Muslim Law:- DIVORCE (TALAQ)

CHAPTER

DIVORCE (TALAQ)

INTRODUCTION

The literal meaning of divorce is an official or legal process to end a marriage. Societies such as the Romans, Hebrews, and Israelites recognized various forms of divorce. Although most religions acknowledged the concept of divorce in some form, Islam is considered the first religion to have explicitly recognized and formalized the termination of marriage through divorce.

In contrast, divorce was introduced in England only about a century ago. In India, among Hindus, the right to divorce was granted only with the enactment of the Hindu Marriage Act of 1955. Prior to this legislation, divorce was not recognized under traditional Hindu law.

Among the ancient Arabs, divorce was relatively easy to obtain and occurred frequently. This tendency has persisted, to some extent, in Islamic law, despite the Prophet Muhammad’s expressed disapproval of the practice. The Prophet is reported to have described divorce as the most detested of all permissible actions in the eyes of God, as it undermines marital harmony and disrupts the proper upbringing of children.

DISTINCTION BETWEEN TALAQ AND DIVORCE—

It is not easy to distinguish between talaq and divorce.

TALAQ (REPUDIATION)

MEANING —

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

A RESTRICTED SENSE—

in which it is confined to separation effected by use of certain appropriate words by the husband; and

A WIDE SENSE—

In this category it covers all separations for causes originating from the husband.

Talaq is an act of repudiation of marriage by the husband in exercise of his power which has been conferred on him.

CLASSIFICATION OF DIVORCE—

Under the Muslim Law, a marriage is dissolved either by the death of the husband or wife, or by divorce. Generally, both the parties to the marriage contract have an option for divorce, but the husbands right in this respect is much greater than that of the wife. The husband can dissolve the marriage tie at his will. A divorce can also take place by mutual agreement. But the wife cannot divorce herself from her husband without his consent. Marriage may also be dissolved by judicial decree under the Dissolution of Muslim Marriage Act, 1939.

In Moonshee Buzloor Rahim v. Laleefutoon Nisa, it was said that under Muslim law talaq is the mere arbitrary act of a Muslim husband who may repudiate his wife at his own pleasure with or without cause. He can pronounce the talaq at any time. It is not necessary for him to obtain the prior approval of his wife for the dissolution of his marriage.

A revocable pronouncement of talaq does not dissolve the marriage till the period of iddat has expired, but an irrevocable pronouncement dissolves the marriage immediately on its pronouncement.

CAPACITY FOR TALAQ —

In order to pronounce a valid talaq, the husband must possess the following qualifications.

SHIA LAW—

Under Shia law, every Muslim husband of sound mind, who has attained the age of puberty is competent to pronounce talaq, provided talaq is not pronounced in any form of compulsion etc., and is pronounced orally (in presence of at least two witnesses), unless the husband is unable to speak.

SUNNI LAW

Any Sunni Mohammedan of sound mind who has attained majority may divorce his wife whenever he likes by pronouncing talaq even without assigning any cause. Thus according to Sunni Law every man is capable of pronouncing Talaq who is (I) adult, and (ii) sane.

Apart from Muslim Law, the provisions of Indian Majority Act, 1875 are also applicable to Muslims.

Similarly, soundness of mind is one of the necessary ingredients for dissolving marriage.

TALAQ PRONOUNCED UNDER INTOXICATION —

A talaq pronounced under compulsion or intoxication or fraud is also effective under Sunni law but void under Shia Law.

Muslim Law on the question of talaq under intoxication is not plain. One view is that if the husband was forcibly made drunk, and has pronounced talaq, such a talaq will not take effect. Ameer Ali was of the opinion that a talaq pronounced by a person in a state of intoxication or by one labouring under a temporary stupor from the use of some practice, or any other cause is invalid. According to Shafei School, the talaq of a drunken man is not recognised by Muslim Law.’

Under the Sunni Law of schools there are jurists who are of the opinion that talaq during intoxication in any manner would not be validly effected.

On the other hand, there are jurists who hold the view that such divorce will be valid. In the case of voluntary intoxication.

Abu Hanifa and Abu Yusuf maintained that such a talaq would not be effective.

NOTE -

The guardian of a husband of unsound mind, who has attained puberty, may pronounce a talaq on behalf of the husband; if doing so is to the husband’s benefit.

ORAL OR IN WRITING —

A talaq may be affected—

I. orally (by spoken words), or

II. by a written document called Talaq-nama.

ORAL TALAQ —

The husband may give talaq by mere words without any talaqnama or deed of divorce and no particular form of words are necessary. If the words are express and well understood as implying divorce, no proof of the intention is required. If the words used are ambiguous, then intention of the user must be proved. Thus, the words ‘I have divorced thee’ or ‘I divorced my wife forever and render her haram for me’ clearly indicate an intention to dissolve the marriage and no proof of intention is necessary.

PRONOUNCEMENT OF TALAQ IN THE ABSENCE OF WIFE —

Under the Sunni Law, presence of wife or address to her is not essential.

