For understanding the methods of dissolution of marriage, let’s first see what marriage is under Muslim law because the only essential for divorce under Muslim law is marriage. The dissolution of marriage is known as divorce
⦁ According to the Hindu Marriage Act, 1955 marriage is a religious sacrament.
⦁ Under Muslim Law, Marriage is a contractual relationship between two parties. All the essentials that are required for a contract are present under Muslim Marriage. There is an offer, acceptance, consent, consideration, the capacity of parties, etc. The purpose of such a form of marriage are:-
Legalizing sexual intercourse.
Procreation of children.
The Privy Council held that marriage under Muslim law is a religious ceremony. Under Islam, marriage is recognized as a basis of society. Marriage is an institution which leads to upliftment of man and is also a means for the continuance of the human race.
Divorce is the end of such a marital relationship, as under Muslim law there are two modes given for the dissolution of marriage-
⦁ Divorce
⦁ Talaq
Above the table is provides a brief view about the different kinds of methods for dissolution of marriage under Muslim law.
There are four modes available before a husband for dissolving the tie of marriage:
This form of talaq is effective in accordance with the traditions established by the Prophet. It is further divided into two parts:-
It is known as the best form of talaq as the name clarifies the same. The procedure followed by the husband is as follows –
⦁ He has to make a pronouncement of divorce in a single sentence, such pronouncement must be made in a purity state (when a woman is free from her menstrual cycle).
⦁ A husband must not indulge in any form of sexual intercourse during the iddat period (period of chastity a Muslim woman is bound to observe after the dissolution of marriage, either by the death of her husband or by divorce) and if he does so, then it will be considered as implied revocation of talaq. It is pertinent to note that once the iddat period has expired, the divorce becomes irrevocable.
⦁ When the partners have not consummated, talaq-e-Ahsan can be pronounced even if the wife is in her menstruation.
The Arabic meaning of Hasan is good, therefore divorce pronounces through Hasan mode is a good but lesser worth than the one pronounced in Ahsan. Husband has to make three successive pronouncements for divorce.
⦁ In the case of a menstruating wife, such three pronouncements should be made in three consecutive tuhr (state of purity).
⦁ In the case of a non-menstruating wife, pronouncement should be made at three successive intervals of 30 days.
No sexual intercourse should take place during these periods of three pronouncements and if such an act takes place then the process of divorce will be revoked.
Talaq Hasan becomes irrevocable on the third pronouncement irrespective of iddat period.
This form of talaq is introduced by “Umayyads” in order to escape from the strictness of Law. This is a sinful form of talaq, as it is recognised among the Hanafis. Sunni law recognizes this mode of talaq, though recognized as sinful by that too. Whereas Shias and Malikis do not recognize this mode.
⦁ Three pronouncements made in a single tuhr either in a single sentence or in separate sentences eg. “Talaq, talaq, talaq” or “I divorce thee, I divorce thee, and I divorce thee.”
⦁ Single pronouncement clearly indicates an intention to dissolve a marriage and makes it irrevocable. It is usually pronounced as – “I divorce thee irrevocably”.
Partners separated through triple talaq can’t remarry without the formality of the woman marrying another man and getting divorced from him, this process is called Nikah Halala.
The situation wherein a husband who is of sound mind and has attained the age of majority swears in the name of God that he will not have sexual intercourse with his wife and leaves her to observe iddat, he is said to make Ila.
If the husband resumes sexual intercourse within the iddat period being observed by wife, it will lead to cancellation of Ila It is pertinent to note that Ila is not practiced in India.
A husband must be of sound mind and above the age of 18 years to be eligible to use this mode dissolution of marriage. If he compares his wife to his mother or any of the female within prohibited degrees, the wife has a right to refuse to have sexual intercourse with him. Such refusal can be accepted until he has expiated himself from penance prescribed by law. Muta marriage (practiced among Shias) which admits no other sort of divorce may be dissolved by zihar.
Such form of divorce is no longer in use anymore.
Divorce given by wife under the husband’s delegated power.
