CONCEPT OF DIVORCE IN MOHAMMEDAN LAW

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INTRODUCTION

Among almost all the nations of antiquity, divorce was regarded as a natural corollary or marital rights. Roman, Herbews etc. all had divorce in one form or the other form. Even though the provision of divorce was recognized in all religions. Islam is perhaps the first religion in the world which has expressly recognized the termination of marriage by way of divorce.

Prophet Mohammad restrained the power of divorce. Divorce was regarded by the Prophet to be the most hateful before Almighty God of all permitted things; for it prevented conjugal happiness and interfered with the proper building up of children. Prophet gave the power to the women the right obtaining separation on reasonable grounds. 

How can a marriage be dissolved between Muslim couples?

Under the Muslim Law, a marriage is dissolved

  1. By the death of the husband or wife – After the death of a wife the husband can remarry immediately, but the widow cannot remarry before the iddat is observed (Certain specified period must be observed by a woman after the death of her husband or after a divorce, during which she may not marry another man). 
  2. or By divorce.

CLASSIFICATION OF DIVORCE

Divorce under Muslim law can be given by four ways :

  1. 1. By husband – The husband can give divorce by
  2. A. TALAQ – Talaq in its original sense means repudiation or rejection but under Muslim Law, it means release from marriage tie, immediately or eventually. It is a generic name for all kinds of divorce; but is particularly applied to the repudiation by on or behalf of husband.

Talaq by a Muslim husband can be further classified into the following kinds:

  1. a. Talaq-ul-Sunnat – It is a kind of talaq which conforms to the traditions of the Prophet and is more approved by Muslims. It is classified into 2 kinds which are:
    1. (i) TalaqAhsan – It consists of a single pronouncement of talaq in the period of ‘tuhr’ or purity i.e. when the wife is free from her menstruation course. It is followed by abstinence from sexual intercourse during the period of tuhr and whole of the Iddat period. Iddat is the period during which a wife is prohibited from re-marrying after the dissolution of the first marriage. TalaqAhsan is considered to be the most approved form of talaq as it is revocable during the period of Iddat. The husband may revoke the talaq by express words or by conduct including the resumption of sexual intercourse.
    2. (ii)TalaqHasan – TalaqHasan is also an approved form of talaq but lesser approved compared to talaqAhsan. It consists of three successive pronouncements of talaq which are made by the husband during three consecutive periods of Tuhr (purity). During each Tuhr period, no sexual intercourse must have taken place else the pronouncement made during that period shall not be considered as valid. In a case where the wife has crossed the age of menstruation, the three pronouncements have to be made at successive intervals of 30 days. When the last pronouncement has been made, the talaq becomes final and irrevocable.
  • b. Talaq-ul-Biddat – It is a sinful and disapproved form of talaq among Muslims. It is not recognized by Shias. Talaq-ul-biddat consists of three successive pronouncements of talaq made in a single Tuhr and these 3 pronouncements may also be made in a single sentence. Hence, it is commonly known as triple talaq.

In ShayaraBano vs. Union of India and others, [1] the Hon’ble Supreme Court of India declared the practice of triple talaq to be unconstitutional being in violation of Article 14 of the Constitution of India.

B. ILA –  Vow of Continence

When the husband has attained the majority and is of sound mind, swears by god that he would not have sexual intercourse with his wife and leaves the wife, to observe Iddat he is said to make Ila. Thus, if a husband says to his wife, ‘I swear by God, that I shall not approach thee’, it is said Ila.

Ingredients of Ila

  • The husband must be of sound mind and must have attained  majority .
  • He swears by God or takes a vow.
  • That he will not have sexual intercourse with his wife.
  • In pursuance of the vow he abstains from sexual intercourse with his wife for four months or more.

In BibiRehana v. Iqtidar-uddin[2] after the marriage ceremony was over, the parents of the boy pushed him into the room where his wife was waiting for him. It appears from the facts of the case that the husbands was not interested in the marriage. Immediately, after entering into the room he took a vow in presence of his wife that he would never have sexual intercourse with her. Soon after giving the statement he came out of the room and repeated the vow in the presence of his mother and mother’s sister. His father then came out of another room and he once more repeated the vow. The Court refused to accept the version of the husband. The Court said that the husband has failed to establish that there had been a divorce in the Ila form.

C. ZIHAR (Injurious Assimilation)

If the  husbandwho is sane and adult compares his wife with his mother, sister or any other female within a prohibited degree by making a declaration to this effect, the wife has a right to refuse herself to the husband untill he has performed penance. If the husband refuses to undergo the atonement process, the wife can approach the court for seeking regular divorce.

