The Concept of Divorce under Muslim Laws
Dissolution of marriage in Muslim law is a wide concept covering several formats of dissolving the bond. The phenomenon encircles judicial as well as extra-judicial forms as mentioned in personal law. It also segregates the condition to take divorce between husband and wife.
Muslim marriage can also be dissolved through mutual consent by performing khula or mubarat. Additionally, there are several legislations namely the Dissolution of Muslim Marriage Act, 1939, Muslim Women (Protection of Rights on Divorce) Act, 1986, and Muslim Women (Protection of Rights on Marriage) Act, 2019 that contains provisions for divorce.
Kinds of Divorce under Muslim Laws
By Husband
- Ila: It is a form of revocable divorce until the Iddat period. The husband by his will is allowed to renounce any further cohabitation with his wife. The herein before renouncement is termed as a form of talaq under Muslim and results in the dissolution of marriage. The consent of the wife is not required in this format of talaq.
The abovementioned procedure can be revoked if the husband resumes sexual intercourse with the wife. After the Iddat period is over, the talaq becomes irrevocable.
- Zihar: The form of divorce requires the majority and soundness of the husband while undergoing the procedure. In this form of divorce, the husband compares the wife with a female to a prohibited degree. He pronounces that the wife is equal to his mother or sister from the pronouncing date.
The wife can approach the court for a remedy consisting decree of restitution of conjugal rights or resistance to cohabiting. The wife is not entitled to approach the court of law for a decree of divorce on the aforementioned grounds. The husband can revoke the declaration by two months of fasting and feeding sixty people.
- Talaq:
- Talaq – ul – Sunnat:
- Ahsan: It is the most practised form of talaq. In Ahsan, the husband pronounces talaq a single time during the time the wife is not undergoing the Tuhr period. The husband cannot cohabit during the Iddat period and if the husband and wife resume sexual intercourse before the Iddat period, the divorce becomes revocable. After the Iddat period, the pronouncement becomes irrevocable.
- Hasan: In the said form of divorce, it entirely depends upon the husband’s will and the period. He has to declare divorce in three consequent tuhr periods. There must be an interval of thirty days in three announcements. Husband can revoke divorce before wife enters into Iddat period.
- Ahsan: It is the most practised form of talaq. In Ahsan, the husband pronounces talaq a single time during the time the wife is not undergoing the Tuhr period. The husband cannot cohabit during the Iddat period and if the husband and wife resume sexual intercourse before the Iddat period, the divorce becomes revocable. After the Iddat period, the pronouncement becomes irrevocable.
- Talaq – ul – Biddat: It is known as the most sinful divorce in Muslim law. The husband without rendering any reason to his wife declares talaq in three consequent statements which are also known as triple talaq. The Shia and Maliki Schools of Muslim Law do not appreciate this format of dissolution of marriage.
A husband can remarry only after his wife performs nikah halal. The concept of nikah halal stands for the wife remarrying another man and then pronouncing divorce.
The type of divorce was declared unconstitutional in the year 2019 in the matter of Shayra Bano vs. Union of India & Ors.
By Wife
Talaq – e – Tafweez:
The wife does not have several swords in the case of dissolution of marriage in Muslim law. It is a form of agreement between both spouses in which the husband delegates the right to take a divorce to his wife.
In case the husband does not comply with the conditions of the agreement, the wife can declare divorce. The abovementioned agreement requires the majority and soundness of the husband. Agreement of delegation does not deprive the husband of his right to declare divorce.
By Mutual Consent
- Khula: In this form of talaq the husband with his consent entrusts the right to undergo divorce to his wife. The wife pays off the amount to her husband from her property for releasing her from the marriage. The wife renounces her right to Mehr and several other rights. The wife is required to observe her Iddat period after declaring khula.
- Mubarat: It is a form of a proposal of releasing rights over each other and acceptance of the former condition from another spouse. Both of the spouses renounce the performance of conjugal rights.
Dissolution of Muslim Marriage Act, 1939
- Lian:
If a husband puts false imputation of adultery on his wife, she can approach the court for a decree of dissolution of marriage. It can only be performed if the allegation is proven to be false. If the husband is willing to prevent the decree of dissolution of marriage, he must withdraw his allegation upon the wife before the pronouncement of the decree.
- Faskh:
A Muslim wife can file a petition for divorce under Section 2 of the aforementioned acts on the conditions mentioned below:
| S. No. | Condition | Duration |
| 1. | The wife is unaware of the whereabouts of the husband | 4 years |
| 2. | The husband failed to maintain the wife | 2 years |
| 3. | Sentence for the imprisonment of the husband | 7 years |
| 4. | Husband failed to perform conjugal rights and marital obligations without ascertaining the reasonable cause | 3 years |
| 5. | Impotency of husband | – |
| 6. | Insanity, Leprosy and Virulent Diseases | Insanity – 2 years |
| 7. | A wife married below the age of 15 years can repudiate before attaining the age of 18 years | – |
| 8. | Cruelty or act affecting the reputation of a wife by a husband | – |
Muslim Women (Protection of Rights on Divorce) Act, 1986
After the landmark verdict in Shah Bano vs. Md. Ahmed Khan, the court opined that maintenance can be entrusted to the wife even after the Iddat period.
Additionally, section 125 of the Code of Criminal Procedure was asserted as a religion-neutral law. After the abovementioned precedent, an act namely the Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed. This act disentitled Muslim women from demanding maintenance after Iddat Period.
The provision of this act was challenged in Danial Latifi vs. Union of India in the year 2001, in which the said condition of the disentitling women from maintenance after the Iddat period was pronounced unconstitutional and against Articles 14 and 15 of a Muslim woman.
Muslim Women (Protection of Rights on Marriage) Act, 2019
Section 3 of the aforementioned act states that the declaration of triple talaq on wife by husband in any manner (including electronic), by words either spoken or written, is void or illegal.
Section 4 of the aforementioned act states that the pronouncement is punishable with imprisonment extendable to 3 years or shall be liable to a fine.
Section 5 provides the right to Muslim women to ask for maintenance for themselves and their children born out of wedlock.
Section 6 asserts that divorced Muslim women are entitled to seek custody of their minor child.
by Khushi Shukla
Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of Adjuva Legal and Adjuva Legal does not assume any responsibility or liability for the same.
