Introduction of the Grounds for Dissolution of Muslim Marriage: – Let us first define marriage under Muslim law in order to comprehend the procedures of divorce. Under Muslim law, the only criterion for divorce (dissolution of marriage) is marriage. Divorce is the legal term for the end of a marriage.
Marriage definition
Marriage is defined differently in numerous religions,
According to the H.M.A. of 1955, marriage is a religious ritual.
Marriage is a contractual arrangement relationship between two parties as per Muslim law. All of the fundamental ingredients for a contract are actually present in Muslim Marriage. There’s a proposal, acceptance, agreement, consideration, and the parties’ capacity, etc.
The following are the objectives of this type of marriage:
Sexual intercourse should be made legal.
Children’s procreation.
Marriage is a religious ceremony under Muslim law, according to the privy council in Shoharat Singh v Jafri Begum. In Islam, marriage is considered as the pillar of the community. Marriage is an institution that enhances man’s progress and ensures the continuity of human civilization.
As per Muslim law, there are two methods for dissolving a marriage:
Divorce
Talaq
In ordinary life, the above two words are identical and it’s used alternatively; but under Muslim law, an individual who seeks “divorce” is bound by the provisions of the Dissolution of Muslim Marriage Act, of 1939. Muslim personal laws, on the other contrary, implement “Talaq” proceedings.
Dissolutions of Marriage By Husband
Dissolutions of Marriage are classified in many ways.
A marriage can be ended in a number of distinct ways under Muslim law.
A husband has four options for ending the marriage:
Talaq ul Sunnat
This form of talaq is efficient and effective, as per the Prophet’s traditions. It is additionally divided into two sections:
Ahsan
It is widely regarded as the finest form of talaq, as the name implies. The procedure that the husband follows is as under:
He must proclaim a talaq in a single phrase, and he should do it while his wife is free of her menstrual period).
If a husband participates in any form of sexual intercourse during the iddat period, it is considered an indication of talaq revocation. It is significant to mention that once the iddat period has ended, the divorce is effective.
Even if the couples haven’t yet consummated their relationship, talaq-e-Ahsan can be pronounced even when the wife is menstruating.
Hasan
Divorces pronounced in Hasan form are acceptable but also less valued than those uttered in Ahsan form since the Arabic context Hasan is good. The husband must make 3 successive pronouncements for divorce.
Such three utterances must be delivered in three successive states of purity (tuhrs) in the circumstance of a menstruating wife.
In the situation of a non-menstruating, the declaration should be given at three successive 30-day intervals.
No sexual relations must take occur throughout these three pronouncements, and if it does, the dissolution procedure will be terminated.
Talaq Hasan becomes irreversible on the third pronouncement, regardless of the iddat term.
Talaq-ul- Biddat
This form of talaq was established by the “Umayyads” in order to avoid the rigidity of the legislation. As per the Hanafis, this is a sinful kind of talaq. Sunni law recognizes this manner of talaq, although it is also recognized as immoral. Shias and Malikis, on the other hand, do not accept this method.
“Talaq, talaq, talaq” is a tuhr consisting of three pronouncements uttered in a single utterance or in consecutive sentences.
A single pronouncement obviously reveals an intention to terminate a marriage and considers it irrevocable. It is generally pronounced, “I divorce thee permanently.”
Couples who have been divorced by triple talaq are not able to remarry without the woman marrying another person and divorcing him, a practice known as Nikah Halala.
The apex court of India has ruled in the Shayara Bano case . that the practice of triple talaq is unlawful because it violates the basic right guaranteed by Art. 14 of the Indian Constitution.
ila
Ila is the situation where a mentally capable and mature husband promises in God’s name not to have sexual intercourse with his wife and then leaves her to perform iddat.
If the partner continues sexual relations during the iddat period, the Ila will be terminated. Ila isn’t really prevalent in India.
Zihar (injurious Assimilation)
To be competent to use this procedure of divorce, a husband should be mentally competent and above the age of 18. The wife has the choice to deny sexual relations with him if her husband compares her to his mother or any of the women within prohibited degrees. Such a rejection might be tolerated till he has expiated himself from the penance mandated by law. Muta marriages (common among Shias) that allow for no other type of divorce may be ended through zihar.
This type of divorce is no longer in practice.
Talaq by wife
Divorce is granted by the wife, using the husband’s conferred authority.
Talaq-e-tafweez
It’s the only method for a woman to divorce her husband; nevertheless, such authority must be delegated solely by the husband. It is a form of arrangement made before or after a wedding that stipulates that the wife has the option to divorce her partner if the following conditions are met:
If the man marries a second time
For a specific period of time, the husband is not able to support her financially, or any other requirement that is not adverse to social policy. If the husband follows the conditions of the arrangement, the wife may end her marital ties without violating the law.
The mere fact that the man delegated power to the wife doesn’t really deprive him of his power to pronounce talaq.
Divorce (talaq) by Mutual Consent
Although the practice of obtaining separation and divorce by mutual agreement/consent was not recognized in Muslim law, Muslim women were able to do so after the enactment of the Dissolution of Muslim Marriages Act in 1939.
Khula
Khula literally means “to lay down” before the court. The husband asserts his right over his spouse. It denotes a mutual decision to cease a conjugal relation in consideration for compensation given by the woman to her husband from her assets, including all that can be offered as dower.
Khula is a mutually agreed-upon divorce in which the wife decides to offer her partner certain consideration. It’s essentially a “redeemer” of the marriage contract.
Essentials elements
- There has to be some sort of offer from the wife’s perspective.
- In exchange for a monetary benefit, the husband should accept the offers.
- The iddat period should be observed.