It is not necessary for the validity of a talaq by husband that the wife should be present. The husband can pronounce talaq even in the absence of his wife. It was laid in Fulchand v. Navab Ali Choudhry, that the talaq should be deemed to have come into effect on the date on which the wife came to know of it.

PRONOUNCEMENT OF TALAQ MADE DURING DEATH ILLNESS (MARZ-UL-MAUT)

An ailing (bad in health) Muslim has been given the power to dissolve his marriage. This right is generally exercised by a man who does not want to give right of inheritance to his wife after his death.

When a man pronounces an irrevocable talaq in death illness and dies before the expiry of his wife’s iddat she is entitled to take her share in his estate unless the talaq was given at her request.

In case the husband has died after the expiry of her iddat period, she will have no right of inheritance.

TALAQ IN WRITING (TALAQ-NAMA) —

Under the Sunni Law, A talaq may be in writing and no particular form is necessary. But with the words those were used in talaqnama must have shown the clear intention. And in case of more than one wives it must have shown the name of particular wife whom he wants to divorce.

The wife’s presence is not necessary it may be signed in the presence of the Qazi or the wife’s father or any other person. A talaq whether oral or in writing may be made without witnesses. Thing without witnesses is valid under Sunni Law.

Under the Shia Law, a talaq is not effective, unless it is pronounced:

1. Strictly in accordance with the Sunnat;

2. In Arabic terms;

3. In the presence of at least two adult male witnesses;

4. With the distinct intention to dissolve the marriage tie;

5. Out of the husband’s own free will, without any restraint or pressure brought to bear upon him;

6. While sane and possessed to sound understanding; and

7. After attainment of puberty.

DIFFERENT MODES OF TALAQ —

A talaq may be effected by the husband in any of the following modes:

1. Talaq-ul-Sunnat

2. Talaq-ul-Biddat

3. Ila; and

4. Zihar

1. TALAQ-UL-SUNNAT —

It is Talaq which is effected in accordance with the traditions of Prophet It has been further sub-divided into

I. Ahsan, and

II. Hasan.

I. AHSAN (MOST APPROVED MODE OF TALAQ) —

This Arabic word ‘ahsan’ means ‘best’ or as Wilson puts it, very proper’. This signifies that the talaq pronounced in the ahsan form is very best kind of talaq. To be in ahsan form, the proceedings of divorce must satisfy certain conditions. These conditions are follows:

the husband must pronounce the formula of divorce in a single sentence

the pronouncement of divorce must be in a state of purity (tuhr); (tuhr - is a period when a woman is free from her menstrual course);

he must abstain from intercourse for the period of iddat.

When the marriage has not been consummated, a talaq in the ahsan form may be pronounced even if the wife is in her menstruation.

Where the spouses are away from each other for a long period or where the wife is beyond the age of menstruation, the condition of tuhr (purity) is not applicable.

The Quran itself says:

And the divorced woman should keep themselves in waiting for three courses and And those of your woman who despair of menstruation, if you have a doubt, their prescribed time is three months,

A pronouncement made in the ahsan form is revocable during iddat. Such revocation may be either in express words or may be implied. Cohabitation with the wife is an implied revocation of talaq. After the expiration of the iddat the divorce becomes irrevocable.

II. HASAN (GOOD MODE OF TALAQ) –

In Arabic Hasan means good.

Wilson translates it as proper.

As terms signify, a talaq pronounced in hasan form is of lesser worth than the one pronounced in ahsan form. To be in hasan form the proceedings must satisfy the following conditions:

a. There must be three successive pronouncements of the formula of divorce;

b. In the case of menstruating wife, the first pronouncement should be made during a period of tuhr, the second during the next tuhr and the third during the succeeding tuhr;

c. In the case of non-menstruating wife, the pronouncement should be made during the successive intervals of 30 days;

d. No sexual intercourse should take place during these three periods of tuhr.

The above divorce is based on the following Quranic injunctions: - Divorce may be pronounced twice, then keep them in good fellowship or let (them) go kindness ‘So if he (the husband) divorces her (the third time) she shall not be lawful to him afterward until she marries another person.

Such divorce becomes irrevocable on the third pronouncement.

1. TALAQ-UL-BIDDAT —

(Disapproved mode of talaq) —

It is sinful form of divorce.

It is the irregular mode of talaq introduced by Umayyad Caliphate in order to escape the strictness of law.

Talaq-ul-biddat is a recognised form of divorce among the Hanafis. Triple repetition is not a necessary condition for irrevocability of effect.

Sunni Law recognises talaq-ul-biddat, though they think it to be sinful.

Shias and Malikis do not recognise this form of divorce.

In order to be included in this form of divorce the following requirements are necessary.

I. Three pronouncements made during a single tuhr either in one sentence e.g., “I divorce thee thrice’ or in separate sentences e.g., “I divorce thee, I divorce thee, I divorce thee.”

II. A single pronouncement made during a tuhr clearly indicating an intention irrevocable to dissolve the marriage, e.g., I divorce thee irrevocably”.

