or more.

4. Failure to perform marital obligations - for 3 yrs

5. Impotency of husband - If the husband was impotent at the time of

marriage and continues to be so.

6. Insanity, leprosy, or venereal disease - For insanity, 2 yrs are required.

For disease, no time period is required.

7. Repudiation of marriage - If the wife was married before she was 15, she
can repudiate the marriage before she turns 18.

8. Cruelty of husband - cruelty involves - habitual assault, associates with

women of bad repute, attempts to force her to lead immoral life,
disposes off her property, obstructs her practice of religion, does not
treat all his wives equally.

9. Grounds allowed by muslim law - This covers all the grounds such as Ila,
Zihar, Khula, and Mubarat, which are provided by muslim law

Section 4 of this act removes apostasy as a ground for granting divorce

automatically. However, if a woman reconverts back to her original faith, the
marriage will stand dissolved.

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Consequences arising from Talaq

1. Marriage - Parties are entitled to contract another marriage. If the

marriage was consummated the wife has to wait until the period of
iddat is over, otherwise, she may remarry immediately. If the marriage
was consummated and if the husband had four wives at the time of
divorce, he can take another wife after the period of iddat.

2. Dower - Dower becomes payable immediately if the marriage was

consummated, otherwise, the wife is entitled to half of the amount
specified in dower. If no amount is specified, she is entitled to 3 articles
of dress. Where the marriage is dissolved due to apostasy of the wife,
she is entitled to whole of the dower if the marriage has been
consummated.

3. Inheritance - Mutual rights of inheritance cease after the divorce

becomes irrevocable.

4. Cohabitation - Cohabitation becomes unlawful after the divorce has

become irrevocable and children from such intercourse are illegitimate
and cannot be legitimated by acknowledgment as held in In Saiyyad
Rashid Ahmad vs Anisa Khatoon 1932.

5. Remarriage - Remarriage between the divorced couple is not possible

until

1. the wife observes iddat

2. after iddat she lawfully marries another man

3. this intervening marriage is consummated

4. the new husband pronounces divorce or dies

5. the wife again observes iddat

A marriage done without the fulfillment of the above is irregular, not void. But
mere cohabitation after an irrevocable divorce is void.

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