- The husband can’t rescind the divorce once it is granted as per Shia law, however, the wife has the opportunity to retrieve the consideration within the iddat period.
Mubarat
It denotes the mutual dissolution of the marital ties. The most important factor is that both couples must agree to the dissolution of the marriage.
In this form of divorce-
- Either party can make an offer.
- Accepting the offer makes the divorce final.
- It is important to have an iddat period.
- Parties can dissolve their marriages under Shia law if they are unable to continue their marriage through Mubarat.
- The last possibility for dissolution of marriage is judicial separation.
Dissolution of Muslim Marriage Act, 1939.
Furthermore, there are two options:
Lian
It is basically when the man accuses his partner of adultery. When a husband wrongly accuses his wife of adultery, she has the right under the Act to prosecute him and obtain a dissolution of marriage decree on the same reasons, by filing a regular dissolution of marriage suit.
Essentials
- A husband has to be mature and sensible.
- He falsely accuses his wife of adultery.
- Such an allegation should be erroneous.
- False allegations do not end the marriage ipso facto; instead, they act as a framework for the woman to seek divorce from the husband.
- Until the court executes a decree of divorce, the marriage shall continue.
- The separation of the judiciary through the mechanism of lian is irreversible.
- This form is only relevant to Sahih weddings, not fasid weddings.
- Before the conclusion of the trial, the husband may retract his accusation of adultery against her, confessing that he made the charge but that it was erroneous.
Faskh
According to the Quran, married couples have an obligation to respect each other, treat each other politely and respectfully, and follow all authorized directions of each other.
If they both realize they can’t live as a married couple any longer, they can approach a qazi, who may dissolve their marriage after a thorough evaluation.
Section 2 of the act,
Mention grounds on which a Muslim woman can obtain a (divorce) dissolution of marriage decree.
Husband’s Absence
For the previous 4 years, the husband’s whereabouts have been not known. The divorce decree for this reason will enter into force 6 months after it is delivered, and if the husband presents in person or through a legal representative during that period, the decree will be null and void. If the court is satisfied, the ruling may be set aside.
Inability to maintain
If a husband refuses to fulfill his wife’s maintenance for 2 years. There is no justification available to spouses based on poverty, deteriorating health, or unemployment.
Husband’s Incarceration
If the husband is imprisoned for at least seven years.
Failure to fulfill marital responsibilities
If the partner has been unable to perform his marital commitments for 3 years without sufficient excuse.
Impotency
At the time of the wedding, the husband was and still is impotent. If the spouse establishes to the Court that he is no longer impotency within 1 year of the date of the decree for dissolution of marriage which is obtained by the wife on the reasons of impotency on a petition. If the husband complies with the court’s requirements, no order will be made on this grounds.
Venereal Disease, Insanity or Leprosy
The woman may seek judicial divorce if her man has been insane or has had leprosy or any other venereal ailment for more than 2 years.
The wife’s repudiation of the marriage
If a girl gets married before the age of 15 by her parents or guardianship, she has the power under Muslim law to dissolve the wedding once she attains the age of 18. For the same reason, she is legally entitled to separation and divorce.
A married woman is also entitled to a divorce on the basis of legal grounds recognized by Muslim personal law.
Husband’s Cruelty
If her partner abuses her, she has the right to file a petition in the court for a judicial separation solely on the aforementioned grounds.
The following grounds for cruelty.
- Physical assault.
- Making false and defamatory statements about her that seriously harm her status.
- She is forced to live a socially repugnant life.
- prohibiting her from practicing her faith.
- When a husband has multiple wives, he doesn’t really treat them similarly.
In Shayara Bano’s case
According to numerous notable academics, “this practice of talaq-e-biddat (unilateral triple-talaq), which basically treated women as commodities, is neither consistent with modern ideals of fundamental rights and gender equality, nor an intrinsic element of the Islamic faith”. Muslim women have been subjected to such heinous practices that treat them as chattel, infringing their rights guaranteed by Articles 14, 15, 21, and 25 of the Constitution. The practice also wreaks devastation on the existence of many divorced women & their children, particularly those from lower-income families.”
There have been numerous examples in high courts and the Supreme Court where the court has declared the immediate triple talaq unconstitutional.
In Shamim Ara v. State of Uttar Pradesh, the court stated: The appropriate Talaaq law, as prescribed by the Holy Quran, is as follows:
There should be valid grounds for the divorce.
Divorce should be followed by attempts at mediation between a married couple by two arbitrators. If the efforts fail, divorce will be the only option.
The apex court declared in August 2017 that Triple Talaq was “inconsistent with the constitution.” The Muslim Women (Protection of Rights on Marriage) Bill, 2017, was introduced by the government of Modi & passed by the Lok Sabha on Dec 28, 2017. The bill makes instant threefold (talaq-e-biddat) in whatever form expressed, recorded as a hard copy, or via electronic technologies like mail, SMS, and WhatsApp invalid and void, with the husband facing up to 3 years in imprisonment.
However, one of the main objections to the proposed legislation has continuously been its recognition of a common infraction as a cognizable & non-bailable offence.
Talaqnama
it is talaq given in the written form. Talaq by talaqnama can be given in the absence of the wife, and it is not required to be signed in the presence of the Qazi or the wife’s father.
Conclusion
Considering the apex Court’s 2017 judgment declaring triple talaq unconstitutional, both husband & wife have an equal legal right to dissolve their marriage under Muslim law.
When two individuals marry, they might well not know each other as they did after living together for a period of time. After that, if the two are incompatible, it is preferable to stay apart.
In Muslim law, unlike Hindu law, talaq is an old ritual that is not recognised as n sinful act.