Under the talaq once a definite complete separation has taken place parties so separated cannot remarry without the formality of the woman marrying another man and being divorced from him.

In Sarabhai v. Rabia Bai, It was said that talaq-ul-biddat is theologically improper. It has been maintained that this form of talaq is improper from the moral point of view.

In Fazlur Rahman v. Aisha, the validity of this divorce was questioned. It was argued that this type of divorce is against the Quranic Law and the Court is bound not to give effect to the rule and it also opposed to a tradition of the Prophet. It was held that the Quran verses have been differently interpreted by the different Schools.

WHEN THEY BECOME IRREVOCABLE?

1. TALAQ-UI-SUNNAT

I. TALAQ AHSAN—

becomes irrevocable on expiry of the period of iddat.

II. TALAQ HASAN—

becomes irrevocable on the third pronouncement irrespective of the iddat.

2. TALAQ-UL-BIDDAT —

It becomes irrevocable immediately when it is pronounced irrespective of iddat.

This Talaq is known as talaq-uI-bain.

When talaq is in writing it becomes irrevocable immediately.

The modes of divorce and effect of cohabitation of the divorced wife with the man and legitimacy of children born after pronouncement of talaq came to be considered by the Privy Council in the following case. Rashid Ahmad v. Anisa Khatoon, One Ghayas Uddin, pronounced the triple talaq in the presence of witnesses, though in the absence of the wife. Four days a later, the talaqnama was executed which stated that the three divorces (irrevocable divorce i.e. talaq-ul-biddat) were given. It was not proved that there was re-marriage between the parties, or intermediate marriage and a subsequent divorce after actual consummation. The husband and wife lived together and five children were born to them. Ghyas Uddin treated Anisa Khatoon as his wife and children as legitimate. As there was no intermediate marriage, the bar to remarriage created by the divorce was not removed. Keeping in view, the above-mentioned circumstances, remarriage could not be presumed and the children born after the triple divorce were held to be illegitimate.

The words I divorce Anisa Khatoon forever and render her haram for me: were repeated by Ghyas Uddin three times (talaq-ul-bain) which clearly showed an intention to dissolve marriage and it was confirmed by divorce deed. It was therefore, held that the divorce was valid one.

On the second point of revoking the divorce, Their Lordships observed” According to Hanafi law of Sunnis, Ghyas Uddin could not marry Anisa Khatoon after pronouncement to talaq unless another marriage of Anisa Khatoon had intervened. It was, therefore, held that the fact of subsequent treatment of divorced wife as wife and birth of children during the subsequent period cannot undo the divorce and make children legitimate. “Thus, the five children born after the triple divorce were held to be illegitimate.

it may be said that the Holy Quran only provides procedure for pronouncing talaq and it is emphasised that every possible attempt must first be made for reconciliation between the married couples before the completion of the prescribed period.

In order to check hasty action and leave the door open for reconciliation of many stages, the right method of pronouncing divorce is as laid down in the Holy Quran and the traditions, i.e. if and when it becomes inevitable, it should be pronounced only when she is completely free from her menstruation and is in clean state and even if a dispute arise during monthly period, it is not lawful to pronounce divorce during that period. He should wait for her to cleanse herself and then should pronounce a single divorce, if he so likes. Then the wife should be left to observe Iddat’.

Professor Tahir Mahmood has summarised the Quranic procedure of divorce in the following words:

The law of Islam says to the husband:

Talaq is worst of all permitted things” better avoid it

but if you find it necessary to have recourse to Talaq, then Wait till the wife enters the period of tuhr, i.e., when she is not in her menstrual period (this will assure that you are not acting in a haste)

during that period pronounce Talaq and do not make it irrevocable (bain) by your words

Revoke the Talaq, if possible, before the expiry of wife’s Iddat

If you have exercised your power of Talaq in this way, your behaviour has been the best,

If you do not revoke it by that time at the expiry of Iddat the marriage shall stand dissolved. Now you cannot revoke the Talak at your pleasure;

If you have revoked the pronounced for the first time, never pronounce it again since it is same “worst of all the permitted things”.

However, in case you find it necessary to pronounce Talaq once again, then Avoid it until once again wife is free from her menstrual period;

Pronounce Talaq in her tuhr (this will give you a last chance for a cool consideration);

Do not make also this second Talaq irrevocable

Try to revoke this second Talaq before the expiry of wife’s Iddat

If you do not revoke it by then, at the expiry of wife’s Iddat (after third pronouncement) the marriage will, once again, stand dissolved.

You cannot, however, contract a fresh marriage, right way, with your divorced wife, If you so desire, pay penalty of Halala and fulfil your desire,

but this you cannot do by collusion with your divorced wife and the man she remarries after Iddat, any such collusion will make penalty wholly ineffective; only if third person marries your divorced wife without any pre conditions, consummates the marriage, and then divorces her willingly and not with intention of making her available to you, with her consent you can take her back by a fresh marriage.

