Muslim Law of Divorce | Family Law - CLAT PG PDF Download

Dissolution of Marriage in Islam: Divorce

• Firm union of husband and wife is essential for a happy family life.
• Islam emphasizes the importance of maintaining marriage and discourages the breach of the marriage contract.
• Marriage is not intended to be dissolved initially, but in unfortunate circumstances, it may be broken.
• One method of dissolution is through divorce.

Divorce in Muslim Law 

• Under Muslim law, divorce can occur through the actions of the parties involved or by a court decree.
• Regardless of how divorce is carried out, it is not considered a fundamental aspect of life. In Islam, divorce is viewed as an exception to the norm of marriage.

Prophetic Teachings on Divorce 

• The Prophet Muhammad stated that among permissible actions, divorce is the least favored.
• Although divorce is deemed undesirable, there are instances where it becomes necessary.
• When it is impossible for spouses to maintain their relationship with mutual affection and love, separation through divorce is preferable to forcing them to live together in animosity.

Basis of Divorce in Islamic Law 

• The foundation of divorce in Islamic law is the inability of spouses to coexist peacefully, rather than attributing blame or guilt to either party.

Modes of Divorce 

Modes of divorce in Muslim law can be categorized into  extrajudicial  and  judicial  divorce. Extrajudicial divorce includes unilateral divorce by the husband or wife and divorce by mutual consent. Judicial divorce involves court proceedings, such as those initiated under the Dissolution of Muslim Marriages Act, 1939.

 Extrajudicial Divorce 

•  Unilateral Divorce by Husband:  The husband can initiate a divorce by repudiating the marriage without providing a reason. This is typically done through the pronouncement of  talaq  , which signifies his intention to disown the wife. Other forms, such as  ila  and  zihar  , are similar in substance but differ in form.
•  Unilateral Divorce by Wife:  The wife cannot divorce her husband unilaterally unless the husband has delegated this right to her or there is an agreement allowing her to do so. Under such an agreement, the wife may divorce her husband through  khula  or  mubarat  .
•  Divorce by Mutual Consent:  Both husband and wife can agree to divorce each other, following the stipulated procedures.

 Judicial Divorce 

Judicial divorce involves the wife seeking a divorce through court proceedings. Before the enactment of the  Dissolution of Muslim Marriages Act, 1939  , a Muslim wife could only seek divorce on specific grounds such as false accusations of adultery, insanity, or impotence of the husband. The Act expanded the grounds on which a Muslim wife could obtain a divorce decree from the court.

Unilateral Divorce Initiated by Husband: Talaq 

 Talaq  , in its original sense, means dismission. Literally, it means "setting free," "letting loose," or removing any "ties or restraint." In Muslim Law, it signifies freedom from the bondage of marriage. Legally, it refers to the dissolution of marriage by the husband using specific words. In essence, talaq is the repudiation of marriage by the husband following the prescribed legal procedure. The husband's authority to pronounce unilateral divorce is supported by the verse: “Men are maintainers of women because Allah has made some of them to excel others and because they spend out of their property (on their maintenance and dower).”  When a husband exercises his right to pronounce divorce, it is referred to as talaq. The key features of talaq in Muslim law include: 

•  Recognition by Sunni and Shia schools, with some differences in details. 
•  Practiced widely in the Muslim world, including by the Imams. 
•  Husbands have the absolute power to divorce unilaterally, without reason, and even in jest or intoxication, without court involvement. 

 A. Express Talaq (By Husband)  : When the husband uses clear and unequivocal words like "I have divorced thee," it is known as express talaq. This form of talaq is divided into two categories:

•  Talaq-i-sunnat 

Talaq-i-sunnat is considered in accordance with the teachings of Prophet Muhammad and has two forms:

•  Talaq-i-ashan (Most Approved) 
•  Talaq-i-hasan (Less Approved) 

 1. Talaq-i-ashan (Most Approved)  : This form involves a single pronouncement of divorce made during a period of tuhr (purity between two menstruations) or at any time if the wife is free from menstruation. It is followed by abstinence from sexual intercourse during the iddat period. Key points include:

• The pronouncement during tuhr applies only to oral divorce and not to written talaq.
• It is not applicable when the wife has passed the age of menstruation, the parties have been apart for a long time, or when the marriage has not been consummated.
• Divorce can be revoked at any time before the completion of the iddat period, preventing hasty decisions.
• Revocation can be done explicitly or implicitly.

