Introduction
Marriage is an institution, which in the due course of evolution, has transformed into providing determinate and legitimate recognition to the relationship between two individuals. Under the Muslim Law, the nature of Muslim marriages can be traced back to the pre-Islamic Arabic traditions, which shook the institution of marriage for the Islamic Shariat.
The requirements of marriage, nature of solemnization, etc, reflect the nature of Muslim marriages, which makes it tilt towards being a contract. Justice Mahmood in the case of Abdul Kadir v. Salima, held that
“Marriage among Mohammedans is not a sacrament but purely a civil contract…” [1]
However, divorce marks the end of such a marital relationship. The dissolution of marriage is given in Islamic texts unlike other personal laws, where Sharia law speaks about the same.
Talaq is a form of divorce under Muslim law which implies repudiation or rejection by the husband in a marriage.
Under Muslim law, wives cannot divorce their husbands unless such a right has been delegated to them by their husbands. However, the legislature has granted statutory rights to Muslim women to divorce their husband under the Dissolution of Muslim Marriages Act 1939. There are two modes given for the dissolution of marriage-
- Talaq under Muslim law
- Talaq under Statutory law[2]
Talaq under Muslim Personal Law
Talaq under Muslim law can be used either by the husband or wife or through their mutual consent. Generally, the right to divorce is with the husband, where such a right can be acquired by the wife only if it is delegated by the husband, thus placing them on a lower pedestal.
By husband
1. Talaq:
The term ‘Talaq’, though used in generic sense, strictly applies only in cases of repudiation by the husband. The husband in order to repudiate the marriage, need not require any reasonable cause, and can unilaterally dissolve the marriage.
In Moonshee Buzloor Ruheem v. Shumsoonnisa Begum, (1867) 11 MIA 551, the Court held that,
“Talaq is a mere arbitrary act of a muslim husband who may repudiate his wife at his own pleasure with or without any cause.”[3]
Revocable talaq does not dissolve marriage till Iddat, but irrevocable talaq dissolves the marriage immediately. The competency to give Talaq depends on the attainment of puberty, and soundness of mind.
Under Sunni Law, a notable difference of opinion is in Talaq given under compulsion or intoxication which is void under Shia law. Under Hannafi Law, some scholars are of the opinion that Talaq under voluntary intoxication can be given effect, but intoxication which is involuntary should not be given effect. Further, some scholars are of the opinion that intoxication through substances which are permitted under the Hannafi law such as honey, grain fruit etc in liquor, can be given effect.
Requirements of Talaq under Shia law are:
- Two witnesses, where both are adult males
- Intention to divorce
- Free will of the husband
- Under the age of capacity
In Ful Chand v. Nawab Ali Choudhry 1909, the Court held that Talaq may be made even in the absence of the wife, and should be deemed to have come into effect on the date on which it comes to the knowledge of the wife.[4]
In Saiyed Rashid Ahmed v. Anisa Khatun 1932, the Court held that, Intention is not a requirement to give Talaq. Talaq given inadvertently by a slip of tongue is also valid.[5]
Talaq may be given by an ailing husband on his death bed. This is called Marzul Maut. He may exercise this power to dissolve the marriage in order to prevent his wife from getting any inheritance.
The different modes of Talaq are:
i. Talaq ul Sunnat:
a) Ahsan (most approved): It is the most desired or most approved form of Talaq where pronouncement is made in a single sentence. The pronouncement has to be made during tuhr (state of puberty). Further, no sexual intercourse should take place while observing Iddat by the wife.
The wife has to observe Iddat for 3 monthly courses. If the wife has crossed the age of menstruation, then the tuhr period is not applicable. If the marriage is not consummated, then talaq in the Ahsan form may be given during the tuhr period.
b) Hasan (approved): There must be three successive pronouncements during three successive If the wife has crossed the age of menstruation, the pronouncement may be made after the interval of 30 days. No contact should be there during Iddat. The Talaq becomes final and irrevocable on the last pronouncement. [6]
ii. Talaq ul Biddat:
It was recognised under the Hannafi law. This form of divorce is condemned because it becomes immediately irrevocable. Due to its irrevocability, the husband will have to marry someone else, then divorce that woman, and then marry the wife again. The Sunni law accepts this kind of Talaq.
a) Triple Talaq: Triple declaration of Talaq during a single
b) Written Talaq: A single pronouncement during tuhr stating a clear intention to dissolve the marriage irrevocably. [7]
2. Ila:
Ila is a vow of continence where the husband refrains from sexual intercourse or cohabitation with the wife, and then leaves the wife for observing Iddat. Ila has some legal consequences just as Talaq of irrevocability. Ila can be cancelled by the husband when he resumes cohabitation or resumes verbal communication.