This is the simple procedure of divorce in Islam which is unfortunately misunderstood by the majority of Muslims themselves due to their ignorance.

TRIPLE DIVORCE AN OVERVIEW —

Triple divorce is a recognised but disapproved form of divorce and is considered by the Islamic Jurists as an innovation within the fold of Shariat, It commands neither the sanction of Holy Quran nor the approval of the Prophet.

It was also not in practice during the life time of first Caliph Abu Bakar.

Later or Hazrat Umar permitted it on account of certain peculiar situation. When the Arabs conquered Syria, Egypt. Persia, etc. they found women there much better in appearance as compared to Arabian women and hence they wanted to marry them. But the Egyptian and Syrian women insisted that in order to marry them, they should divorce to their existing wives instantaneously by pronouncing three divorces in one sitting.

The condition was readily acceptable to the Arabs because they knew that in Islam divorce is permissible only thrice in three separate period of tuhr and its repetition at one sitting is unislamic, void and shall not be effective. In this way, they could not only marry these women but also retain their existing wives.

This fact was reported to the second Caliph Hazrat Umar. The Caliph Umar then in order to prevent the misuse of the religion by the unscrupulous husbands decreed that even repetition of the word talaq, talaq, talaq at one sitting would dissolve the marriage irrevocably.

It was, however a mere administrative measure of Caliph Umar to meet an emergency situation and not to make it a law permanently. But unfortunately the Hanafi Jurists later on at the strength of this instant administrative order of second Caliph declared this form of divorce valid and also pave religious sanction to it.

At present much inconvenience is being felt by the Muslim Community, so far as this law of ‘triple divorces’ is applied in India.

SHAYARA BANO V. UNION OF INDIA (2017)

CITATION:

AIR 2017 SC 4609

Writ Petition (C) No. 118 of 2016

Decided on: 22 August 2017

BACKGROUND:

Shayara Bano, a Muslim woman, challenged the practice of Triple Talaq (Talaq-e-Biddat), Polygamy, and Nikah Halala.

She was divorced by her husband through instant triple talaq, a practice where a Muslim man could divorce his wife by saying "talaq" three times in one sitting.

She argued that this practice was:

Arbitrary

Unconstitutional

Violative of Fundamental Rights under Articles 14 (Equality), 15 (Non-discrimination), 21 (Right to life), and 25 (Freedom of religion).

LEGAL ISSUES:

1. Is Triple Talaq (Talaq-e-Biddat) constitutionally valid?

2. Does it violate the Fundamental Rights of Muslim women?

3. Is it protected under Article 25 (Freedom of religion)?

JUDGMENT SUMMARY:

Majority (3:2) Verdict: Triple Talaq is unconstitutional.

JUSTICE KURIAN JOSEPH, JUSTICE NARIMAN, AND JUSTICE LALIT (MAJORITY)

Held that Triple Talaq is not essential to Islam.

Violates Article 14 (Right to Equality).

Deemed arbitrary and thus, unconstitutional.

CHIEF JUSTICE KHEHAR AND JUSTICE NAZEER (DISSENTING)

Argued that Triple Talaq is a part of personal law, protected under Article 25.

Suggested the legislature should address the issue via law.

IMPORTANT DOCTRINES/PRINCIPLES:

Essential Religious Practices Doctrine: Practices not essential to religion are not protected under Article 25.

Arbitrariness Doctrine under Article 14: Arbitrary laws/practices violate the right to equality.

AFTERMATH:

Led to the passing of the Muslim Women (Protection of Rights on Marriage) Act, 2019 by Parliament.

Triple Talaq criminalized (punishable up to 3 years).

Declares such talaq void and illegal.

KEY TAKEAWAYS:

The Supreme Court invalidated Triple Talaq as unconstitutional.

Reinforced that religious practices must conform to constitutional values.

Landmark case in women’s rights and reform of personal laws in India

3. ILA (VOW OF CONTINENCE)—

MEANING —

Where a husband was had attained majority and is of sound mind, swears by God that he will 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 valid ila.

Where the husband having made ha abstains from intercourse with his wife for four months, the marriage is dissolved with the same legal results, as if there had been an irrevocable divorce pronounced by the husband.

INGREDIENTS OF ILA:

1. The husband must be of sound mind and must have attained majority.

2. He swears by God or takes a vow.

3. That he will not have sexual intercourse with his wife.

4. In pursuance of the vow he abstains from sexual intercourse with his wife for four months or more.

According to Ithna Ashari and Sahfei School, the wife is entitled to apply to the Court for passing a decree dissolving the marriage. In Sunni Law, legal proceedings are not required.

CANCELLATION OF ILA —

ILA IS CANCELLED BY—

I. The husband resuming sexual intercourse within the period of four months, or

II. A verbal restriction thereof,

Ila is not a practice in India.

4. ZIHAR (INJURIOUS ASSIMILATION)—

“If the husband (who is sane and adult) compares his wife to his mother or any other female within a prohibited degree, the wife has a right to refuse herself to him until he has performed penance.

In default of expiation by the penance, the wife has a right to apply for a judicial divorce.

