Various Modes of Divorce under the Muslim Law

By Chesta Bamel

Abstract:

Family is a set of persons who are non professionally related to each other and the marriage is the thread which connects all those family members, especially children. But, is it possible to break that thread? The answer is yes, is can be, with the help of divorce. The pattern of divorce has developed from time to time, especially in Muslim law. This article is all about the types of divorce under Muslim law.

Introduction:

Under Muslim law, marriage is a contractual relationship between two parties.^[1] All the essentials like offer, acceptance, consent, consideration, etc. are required for a contract under the Muslim law. The main purpose behind such form of marriage is to legalize the sexual intercourse and for the procreation of children. And if any of the parties doesn’t wish to stay in a marriage, then he/she could seek a decree of divorce.

The first thing after hearing the term divorce comes to our mind is that, what is the actual meaning of divorce? Divorce (also known as dissolution of marriage) is a process of terminating a marriage or a marital bond.^{^[2]} It can also be defined as “the process of cancellation of the legal duties and responsibilities of spouses in a marriage.” There are several modes of divorce under Muslim law, which are discussed below.

Types of Divorce under the Muslim law:

There are basically two modes of divorce under Muslim law, i.e., Divorce and Talaq. The Dissolution of Muslim Marriage Act, 1939, governs the divorce, whereas Talaq is governed by the Muslim Personal Laws.

Dissolution of Muslim Marriage Act, 1939:

There are two ways of dissolution of marriage under the Dissolution of Muslim Marriage Act, 1939 and these are:

Lian: It is defined as “the wrong charge of adultery on wife by her husband.” Under this situation, a wife can sue her husband and can obtain a divorce on the ground of false adultery. In case of Zafar Husain V. Unnat-ur-Rahman,^{^[3]} the High Court of Allahabad held that, a wife can file a suit against her husband for the dissolution of marriage and can obtain a decree of divorce on the ground of false charges of adultery against her.
Faskh: Section 2 of the Dissolution of Muslim Marriage Act, 1939^[4] states nine grounds that gives a right to wife to get a divorce. And those grounds are:
When a husband is missing from past 4 years.
If a husband fails to maintain his wife continuously for 2 years.
If a husband is not able to perform his marital duties for 3 years.
If a husband in mentally not stable or suffering from any venereal disease.
Is a husband is imprisoned for 7 years or more.
If a husband was impotent at the time of marriage.
If a person treats his wife badly or treats her with cruelty, then she has a right to approach the court and can claim for judicial separation.
If a girl is married at the age 15 or less, after the consent of her father or guardian, then, according to Muslim law, she has a right to repudiate such marriage after she attains the age of majority i.e., 18 years. She has a right to get a decree of divorce for the same.
Wife has a right to obtain a decree of divorce on the grounds recognized by Mohammedan law.^{^[5]}

There are other ways of divorce under Muslim law and these are:

Divorce by the husband,
By wife, and
By Mutual consent.

Divorce by Husband:

There are four modes of divorce by husband under Muslim law:

Talaq-ul-Sunnat: It is also known as Talaq-ul-raje. In this type of talaq, the consequences of Talaq don’t become final at one stage. There is still a possibility of compromise between the couple. This mode is recognized by both the Sunnis and Shias. This can be further classified into two forms:
Ahasan: To take such divorce, the person has to make a pronouncement of divorce in a single sentence in a state of purity (when a woman is free from menstrual cycle) and the husband must not indulge in any form of sexual intercourse with his wife.
Hasan: Hasan is an Arabic word which means good, therefore the divorce through Hasan is considered as good, but it’s less worthy than the one pronounced in Ahasan.
Talaq-ul-Biddat: This was introduced by ‘Umayyads’ in order to escape from the strictness of law.^[6] This mode is recognized by the Sunnis. In this mode, the husband has to utter the word Talaq three times in order to get separated, and the partners separated through triple talaq cannot remarry without the formality of woman marrying another man and getting divorced from him, this process is called “Nikah Halala”^{^[7]}