Muta marriage which admits no other sort of divorce may be dissolved by Zihar.

Penance prescribed by law

  • Freeing a slave,
  • Fasting for two months,
  • Feeding sixty poor persons

Legal effects of Zihar

  • Sexual intercourse becomes unlawfull
  • Husband is rendered liable to expiation by penance
  • The wife can claim judicial separation if the husband persists in wrong doing
  • 2. Talaq-i-Tafweez – Muslim law permits the husband to delegate his power of giving talaq to any third person or to the wife herself. Such delegation of power is called Tafweez.  This form of talaq is considered as one of the most potent weapons in the hands of a Muslim wife to obtain divorce without court intervention.

An agreement made before or after the marriage providing that the wife would be at liberty to divorce herself from her husband under certain specified conditions  such as the husband marries a second wife or fails to maintain her for a specified period etc.

Provided–  Firstly, that the option is not absolute and unconditional

Secondly, that the conditions are reasonable and not opposed to public morality

 In Manjula Bibi v. Noor Hussain[3]the petitioner divorced her husband when she was ill-treated by her husband. The power of divorce was delegated to her by her husband before the Muslim Marriage Registrar. The husband refused to pay the maintenance and dower to the wife when claimed by her under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Court held that the power to pronounce primarily belongs to the husband but may be delegated either absolutely or conditionally. The wife in the instant case was a divorced women and it cannot be said that the marriage was still subsisting as no specified contingencies had taken place.

3. Talaq by Mutual Consent-

Muslim law also recognises divorce/talaq by mutual consent of the parties. It is of 2 kinds:

a. Khula – Khula is a right of divorce purchased by the wife from her husband. It means a divorce at the wife’s instance in lieu of which she agrees to give some consideration to the husband for her release from the marriage tie. In such case, the husband shall have the right to sue the wife for payment of the consideration agreed upon. Since Khula takes place at the wife’s instance, it is not a divorce by mutual consent in the true sense.

Essentials of Khula –

  1. There must be an offer from the wife
  2. The offer must be accepted with the consideration (evaz) for the release.
  3. The offer must be accepted by the husband

If Consideration is unpaid – The divorce does not become invalid and the husband has a right to claim the consideration, because as soon as an offer for Khula is accepted it becomes an irrevocable divorce and the wife is bound to observe Iddat.

b. Mubarat – Mubarat means release. It involves divorce by mutual consent of both parties. Either party may make the offer of divorce and once an offer has been accepted by the other party, the divorce becomes irrevocable and iddat is necessary.

In the case of both Khula and Mubarat, the divorce is irrevocable and marital life cannot be resumed by re-conciliation without a formal re-marriage. In both cases, once the divorce has been effected, the wife is required to undergo period of Iddat.

In Juveria Abdul Majid Patni vs. AtifIqbalMansoori[4], the Hon’ble Supreme Court held that “if the wife does not want to continue with marital tie and takes mode of ‘Khula’ for dissolution of marriage, she is required to propose her husband for dissolution of marriage. This may or may not accompany her offer to give something in return. The wife may offer to give up her claim to Mahr (dower). The ‘Khula’ is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return.

4. Talaq by Judicial Process-

Dissolution of Muslim Marriages Act 1939:

This Act may be regarded as a landmark in respect of matrimonial relief to a Muslim wife. Prior to the passing of this Act theWife’s right of divorce was denied due to misinterpretation and misconception of Islamic law by the courts, was restored to her under the Act. This Act contains certain groundson the basis of which a wife married under Muslim law, may file a petition fordivorce[5]. on any one or more of the following grounds, namely:-

  • The Husband is missing for four years[6]–  The husband is deemed to bemissing if the wife or any such person, who is expected to have knowledge of the husband, isunable to locate the husband. But a decree passed under this ground will not take effect for a period of six months from the date of such decree. If the husband appears either in person or through an authorized agent within the period of six months and satisfies the Court for his will to perform the conjugal duties, the Court must set aside such decree[7] .
  • Failure to maintain [8] – If the husband has neglected or has failed to provide her maintenance for a period of two years, a married Muslim women can obtain a decree for the divorce. Ahusband may fail to maintain his wife either because he has no means toprovide her maintenance or he neglects her. The result would be the same in both the cases. If the wife lives separately without any reasonable excuse, she is not entitled to get aJudicial divorce on the ground of husband’s failure to maintain her because her own conductdisentitles her from maintenance under Muslim Law[9].
  • Imprisonment of the husband[10] – If the husband has been sentenced to imprisonment for a period of seven years or upward,  the wife is entitled to decree of the Court for Divorce but only when the sentence is final.
  • Failure to perform marital obligations without reasonable cause for a period ofthree years[11]–  The Act does not define, marital obligations of the husband. There are severalmarital obligations of the husband under Muslim law. But for the purpose of this clausehusband’s failure to perform only those conjugal obligations may be taken into account which are not included in any of the clauses of Section 2 of this Act.
  • Husband’s impotency[12]–  For getting a decree of divorce on this ground, the wife has to provethat the husband was impotent at the time of the marriage and continues to be impotent till thefiling of the suit. Before passing a decree of divorce of divorce on this ground, the court is boundto give to the husband one year to improve his potency provided he makes an application for it.If the husband does not give such application, the court shall pass the decree without delay.