INGREDIENTS OF ZIHAR

1. Husband must be sane and adult.

2. He compares his wife to his mother or any other female within prohibited degrees.

3. Then the wife has a right

a. to refuse to have sexual intercourse with him till he has expiated himself from penance prescribed by law, such as —

I. freeing a slave;

II. fasting, for two months;

III. feeding, sixty poor persons,

b. to apply to the Court for an order requiring him either to perform a penance or to decree her a regular divorce.

LEGAL EFFECTS OF ZIHAR —

The declaration of Zihar does not of itself terminate the marriage tie, nor is the claim of the wife for the restitution of conjugal rights lost even if expiation has not been done.

The following legal consequences emerge from zihar:

I. Sexual intercourse becomes unlawful.

II. Husband is rendered liable to expiation by penance.

III. The wife can claim judicial separation if the husband persists in wrong doing.

INTENTION —

According to Ameer Ali, Zihar would become incumbent on the husband only if the comparison or assimilation was intended “disrespectfully”.

According to Hedaya if he declares that in making the comparison his intention was only to show respect to his wife, an expiation would not be necessary.

SHIA LAW—

The Shia Law insists on the presence of two witnesses when any injurious assimilation is made to the wife.

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

This form of divorce has become obsolete (out of date)

5. TALAQ-E-TAFWEEZ

(Talaq by the wife under the husband’s delegated power)—

In Talaq-E-Tafweez, a husband delegates or transfers his authority or power to divorce his wife to her or to a third party. It is known as Delegated Divorce, which refers to a provision.

In other words, it is the act of granting someone else, usually the wife, the right to initiate a divorce on behalf of the husband.

TYPES OF TALAQ-E-TAFWEEZ: IKHTIYAR, AMR-BI-YA AND MASHIYAT

IKHTIYAR (CHOICE):

In this type of Talaq-E-Tafweez, the wife is granted the authority to initiate the divorce at her discretion. The husband bestows upon her the autonomy to exercise this power whenever she deems fit.

AMR-BI-YA:

In this scenario, the husband entrusts the decision entirely to his wife. She becomes the sole determinant of whether the marriage should be dissolved or not.

MASHIYAT (PLEASURE):

Under this category of Talaq-E-Tafweez, the husband provides his wife with the option to exercise her own judgment. She is granted the freedom to make a choice based on her personal preferences and circumstances.

ELIGIBILITY FOR TALAQ-E-TAFWEEZ

For Talaq-E-Tafweez to be enacted, the individual bestowing the delegated divorce must have reached the age of majority and possess sound mental faculties.

HUSBAND’S POWER TO PRONOUNCE TALAQ IN SPITE OF TAFWEEZ —

The mere fact that husband delegates to the wife power of pronouncing her own talaq does not deprive the husband himself of his right to pronounce talaq.

TALAQ-E- TALIQ —

It means contingent divorce. Under the Hanafi law, the pronouncement of divorce may take effect immediately or at some future specified time or event, a condition may be attached to it and it will be valid. So there can be a contingent divorce.

6. KHULA (DIVORCE AT THE REQUEST OF WIFE)—

MEANING OF KHULA

Khula (Arabic: خلع‎) literally means to take off or to unbind.

In Muslim Law, Khula is a form of divorce initiated by the wife in return for compensation to the husband.

It is a mutual agreement whereby the wife gives something (usually part or full of the mahr) to be released from the marital bond.

it is expressly mentioned in the Quran.

LEGAL NATURE OF KHULA

It is a contract between the spouses.

Recognized under personal law (Hanafi school in particular).

Based on mutual consent, although initiated by the wife.

ESSENTIAL ELEMENTS OF KHULA

1. Offer by the wife for dissolution of marriage.

2. Acceptance by the husband.

3. Consideration or compensation, typically part or full of the mahr (dower).

4. Intention to dissolve marriage.

5. Iddat period must be observed by the wife post-divorce.

JUDICIAL INTERPRETATION

Courts have held that Khula cannot be unilaterally imposed if the husband does not consent, unless the marriage is broken beyond reconciliation.

The landmark case of Shamim Ara v. State of U.P. (2002) has been influential in reforming Muslim divorce laws, emphasizing judicial oversight and fairness.

In Rukia Khatun v. Abdul Khalique Laskar (1981), it was held that the court can grant divorce on grounds of irretrievable breakdown even without the husband’s consent if cohabitation is not possible.

DIFFERENCE BETWEEN KHULA AND TALAQ

ASPECT

Who initiates

Consent

Compensation

Judicial Intervention

KHULA

Wife

Needs husband's consent

Wife gives compensation

Possible in some cases

TALAQ

Husband

Can be unilateral

No compensation needed

Usually not required unless challenged

THE CONSIDERATION IN KHULA —

As regards the property which can be given in consideration of the release by husband, all agree that it can be everything that can be given as dower.