But, in Shayara Bano V. Union of India and Ors.^{^[8]} Case, the practice of triple talaq got unconstitutional, declared by the Honorable Supreme Court of India, because triple talaq was violating the Fundamental Right of Article 14 of the Constitution of India.^[9]

Zihar: If a husband compares his wife with his sister or mother, then the husband according to this law, is prohibited to cohabit with the wife for four months, and after the completion of the time period, the wife has a right to go to court to file a decree of judicial separation on the basis of that ground.
Ila: It is also called the “vow of continence”.^[10] India doesn’t practice Ila. It is a situation wherein a husband (who is of sound mind and above the age of 18) swears in the name of God, that he’ll not have sexual intercourse with his wife and leaves her to observe iddat. This process is called Ila.

Divorce by wife:

Talaq-e-tafweez: It was the only way through which a wife could give a divorce to her husband under Muslim law. It is a kind of agreement which is made by either of the party, before or after the marriage, providing that the wife will be privileged to get a decree of divorce from her husband in case, if the husband marries the second wife and if the husband is unable to maintain the wife for a specific time period.

Divorce by mutual consent:

The practice of divorce by mutual consent was not mentioned in Muslim law, it was only available to women only after the enactment of Dissolution of Muslim Marriages Act, 1939.

Khula: The meaning of Khula is “to lay down”, which means the husband lays down his rights over wife. It is an arrangement in order to dissolve a communal connection in respect of compensation paid by the wife to her husband.^[11] Is a mutual consent divorce under which a wife has to agree to give some consideration to the husband. In order to get this divorce, there must be an offer by the wife and that offer must be accepted by the husband for consideration.
Mubarat: It means “mutual discharge from the marital tie.”^[12] The important essentials to get a divorce by mutual consent is offered from any side, acceptance of that offer which makes the divorce irrevocable and Iddat is necessary. After the acceptance of offer of divorce, it becomes irrevocable from the side of husband, but the wife can revoke it.

Suggestion and conclusion:

“The family is a unit of interacting persons related by ties of marriage, birth or adoption, whose central purpose is to create and maintain a common culture which promotes the physical, mental, emotional and social development of each of its members.” by Duval

Family is necessary for the development of children and also for the development of social ethics. But sometimes relationships doesn’t work between the husband and the wife. Divorce works as a medium for their separation. Divorce is an ancient practice, previously it was considered as not good for the society. But nowadays, this practice has increased because of bad relationships and these relationships are spoiling the lives of couples. Less compatibility could be one of the main reasons for divorce. And when we talk about Muslim law, the right of divorce was given to the husband only, but the time has changed. Now, wife can also seek a decree of dissolution of marriage through various modes which were discussed above.

^[1] Subodh Asthana, Talaq under Muslim Law, blog ipleaders, https://blog.ipleaders.in/muslim-law-divorce/.

^[2] Kiruthika Dhanpal, Annulment of Marriage under Hindu Law, LegalserviceIndia, http://www.legalservicesindia.com/article/1700/Annulment-of-Marriage-under-Hindu-Law.html.

^[3] 49 Ind Case 256.

^[4] Dissolution of Muslim Marriage Act, 1939 § 2.

^[5] Subodh Asthana, Talaq under Muslim law, blog ipleaders, https://blog.ipleaders.in/muslim-law-divorce/.

^[6] Ibid

^[7] Dec. 11, 2020, Explain various Modes of Divorce under Muslim Law. When Talaq become Irrevocable? Law Corner, https://lawcorner.in/explain-various-modes-of-divorce-under-muslim-law-when-talaq-become-irrevocable/#Nikkah_Halala.

^[8] (2017) 9SCC 1.

^[9] INDIA CONST. art. 14.

^[10] The concept of divorce under Muslim Law, LegalserviceIndia, https://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html.

^[11] Supra note i

^[12] Supra note x