Divorce under the Muslim Law: A Blessing in Disguise

Author: Sagrika Joshi

3rd Year LL.B (3 Year)
BVDU, New Law College, Pune

1. INTRODUCTION

In India, people believe that marriages are a match made in heaven. Marriage is considered a union of two families. They are considered a lavish affair where loads of money are being spent just for society’s validation. The father of the bride is, in most cases, burdened by the thought of spending a huge amount of money on his daughter’s wedding just for the sake of impressing society. Can money really buy contentment or love, or both?! The father who has spent all his life’s reserves on his daughter’s wedding is shaken when she informs him that it’s not working between her spouse and her. Parents always wish for the best for their child but little do they know that impressing society wouldn’t be helpful, at all. Divorce is a way out of the cage of a marriage when things get suffocating. Divorce was announced for the safety of helpless women who are ill-treated by their husbands. People believe that divorce is the end of everything and there’s no meaning of life after obtaining a divorce from the spouse but divorce is the key to start over.

2. COMMON REASONS FOR DIVORCE

(i) DOWRY

Dowry has been illegalised in India for 59 years now but the transfer of property, money and gifts in the name of the bride’s husband is still a culture In India. In few parts of the country, people don’t even report the cases of dowry and accepting and giving dowry is considered a tradition which needs to be fulfilled by the bride’s father for the protection of his daughter in her husband’s home. Dowry is considered of special importance in society. Dowry is a punishable offence in India under the Indian Penal Code.

(ii) DOMESTIC VIOLENCE

Domestic violence refers to the physical abuse faced by the wife at the hands of her husband or his family members. A wife is entitled to obtain a divorce on the grounds that she has faced domestic violence in her maternal home either by her husband or her in-laws. The Protection of Women from Domestic Violence Act, 2005 and Section 498a of the Indian Penal Code were brought into effect to ensure the security and safety of women in her husband’s home. When such kind of violence is faced by the wife, she is entitled to file a petition for divorce in the Court of appropriate Jurisdiction.

(iii) ADULTERY

The party can file for a divorce on the ground that after the solemnisation of the marriage, the spouse has had voluntary sexual-intercourse with another person other than the husband/wife. Adultery should be a voluntary act for obtaining divorce, if the sexual intercourse has been obtained fraudulently or by inducement without the consent of the husband/wife, then it would not amount to adultery. It was established in Changamunga vs. Lianpuri, AIR 1988 that mere intimacy would not amount to adultery, sexual intercourse (voluntary) must have taken place between the two individuals.

(iv) DESERTION

Desertion means that the spouse has wilfully abandoned the other party without any just and reasonable cause for a continuous period of 2 years.

3. DIVORCE UNDER THE MUSLIM LAW

Before the year 1939, it was almost impossible for a Muslim wife to obtain divorce from her husband. Section 2 of the Dissolution of Muslim Marriage Act, 1939 has laid down grounds on which a decree for divorce is obtained under the Muslim Law. The Dissolution of Muslim Marriage Act,1939 has made it possible for the Muslim wives to file for a decree of divorce.

Grounds for decree of divorce by a wife are mentioned hereunder: –

(i)  the wife is unaware about the whereabouts of her husband for a period of four years;

(ii) the husband has failed or has neglected to provide his wife her maintenance for a period of two years;

(iii)  the husband is put behind the bars as a prisoner for a period of seven years and upwards;

(iv) for a period of three years, the husband has failed to perform his matrimonial obligations;

(v)   at the time of the marriage, the husband was impotent;

(vi)  for a period of two years, the husband has been suffering from insanity or a virulent venereal disease;

(vii) the wife having been given in wedding by her father or other guardian before even attaining the age of fifteen years, repudiated the marriage before attaining the age of eighteen years considering that the marriage wasn’t consummated;

(viii) that the husband treats his wife with cruelty: –

(a) habitually assaults his wife or makes her life miserable by conducting cruelty even if such conduct of cruelty does not amount to physical ill-treatment, or;

(b) the husband gets involved with women of evil repute or chooses to lead an immoral life, or;

(c) forces the wife to live an immoral life, or;

(d) disposes the wife’s property and stops her from exercising her rights over the property, or;

(e) obstructs his wife in the observance of her religious profession or practice, or;

(f) if he is married to more than one woman and doesn’t treats her equally in accordance with the injunctions of the Quran;

(ix) any other ground which is considered valid under the Dissolution of Muslim Marriages under the law; Provided that: –

(a) no decree shall be passed on the basis of ground (iii) until and unless the sentence has become final;

(b) a decree passed on the basis of ground (i) shall not take effect for at least six months, and if the husband or his authorized agent come before the Court within this period and agrees to perform his matrimonial duties, the Court shall set aside the decree if it is satisfied;

(c) the husband has to satisfy the court within a period of one year that he has ceased to be impotent. No decree shall be passed on the basis of ground (v) if the husband files an application before the Court and satisfies it.

4. TALAQ BY HUSBAND

A Muslim husband who is of sound mind has the right to divorce his wife by a way of merely pronouncing it even without stating any reason for the same. The divorce is also considered valid if the pronunciation is made in the wife’s absence or to address it to her directly. The only requirement is that the pronunciation should be made known to her.

Under the Sunni Law, a divorce pronounced under the compulsion of intoxication or fraud is also considered effective but is considered to be void under Shia Law.