 2. Talaq-i-hasan (Less Approved)  : In this form, the husband must pronounce talaq consecutively in three tuhrs. If the wife's menstruation has stopped, three declarations must be made after every 30 days. Key points include:

• After the last pronouncement, talaq becomes irrevocable.
• Each of the three pronouncements must be made when no intercourse has taken place during that period of tuhr.
• This practice, prevalent before Islam, was modified by the Prophet to prevent harassment and misery for the wife.
• Parties cannot remarry until the wife marries another man who has actually consummated the marriage and then divorced her.
• After the completion of iddat, the woman could remarry her husband.
•  Talaq-ul-biddat  :

Talaq-ul-biddat emerged during the second century of Islam and is practiced in two forms:

•  Triple Declaration of Talaq  : This involves making a triple declaration of talaq during a period of tuhr/purity, 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"). The moment the pronouncement is made, the marriage is dissolved irrevocably.
•  Single Irrevocable Pronouncement of Divorce  : A single irrevocable pronouncement of divorce made during a period of purity or even otherwise results in an irrevocable divorce.

 Talaq-ul-biddat  is not recognized among the Shias and is condemned as heretical due to its irrevocability.

 In the case of Khlemniss v. State of UP (Writ Petition no. 57 of 1993)  , Tilhari J. deemed triple divorce unconstitutional, as it perpetuated male authoritarianism and violated Articles 15, 16, and 21 of the Indian Constitution.

Recent Supreme Court Decision on Triple Talaq

The Supreme Court's decision to invalidate triple talaq has a long history, as seen in the following cases:

1.  Shamin Ara v. State of UP (2002)  : The Supreme Court invalidated instant triple talaq, referencing the case of Rukia Khatun v. Abdul Laskar (1981). The court stated that talaq, as ordained by the Quran, must be for a reasonable cause and preceded by attempts at reconciliation between husband and wife through two arbitrators, one from each family. If their attempts fail, talaq can be affected. The court emphasized that talaq must be pronounced formally and that a plain affidavit or talaqnama without reconciliation efforts cannot effectuate a talaq. The husband's claim of giving talaq to his wife at an earlier date does not dissolve the marriage unless talaq is proven with the prerequisites of arbitration and valid reason.
2.  Dagadu Pathan v. Rahimbi Pathan (2002)  : A Muslim husband cannot repudiate the marriage at will. The right to divorce without reason, solely to harm the wife or avenge her for resisting the husband's unlawful demands, and to divorce in violation of the procedure prescribed by Shariat is considered haram (unlawful).
3.  Mansoor Ahmed v. State of Delhi (2008)  : In interpreting the Shamim Ara case, it was held that in a revocable talaq, the dissolution of marriage does not occur at the time of pronouncement but is deferred until the end of the iddat period, allowing the man to reconsider and reconcile his decision. Hasan and Ashan are revocable talaqs, and talaq-e-biddat is also a single revocable talaq.
4.  Shayara Bano v. UOI (2017)  : Shayara Bano and other petitioners, along with the Supreme Court's suo motu Public Interest Litigation, were heard together to address whether certain aspects of Islamic Personal Laws constitute gender discrimination and violate the Constitution. The validity of triple talaq was challenged based on Articles 14, 15, 21, and 25 of the Indian Constitution.

Supreme Court Ruling on Muslim Personal Laws 

• The Supreme Court ruled that certain Islamic practices, such as  talaq-e-biddat (triple talaq), nikah halaa, and polygamy,  are misused by religious figures, treating Muslim women unfairly and violating their Fundamental Rights under Articles 14, 15, 21, and 25 of the Constitution.
•  Talaq-e-biddat  , which allows a husband to unilaterally divorce his wife by pronouncing "talaq" three times, is seen as treating women like property and is not in line with modern human rights and gender equality principles. Scholars argue that it is not an essential part of Islamic faith.
• The Court emphasized that  triple talaq  is not a fundamental religious practice protected under Article 25. The Shayara Bano petition specifically challenges the practice of triple talaq, not the husband's right to pronounce talaq.
• Triple talaq is criticized for being instant and irrevocable, lacking attempts at reconciliation, which are vital for preserving marital relationships. The Court found it arbitrary and in violation of Article 14, declaring Section 2 of the Shariat Act, 1937, void.

