Muslim Divorce: Types And Procedure

Published on 05 May 2017 by Team

Marriages are based on the belief of them subsisting, but in some circumstances when it is not possible to live a happy married life, it can be ended by the husband or wife. Muslim law in India is based on the idea of saving marriage rather than ending it. However, in some occasions, this evil becomes a necessity, because when it is impossible for the parties to the marriage to carry on their union with mutual affection and love, it is better to allow them to get separated than compel them to live together in an atmosphere of hatred and disaffection. One of the ways to end marriage tie is divorce.

The basis of divorce in Islamic law is the inability of the spouses to live together rather than any specific cause (or guilt of a party) on account of which the parties cannot live together. A divorce in Islam may be either by the act of the husband or by the act of the wife. The best Muslim Law lawyers in India can be hired to get a divorce in Islam. There are two types of divorce under the Muslim law, which will be discussed hereafter:

Types Of Muslim Divorces

Judicial Divorce

Judicial divorce is a formal separation between husband and wife where there is no direct role of husband or wife but court separates them according to established custom or law. In such cases, divorce does not depend on the will and pleasure of the husband. Top divorce lawyers in India can be consulted to file a judicial divorce in Islam.

Under Muslim Marriage Act, 1939 the legislature has made provisions for the divorce on the application of wife or husband. There are several grounds in which judicial divorce can be pronounced. Grounds on which a female can claim divorce under this act are:

  1. Whereabouts of the husband are not known,
  2. Failure to maintain for a period of two years.
  3. When husband sentenced to imprisonment.
  4. Failure to perform marital obligations.
  5. Impotency
  6. Insanity, leprosy or virulent venereal diseases.
  7. Repudiation of marriage.
  8. Cruelty.
  9. False accusation of adultery.
  10. Conversion of the spouse to another religion.

Extra-Judicial Divorce

Extra-judicial divorce is when it depends upon the will of husband or wife or when it is by mutual agreement. There are different rights provided to wife and husband. Generally, rights to give divorce are given to husband only, the wife is at very lower pedestal regarding the right to divorce but Dissolution of Muslim Marriage Act, 1939, wife has also been provided with some rights. Extra-judicial divorce is divided into several parts:

  1. By Husband- Talaq, Ila and Zihar.
  2. By Wife- Talaq-i-Tafweez, Lian.
  3. By Mutual Agreement- Khula and Mubarak.
  4. By Husband

Talaq

In Muslim Law, it means freedom from the bondage of marriage and not from any other bondage. In the legal sense, it means the dissolution of marriage by husband using appropriate words. In other words, talaq is the repudiation of marriage by the husband in accordance with the procedure laid down by the law. When the husband exercises his right to pronounce divorce, technically this is known as talaq. The best Muslim Law Advocates in India can be consulted to understand the concept of divorce in Islam.

The most remarkable feature of Muslim law of talaq is that all the schools of the Sunnis and the Shias recognize it differing only in some details. The absolute power of a Muslim husband of divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in modern India. All that is necessary is that the husband should pronounce talaq; how he does it when he does it, or in what he does it is not very essential.

According to Sunni law, a talaq may be oral or in writing. No specific formula or use of any particular word is required to constitute a valid talaq. Any expression which clearly indicates the husband’s desire to break the marriage is sufficient. It need not be made in the presence of the witnesses. According to Shias, talaq must be pronounced orally, except where the husband is unable to speak. If the husband can speak but gives it in writing, the talaq is void under Shia law. Here talaq must be pronounced in the presence of two witnesses. The words of talaq must clearly indicate the husband’s intention to dissolve the marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage.

This express divorce where husband pronounce that “I have divorced thee” is divided into two categories:

  • Talaq-i-Sunnat: It is considered to be in accordance with the dictator of prophet Mohammad. It has two forms:
    • Ahasan: It consists of a single pronouncement of divorce made in the period of tuhr (purity, between two menstruations), or at any time if the wife is free from menstruation. The husband must abstain himself from intercourse for the period of iddat. The requirement that the pronouncement is made during a period of tuhr applies only to oral divorce and does not apply to talaq in writing. The advantage of this form is that divorce can be revoked at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may be effected expressly or impliedly. Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says “I have retained thee” the divorce is revoked. Resumption of sexual intercourse before the completion of the period of iddat also results in the revocation of divorce.
    • Hasan: In this, the husband is required to pronounce the formula of talaq three times during three successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be made after the interval of a month or thirty days between the successive pronouncements. When the last pronouncement is made, the talaq becomes final and irrevocable. It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during the period of tuhr.

