This article has been written by Shashvat Pant, pursuing BBA-LLB at Centre for legal studies, Gitarattan International Business School, GGSIPU. In this article, he has discussed the concept of talaq under Muslim Marriage and Dissolution Act,1939.
In order to understand the concept of divorce under the Muslim Laws, we must first familiarize ourselves with How is a Marriage instituted under Muslim Laws. The term ‘Nikkah’ is used for marriage under Muslim Laws. A Nikkah is a Contract and not a Sacrament. The essentials of a Valid Marriage are same as the essentials of a Valid Contract which are:
- Age of Majority
The terms of nikkah are within legal limits and can be altered as to suit individual cases.
Nikkah is a contract for the legalisation of intercourse and procreation of children. The ceremony of nikkah is simple; no ceremony, rites, formality has been specified. Essential Requirements of nikkah are Ijab(offer) and Qubul (acceptance). These both have to be done in the same meeting. These essentials can be performed by agents i.e. parents or grandparents. Secondly, Dower(Mahr) is to be paid by the Groom’s family to Bride and in case of non-payment, is entitled to take legal actions.
The Nikkah confirming all the aspects is termed as Sahih. Nikkah in which there is some prohibition such marriage becomes Batil. If there’s a prohibition, temporary in nature, the marriage becomes Fasid.
Divorce is Permanent severe of married status. The provision for divorce has been for a long time. In India, the Dissolution of Muslim Marriage Act was passed due to the efforts of Kazi Muhammed Ahmed Kazmi.
Talaq under Muslim Laws
Divorce is termed as talaq under Muslim Laws. Talaq is permanent severe of married status. Talaq is either Revocable or Irrevocable in nature. Prophet said, “With Allah, the most detestable of all things permitted is divorce.” Prophet’s son-in-law, Ali was given the choice of 5th marriage, by divorcing any of the 4 wives. But Ali being a believer of Prophet, denied to do so. Ali even announced publicly that no one shall marry his son Imam Hasan as Hasan was habitual of divorcing frequently.
- Under Sunni law, no special form is necessary and witnesses are required,
- Under Shia law, a Strict formula needs to be applied and 2 witnesses are mandatory.
Which male may give divorce?
- Husband of sound mind may give divorce to his wife without telling her the reason.
- Presence of the wife is not a compulsion.
- There is no need for him to give notice to his wife.
Different ways in which Talaq can be affected
Talaq can be affected in the following ways:
- Talaq by Husband (Talaq, Ila, Zihar)
- Talaq by Wife (Talaq-e-tafwid or Talaq-e-tafwiz)
- Talaq by Mutual Agreement (Khula, Muba’rat)
- Talaq by Judicial means (Lian, Faskh)
1.Talaq by Husband
- Talaq is either revocable(approved) or irrevocable(unapproved).
- Revocable form of talaq is Talaq-al-Sunna which further consists of Ahsan and Hasan
- Irrevocable form of talaq is Talaq-ul-Biddat, also known as Triple talaq
- It consists of Ahsan and Hasan.
- Both the forms are revocable in nature which means the marriage can be restored at any point of time before the end of the Iddat period.
- Under this form, the husband makes a single pronouncement of talaq during the Tuhr of the wife. Tuhr is the period of wife’s parity i.e. a period between two menstruations. After this single pronouncement, the wife is to observe an Iddat of three months. If she is pregnant at the time of pronouncement the Iddat is, till the delivery of the child.
- Before the end of Iddat, a husband may revoke at any point of time
- Revocation may be express or implied
- This is a more accepted form of divorce
- Under this form, the husband makes three pronouncements of talaq during three consecutive Tuhrs.’
- This is a less acceptable form of talaq
- It is disapproved form of divorce.
- Under this form, a triple declaration of talaq is made in a single Tuhr.
- This form is also called Talaq-ul-Bam.
ILA & ZIHAR
- Ila and Zihar type of talaq is mentioned in the Shariat Act, 1937.
- These types of talaq are very rare in India
- Under this type of divorce, the husband swears not to cohabit with his wife for 4 months or more.
- This can be revoked by conduct.
After the expiration of 4 months:
- Sunni Law: Marriage is dissolved without legal proceeding
- Shia Law: Proper legal proceedings are conducted
- Husband states that his wife’s back is alike to his mother’s back, by which he says his wife like her mother.
- In case, the husband later decides to revoke, he has to give expiation(reparation for wrongdoing, guilt) by fasting, giving money.
2. Talaq by Wife
- This the power which is given to the wife to get herself divorced by her husband, which means, the husband delegates his right of pronouncing divorce to his wife under specified condition.
- In order to avail this divorce, a wife must get this power mentioned within the kabinama.
- Traditional Classification of talaq-e-tafwid:
- Ikhtiyar (upon choice)
- Amr-bi-Yad (at your hand)
- Mashiyat (At your pleasure)
3. Talaq by Mutual Agreement
There are two ways in which a talaq can be made by mutual consent/ agreement: Khula and Mubar’at.
Two essential conditions to avail this talaq are:
- Consent of Husband and Wife
- Awiz (in exchange for)
- If the desire for parting comes from wife, then such talaq shall be termed as Khula.
- In exchange for such freedom, the husband asks his wife to transfer the Mahr
- Khula literally means removing ‘parda‘
- A mandatory Iddat period has to be served.
- If the desire of parting comes out of mutual agreement, then such talaq shall be termed as Mubar’at.
- Mubar’at means freeing from one another mutually.
- A mandatory iddat period has to be served.
4. Talaq by Judicial means
There are two ways to gain a talaq by judicial means: Lian and Faskh.
- The concept of Lian has come from the time when Prophet was the Ruler of Arab.
- If a husband falsely accuses his wife of committing Zina or unable to prove such allegation, the wife in such case is entitled to file a dissolution suit.
- A Kazi must intervene at the place where laws are not formal.
- In India, a regular suit has to be filed at hearing, where the husband has 2 options:
- Either to formally retract, (before evidence close)
- If Husband does not retract, he’s called upon to make an oath in front of 4 eyewitnesses.
- Bombay High Court has laid down three conditions for valid retraction, which clearly states that Judiciary respects the personal laws and provides relief as provided by Prophet
- Husband must admit that he has made a charge of adultery
- The charge of adultery is false.
- Retraction should be before the end of the trail
- It is the power given to a Kazi (3rd person) to end marriage upon the wife’s application. Faskh in terms of Muslim Marriage Act refers to the annulment of marriage on certain permissible grounds.
- Before passing of Muslim Marriage and Dissolution Act, a Muslim lady could apply for dissolution under the doctrine of Faskh.
- The grounds available to women for annulment of marriage are as follows:
- Husband has been missing for 4 years or more.
- Husband’s failure to maintain his wife for 2 years or more. In Noor Bibi vs. Pir Bux, the husband failed to maintain wife for more than 2 years.
- Husband is sentenced for 7 years or more.
- Husband fails to perform marital obligation for 3 years or more.
- Husband being impotent before the marriage and continues to be so.
- Husband suffers an incurable Insanity or venereal disease.
- Option of Puberty (Khayal-ul-Bulug)
- Cruelty against wife