Implied and Contingent Divorce 

•  Implied Talaq  : Recognized only by Sunni Muslims. If the husband's words of talaq are unclear but indicate his intention to divorce, it is considered implied talaq.
•  Contingent Talaq  : If a husband pronounces divorce effective upon a future event, it is termed contingent talaq. It becomes effective only when the specified contingency occurs.
• In the case of  Hamid Lai v. Imtiazan (1878)  , the husband implied a divorce conditionally based on his wife's actions, where the court ruled it as a divorce.
• In  Baschoo v. Bismillah (1936)  , a husband’s written commitment regarding maintenance created a valid talaq upon his failure to meet the terms.

Delegated Divorce (Talaq-i-Tafweez) 

•  Delegated divorce  , known as  talaq-i-tafweez  , is accepted by both Shia and Sunni Muslims. It allows a husband to delegate his divorce authority to his wife or another person, either permanently or temporarily.
• A permanent delegation can be revoked, while a temporary one cannot. The delegation must be explicit and the purpose clear. This form of delegated divorce is often included in prenuptial agreements.
• In the case of  Md. Khan v. Shahmai (1972)  , a husband’s prenuptial agreement allowed his wife to divorce herself under certain conditions. The court upheld the validity of the divorce exercised by the wife.
• Delegation of divorce power can also occur in post-marriage agreements. For instance, stipulations allowing a wife to divorce herself under specific circumstances are valid and not against public policy.
• The decision to exercise the delegated power of divorce remains with the wife, and the occurrence of a contingency does not automatically trigger a divorce.

Constructive Divorce 

•  Ila  : This type of constructive divorce is based on the husband's conduct. If the husband abstains from his wife's company for four months, it is considered ila. This form of divorce is irrevocable in nature. The Shafi and Shia schools of thought believe that ila is not a divorce in itself but provides grounds for the wife to seek judicial divorce. However, the Ithna Ashari school holds that ila can only occur after the consummation of marriage.
•  Zihar  : In zihar, the husband expresses his dissatisfaction with his wife by comparing her to the back of his mother, sister, or any other woman within the prohibited degrees of relationship. In such cases, the wife acquires the right to refuse cohabitation with her husband and may seek judicial divorce.

Formalities of Talaq 

•  Capacity:  A Muslim husband of sound mind and of legal age can pronounce talaq. He does not need to provide a reason. Talaq from a minor or someone of unsound mind is invalid. However, a lunatic can pronounce talaq during a lucid interval. A guardian cannot pronounce talaq for a minor husband. If an insane husband has no guardian, a Qazi or judge can dissolve the marriage in his interest. Talaq can be revoked by resuming cohabitation or sexual intercourse before the iddat period ends.
•  Free Consent:  Except under Hanafi law, the husband's consent to pronounce talaq must be free. Under Hanafi law, talaq pronounced under compulsion is valid. However, talaq pronounced under forced intoxication is void. Under Shia law and other Sunni schools, talaq pronounced under compulsion or undue influence is void.
•  Formalities:  According to Sunni law, talaq can be oral or written. No specific formula is required; any expression indicating the husband's desire to end the marriage is sufficient. Witnesses are not necessary. Shia law requires talaq to be pronounced orally in the presence of two witnesses. If pronounced in writing, it is void.
•  Express Words:  The words of talaq must clearly indicate the husband's intention to dissolve the marriage. Ambiguous pronouncements require proof of the husband's clear intention to end the marriage.