Talaq can be made effective either orally or by writing on a document which is known as “TALAQNAMA”. Under the Sunni Law, there is no need for the presence of witnesses at the time of pronouncement of talaq. On the other hand, under the Shia law, the pronouncement must be made in the presence of two competent witnesses.

Different forms of Talaq:

(i) TALAQ-UL-SUNNAT

This form of talaq means as sanctioned by Sunnat or by the traditions laid down by the Prophet. This consists of two types: –

(a) TALAQ AHSAN: –

The word ‘AHSAN’ is an Arabic word which literally means ‘BEST’. It is considered valid only when it is done orally and not in the written form. The husband is supposed to make a single pronouncement during the period of purity or tuhr (between two menstruation, or anytime, when the wife is free form menstruation). A talaq is also considered effective, when the marriage between them has not been consummated, even when the wife is menstruating. The husband is required to not get involved in sexual intercourse during the period of iddat. If before the completion of the Iddat period, the Husband starts residing with the wife, the divorce will be revoked.

(b) TALAQ HASAN:

‘HASAN’ is also an Arabic word which means ‘GOOD’. In this form of talaq, the husband is required to pronounce talaq three times during the successive tuhrs. The husband should not get involved in sexual intercourse until the final pronouncement. The Talaq becomes final and irrevocable when the last pronouncement is made.

(ii) TALAQ-UL-BIDDAT

Talaq-ul-biddat also referred to as talaq-i-badai, is a disapproved form of talaq. This form of talaq is not recognized under the Shia Law. This is commonly known as Triple Talaq. The Hon’ble Supreme Court in the case of Shayara Bano v. Union of India declared the practice of triple talaq as unconstitutional because it is the violation of Article 14 of the Constitution of India.

5. TALAQ BY WIFE

(i) TALAQ-E-TAFWID

This form of talaq is also known as “DELEGATED DIVORCE”. Under the Muslim Law, the husband has the power to delegate his own right of pronouncement of divorce to some third person or to his wife. This is a potent weapon which is in the hands of a Muslim wife given to her by her husband. The agreement can be made either before or after the wedding stating that the wife can pronounce divorce under certain conditions which are valid and not opposed by under the Muslim Law. This power can be delegated either conditionally or absolutely, for a particular period or permanently. A permanent delegation can be revoked but a temporary delegation is not revokable.

(ii) ILA

Ila is a form of divorce in which the wife is entitled for a divorce by a judicial process. In this form of talaq, the husband takes a vow to abstain himself from having sexual intercourse with his wife for a period of four months and not less than four months. The wedding between them dissolves irrevocably after the expiry of four months.

(iii) ZIHAR

The wife is entitled to refuse herself to her husband when he compares his wife with a woman within his prohibited relationship, for example: – his mother or his sister. The husband makes a statement that form today, his wife is like his mother or his sister.

In this case,

  1. the husband has to make proper atonement which can be done by “manumission” (labor), or:
  2. feeding 60 people, or;
  3. fasting for two months

The wife, in this case, has the right to approach the court to obtain an order for her husband to perform a penance or to give her a regular divorce. The wife has the right to refuse cohabitating with her husband till he performs penance. The wife gets a right to judicial divorce if the husband refuses to perform penance.

(iv) LIAN

Under the Islamic Law, Adultery is considered a very grave offence. When the Muslim husband accuses his wife with the offence of adultery and that charge is false, the Muslim wife has the right to seek divorce on that ground. It does not mean that there is an immediate termination of their wedlock. The marriage is continued until the decree has been passed by the Court.

In the case of Mh. Ebrahim Qureshi v Hazrabai, the Hon’ble Bombay High Court has laid down three conditions for a valid retraction which are as follows: –

  1. the husband must confess that he has accused his wife of the offence of adultery;
  2. the husband is supposed to admit that this charge against his wife was false;
  3. before the end of the trial, the husband must make retraction.

 

6. DIVORCE BY MUTUAL CONSENT

(i) KHULA

Khula is a divorce by mutual consent and at the instance of the wife. A muslim wife aggrees to pay a consideration to her husband for her release from the wedlock. The wife may release her mahr and other rights or make arrangements which will benefit her husband.

The essential features of Khula are mentioned hereunder: –

  1. the offer must be made by the wife to her husband;
  2. the offer must be accompanied by some sort of compensation or consideration by the wife;
  3. the husband must have accepted the offer made to him.

 

Once the offer has been accepted, it is operated as a single irrevocable divorce which is known as “TALAQ-E-BAIN.” After Khula, the wife is bound to observe the period of Iddat.

If the wife fails to pay the consideration to the husband, that does not invalidate their divorce. Although, the husband has the right to sue her. The wife must satisfy the court that it is a hateful union between them and she should not be forced into it.

(ii) MUBARAT

Mubarat means Release. It is a more liberal and progressive form of talaq in which both the parties desire a separation. Without the intervention of the court, a bilateral agreement takes place between the husband and the wife. The husband agrees to pay both mahr and maintenance to his wife. In this form of talaq, any party can make the proposal for separation and the aversion is mutual.

7. LEGAL EFFECTS OF DIVORCE

  1. If the marriage was consummated between the husband and the wife, the wife has to observe iddat on obtaining divorce.
  2. The wife is free to remarry after iddat period, or immediately after iddat if the wedding was not consummated between them.
  3. The husband must maintain the wife during the period of iddat.
  4. If the husband has four wives including the divorced wife, he cannot marry a fifth wife.
  5. The dower becomes immediately payable to the wife if the marriage was consummated.

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