IF CONSIDERATION IS UNPAID —

Cases occur in which the wife agrees to pay something or give something by way of consideration for her release but after being divorced by her husband, fails to fulfil her promise. In such a case 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 (talaq-ul-bain) and the wife is bound to observe iddat.

CAPACITY FOR KHULA —

under Shia Law, the conditions necessary for the effectuation of a valid talaq are also requisites for the performance of khula accordingly; that is, the husband must be –

I. adult (Baligh),

II. of sound mind (Aqil),

III. free will (Mukhtar) and

IV. have intention to divorce her.

Under the Sunni Law, only two requisites are essential, i.e, the husband must be -

1. adult, and

2. of sound mind.

MOONSHE BUZUL-UL-RAHEEM V. LUTEEFUT-OON-NISHA (1861)

CASE CITATION

Full Citation: (1867) 11 M.I.A. 551; 74 I.C. 166 (Privy Council)

Date Decided: February 16, 1867

Court: Judicial Committee of the Privy Council

FACTS OF THE CASE

PARTIES INVOLVED:

Appellant: Moonshee Buzloor Ruheem, a Bengal Zemindar

Respondent: Shumsoonissa Begum, his wife

MARRIAGE DETAILS:

Shumsoonissa Begum married Moonshee Buzloor Ruheem in April or May 1847

She was a widow with five children from her first marriage

The couple had one daughter togethe

SEPARATION:

In December 1855, Shumsoonissa Begum left her husband's house following a complaint of ill-usage

They have lived separately since then.

LEGAL ISSUES

MAIN ISSUE:

Whether the wife had forfeited her right to claim dower (mahr) through two deeds: a "kholanamah" (divorce deed) and an "ikrarnamah" (acknowledgment deed)

SECONDARY ISSUE:

Whether the divorce was valid under Muslim law?

COURT'S OBSERVATIONS

DIVORCE BY KHULA:

The court recognized that under Muslim law, a divorce can be initiated by the wife through khula, where she offers compensation to the husband for her release from the marriage

VALIDITY OF DEEDS:

The court emphasized that for a deed to be valid, there must be clear evidence that the wife knowingly and voluntarily executed the deed

In this case, there was no evidence to prove that Shumsoonissa Begum had given her informed consent to the deeds

ENTITLEMENT TO DOWER:

Since the deeds were deemed invalid, Shumsoonissa Begum was entitled to claim her dower

JUDGMENT

DECISION:

The Privy Council upheld the decisions of the lower courts, affirming that the wife was entitled to her dower. The Court held that it appears under the Mohammedan Law divorce may be made in either of two forms—Talaq or Khula A divorce by talaq is the mere arbitrary act of the husband who may repudiate his wife at his own pleasure, with or without cause, but if he adopts that course, he is liable to repay her dower.

A divorce by khula is divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In such a case the terms of the bargain are matters of arrangement between the husband and wife and the wife may, as the consideration, release her mahr and other rights or make any other agreement for the benefit of the husband.

In the present case the husband, not only denied the divorce by talaq but set up a divorce by khula, He distinctly alleged that respondent took from him a deed of divorce that she took from him also the subsistence money of her iddat and gave him a receipt of it, and that she then quitted his house with the assent and under the care of her mother

LEGAL PRECEDENT:

This case established the principle that a wife cannot be deprived of her right to dower without clear and convincing evidence of her informed consent.

7. MUBARAT (DIVORCE BY MUTUAL AGREEMENT) MUTUAL RELEASE—

MEANING—

Mubarat is also a form of dissolution of 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 husband. When an offer mubarat is accepted, it becomes an irrevocable divorce (talaq-ul-bain) and iddat is necessary.

Under the Shia Law the parties can dissolve their marriage by way of mubarat if it is impossible for them to continue marriage tie.

DISTINCTION BETWEEN KHULA AND MUBARAT —

1. Khula is a “redemption” of the contract of marriage while mubarat is a mutual release from the marriage tie,

2. In Khula the offer is made by the wife and its acceptance is made by the husband in mubarat, any of the two may make an offer and the other accepts it.

3. In khula, a ‘consideration passes from wife to the husband. In mubarat the question of consideration does not arise.

4. In khula the aversion is on the side of the wife while in mubarat there is mutual aversion.

Both khula and mubarat are to be followed by the observance of iddat.

LEGAL EFFECTS OF KHULA AND MUBARAT —

Under Hanafi and Ismaili Shia School, the dissolution of marriage on a Khula or Mubarat has the same effect as a single divorce after it has become irrevocable, The parties cannot resume sexual intercourse until and unless a fresh marriage was arranged between them.

Under the Shia l when the Khula is effected, the husband has no power of revocation. However, the wife is at liberty to reclaim the consideration during iddat period. Under such circumstances, the husband can revoke the Khula of his option.

8. LIAN (FALSE CHARGE OF ADULTERY),

WHAT IS LIAN? —

Where a husband charges his wife of adultery and the charge is false, the wife is entitled to sue for and obtain divorce. She must file a regular suit for dissolution of her marriage as a mere application to the Court is not the proper procedure.

