DIVORCE [ Muslim Marriages]
New Delhi : ADVOCATE SYED AJMAL HASAN ; The nature of a Muslim marriage is of a contract . Muslim marriages are governed by personal law. That is, parties can ask for marriage at any time by breaking marital obligations and beating their rhythm according to their personal law. In Muslim law, wives cannot divorce their husbands on their own terms, they can divorce only if their husbands have given them the right to do so under an agreement. However, the legislature has granted statutory rights to Muslim women under the Muslim Women Disputes Act, so that they can divorce their husbands under the Muslim Marriage Separations Act 1939.
Hence there can be two broad categories, under which divorce / talaq can be divided under Muslim law. They are: Additional judicial divorce or talaq under Muslim personal law.
Judicial divorce occurs when it depends on the will of the spouse or when it is by mutual agreement. The wife and husband have been granted separate rights. Usually, the right to divorce is given only to the husband, the wife is at a very low level regarding the right to divorce. Judicial divorce is divided into several parts:
Husband can take – Talaq-ul-Sunnah, Talaq-ul-Biddat, Ila and Zeehar
Wife can take – talaq-e-tafweez, lian and open
Husband and wife can get by agreement – mutual
- Husband can take –
- (a) Talak-ul-Sunnah: -Talak-ul-Sunnah is also known as Talak-ul-Raje. This is a model of talaq, because in this form, talaq results do not become final simultaneously. There is a possibility of compromise and reconciliation between the spouses. Talak-ul-Sunnah is considered to be the accepted form of Talak. This method of talaq has been recognized by Sunnis as well as Shias.
Talak-ul-Sunnah can be pronounced either in Ahsan or Hassan form. (i) Process to be adopted: –
This is the most appropriate form of marriage. The reason is twofold: First, there is a possibility of canceling the utterance before the end of the Iddat period. Secondly, the bad words of talaq are spoken only once. Being an evil, it is preferred that these words are not repeated. Procedure to be followed in Ahsan talaq
- The husband has to do the same pronunciation of talaq during the wife’s tuhara. The period of equality of your wife is the period between two periods. For example, the period of Tuhr is the period during which cohabitation is possible. But if a woman is not subjected to menstruation, either because of old age or because of pregnancy, a talaq can ever be pronounced against her.
- After this single utterance, the wife has to observe an idat of three monthly courses. If she is pregnant at the time of conception, it will occur until the delivery of the child. There should be no repeal of talaq by the husband to finalize talaq during the period of Iddat. When the period of Iddat ends and the husband does not cancel the talaq either explicitly or through consumption, the talaq becomes immutable and final. However during the period of Iddat the husband may cancel the talaq. Revocation may be express or implied. Cohabiting with a wife is an inherent representation of talaq. If cohabitation occurs even once during this period, the talaq aborts and it is assumed that the husband has reconciled with the wife. (ii) Hassan-procedure to be followed: –
This talaq is also considered a proper and accepted form of talaq. In this form also, there is a provision for cancellation. But this is not the best mode because bad words of talakh are to be pronounced three times in a row. Procedure to be followed in Hassan talaq
- The husband is required to make a declaration of talaq during the period of तु tuhar.
- In the next tuhar, there is another single accent for the second time.
- If no abrogation is done after the first or second declaration, the last is to pronounce the husband in the third period of holiness (tuhar). As soon as this third declaration is made, the talaq becomes irreversible and the marriage is dissolved and the wife has to follow the required Iddat.
The wife follows the Iddat period only after the third utterance and the third declaration cannot be made after any revocation. In Hassan talaq the repeal can only be done between the first and second declension during the Tuhar and the pronunciation of 2 and 3 at the second time.
Talak-ul-Biddat is also known as Talak-ul-Ben. This is the unapproved method of divorce. A peculiarity of this talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of harmony between the parties, making it irreversible. This form of talc is mainly recognized and practiced by Sunni Muslims and is not recast by Shia Muslims. The talaq-ul-biddat is probably evident either in single declaration or by triple declaration.
(i) Single declaration
Procedure to be followed: –
The husband can make only one declaration in the period of purity that expresses his intention to divorce the wife irrelevantly: “I divorce you” or “I divorce you in ban”. After pronunciation the talc becomes irreversible and permanent. After this period the wife follows the Iddat period.
(ii) Triple declaration
Procedure to be followed: –
The husband may make three declarations in the period of piety (tuhar): “I divorce you, I divorce you, and I divorce”. He can also announce his triple talaq in one sentence: “I divorce you three times”, or “I recite my first, second and third talaq.” It becomes irreversible immediately when pronounced and later the wife follows the Iddat period
However it should be noted that Talakh-ul-Biddat has been declared unconstitutional by the Hon’ble Supreme Court in Shaira Bau v. Aniyo (2017) 9 SCC 1 of India, in which the court stated that “this form of talaq is manifestly Is “in the sense that a marital relationship can be settled by a Muslim man without any effort, in order to save it.” Therefore, this form of talaq should be considered a violation of the 393 Fundamental Right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, as the triple talc seeks to recognize and enforce, is within the meaning of the expression “law in force” in Article 13 (1) and to the extent being struck down as void needed. It recognizes and implements the triple talaq “
Subsequently, the Government of India has passed a law banning triple talaq and punishing any husband with imprisonment of up to 3 years.