This is the only way through which a woman can give divorce to his husband, however, such power to give divorce needs to be delegated by the husband only. It is a form of an agreement made either before or after marriage providing that wife will be privileged to get separated from her husband via divorce under the specified condition as:-
⦁ In case the husband marries a second wife
⦁ The husband is unable to maintain her for a specified period of time any other condition that must not be opposed to public policy.
If the conditions agreed in the agreement by the husband are well practiced by him then, the wife without any prejudice to Law can dissolve her marital ties.
The fact that husband delegates the power to the wife does not dispossess him of his right pronounce talaq.
Although the practice of giving Divorce by mutual consent was not recognized in the Muslim Law, it was only available to the Muslim women after the enactment of Dissolution of Muslim Marriages Act, 1939.
The literal meaning of khula is “to lay down” before the law. The husband lays down his right over his wife. It signifies an arrangement entered into to dissolve a connubial connection in lieu of compensation paid by the wife to her husband out of her property, everything that can be given as dower.
Khula is a divorce with mutual consent and at the instance of a wife in which she agrees to give some consideration to her husband. It is basically a “redemption” of the contract of marriage.
⦁ There must be an offer from the wife’s side
⦁ Offer must be accepted by the husband with the consideration for it.
⦁ Observance of the iddat period is necessary.
Under Shia law, husband can’t revoke divorce once accepted whereas the wife has been given the power to reclaim the consideration during the iddat period.
It signifies mutual discharge from the marital tie. The most essential element is that the mutual consent of both the partners is required in regards to the dissolution of marriage.
In this mode of divorce-
⦁ Offer can be made from either of the sides.
⦁ Acceptance of offer makes divorce irrevocable.
⦁ Iddat is necessary
Under Shia law, parties can dissolve their marriage, if it is not possible for them to continue their marriage by way of mubarat.
The last mode mentioned in the above table for dissolution of marriage is, by way of judicial separation.
Further, there are two ways-S
Lian can simply be described as the wrong charge of adultery on wife by her husband. Whenever a husband imposes false adultery charges on his wife, then a wife can sue him and can also obtain a divorce on the same ground under the Act, by filing a regular suit for dissolution of marriage.
⦁ A husband must be adult and sane.
⦁ He charges his wife of adultery.
⦁ Such a charge must be false.
⦁ False charges do not ipso facto (by that fact itself) dissolve the marriage, it just provides a ground to the wife to move to the court to dissolve the marriage.
⦁ Marriage will continue until the decree for dissolution of marriage is passed by the court.
⦁ Judicial seperation via mode of lian is irrevocable.
⦁ This mode is applicable only to Sahih marriages not on fasid ones.
Retraction can be made by the husband before the end of the trial, admitting that he made the charge of adultery against her wife and such charge was false.
Quran says that husband and wife are duty bound to respect each other and treat each other respectfully and obey all lawful orders of each other.
If both of them find that they can’t live as husband and wife further, they can approach qazi who after careful examination may terminate their marriage.
Section 2 of Dissolution of Muslim Marriage Act, 1939 states nine grounds on which a Muslim wife can obtain a decree of divorce:-
Absence of Husband – whereabouts of the husband are not known from the past four years. Dissolution of marriage decree on this ground will take effect after six months from the date of such decree is passed, and during that period if the husband appears in person or through an authorizes agent. Court if satisfied from same may set aside the said decree.
Failure to maintain- If a husband fails to provide maintenance to his wife for two years. There is no defense available before husband on the ground of poverty, failing health or unemployment.
Imprisonment of a husband- If the husband is imprisoned for seven years or more.
Some of the ways through which grounds for cruelty could be claimed as follows.
⦁ Physical assault.
⦁ Making defamatory statements affecting her reputation.
⦁ Forces her to lead an immoral life.
⦁ Obstructing her from practicing her religion.
⦁ Husband having more than one wife and does not treat them equally.
Talaqnama is talaq given in the written form. Talaq via talaqnama can be provided in the absence of wife and also there is no necessity to be signed in the presence of Qazi or wife’s father.
