Introduction

The Muslim law incorporates some great provisions for extra judicial remedy of divorce. It is a matter to be observed carefully whether other Personal Laws can alienate the mechanism of granting divorce through family courts. The trouble grows when it becomes unworkable to live together and time goes in vain litigating in courts.

• In Hindu Law, Divorce outside the court is not valid. In order to take divorce, one has to follow the provisions contained in the Hindu Marriage Act, 1955.

What is the Background in Relation to Divorce Under Muslim Law?

• A constitution bench in Shilpa Sailesh v. Varun Sreenivasan (2023), has recently ruled that in cases of irretrievable breakdown of marriage the waiting period of 6 months can be waived off.
• Similarly Indian Courts have been sympathetic towards the causes of Muslim Women but in Mohammed Rafi v. State of Tamil Nadu (2019), Madras High Court took a different turn.
  • The facts of the above-mentioned case are, Sayeeda Begum married Mohd. Rafi in 2013 and the wife left the matrimonial home in 2016 after a child was born out of wedlock in 2015.
  • She took the initiative for divorce and placed her intention before the Shariat Council, they in turn granted her Khula (wife-initiated divorce).
  • This Khula granted to her was nullified by the Madras High Court on the ground that such divorce has no legal sanctity.
  • A representative of the University of Illinois in Chicago studied family courts in Chennai and looked into the cases before Kazis in Hyderabad and it was observed that women prefer proceeding before Kazis rather than courts.
    • The major cause for this choice is poor infrastructural facilities inside the Court premises.
  • It has also been seen in recent times that after the Talaq-ul-Biddat (Triple Talaq) was made illegal by the Apex Court, husbands force women to take Khula so that husbands can escape from the responsibility of marriage as early as possible.

What are the Legal Provisions in Relation to Divorce Under Muslim Law?

• Divorce under Muslim law can be judicial or extra-judicial.

Judicial Remedy

• The judicial remedy is available as a right given to wife to give divorce under Section 2 of the Dissolution of Muslim Marriages Act, 1939.
• Section 2 of the Dissolution of Muslim Marriage Act,1939 – Grounds for decree for dissolution of marriage:

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:

(i) that the whereabouts of the husband have not been known for a period of four years; (ii)that the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so; (vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated;

(viii) that the husband treats her with cruelty, that is to say,

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;

(ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law.

Provided that:

(a) no decree shall be passed on ground (iii) until the sentence has become final;

(b) a decree passed on ground (i) shall 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 authorised agent within that period and satisfied the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and

(c) before passing a decree on ground (v) the Court shall, on application by the husband, made 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 the husband so satisfies the Court within such period, no decree shall be passed on the said ground.

Extra Judicial Remedy

• Extra Judicial Talaq under Muslim Law has many forms, most prevalent being 'Talaq-e-Sunnat' and 'Talaq-e-Biddat'.
• Females can obtain Khula form of talaq under Shariat Law.
• Talaq-e-Sunnat is further divided into:
  • Talaq-e-Ahasan (Most Approved Form): It consists of a single pronouncement of divorce made in the period of tuhr (period between a female’s two menstruations), or at any time if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period if iddat. This form of divorce can be revoked at any time before the completion of the period of iddat.
  • Talaq-e-Hasan: In this the husband is required to pronounce talaq three times during three successive tuhr periods. If the wife has crossed the age of menstruation, the pronouncement may be made after the interval of a month or thirty days between the successive pronouncements. On final pronouncement the talaq becomes final and irrevocable.
  • Talaq-e-Biddat: This type of talaq is not recognized by the Shias. It has two forms:
    1. The triple declaration of talaq made in a period of purity, either in one sentence or in three,
    2. The other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise.
• The 5-judge bench in Shayara Bano v. Union of India (2017), by 3:2 majority declared Triple Talaq as unconstitutional under Article 14 r/w article 13(1) of the Constitution of India, 1950 (COI).
• Thereafter the parliament of India, passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019. It declared the practice of triple talaq as illegal and also made it a punishable act from 1st August 2019. The punishment for committing this crime is imprisonment for up to 3 years and a fine.

Conclusion

• Courts in India already have a huge pendency of cases and if cases pertaining to Khula will be considered by the courts, it will lead to further backlog. Reliance can also be placed upon Section 89 of the Civil Procedure Code, 1908 (CPC) where it is directed to resolve matters through alternative dispute resolution techniques namely arbitration, conciliation, mediation.