Overview: DIVORCE UNDER MUSLIM LAW

Profile of the Author: Bhawna Pawar, student of Dr. B. R. Ambedkar National Law University, Sonipat, pursuing B.A. LL.B (Hons.) 2nd year, having areas of interest in constitutional law, civil law and criminal law.

A strong union between husband and wife is a necessary condition for a happy family life. Muslims therefore insist on keeping the marriage alive and order that the violation of the marriage contract be avoided. Initially no marriage is allowed to be dissolved but in extreme cases the marriage contract is broken. One form of such divorce is the practice of divorce. Under Islamic law a divorce can be instituted by an individual in person or by a court of law. In any case, however, divorce is not considered to be a law of life. In Islam, divorce is considered to be an exception to marital status.

The Prophet (peace and blessings of Allah be upon him) declared that among the things that have been legalized, divorce is not so serious. Divorce is bad, it should be avoided as much as possible, but sometimes this evil is necessary, because when it is not possible for the couple to continue their romantic relationship it is better to allow them to separate than to force them to live together in a spirit of hatred and disagreement. The basis of divorce in Islamic law is the inability of the couple to live together for any particular reason (or group case) because those people cannot live together. Divorce may be by the act of the husband or by the act of the wife. There are several forms of divorce under Islamic law, which will be discussed here.

According to the Hindu Marriage Act, the 1955 marriage is a religious sacrament. Under Islamic law, Marriage is a contractual relationship between two parties. All the requirements for the contract are subject to Islamic Marriage. There is an offer, acceptance, acceptance, consideration, power of the parties, etc. The purpose of this type of marriage is to: -

• Legalizing sex.
• Childbirth.

In the case of Shoharat Singh v Jafri Begum, [1] the technical council said that marriage under Islamic law is a religious ceremony. Under Islam, marriage is considered the foundation of society. Marriage is the center of human development and is the means by which human society can advance.

Divorce is the end of such a marital relationship, as under Islamic law there are two options given to end a marriage-

• Divorce
• Talaq

In everyday life, the two terms are used interchangeably, but under Islamic law, if a person wants "divorce", he or she will be governed by the provisions of the Dissolution of Muslim Marriage Act, 1939. But if they proceed with “talaq” then they will be governed by Muslim Personal Laws.

Islam from the very beginning recognised judicial as well as extra-judicial divorce. At present under the Muslim law there are the following distinct modes in which a marriage can be dissolved and the relationship of the husband and wife terminated[2].

There are two ways of dissolution of marriage under Muslim law namely one by divorce and other by death of a party to the marriage. Further, there are two categories of divorce under the Muslim law namely Extra-judicial divorce, and judicial divorce. The category of extra judicial divorce can be further subdivided into three types, namely, by husband- talaaq, ila, and zihar, by wife- talaaq-i-tafweez, lian and by mutual agreement- khula and mubarat.

BY JUDICIAL DECREE UNDER DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939

Judicial divorce is the process of divorce between a man and a woman, which is used by the court on the basis of the laws that govern the person. The Muslim Marriage Act, 1939 sets out the rules on the grounds on which a divorce can be declared by a court:

• When the husband's whereabouts are unknown.
• When a man has failed to support his wife for more than 2 years.
• When the husband was sentenced to prison.
• When the husband is powerless.
• When a man is insane or has leprosy or dangerous diseases.
• When marriage is rejected.
• When a wife is abused by her husband.
• When a wife is falsely accused of fornication.
• When a partner converts to another religion.

DIVORCE BY HUSBAND

1. Talaq-ul-sunnat or Masnun (according to the rules laid down in the traditions of the prophet)
2. Talaq-i-biddat or Gair Masnun (not according to the rules laid down in the traditions of the prophet).

Talaq- ul- Sunnat

This form of talaq works according to the traditions established by the Prophet. It is further divided into two parts: -

1. Talaq Al-Ahsan
2. Talaq-Al–Hasan

Talaq Al-Ahsan

It is known as the best form of talaq as the name implies the same. The procedure followed by the husband is as follows -

• He must make a declaration of divorce in one sentence, such a declaration must be made in a state of purity (when a woman is free from her menstrual cycle).
• A man should not engage in any kind of sexual intercourse during iddat period (a period of innocence a Muslim woman is obliged to see after a divorce, either by the death of her husband or by divorce) and if she does, it will be considered talaq dissolution. It is worth noting that once the iddat period is over, the divorce cannot be reversed.
• When the partners are not consummated, the talaq-e-Ahsan can be pronounced even if the wife is in her period.