In Zafar Husain v. Ummat the Allahabad High Court recognised the doctrine of lian. In this case the wife of the plaintiff alleged that her husband had stated before several persons that she had illicit intercourse with her brother and imputed fornication to her.

It was argued that the Law of lian had no place in Anglo Law and must be considered obsolete. This argument was rejected.

It was held that Qazi of the Muslim Law was replaced by the Court.

It was held that a Muslim wife is entitled to bring a suit for divorce against her husband and obtain a decree on the ground that the she falsely charged her with adultery.

FEATURES OF LIAN—

1. Husband (adult and sane) charges his wife (adult and sane) of adultery or, denies the paternity of her child.

2. Such charge is false. If such charge is proved to be true, decree for the dissolution of marriage would not be granted in favour of the wife.

3. Such false charge does not ipso facto dissolve the marriage, it only gives an opportunity to the wife to move the Court to dissolve the marriage. The marriage continues till the decree is passed.

4. She must file a regular suit for the dissolution of marriage. Mere application is not enough. No such suit will lie if the marriage was irregular.

5. The judicial separation due to this is irrevocable.

6. Lian is applicable only to sahih marriages not to fasid ones.

RETRACTION OF CHARGE —

The Muslim law permits the man to retract the charge. Social conscience views with extreme disapprobation any attempt to break up a home and the principle of retraction gives the husband locus potentiae before the marriage is dissolved. Its object is to establish cordial relationship between husband and wife.

THE RETRACTION MUST BE

Bona fide and not a mere device for defeating suit for dissolution,

unconditional, and

made at or before the commencement of hearing and not after the close of evidence.

THREE CONDITIONS ARE NECESSARY FOR A VALID RETRACTION—

1. the husband must admit that he has made the charge of adultery against the wife.

2. he must admit that the charge was false, and

3. he must make the retraction before the end of trial.

9.TERMINATION OF MARRIAGE THROUGH FASKH (CANCELLATION OF MARRIAGE)

Under the Muslim Law a lady can approach to the Qazi for dissolving her marriage. Quran says that this is the duty of the husband to give proper treatment to his wife. The wife is also under duty to obey all lawful orders of her husband. If the husband and wife both come to the conclusion that they cannot live as husband and wife, they can refer the matter to Qazi who after careful examination, terminate the marriage.

Faskh means the cancellation, abolishment, recision, revocation, abrogation annulment. Before the passing of the Dissolution of Muslim Marriage Act, 1939, there was no piece of legislation under which a Muslim lady could ask for the dissolution of her marriage. Muslim ladies could only apply for the dissolution of their marriages under doctrine of Faskh.

THE FOLLOWING ARE THE MAIN GROUNDS FOR DISSOLVING THE MARRIAGE AT THE INSTANCE OF THE WIFE

I. That the marriage is irregular;

II. That a person having an option to avoid a marriage has exercised his option;

III. That marriage was performed within prohibited degrees or fosterage; or

IV. That the marriage having been contracted by non -Muslims the parties have adopted Islam.

10. JUDICIAL DIVORCE (DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939)—

Prior to the passing of Dissolution of Muslim Marriages Act, 1939, the British Courts had denied to Muslim woman the rights of dissolution available to them under the shariat. The wife could apply for the dissolution of her marriage only on the following grounds.

impotency of the husband,

lian,

opinion of puberty (khyar-ul-bulugh).

Finding no other way to get rid of this marital tie, the Muslim wives were compelled to renounce their faith. The statement of the reasons and object of the Act indicates the circumstances in which Act was passed

Before the Dissolution of Muslim Marriages Act, 1939, Muslim women in British India faced severe legal and social challenges in seeking divorce. The personal laws that governed Muslim marriages at the time were largely interpreted through conservative Islamic jurisprudence, often with patriarchal overtones, and were inconsistently applied.

HERE'S A BREAKDOWN OF THE KEY CIRCUMSTANCES:

1. LIMITED GROUNDS FOR DIVORCE FOR WOMEN

Under classical Islamic law, although women technically had rights to seek divorce (e.g., through khula, faskh, or delegation of talaq), these were either:

Not recognized or restricted in practice by the courts.

Dependent on husband’s consent, especially in khula.

The Hanafi school of thought, dominant in South Asia, was particularly restrictive in allowing women to dissolve a marriage unilaterally.

2. JUDICIAL RELUCTANCE TO INTERVENE

British colonial courts often deferred to orthodox religious scholars (ulama) in interpreting Sharia law.

There was no codified law governing Muslim divorces, so interpretations varied widely.

Courts often refused to grant dissolution even in cases of cruelty, desertion, or failure to maintain the wife.

3. HIGH INCIDENCE OF ABUSE AND MISERY

Many women were left in desperate situations:

Abandoned by husbands but unable to remarry.

Forced to endure cruelty or neglect without legal recourse.

Socially and economically dependent, yet trapped in abusive marriages.

4. SOCIAL AND REFORMIST PRESSURE

Muslim reformers and women’s rights activists began to push for legal changes in the early 20th century.

