FAMILY LAW-II

1. Dissolution of Muslim Marriages
Course-LL.B-I
Subject-Family Law
Unit-4
1

2. Classification of Dissolution of Marriages
Dissolution of Marriage
By Act of God (Death of
husband or wife)
By Act of Parties
(Divorce)
Extra-Judicial Divorce Judicial Divorce (By wife
under the Dissolution of
Muslim Marriages Act,
1939)
By Husband
(i) Talaq
(ii) Ila
(iii) Zihar
By Wife
(Delegated
Talaq)
By Mutual Agreement
(i) Khula
(ii) Mubarat

3. Divorce By Husband
TALAQ [308]
It means repudiation of marriage by the husband. It is peculiar
because Muslim Husband has unrestricted right to divorce
without giving any reason. Muslim law does not require the
existence of any fault or matrimonial offence as an excuse for
divorce. It is applicable where it is impossible for the spouses to
live together so they must separate peacefully. However, an
indirect check upon this right is the obligation of husband to pay
the dower upon the dissolution of marriage.
CONDITIONS FOR A VALID TALAQ:
1. Capacity: Every Muslim husband of sound mind and who has
attained the age of puberty is competent to pronounce Talaq.
The guardian cannot pronounce Talaq on behalf of a minor
husband. Some jurists also consider that even Talaq
pronounced against a minor or insane wife is void and
ineffective.

4. Contd.
2. Free Consent: Except under Hanafi law, the consent of the
husband in pronouncing Talaq must be free. Under Hanafi law, a
Talaq pronounced under compulsion, coercion, undue influence,
fraud and voluntary intoxication etc. is valid and dissolved the
marriage. However, even under Hanafi law Talaq pronounced under
forced or involuntary taxation is also void.
3. Formalities:
Sunni Law: (a) Talaq may be in oral or in writing.
(b) No particular word is required to constitute Talaq but the
expression should clearly indicate the husband’s desire to
dissolve the marriage.
(c) It need not be made in presence of witnesses.
Shia Law : (a) Talaq must be pronounced orally except
where husband is unable to speak.
(b) It must be pronounced in the presence of two competent
witnesses (i.e. every Muslim male who has attained the age of
puberty and is of sound mind). Moreover in place of one male
two adult female of sound mind may be substituted.
(c) It requires the use of specific Arabic words in the specific
formulae in the pronouncement of Talaq.

5. Contd.
4. Express words: The words of Talaq must clearly indicate the
husband’s intention to dissolve the marriage. So the
pronouncement must be express.
5. Presence of wife: The presence of wife at the time of
pronouncement of Talaq is necessary. The name of wife must be
specifically referred in the pronouncement. Where the husband has
more than one wife he must specify and name the wife against
whom he is pronouncing Talaq.
6. Notice of Talaq: It is not necessary for husband to communicate
the pronouncement of Talaq to wife. Talaq becomes effective from
the moment of pronouncement and not from the time when the
wife comes to know.
7. Conditional and Contingent Talaq:
Sunni Law: A Talaq may either be absolute(i.e. unconditional)
or subject to a condition or contingent(dependent upon happening
of an uncertain future event). A conditional or contingent Talaq
becomes effective only upon fulfillment of the condition or
happening of future event. However the condition must not be un-
Islamic.
Shia Law : A conditional or contingent Talaq is void and
inefective.

6. Kinds of Talaq
Talaq
Talaq–ul-Sunnat
(Revocable)
Talaq-ul-Bidaat
(Irrevocable)
Talaq Ahsan
(Most Proper)
Talaq Hasan
(Proper)

7. Talaq-ul-Sunnat
(Revocable Talaq)
It is regarded to be the approved form of Talaq. It is
based on Prophet’s tradition (Sunna). The Prophet
always considered Talaq as an evil. If at all this evil
was to take place the best possible formula was one
in which there was possibility of revoking the
effects of this evil so the Prophet recommended
revocable Talaq as the consequences do not
become final at once. There is possibility of
compromise and reconciliation between husband
and wife. It is also called Talaq-ul-Raje. It is
followed by both Shia and Sunnis. It may be
pronounced either in Ahsan or Hasan form.

