Various Modes of Divorce Under Muslim Law

1. Types of Divorce Under Muslim Law

The only essential condition for divorce under Muslim Law is marriage between two parties.There are different forms and ways through which marriage can be dissolved under Muslim Law, which are following:

1. Divorce by Husband

There are four ways a husband can give divorce.

A. Talaq-ul-Sunnat

This form of divorce is based on Muslim Personal Laws. It is further sub-divided into the following categories:

Ahsan

1. Husband has to make an announcement of divorce in a single sentence when the wife is free from the menstrual cycle.

2. After divorce women have to observe Iddat for a certain period of time, during which the husband cannot indulge in any form of sexual intercourse, if he indulges then revocation of talaq becomes impliedly revocable, otherwise, it becomes irrevocable.

3. This type of talaq can be pronounced even when the wife is undergoing menstruation, but for that marriage must not be consummated between the parties.

4. It is the most approved form of talaq.

Hasan

a. It is a less approved form of Talaq Ahasan.

b. There is a provision for revocation of divorce.

c. The word talaq is to be pronounced three times simultaneously.

d. Three announcements should be made in the three states of purity if the wife has not crossed the age of menstruation.

e. If the wife has crossed the age of menstruation, pronouncement must be made at the 30 days interval between the successive pronouncements.

f. During the period of three pronouncements, no sexual intercourse should take place, if it happens divorce is revoked.

g. After completion of the iddat period, this type of divorce becomes irrevocable.

B. Talaq-ul-Biddat

a. it is this disapproved/sinful form of divorce.

b. It is also known as triple talaq, after pronouncing talaq three times it becomes irrevocable immediately.

c. This form of divorce is only recognised under Sunni Law and not by Shias and Malikis.

d. Parties can remarry only after performing nikah halala by the female partner, under which she has to marry another man and then get divorced from him.

e. This type of divorce is unconstitutional in India, through the judgement of the Supreme Court in the case of Shayara Bano v. Union of India and others.

C. Ila

a. It is a form of divorce under which the husband has the power to pronounce that he would not indulge in sexual intercourse with his wife.

b. Subsequent to this pronouncement, the wife is required to observe iddat.

c. If the husband cohabits with the wife during this period, then the Ila is revoked.

d. Once the period of iddat is over, divorce becomes irrevocable.

e. This type of divorce is not practised in India.

D. Zihar

a. It is also constructive divorce like Ila.

b. In this form of divorce, the husband compares his wife with a woman who comes under a degree of prohibited relationship, such as his mother, sister etc, and pronounces that she is like his mother or sister.

c. For doing this the husband must be of sound mind and above the age of eighteen years.

d. The wife has the right to seek judicial remedies such as restitution of conjugal rights, cohabitation etc., but cannot seek judicial divorce.

e. Husband can revoke such divorce by observing two months fast, feeding sixty people and freeing a slave.

f. This type of divorce is no longer in practice.

2.Divorce by Wife

A. Talaq-e-Tafweez

a. It is also known as delegated divorce.

b. The husband has the power to delegate such power to the wife, he must be of sound mind and above 18 years of age.

c. This type of talaq is also called an agreement, which may be entered between the parties before or after marriage.

d. If the terms of an agreement are not fulfilled, the wife can ask for a divorce.

e. It is the only way through which a woman can ask for a divorce.

f. The right of the husband to divorce his wife remains intact, it does not deprive the husband of his right to pronounce the divorce.

3. Divorce by Mutual Consent

A. Khula

a. It means laying down, where the husband lays down the authority over his wife.

b. This is done through mutual consent between husband and wife, where the wife pays the consideration from her property to the husband, for her release.

c. Wife releases Mehr and other rights for the benefit of her husband.

d. Thus, divorce is purchased from husband by wife.

e. There is an offer from the wife, which is accepted by the husband.

f. Women are required to observe iddat after Khula.

B. Mubarat

a. It means release, it releases/discharges parties from marital rights.

b. Divorce is with mutual consent among parties to become free from one another.

c. Its formalities are the same as Khula, where there is an offer from one party and acceptance from another.

d. Women are required to observe Iddat.

2. Shayara Bano v. Union of India (2017)

In this case, the petitioner, Shayara Bano, filed a petition in court assailing the divorce pronounced by her husband, Rizwan Ahmed. He said I will give talaq, talaq, talaq in front of witnesses on 10th October 2015. He added that he frees his wife from all ties, and there is no relation between husband and wife left. He also said that from today on, Im haraam and have become naamharram, and you are free to use your life your way. The petitioner contended that this talaq should be considered void ab initio. She also contended that triple talaq should be declared unconstitutional and illegal. As it is not part of Shariats Muslim Personal Law. The Supreme Court passed several orders and also asked the Central Government to provide for a high committee report recommending a ban on triple talaq. It also invokes the UN Charter of 1945. The UN Charter aims for the equality of both men and women, but triple talaq violates it. The Law Commission also stepped in and provided various suggestions and recommendations to deal with the issue of triple talaq.