The requisites of Ila are:
- Husband must be of sound mind
- Must be a major
- Vow of continence
- The continence should extend to a period of 4 months
Ila operates as divorce only with the order of the Court of law, as under the Ithna Ashariya (Shia school). The wife can seek a decree from the Court for a legal acknowledgment as a divorcee, and can remarry later on. Ila is recognised under the Shia and Shafi school, but not the Hannafi or Sunni school. [8]
3. Zihar:
Zihar is known as Injurious Assimilation, when a sane and adult husband compares the wife to a relationship of prohibited degree, such as mother, sister etc., and abstains from marital obligations towards the wife due to such comparison.
Cancellation or revocation of Zihar can be done through a penance by the husband. Penance that can be undertaken by the husband are:- freeing a slave, fasting for two months, feeding 60 people etc. After which he can move into a regular marital relationship.
Requirements for Zihar:
- Age of majority
- Comparison with relation of prohibited degree
- Sanity
The Shia law requires the presence of two male witnesses, but the Hannafi or Sunni law does not require the presence of witnesses.
If the husband does not revoke Zihar then the marriage becomes final and irrevocable. [9]
By Wife
Talaq-e-Tafweez or delegated talaq refers to the power of husband to dissolve the marriage being delegated to the wife. There may be an agreement between the husband and the wife, where the husband gives a condition in the contract due to which such a delegation would take place for dissolving the marriage. This agreement can be made before or after the marriage. [10]
In Mohd. Khan v. Shahmali AIR 1972, a contract was made between the husband and wife where the husband will live in the wife’s parental home for a particular period. If he leaves the home, he will have to pay her a particular amount, but if he fails to pay such an amount will lead to the dissolution of marriage. [11]
By Mutual Consent
1. Khula:
Khula which means ‘to lay down’, is a form of divorce at the request of the wife. The husband delegates his authority to the wife, where the wife can seek for a Khula if she wants to dissolve the marriage, after which the husband can release her from the matrimonial bond whenever she wants.
There are decisions of the Courts which have laid down that Khula can be sought by the wife as a matter of right.
In Balaquis Ikram v. Najmal Ikram (1959), it was held that the wife was entitled to Khula as a matter of right. [12]
In Moonshe Buzul Raheem v. Lateefut-oon-nisaa, the Court gave a very elaborate explanation about Khula. Khula is a divorce with the consent and at the instance of the wife where she gives or agreed the consideration to the husband for her release from the marriage tie. Khula was explained as a divorce purchased by the wife. [13]
One of the passages of Quran which is seen as a source of Khula mentions that, “If you fear that they cannot keep within the limits of Allah, there is no blame on them or what she gives to becomes free thereby”.
Essentials of Khula:
- Offer from the wife
- Offer accepted by the husband
- Consideration for the release
If the consideration is unpaid, the divorce will not be invalid.
2. Mubarat:
Mubarat is a form of divorce by mutual consent, where the offer to dissolve the marriage can be placed by either party.
In Khula, there is a purchase required for divorce, but in Mubarat, no such consideration is required. In Khula, the offer to dissolve the marriage is given by the wife, but in Mubarat, the offer can be made by either party.
Khula is a redemption of the contract of marriage, whereas Mubarat is a mutual release. In Khula, the aversion is more on the side of the wife. In Mubarat, there is mutual aversion. Both Khula and Mubarat are followed by an Iddat period.
Talaq under Statutory Law
Talaq under statutory law is executed through a judicial decree under the Dissolution of Muslim Marriage Act 1939. The grounds for decree for dissolution of marriage as given under the Act of 1939 are:
- Whereabouts of husband not known for 4 years
- Failure to provide maintenance for 2 years
- Imprisonment of husband for a period of 7 years or more
- Husband’s failure to perform marital obligations
- Impotency of husband
- Insanity/leprosy/virulent venereal disease of husband for 2 years or more
- Marriage before attaining 15 years of age, repudiating the marriage before attaining 18 years of age
- Cruelty
- Any other ground recognised as valid under Muslim law[14]
In Fazal Mahmud v. Ummatur Rahim 1949, it was held that, if the husband is not under an obligation to give maintenance, then it will not be a ground for dissolution. [15]
Lian and Faskh are the two forms of divorce available under statutory law:
1. Lian:
It is a false charge of adultery alleged by the husband on the wife. The wife is thus entitled to file a suit for the dissolution of marriage. When the matters of matrimonial disputed began to be taken up by Courts along with the Kazis, where the Courts have observed that injustice has happened to either of the parties, they have recognised the Doctrine of Lian.