In Ila, the husband vows not to have intercourse with his wife. After this oath, there is no consumption for a period of four months. After the end of the fourth month, the marriage is completely dissolved. But if the husband starts cohabiting within four months, Ila is annulled and the marriage is not dissolved.
In the case of Sunnis, such conduct of the husband would amount to a single irrevocable divorce, which would automatically dissolve the marriage at the end of 4 months.
In the case of Shias the amirage does not automatically dissolve but it gives the wife the right of judicial divorce u / s 2 (ix) of the dissolution of the Muslim Marriage Act 1939.
In this mode, the husband compares his wife to the woman within his forbidden relationship, such as mother or sister etc. The husband used to say that from today onwards the wife is like her mother or sister. After such comparisons the husband does not cohabit with his wife for a period of four months. At the end of the said period, the jihar is completed. After the end of the fourth month, the wife has the following rights:
She can go to court to decide judicial divorce.
He can ask the court to decide the restoration of constitutional rights.
The husband wishes to revive Jahanar, resuming cohabitation within the said period, but the wife cannot seek a judicial divorce. It can be canceled if:
The husband fasts for a period of two months, or
He provides food to at least sixty people, or
He frees a slave.
Ila and Jihar divorce methods are almost non-existent in India. However, leon is sometimes resorted to. If a man accuses his wife of adultery (zina), but is unable to prove the accusation, the wife has the right to contact Qazi for dissolution of marriage. In India, a regular lawsuit has to be filed. Once such a lawsuit is filed by the wife, the husband has the option to withdraw his charge of adultery, which will cause the lawsuit to fail. However, if she persists, she is required to take four oaths in support of the charge. The wife takes four oaths of her innocence, after which the court announces the dissolution of the marriage. This is the process of dissolution of marriage by Lian “
- Wife can take: – (a) Talak-e-Tafweez
It is known as the representative form of divorce and is recognized between both Shias and Sunnis. The Muslim husband is free to delegate his power to divorce his wife or any other person. He can delegate power to absolute or conditional, temporary or permanent. A permanent delegation of power is redundant but not a temporary delegation of power. This delegation should be made explicitly in favor of the person to whom the power is delegated, and the purpose of the delegation should be clearly stated. Any agreement before or after marriage, provided that the wife will be at liberty to divorce herself under certain specific conditions, provided the conditions are reasonable and do not contradict public policy.
It should be noted that even in the event of a contingency, whether or not the power is to be exercised depends on the wife whether she chooses it or not. The occurrence of a contingency event does not result in automatic divorce. (b) Open
Opening is a form of divorce with the consent of the wife and at her own instance in which she agrees or agrees to give some consideration to the husband for his release / redevelopment from the marital bond. The following conditions are required for a valid Khulla:
- There should be an offer from the wife.
- She gives or agrees to give consideration to the husband for his release
- Acceptance of proposal by husband. This proposal can be withdrawn by the wife at any time before the husband approves it. According to Muslim personal law, both husband and wife have been given 3 days time by various jurists. The moment the offer is accepted by the husband, it stands as a single irrevocable divorce i.e. the marital relationship ends the moment the husband accepts the offer.
- It is also known as Mubarat by the Mutual Agreement. Mubarat is also a form of dissolution of a marriage contract. It indicates mutual discharge from claims of marriage. Mubaraat has a mutual bond and the two sides desire to separate. Thus it contains an element of mutual consent. In this mode of divorce, the offer can be either on behalf of the wife or on behalf of the husband. When an offer of Mubarak is accepted, it becomes an irreversible divorce and Iddat is necessary. Judicial Divorce A formal between husband and wife
Isolation is where the spouse has no direct role but the court separates them according to established practice or law. In such cases, divorce does not depend on the will and happiness of the husband. Under the dissolution of the Muslim Marriage Act, 1939, the legislature has made a provision for divorce on the application of the wife. There are several grounds in which a judicial divorce can be pronounced. Under the Act, women can claim divorce on the grounds: eg, husband’s whereabouts are not known, failure to maintain for a period of two years, when husband is sentenced to imprisonment, failure to perform marital obligation , Impotence,
Insanity, leprosy or prostate disease, duplication of marriage, cruelty
, False accusation of adultery, conversion of husband or wife to another religion.
A. A .Jagjab vs R. Ziauddin (2007) DMK In the 365 litigation, the court observed that the husband and wife were living separately for 12 years and the marriage relationship between them was completely broken, so the court granted the decree of separation under section 2 (ix) of the Act.
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