8. 1. Talaq-ul-Ahsan (Most Proper)
[311(1)]
It is the most proper form of repudiation of marriage because
there is possibility of revoking the pronouncement before the
expiry of the Iddat period and the evil words of Talaq are to
be uttered only once. In this Talaq there is single declaration
during the period of purity followed by no revocation by
husband for three successive period of purity.
Formalities required:
1. Husband has to make single pronouncement of Talaq during
the Tuhr of the wife (i.e. the period of purity which is the
period between two menstruations). But if woman is not
subjected to menstruation either because of old age or
pregnancy, a Talaq may be pronounced anytime.
2. After this wife has to observe Iddat of three monthly courses.
If she is pregnant at the time of pronouncement then Iddat is
till the delivery of the child.
For Talaq to become final and effective the husband should not
revoke (either expressly or impliedly) the Talaq within the
period of Iddat . Cohabitation with the wife is an implied
revocation.

9. 2. Talaq Hasan (Proper) [311(2)]
This is also regarded as proper
and approved form of Talaq.
Here also there is a provision
of revocation but it is not the
best mode because the evil
words of Talaq are to be
pronounced three times in the
successive Tuhrs.
Formalities Required:
1.The husband has to make a single

10. Talaq-ul-Bidaat (Irrevocable Talaq) [311(3)]
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. It is also called
Talaq-ul-Bain. This mode of Talaq was introduced by the
Omayyad Kings because they found the checks in the
Prophet’s formula of Talaq inconvenient to them. It is in
practice among Sunni Muslims. Under Shia law
irrevocable Talaq is not recognized.
Formalities required:
1. The husband may make three pronouncements in a period
of purity(Tuhr ) saying “I divorce thee, I divorce thee, I
divorce thee” or he may also declare in one sentence
saying “I divorce thee thrice” or “I pronounce my first,
second and third Talaq”.
2. The husband may make only one declaration in a period
of purity expressing his intention to divorce the wife
irrevocably saying: “I divorcee thee irrevocably” or “I

11. Ila [317]
Besides Talaq a Muslim husband may also repudiate his
marriage by Ila. It is the constructive divorce by husband.
The husband does not expressly repudiate the marriage but
the conduct of the husband is of such nature that it is
concluded that he intends to dissolve the marriage
In Ila the husband takes an oath not to have sexual intercourse
with the wife. Followed by this oath there is no
consummation for a period of four months. After the expiry
of four months, the marriage dissolves irrevocably. But if the
husband resumes cohabitation within the prescribed period
of four months Ila is cancelled and the marriage is not
dissolved.
Shia law: Under Ithan Asharia (Shia) school Ila does not operate
as divorce without the order of the court of law. It only
gives the wife a right to demand judicial divorce. If she does

12. Zihar [318]
Zihar is also constructive divorce. In this mode the husband
compares his wife with a woman within his prohibited
relationship e.g. mother or sister etc. The husband
would say that from today the wife is like his mother or
sister. After such an objectionable comparison the
husband does not cohabit with his wife for a period of
four months. Upon the expiry of four months Zihar is
complete. But the marriage does not dissolve. After
completion of four months the wife has following rights:
i. She may go to the court for a judicial divorce; or,
ii. She may go to the court for an order of restitution of
conjugal rights .
When the husband wants to revoke Zihar by resuming
cohabitation within the said period, the wife cannot seek
judicial divorce.
Shia Law: According to Shia law the declaration of Zihar
must be made in presence of two competent witnesses.