In Zafar Hussain v. Umma tur Rahman 1919, the Court recognised the Doctrine of Lian despite the contentions of the other party that the doctrine had become obsolete under Mohammedan law. [16]
Requisites and features of Doctrine of Lian are:
- Parties to marriage are adults and sane
- False charges of Adultery
- Charge does not ipso facto (by the very fact) dissolve the marriage
- Judicial separation is irrevocable
- Lian is applicable only to valid marriages which are not fasid or batil
2. Faskh:
Muslim marriages being contractual in nature, when abrogated implies cancellation of marriage, which has the same effect as dissolution.
Scholars of Muslim law claim that this is applied for special cases where the marriage is irregular such as a Fasid marriage.
Requisites of Faskh are:
- The person having an option of avoiding the marriage has exercised that option
- Marriage was within the prohibited degree of relationship[17]
Triple Talaq
The archaic practice of Triple Talaq was declared unconstitutional by the Supreme Court of India in 2017, where the husband was allowed to divorce his wife by repeating the word “Talaq” three times in any form including telephone calls and text messages.
The instantaneous Talaq was being increasingly used with no mention in the Sharia Islamic law, posing as a discriminatory practice against women. [18]
In Shamin Ara v. State of U.P. (2002), the wife claimed for maintenance after the pronouncement of triple talaq by her husband, which was done in her absence and was never communicated to her. However, the husband claimed that she was not entitled to maintenance as he had purchased a house and delivered the same to the wife in lieu of dower. The Court held that the facts leading to a Talaq were required to be proven and a mere document stating the date or events of a Talaq would not be considered valid. Further, such a divorce has to be done with a reasonable cause and it has to be preceded by attempts to reconcile by two arbitrators. [19]
In Shayara Bano v. Union of India 2017, Shayaro Bano was married to Rizwan Ahmed for 15 years who divorced her through triple talaq. She filed a writ in the Supreme Court to hold three practices i.e., Talaq-e-biddat, polygamy and nikah halala as unconstitutional since they violated the fundamental rights given under A.14, A.15, A.21, and A.25 of the Indian Constitution. The Court had a divided opinion of 3:2 where the majority held that the practice of triple talaq is unconstitutional and violates the fundamental rights of Muslim women. The Court held triple talaq to be arbitrary, due to a Muslim man’s freedom to break marital ties whimsically without any attempt to reconcile. [20]
Thus, triple talaq disrupts the objective of the fundamental right of personal liberty as it gives Muslim men the absolute right to divorce their wives without their consent.
Conclusion
Triple talaq being anti-Islamic and violative of the fundamental rights of the Constitution has been negated and declared unconstitutional by the Supreme Court of India, thus marking a major victory story for Muslim women in India. The years of struggle and endurance of Muslim women in India have finally paid off denoting women power of Indian women in fighting for and regaining their basic fundamental rights.
[1] Abdul Kadir v. Salima And Anr. (1886) ILR 8 All 149
[2] Mir Mehrajuddin, Divorce under Islamic Law, 9 Cochin University Law Review 315, 315 (1985)
[3] Moonshee Buzloor Ruheem v. Shumsoonnisa Begum, (1867) 11 MIA 551
[4] Ful Chand Bibee v. Nawab Ali Chowdhry And Anr. 1908 1 Ind Cas 740
[5] Saiyid Rashid Ahmad v. Mussammat Anisa Khatun (1932) 34 BOMLR 475
[6] Supra note 2 at 318
[7] Id
[8] Hawting, G., An Ascetic Vow and an Unseemly Oath?: “īlā” and “ẓihār” in Muslim Law, 57(1) Bulletin of the School of Oriental and African Studies, University of London, 113-125 (1994)
[9] Id
[10] Sufia Khanam, Talaq-I-Tafwid And Its Application In Context Of Bangladesh: An Analytical Approach, 21 IOSR Journal Of Humanities And Social Science 34-41 (2016)
[11] Mohd. Khan v. Mst. Shahmali A.I.R. 1972 J&K 8.
[12] Mst. Balaquis Ikram v. Najmal Ikram 2 (1959), WP, 321
[13] Moonshee Buzul-Ul-Raheem v. Luteefut-oon-Nissa [1861] UKPC 19
[14] The Dissolution of Muslim Marriages Act 1939, s.2
[15] Fazal Mahmud v. Umatur Rahim, AIR 1949 Pesh 7
[16] Zafar Husain v. Ummat-Ur-Rahman (1919) 49 Ind Cas 256
[17] Supra note 2
[18] Triple talaq: India criminalises Muslim ‘instant divorce’, BBC News (2019) at https://www.bbc.com/news/world-asia-india-49160818
[19] Shamim Ara v. State of U. P. AIR 2002 SC 3551
[20] Shayara Bano v. Union of India (2017) 9 SCC 1
This Article is Authored by Nijin Raj K Jose, 2nd Year BBA LLB Student at Christ (Deemed to be a University) Bangalore.