Talaq-Al–Hasan

Hasan's Arabic meaning is good, so the divorce in Hasan mode is good but less worthy than what was said in Ahsan. In this case the husband is required to utter the formula of talaaq three times during three consecutive tuhr. If the wife is past the age of menstruation, her announcement can be made after a period of one month or thirty days between consecutive announcements. When the final proclamation is made, the talaaq becomes final and unchanging. It is required that each of the three declarations should be made at a time when there was no sexual intercourse during the tuhr period and if such an act occurs the divorce process will be reduced. Talaq-Al–Hasan goes irrevocable after the third proclamation regardless of iddat time.

Talaq-i-Biddat

Talaq-i-Biddat came into being during the second century of Islam when Ommayyad monarchs, endeavored to find an escape from the strictness of the law of divorce and found a loophole to affect their purposes. The neologic procedure of divorce is the one that contravenes the provisions of the Sunnat." In this form three pronouncements are made in a single Tuhr either in one sentence or three sentences. The ignorant people, who pronounce divorce thrice at one and the same sitting, commit a heinous sin against law. The Holy Prophet has very severly denounced, this practice. Hazrat 'Jilt-tar, the second Caliph after Prophet Mohammad flogged the people who uttered talaq thrice at a time to break the marital bond when the malpractice became too frequent.' It is considered heretical, because of its irrevocability[3].

Triple talaq has been the subject of controversy for decades, with many countries undermining it. However, a Triple talaq in Islam remained legal in India, until the Supreme Court ruled against Triple talaq making it unconstitutional. Lok Sabha has also passed the Triple Talaq Bill, making it a criminal offense and punishable by up to three years in prison.

Ila: Under this kind of divorce in Islam, the husband promises to stop having sex with his wife for 4 months. After this time, the marriage is dissolved automatically. However, if the husband divorces his wife at this time, Ila is canceled. Ila is not in practice in India.

Zihar: In this type of divorce in Islam, a man gives his wife a title equal to any other woman, such as his mother or his wife. After such comparisons, the husband should stop living with his wife for 4 months. This type of divorce can be revoked if the husband continues to live together for those 4 months and the husband looks for food for 2 months, giving food to 60 or more people or freeing a slave. However, at the end of this period, the wife is given the right to go to court to obtain a divorce or to apply for restitution. Such form of divorce is no longer in use anymore.

DIVORCE BY WIFE

The divorce by wife can be categorized under two categories namely

1. Talaq-i-Tafweez: A Muslim man has the opportunity to transfer the power of divorce from his wife or any other person completely or impose certain conditions, permanently or temporarily. If the power is given to the wife, she has the right to use it, and if she uses this power, the divorce is valid and not final.
2. Lian: If a man falsely accuses his wife of adultery or immorality, the law respects the right of a Muslim woman to obtain a divorce on the grounds of murder of the characters. This type of divorce in Islam is only available to a Muslim woman if her husband's allegations are false and voluntary.

DIVORCE BY MUTUAL CONSENT

This mode of divorce is called Khula or Mubarat. It is initiated by the wife and comes into existence if the husband gives consent to the agreement and releases her from the marriage tie. Where however, both parties agree and desire a separation effecting a divorce, it is called Mubarat. The gist of these modes is that it comes into existence with the consent of both the parties particularly the husband because without his consent this mode of divorce would be incapable of being enforced[4].

CONCLUSION

Usually, assuming that her husband wants a divorce, the divorced wife keeps her mahr, both the original gift and any additional property specified in the marriage contract. You are also given custody of the child until the age of weaning, during which the custody of the child will be determined by the couple or the courts. Women's right to divorce is generally limited to that of men in the Middle East. While men can easily divorce their mates, women face many legal and financial hurdles. However, after the 2017 Supreme Court decision that was held and declared triple talaq unconstitutionally, under Islamic law, both husband and wife were given equal rights to end their marital relationship.

[1] Shoharat Singh v Jafri Begum, AIR 1914 SCC OnLine PC 37

[2] MIR MEHRAJUDDIN, “Divorce under Islamic Law”, Cochin University Law Review Vol. IX, 1985 p. 315-349

[3] Firasat Ali and Furgan Ali, “Divorce in Mohammedan Law — The Law of Triple Divorce” (1983), p. 21.

[4] ibid

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