Example: W, a wife, is having her period of purity and no sexual intercourse has taken place. At this time, her husband, H, pronounces talaq, on her. This is the first pronouncement by express words. Then again, when she enters the next period of purity, and before he indulges in sexual intercourse, he makes the second pronouncement. He again revokes it. Again when the wife enters her third period of purity and before any intercourse takes place H pronounces the third pronouncement. The moment H makes this third pronouncement, the marriage stands dissolved irrevocably, irrespective of iddat.

  • Talaq-i-biddat: Instantaneous divorce, or triple talaq, that was struck down by Supreme Court. Three times saying talaq without any iddat period. Not permitted, experts say, by either the Quran or by Hadith (sayings of Prophets). This practice goes back to the 8th century, and the Hanafis, one of four Sunni schools, wanted it recognised, but it never was. In fact, even the Hanafis call it "sinful form of divorce" but "good in law"
  • ILA: In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve. The best Muslim Law Attorneys in India can be hired to understand the concept of divorce in Islam.
  • ZIHAR: In this mode, the husband compares his wife to a woman within his prohibited relationship e.g, mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period, Zihar is complete. After the expiry of the fourth month the wife has following rights:
    • She may go to the court to get a decree of judicial divorce.
    • She may ask the court to grant the decree of restitution of conjugal rights.
      Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek a judicial divorce. It can be revoked if:
    • The husband observes fast for a period of two months, or,
    • He provides food at least sixty people, or,
    • He frees a slave.

Divorce In Islam By Wife

Talaq-i-Tafweez

Also known as delegated divorce (recognized among both, the Shias and the Sunnis). The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently. A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated.

It should be noted that even in the event of a contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of contingency does not result in automatic divorce.

Lian

If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for a divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian.

Muslim Divorce By Mutual Agreement

Khula

A Muslim woman has a right to ask for a divorce if she does not desire to live with her husband even where he is not at fault. It may be dissolved by an agreement between the husband and the wife called khula. In accordance with the terms and conditions between the husband and the wife, the wife may agree to relinquish part or whole of her dower amount or any other benefit that may be agreed upon between the two. Once the offer is accepted by the husband it operates as an irrevocable divorce. However, a woman may not compel her husband to give her divorce under khula and even a suit to that effect is not maintainable in law. 

It is only the husband or his agent who may agree to khula and neither the court nor the qazi is competent to do it. Once a khula has been accepted by the husband and affected, the husband has no power to cancel it on the ground that the consideration has not been paid and his remedy is to sue the wife for it.

Mubarat 

Mubarat is also a form of dissolution of a marriage contract. It signifies a mutual discharge from the marriage claims. In mubarat the aversion is mutual and both the sides desire separation. Thus it involves an element of mutual consent.

In this mode of divorce, the offer may be either from the side of wife or from the side of the husband. When an offer mubarat is accepted, it becomes an irrevocable divorce ( talaq-ul-bain) and iddat is necessary.

Muslim law favours more husband than wife when it comes to divorce. Husband has been given more powers to dissolve the marriage in their own instances. Triple talaq is one of the worst forms of talaq where uttering of words by husband three times would result in the dissolution of marriage and wife has no remedy against unreasonable use of such right but this form or Triple-Talaq had been declared unconstitutional by Supreme Court. Under an agreement, the wife may divorce her husband either by Khula or Mubarat. Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery, insanity or impotency of the husband.

Even with the advent of such legislation wives are not on the same pedestal with husband. They have not been provided same right so due to such procedure, it is always unfavourable to wife. On the instances of the delegated power of divorce, Faizee observes,“this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India”.

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