In GulMohd. Khan v. Hasina[13] the wife filed a suit for dissolution of marriage on the ground ofimpotency. The husband made an application before the court seeking an order for proving hispotency. The court allowed him to prove his potency.

  • Insanity, leprosy or Veneral Disease[14] -If the husband has been insane for a period of two years or is suffering from leprosyor a virulent venereal disease the wife may claim for a Judicial Divorce.

  The Virulent disease may not be two years old it may recent. It may not be curable. The husband’s insanity must be for two or more years immediatelypreceding the presentation of the suit. But this act does not specify that the unsoundness of mindmust be curable or incurable. Leprosy may be white or black or cause the skin to wither away. Itmay be curable or incurable. Moreover even if this diseasehas been infected to the husband by the wife herself, she is entitled to get divorce on this ground.

  • Option of Puberty by wife[15]  – This ground for the dissolution of marriage is not based on any, fault of the husband. It is an independent provision under which a marriage is voidable at the option of the wife. This clause gives a Muslim wife a option to repudiate the marriage before attaining the age of eighteen years, provided the marriage has not been consummated.
  • Cruelty by the husband[16] – Judicial Divorce may be claimed by Muslim wife if the husband treats her with cruelty. For ex – assaults her, forces her to lead an immoral life, obstructs her in her religious practice etc.

In Syed Ziauddin v. Parvez Sultana[17], Parvez Sultana was a science graduate and she wanted to take admission in a college for medical studies. She needed money for her studies. SyedZiaudddin promised to give her money provided she married him. She did. Later she filed fordivorce for non-fulfillment of promise on the part of the husband. The court granted her divorceon the ground of cruelty. Thus we see the courts attitude of attributing a wider meaning to theexpression cruelty.

In Zubaida Begum v. Sardar Shah[18], a case from Lahore High Court, thehusband sold the ornaments of the wife with her consent. It was submitted that the husband’sconduct does not amount to cruelty.

  • Ground of dissolution recognized by Mohammedan Law[19] –  Section 2 (ix) a residuary clause under which a wife may seek dissolution of her marriageon any ground which could not be included in this section, but is recognized under the Muslimpersonal law. This clause covers Ila, Zihar, Khula, Mubarat and Tafweez.
  • LIAN (false charge of adultery) – When a husband charges his wife of adultery and his charge is false, the wife is entitled to sue or obtain for divorce.

Features of Lian –

  • Husband (sane and adult) charges his wife of adultery.
  • Such charge is false.
  • She must file a regular case an application is not enough.
  • Lian is applicable only to valid marriages and not to irregular.
  • Judicial Separation due to Lian is irrevocable.
  • Termination of Marriage through FASKH (cancellation of marriage) – Faskh means cancellation, abolishment, recision, annulment. Before passing of Dissolution of Muslim Marriage Act, 1939 there was no piece of legislation  under which a Muslim lady could ask for the dissolution of marriage. Muslim ladies could only apply for the dissolution of their marriages under the Doctrine of Faskh.

LEGAL CONSEQUENCES

Whatever be the mode, a divorce operates as a complete severance of the matrimonial relationship between husband and wife. After completion of every form of divorce, the marriage is dissolved and the parties cease to be husband and wife.

Effects or the legal consequences of a divorce are given below:

  1. Cohabitation becomes illegal.
  2. Iddat has to observed by the wife. The wife becomes entitled to maintenance during the Iddat of Divorce but not of death.
  3. Remarriage of divorced couple is not lawful unless NikahHalala is followed i.e.
  4.  the wife should observe Iddat ,
  5.  then she should lawfully marry another man
  6.  the other marriage must be consummated,
  7.  the second husband must pronounce divorce or die
  8. The wife should observe Iddat after this death or divorce.
  9. Parties become entitled to contract another marriage.  The wife can immediately remarry if the marriage was not consummated  and when the marriage was consummated she can do so once she observes Iddat.