Divorce by Mutual Agreement: Khula and Mubarat 

•  Khula:  Khula is a form of divorce by mutual consent where the wife compensates the husband. It is based on the Quranic principle that a woman can ransom herself if the couple fears they cannot uphold marital obligations. Khula signifies the spouses shedding each other like garments. In legal terms, it represents an agreement to dissolve the marriage with the wife offering compensation from her property. While consideration is essential, the actual delivery of property is not a prerequisite for khula's validity. Once the husband consents, the divorce is irrevocable, and he cannot cancel it on the grounds of non-payment of consideration. Consideration can be anything, typically the mahr, in whole or part, but it must not be illusory.
•  Mubarat:  Mubarat is characterized by the mutual desire of both parties to divorce. The proposal for mubarat can come from either side. Among Sunnis, mubarat terminates all mutual rights and obligations. Shia law is stricter, requiring both parties to genuinely find the marriage burdensome. While Sunnis do not specify a form for mubarat, Shias insist on a proper form, with the word mubarat followed by talaq, and the pronouncement in Arabic unless the parties cannot pronounce Arabic. The intention to dissolve the marriage must be explicitly expressed. In both khula and mubarat, the divorce is an act of the parties, and court intervention is unnecessary. The wife must observe the iddat period in both cases.

Divorce at the Instance of Wife 

•  Khul or Khula:  Khul, meaning "to put off," is a form of divorce initiated by the wife when both spouses are unwilling to fulfill the rights and obligations of marriage. In this case, the wife offers some property to the husband in exchange for Khula. It is also referred to as Talaq-ul-bain. Only a major and sound-minded wife can obtain Khula, or in the case of a minor, her guardian can exercise Khula on her behalf. Once the husband consents to the Khula, it becomes irrevocable. Khula can be granted in consideration of dower as well. The wife has the right to withdraw the proposal of Khula before the husband accepts it; otherwise, it becomes irrevocable. While some textbook writers discuss Khul under 'Divorce by Mutual Consent,' it is more appropriate to categorize it as divorce at the instance of the wife since the desire to separate originates from her and she must convince her husband to agree by offering consideration.
•  Judicial Divorce (Turkaf/separation):  Judicial divorce, known as Turkaf or separation, is based on the Koranic injunctions of Prophet Muhammad. In cases of dispute between husband and wife, it is advised to refer the matter to two impartial Muslim arbitrators, one from each family, who will assess the possibility of reconciliation, and their decision will be binding on both parties. Ameer Ali stated that when the husband engages in conduct that makes married life intolerable for the wife, neglects her, or fails to fulfill matrimonial duties, the wife has the right to file a complaint before a Kazi or judge and seek divorce. Before the Dissolution of Muslim Marriage Act, 1939, Indian courts granted divorce to the wife only on two grounds: Lian and Apostasy.
•  Lian:  Lian involves the husband making false accusations of unchastity or adultery against his wife, which constitutes character assassination. In such cases, the wife is entitled to seek divorce on the grounds of Lian. It is important to note that only a voluntary and aggressive charge of adultery made by the husband, if false, would grant the wife the right to obtain a divorce decree based on Lian. If the husband retaliates with accusations of infidelity in response to the wife's bad behavior, his allegations cannot be used by the wife as a false charge of adultery, and divorce under Lian will not be granted. This principle was established in the case of Nurjahan v. Kazim Ali by the Calcutta High Court.
•  Apostasy:  Apostasy refers to either renouncing Islam or converting to a religion other than Islam, which is considered an offense under Muslim law. Apostasy can be express or implied, but it serves as a valid ground for the dissolution of marriage. Under the Dissolution of Muslim Marriage Act, 1939, apostasy of the husband leads to the immediate dissolution of marriage. If the wife marries during the idda period, it is not an offense. If a Muslim wife of another faith reconverts to her original faith, the marriage is immediately dissolved. The apostasy of a Muslim wife does not result in apostasy.

Dissolution of Muslim Marriages Act, 1939 

The Dissolution of Muslim Marriages Act, 1939, was introduced by Qazi Mohammad Ahmad Kazmi in the Legislature on April 17, 1936, and became law on March 17, 1939. It was later amended in 1959 and is applicable to all Muslims in India, regardless of sect or school.