⦁ Husband has to execute a proper deed.
⦁ A deed must contain the name of the women whom he has divorced and his name.
⦁ Talaq pronounced under intoxication is not recognised valid under Muslim law.
⦁ For a valid talaq, intention is not an essential element.
⦁ Husband may give talaq by mere words without any talaqnama or deed.
⦁ An ailing Muslim (generally men) has been given the power to pronounce talaq, just to prevent his right of inheritance moving to his wife after his death.
⦁ If the man pronounces irrevocable talaq in death illness and dies before the expiry of the iddat period, a wife is entitled to claim her share.
⦁ In case the husband dies after the expiry of the iddat period than there is no right of inheritance.
⦁ Mutual rights of inheritances cease.
⦁ Cohabitation becomes illegal, and children born after such intercourse will be illegitimate.
⦁ Dower becomes immediately payable.
⦁ Parties can contract another marriage.
⦁ Wife is entitled to maintenance during the iddat period.
The Iddat period after divorce in a Muslim marriage is a period of time where the wife is not allowed to marry anyone else or have sexual intercourse with anyone. Only women have to follow the Iddat period under the Muslim Law.
If you have been divorced by your husband then the Iddat period is:
⦁ Three months from the date your husband says the word ‘talaq’.
⦁ If you are pregnant during this iddat period, then until the date of delivery.
Your husband can always change his mind during the iddat period and take back his talaq, after which, you will be a married couple again.
During a Muslim marriage ceremony, a sum of money or property will be decided to be paid to you by your husband, known as mehr or dower. Traditionally mehr is understood as an amount reserved for the wife for when she needs it the most that is either after divorce or death of the husband.
Even if no specific amount is fixed at the time of the marriage, legally you have a right to mehr. It can either be paid in full at the time of marriage or in parts, i.e. half at the time of marriage and the rest upon divorce or death of your husband.
Once your divorce is final, and your iddat period has been completed, if you haven’t received your mehr amount from your husband then your husband has to give it to you.
Under Muslim Marriage law, maintenance is paid by your husband to you and your children after the divorce has taken place. You do not have to pay maintenance to your husband as under Muslim law, only a man has to pay and take care of the woman after the divorce.
You can go to the Court to ask your husband to pay you maintenance. Courts determine the sum of maintenance based on the financial capacities of the husband.
In Muslim law, you have a right to get maintenance from your husband till:
⦁ Your Iddat period for divorce is over.
⦁ After your iddat period until you remarry.
⦁ You can also ask for more maintenance if the amount you are receiving is insufficient based on circumstances.
You cannot get maintenance from your husband if he has died. However, you have options of getting maintenance from:
⦁ Any relatives who may inherit your wealth and property.
⦁ Your children.
⦁ Your parents.
⦁ State Wakf Board.
Along with your maintenance, you are entitled to get the mehr amount mentioned in your nikahnama. This mehr is given either on divorce or on death of your husband
If your husband wants to remarry you after a divorce then also you have to observe a period of iddat, which is different from the iddat time period if your husband dies. In a situation where your husband wants to marry you again after divorcing you, then he has to wait till the following happens:
⦁ You have to follow the iddat period.
⦁ After the iddat period is over, you have to marry another man.
⦁ You and the other man have to live together and consummate the marriage. As per the law, your marriage is considered to be consummated when you have sexual intercourse with your husband.
⦁ The other man has to divorce you.
⦁ You have to follow the iddat period after a divorce.
⦁ After the iddat period is over, you can remarry your husband again.
⦁ The wife cannot remarry immediately but has to wait for a certain period known as ‘iddat’.
⦁ It is the period during which a Muslim woman cannot marry another man or have sexual intercourse with anyone.
⦁ When your husband dies, you will have to observe an iddat period of four months and ten days from the date of your husband’s death.
⦁ When you divorce your husband (and he doesn’t die) then the iddat period is three months from the date your husband says the word ‘talaq’.
If you are pregnant during this iddat period, then after your child has been born your iddat period will begin.