The husband can marry immediately but cannot have more then four wife at a time.

  • Dower becomes immediately payable. If the marriage was consummated the wife is entitled to immediate payment of the whole of the unpaid dower both prompt and deffered. If the marriage was not consummated she is entitled to the half of the amount. If no dower is prescribed she is entitled to is a present of three articles of dress.
  • Mutual rights of inheritance cease after the divorce becomes irrevocable.

CASE LAWS

Rashid Ahmad v. AnisaKhatun[20] is a leading case on this point. Briefly, the facts of this case were: Ghiyasuddin, a Sunni husband, divorced his wife AnisaKhatun irrevocably by pronouncing three Talaqs. He pronounced the Talaq under the undue influence of his parents when the wife was not present there. After sometime, the husband resumed cohabitation without formally remarrying and without adopting the special procedure.

Five children were born to them after this resumption of cohabitation. After the death of the husband, the children and the widow AnisaKhatun claimed their share in the property as heirs of the deceased. Their claim to inherit the property was challenged by Rashid Ahmad, who was brother of the deceased husband. Rashid Ahmad pleaded that after triple divorce the marriage of Ghiyasuddin and AnisaKhatun was dissolved.

In their re-marriage, the conditions prescribed by Muslim law for re-marriage of divorced couple were not followed. Since they resumed cohabitation without fulfilling these conditions, the re-marriage was void and AnisaKhatun (widow) and her children have no right of inheritance.

The Privy Council held that as there was no intermediate marriage (with another person) the bar to remarriage was not removed. The court further observed that there was no proof of any regular re-marriage; the parties simply resumed cohabitation.

In view of these circumstances, the court held that the union of Ghiyasuddin and AnisaKhatun after the triple divorce was void. The children, therefore, were held to be illegitimate and neither the children nor the widow could inherit the properties.

Khadija v. Muhammad[21] is an interesting case from Kerala High Court. The husband had divorced his wife irrevocably by three pronouncements. After a long period, the husband ‘remarried’ her under a fresh contract of marriage and took her to his house. But in the meantime, the wife had not married any other person as required under Muslim law.

After few months of this remarriage, they quarreled and the husband divorced his wife once again. But during this short period cohabitation had taken place and a child was conceived and later born. The wife claimed maintenance for this child under Section 125 of the Cr. P.C.

The husband objected her claim on the ground that his ’remarriage’ was not lawful according to the provisions of Muslim law as there was no intervening marriage with a stranger. He further argued that their union after the remarriage was adulterous and illegal union, therefore, the child was illegitimate and not entitled to maintenance.

It was held by the Kerala High Court that if there is an irrevocable divorce by three Talaqs the spouses cannot remarry without fulfilling the prescribed conditions. But if the spouses remarry (with all the required formalities of a fresh marriage) then although the prescribed condition of marriage with another person and subsequent divorce by that person has not been followed, the remarriage is not void; it is merely irregular. Children of irregular (fasid) marriage are legitimate. As such, the child was legitimate and was entitled to maintenance under Section 125 of the Criminal Procedure Code.

Written By- Surbhi Kumari

ICFAI Law School, Dehradun


[1]AIR 2017 SC 4609

[2] (1943) All 295

[3] AIR 1992 Cal 93

[4](2014) 10 SCC 736

[5]Section 2 of the Dissolution of Muslim Marriages Act, 1939.

[6]Section 2 (i) of the Dissolution of Muslim Marriages Act, 1939.

[7] Sec 2(i) read with proviso (b) of the Dissolution of Muslim Marriages Act, 1939

[8]Section 2 (ii) of the Dissolution of Muslim Marriages Act, 1939.

[9]13 RabiaKhatoon v Mukhtar Ahmad, AIR (1966)

[10]Section 2(iii) of the Dissolution of Muslim Marriages Act 1939

[11] Section 2(iv) of the Dissolution of Muslim Marriages Act 1939

[12]Section 2(v) of the Dissolution of Muslim Marriages Act 1939

[13]AIR (1988) J & k. 6.

[14]Section 2(vi) of the Dissolution of Muslim Marriages Act 1939

[15]Section Section 2(vii) of the Dissolution of Muslim Marriages Act 1939

[16]Section 2(viii) of the Dissolution of Muslim Marriages Act 1939

[17](1979) II Andh.LT 79.

[18](1943) 210 IC 587

[19]Section 2(ix) of the Dissolution of Muslim Marriages Act 1939

[20](1932) 34 BOMLR 475

[21] 1985 58 CompCas 543 ker

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