Contentions from the petitioners side

It was submitted that talaq was not recognised in the Shariat Application Act, 1937. Also, it was not encouraged by the Prophet. With the advent of time, talaq emerged as a custom and didnt have Quranic sanctions. He urged the ban of triple talaq as it violates Articles 14 and 15. Muslim women also have the right to live and make their own life decisions.

Contentions from the respondents side

The respondent contends that the Shariat Act doesnt codify Muslim personal law, but it forms the basis of customs. In Muslim law, marriage is a private contract that cannot be questioned by any legislation. They pointed out that the definition of law in the Constitution does not cover personal laws at all. They brought attention to Article 25 of the Constitution, which empowers the Parliament to make laws on secular activities.

Judgement of the Court

The Supreme Court, with a ratio of 3:2, declared triple talaq unconstitutional and gave six months to the Indian Parliament to deal with the legislation to handle triple talaq and the global advancement of Islamic family law in India. A detailed guideline was provided in the 264 page judgement to deal with the issue of triple talaq and future steps to be taken to advance the laws. The judgement was divided into seven parts, which were given by the five judges of the Indian Supreme Court.

3. Mir Khursheed Rasool v. State of Maharashtra (2022)

In this case, the dispute between the husband and wife was resolved amicably by the way of settlement. Respondent 2 lodged an FIR under Sections 498A, 406, 504, and 34 of the IPC related to the marriage. The respondent alleged ill-treatment during their short matrimonial life. The parties reached a decision of divorce through a Deed of Divorce by way of Mubaratnama. The childs custody was with Respondent 2, and she cannot claim any future maintenance or claim on the petitioners property. She received Streedhan property and one-time maintenance of Rs. 5 lakh. She withdrew all her cases, and the petition was allowed on the basis of mutual consent of the talaq.

Issue involved in the case

Whether the FIR filed by the respondent should be withdrawn or not if the disputes have been settled by mutual decision of divorce through a Deed of Divorce by way of Mubaratnama.

Judgement of the Court

The Bombay High Court said that the disputes have been settled between the parties by way of mutual talaq. Both parties agreed to the terms. Hence, the complaints filed against the petitioner would not serve any fruitful purpose and were to be quashed. The Court accepted the request of both the parties and the case was allowed.

4. Changes brought by the Muslim Women (Protection Of Rights On Marriage) Act, 2019

The Muslim Women (Protection Of Rights On Marriage) Act, 2019 brought the following changes:

A. Section 3-Pronunciation of triple talaq on wife by husband in any manner (including electronic), by words either spoken or written, is void or illegal.

B. Section 4-Any person who pronounces talaq to his wife in a manner prescribed in section 3, shall be subject to imprisonment extendable to 3 years or shall be liable to a fine.

C. Section 5-Muslim women who are being divorced can seek allowance from their husband to maintain themselves and children dependent on them.

D. Section 6- Muslim women divorced by husband are entitled to seek custody of their minor child.

E. Section 7-Magistrate can grant bail to the accused after hearing both the parties, if he feels that reasonable ground exists for granting bail. The offence is compoundable and there is also an option of compromise at the instance of a married Muslim wife, which will drop the charges on the basis of fulfilment of certain terms and conditions.

5. Need for Uniform Civil Code (UCC)

Implementation of the Uniform Civil Code is the need of the hour. Article 44 of the Indian Constitution talks about the creation of the Uniform Civil Code for all the citizens of India. The creation and implementation of UCC will bring drastic changes in the Muslim personal laws, this is the reason it is being opposed by the Muslims. It will lead to the permanent abolition of triple talaq, all the marriages will be dissolved through Court proceedings. The practice of polygamy will be abolished and monogamy will be the norm. It will also bring change in maintenance provisions; Muslim women will be able to claim maintenance for a lifetime. Civil contractual nature of marriage will be abolished. Registration of marriage will be compulsory practice, and implementation of UCC will also lead to a violation of the period of iddat. These changes are pro-women and are actively welcomed by Muslim women, as it will lead to the positive betterment of women and society as a whole. But these changes are opposed by Muslims as a whole because they feel the imposition of UCC as an imposition of Hindu law over their personal laws, which is the wrong notion. Uniform Civil Code will be secular in nature containing essentials of all the diverse religions in India. Thus, Uniform Civil Code is necessary for strengthening national unity and integrity among citizens of India.

6. Conclusion

Under the Muslim Law, there are more than one form of ways through which marriage can be solemnized and divorce can be initiated for dissolution of marriage. To cater to the needs of changing circumstances along with Muslim personal laws certain legislations are brought by the Government of India such as the Muslim Dissolution of Marriage Act, 1939, the Muslim Women (Protection of Rights on Marriage) Act, 2019 etc., to govern Muslim marriage and divorce. However, apart from these legislations and personal laws, there is a need for the Uniform Civil Code for creating single informed laws governing all the citizens of the nation to strengthen national unity and integrity.