Influential scholars like Maulana Ashraf Ali Thanvi acknowledged the injustices women faced under prevailing interpretations and supported the idea of a codified, more balanced law.

The need for uniform legal standards became pressing due to judicial inconsistencies.

5. FAMOUS CASES HIGHLIGHTING INJUSTICE

Several court cases exposed the harsh implications of the lack of clear divorce rights for women.

These cases created public outrage and provided momentum for legal reform.

Thus, we can say that before the 1939 Act, Muslim women in India had no effective legal remedy for escaping unhappy or abusive marriages due to restrictive interpretations of Islamic law, judicial inconsistencies, and lack of codified rights. The situation called for urgent reform, which culminated in the passage of the Dissolution of Muslim Marriages Act, 1939—a landmark legislation that expanded women's rights to divorce.

Now, the Dissolution of the Muslim Marriage Act, 1939 has introduced a revolutionary change in this respect and had restored to her, right of divorce granted to her under shariat.

Section 2 of Dissolution of Muslim Act, 1939 provides nine grounds under which a Muslim wife can obtain a decree for the dissolution of her marriage.

NINE GROUNDS OF DIVORCE UNDER SECTION 2 OF THE DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939:

1. ABSENCE OF HUSBAND FOR 4 YEARS

The husband has been missing for a period of four years and his whereabouts are unknown.

If the whereabouts of the husband are not known for a period of four years a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage, but, a decree passed on this ground will not take effect for a period of six months from the date of such decree; and if the husband appears either in person or through an authorized agent within that period, and satisfied the Court that he is prepared to perform his conjugal duties, the Court must set aside the said decree

2. FAILURE TO MAINTAIN FOR 2 YEARS

If the husband has neglected or has failed to provide for her maintenance for a period of two years, a married Muslim woman can obtain a decree for the divorce.

3. HUSBAND SENTENCED TO IMPRISONMENT FOR 7 YEARS OR MORE

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 dissolving her marriage, but no decree can be passed on this ground unless the sentence has become final.

4. FAILURE TO PERFORM MARITAL OBLIGATIONS FOR 3 YEARS

If the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years, the wife can get her marriage dissolved by means of a decree.

In Veeran Sayvu Ravuthar v. Beeva thumma, the court has held that where a wife is residing in her own family house and away from husband and the husband has never made any attempt to get conjugal company and consortium of wife, moreover, he does not take any action for restitution of conjugal rights. He has, thus, failed to perform his marital obligation without any reasonable cause. The wife is, therefore, entitled to a divorce decree under Section 2 (iv) of the Dissolution of Muslim Marriage Act, 1939.

5. IMPOTENCY OF HUSBAND–

The husband was impotent at the time of marriage and remains so. the wife is entitled to judicial divorce for the dissolution of her marriage.

Before passing a decree on this ground the Court shall, on application by husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent and if he does so satisfy, no decree shall be passed on this ground.

6. INSANITY, LEPROSY, OR VENEREAL DISEASE

If the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease the wife may claim a judicial divorce under Section 2(vi) of the above Act. It is to be noted that leprosy and virulent diseases need not be two years old, it may be even recent.

7. CRUELTY BY THE HUSBAND

Judicial divorce may also be claimed by a Muslim wife, if the husband treats her with cruelty, that is to say

Habitually assaults her or makes her life miserable by cruelty or bad conduct even if such conducts does not amount to physical ill-treatment,

a. Associates with women of ill-repute or leads an infamous life, or

b. Attempts to force her to lead an immoral life, or

c. Disposes of her property or prevents her from exercising her legal right Over it, or

d. Obstructs her in the observance of her religious profession or practice, or

e. If he has more wives than one; does not treat her equitably in accordance with the injunctions of the Quran.

8. MARRIAGE BEFORE AGE OF 15 AND REPUDIATION BEFORE 18

The woman was given in marriage by her guardian before the age of 15 and repudiates the marriage before turning 18 (option of puberty), provided the marriage was not consummated.

9. ANY OTHER GROUND RECOGNIZED UNDER MUSLIM LAW

Any other valid ground for divorce recognized under Muslim personal law.

The wife is also entitled to a decree for the dissolution of her marriage on any other ground which is recognised as valid for the dissolution of marriages under Muslim Law.

This clause covers the divorces by ila, zihar, khula, mubarat and tafweez. Imputation of unchastity or a false charge of adultery against the wife (Lian) makes a good ground for the dissolution of her marriage.

SECTION 4 OF THE DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939:

EFFECT OF APOSTASY ON MARRIAGE

Prior to Section 4 of the Dissolution of Muslim Marriages Act, 1939 apostasy of either party, ipso facto dissolved the marriage.

Now though husband’s apostasy from Islam would ipso facto dissolve the marriage, the apostasy of wife will no more dissolve the marriage ipso facto.

A wife cannot, on the ground of her own apostasy claim a decree for divorce, but she must establish any of the nine grounds of Section 2 of the Dissolution of Muslim Marriages Act, 1939.