Introduction

• The term ‘divorce’ comes from the Latin word ‘divortium’ which means to turn aside, to separate.
• Under the Muslim Law, a marriage is dissolved either by the death of the husband or wife, or by divorce.
• When there is a contract, the option to end the contract also arises by the option of parties.

Dissolution of Marriage under Muslim Law

• Under the Muslim Law, only the husband has the ‘Right to divorce’.
  • He may do so, without providing any reasons and by mere pronouncements of such words that signify his intent to renounce their marriage.
• A Muslim wife holds the power to divorce only when the right to divorce is delegated to her by her husband or by mutual agreement i.e., Khula or Mubarat.
• Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery, insanity or impotency of the husband.
• Divorce under Muslim law has been divided into the following categories:

By Husband:

• Talaaq:
  • 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.
  • Under the Shia law, a talaaq must be pronounced orally. No specific words are required to constitute a valid talaaq. Talaaq under Shia law must be pronounced in front of two witnesses.
  • According to Sunni Law, every man is capable of pronouncing Talaq who is (i) adult and (ii) sane.

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

• Talaq –ul-Sunnat: - it is Talaq which is effected in accordance with the traditions of Prophet. It has been further sub-divided into:
  • Talaaq-i-ahasan: Once the husband pronounces talaaq, there has to be a three-month iddat period to factor in three menstrual cycles of the woman.
    • During this period, if the husband resumes cohabitation or sexual intercourse with his wife, the divorce is revoked.
  • Talaaq-i-hasan: The husband is expected to utter words of Talaaq three times in successive periods after menstrual cycles.
    • The husband has to make a single declaration of talaaq and then await for another menstrual cycle to pronounce another declaration.
  • The first and second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, the words of talaaq becomes ineffective.
  • If no revocation is made after the first or second declaration, then the husband gets bound to make the third pronouncement and the marriage dissolves.
• Talaq–al Biddat: Talaq–al Biddat includes irrevocable forms of divorce. It is not considered as a proper form of divorce. It is a disapproved mode of divorce. A peculiar feature of this Talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties.
  • Triple Talaq: - Triple Talaq is a form of divorce that was practiced in Islam, whereby a Muslim man could divorce his wife by pronouncing talaq three times. The man need not cite any reason for the divorce and the wife need not be present at the time of pronouncement of talaq.
    • ShayaraBano v. Union of India (2017), She challenged this practice before the Supreme Court on the ground that the said practice is discriminatory and against dignity of women.
    • The SC, in a majority judgment rendered on 22nd August, 2017, set aside the practice of divorce by pronouncing instant Triple Talaq as violative of Article 14 of the Indian Constitution.
    • SC’s judgment vindicated the position taken by the Government that talaq-e-biddat is against constitutional morality, dignity of women and the principles of gender equality and also against gender equity guaranteed under the Constitution of India.
• Ila:
  • In Ila, the husband takes an oath not to have sexual intercourse with his wife and there is no consummation for a period of four months. The marriage dissolves irrevocably after the expiry of four months.
  • If the husband resumes cohabitation within four months, Ila is cancelled, and the marriage does not dissolve.
• Zihar:
  • Zihar is a form of inchoate divorce. If the husband compares his wife to any of his female relations within such prohibited degrees as renders marriage with such person unlawful, the wife has a right to withdraw from him until he has performed penance. If the husband does not expiate, the wife has a right to apply for judicial divorce.

By Wife:

• Talaaq-i-tafweez:
  • Talaaq-i-tafweez is also known as delegated divorce and is recognized by both Shias and Sunnis. This is the only way through which a woman can give divorce to her husband but this power of giving divorce needs to be delegated by the husband only. It is a form of agreement which allows the wife to get separated from her husband via divorce.
• Lian:
  • Lian, in simple terms means wrong charge of ‘Adultery on wife’. When a husband falsely imposes adultery charges against his wife, the wife has the right to sue her husband and also ask for a decree of divorce on these grounds.

By Mutual Consent:

• Khula:
  • A divorce with mutual consent and at the instance of a wife in which she agrees to return mahr (obligation paid by the groom to the bride at the time of Islamic marriage) or give some consideration to her husband. It allows a woman to initiate a divorce.
• Mubarat:
  • In mubarat, both, the husband and the wife, are happy to get rid of each other. Among the Sunnis, when the parties to marriage enter into a mubarat, all mutual rights and obligations come to an end.
  • The Shias insist that the word mubarat should be followed by the word talaaq pronounced in Arabic unless the parties are incapable of pronouncing the Arabic words, otherwise no divorce would result. Among both Shias and Sunnis, mubarat is irrevocable.

Womans Right to Divorce under the Dissolution of Muslim Marriage Act,1939:

A Muslim woman may file for divorce on the following grounds-

• That the whereabouts of the husband have not been known for a period of 4 years.
• That the husband has neglected or has failed to provide for her maintenance for a period of two years.
• That the husband has been sentenced to imprisonment for a period of seven years or upwards.
• That the husband has failed to fulfill his marital obligation for a period of three years.
• That the husband has been insane for two years or is suffering from leprosy or a virulent form of venereal disease.
• That the husband was impotent at the time of marriage and continues to be so.

The women, being given in marriage by her father or other guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18.