 Grounds for Divorce Under the Act 

•  Missing Husband (Section 2(1)):  If a husband has been missing for four years, his wife can petition for divorce. The court requires the names and addresses of potential legal heirs to the husband, and if no one has information about the missing husband, the court may issue a decree after six months. If the husband reappears before this period, the decree can be set aside.
•  Neglect or Failure to Provide Maintenance (Section 2(2)):  A wife can seek divorce if her husband has failed to maintain her for two years. The husband's obligation to maintain his wife is dependent on her fulfilling her matrimonial duties. If the wife lives separately without justification, she may not be entitled to maintenance.
•  Imprisonment (Section 2(3)):  A wife can seek divorce if her husband is sentenced to imprisonment for seven years or more. The right to divorce begins when the sentence is final.
•  Failure to Perform Marital Obligations (Section 2(4)):  A wife can seek divorce if her husband fails to perform his marital obligations without reasonable cause for three years. The Act does not specify what these obligations are, but they should not fall under other grounds for divorce.
•  Impotence (Section 2(5)):  A wife can seek divorce if her husband was impotent at the time of marriage and remains so. The court must give the husband a year to potentially improve his condition before granting the divorce.
•  Insanity, Leprosy, or Venereal Disease (Section 2(6)):  A wife can seek divorce if her husband has been insane for two years, suffers from leprosy, or has an incurable venereal disease. The Act does not specify whether the conditions must be curable or incurable.
•  Child Marriage (Section 2(7)):  A wife can repudiate a marriage arranged by her father or guardian before she turned fifteen, provided the marriage was not consummated and she repudiated it before turning eighteen.
•  Cruelty (Section 2(8)):  A wife can seek divorce if her husband treats her with cruelty, habitually assaults her, associates with women of ill-repute, attempts to force her into an immoral life, disposes of her property, obstructs her religious practices, or fails to treat her equitably if he has multiple wives.

Irretrievable Breakdown as a Ground for Divorce in Muslim Law 

Divorce based on the irretrievable breakdown of marriage has been recognized in Muslim law through judicial interpretation. In the case of Umar Bibi v. Md. Din (1945), the court denied a divorce despite claims of extreme incompatibility. However, in Neorbibi v. Pir Bux (1971), the court granted a divorce on the grounds of irretrievable breakdown.

In modern Indian Muslim law, two grounds for breakdown divorce are:

•  Non-payment of maintenance  by the husband, regardless of the wife's conduct.
•  Total irreconcilability  between spouses.

Divorce by Mutual Consent in Muslim Law 

• Khula  : This is a type of mutual consent divorce initiated by the wife. In Khula, the wife seeks to end the marriage, and it is considered an act of the parties without the need for court intervention.
•  Mubarat  : In Mubarat, both parties mutually agree to dissolve the marriage. The proposal for divorce can come from either party. Among Sunnis, Mubarat ends all mutual rights and obligations, while Shia law requires both parties to genuinely find the marriage burdensome. Unlike Sunnis, Shia law insists on a proper form for Mubarat.
•  Irrevocability  : Both Khula and Mubarat are irrevocable forms of divorce. After either type of divorce, the wife must observe the idda (waiting period).
•  Differences between Sunnis and Shias  : Sunnis do not have a specific form for Mubarat, while Shias have stricter requirements. In both sects, Mubarat and Khula do not require court intervention.

Conclusion

• In contrast to the Western world, where divorce was uncommon until modern times, and the modern Middle East with low divorce rates, divorce was prevalent in the pre-modern Muslim world.
• Historical records, such as those by Al-Sakhawi in 15th century Egypt, indicate high rates of remarriage and divorce in medieval Islamic societies.
• In contemporary practice, divorce in many Muslim countries can be complex, involving secular procedures.
• Women’s rights in divorce vary significantly, with men often having greater ease in initiating divorce. In some regions, like Yemen, women face substantial legal and financial hurdles in seeking divorce.
• However, there is a growing movement advocating for more liberal interpretations of Islamic divorce practices, challenging traditional norms.

 In 15th century Egypt, Al-Sakhawi recorded the marital history of 500 women, the largest sample on marriage in the Middle Ages, and found that at least a third of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with many marrying three or more times.