13. Divorce by wife
A Muslim wife has no independent right of divorce. She
cannot divorce her husband whenever she likes, as her
husband may do. Under Muslim law divorce by wife is only
possible in the following three situations:
1. Where the husband delegates to the wife the right of
Talaq (Talaq-e-Tafweez).
2. Where she is a party to divorce by mutual consent (Khula
and Mubarat).
3. Where she wants to dissolve the marriage under the
Dissolution of Muslim Marriages Act, 1939.
In the first two cases the wife’s right depends upon the
consent of the husband. In Talaq-e-Tafweez unless the
husband gives the right to pronounce, she cannot divorce.
In divorce by mutual consent she cannot get divorce
unless the husband also gives his consent. Under the
Dissolution of Muslim Marriages Act, 1939 the dissolution
of marriages depends upon the decision of the court.

14. Delegated Divorce (Talaq-e-
Tafweez) [314]
A Muslim husband has an unrestricted right to either
exercise his right of divorce himself or delegate it to
someone else including his wife. This is called Talaq-e-
Tafweez or delegated divorce.
The authority is given to the wife under an agreement at
the time of the marriage or anytime after the marriage.
The delegation of power may either be permanent or
temporary i.e. only for a specified time. The delegation
may even be conditional or even unconditional. But in
case of conditional delegation the conditions must be of
reasonable nature and must not be against the principles
of Islam. In such cases the divorce takes place in the
same manner as if the husband himself has pronounced
the Talaq. If wife is delegated the authority to divorce she
has complete discretion to exercise this right and she
cannot be compelled to exercise this right.
Even if the husband has delegated the authority to
divorce he is not debarred from pronouncing the Talaq.

15. Divorce by Mutual consent
[319(1)]
Under Muslim Law, a divorce may take place also by mutual
consent of the husband and the wife. Existence of any
prior agreement or delegation of authority by the husband
is not necessary for a divorce by common consent. It may
take place any time whenever the husband and wife feel
that it is now impossible for them to live with mutual love
and affection as desired by God. A divorce by mutual
consent of the parties is a peculiar feature of Muslim
law. Before 1976 there was no such provision under
Hindu Law. There are two forms of divorce by mutual
consent:
1. Khula
2. Mubarat

16. Khula [319(2)]
It means divorce by the wife with the consent of her husband
on the payment of something to him. Quran lays down
about Khula that:
“……and if you fear that they(husband and wife may not be
able to keep within the limits of Allah, in that case it is no
sin for either of them if the woman releases herself by
giving something to the husband”.
Essentials of Valid Khula:
1. Competence of Parties: Husband and wife must be of
sound mind and must have attained the age of puberty.
2. Free Consent: the offer and acceptance of Khula must be
made with the free consent of the parties
3. Formalities: There should be an offer made by the wife to
the husband. The offer of Khula must be accepted by the
husband. Offer and acceptance may be either oral or in
writing. The offer and acceptance must be made at one
sitting, i.e. at one place of meeting.
4. Consideration: For her release the wife has to pay
something to the husband as compensation It may be any
sum of money or property.

17. Mubarat [319(3)]
In Mubarat both the parties are equally willing to dissolve
the marriage. Therefore, in Mubarat the offer for
separation may come from either the husband or the wife
to be accepted by the other. So who takes the initiative
is irrelevant here. One of the important features is that
here both the parties are equally interested in the
dissolution of marriage so no party is legally bound to
compensate the other by giving some consideration.
Same conditions as Khula also apply in Mubarat.
It is similar to divorce by mutual agreement under
section 24 of the Special Marriage Act, 1954 and under
section 13-B of the Hindu Marriage Act, 1955.

18. The Dissolution of Muslim
Marriages Act, 1939 [323]
This act is regarded as a landmark in respect of
matrimonial relief for Muslim wife. The salient
features of the Dissolution of Muslim Marriages Act,
1939 are:
1. Section 2 of the Act contains certain grounds on the
basis of which a wife married under Muslim law may
file a petition for divorce. There are 9 grounds out of
which seven grounds are matrimonial guilts (or
faults) of the husband which entitle a wife t get her
marriage dissolved by a court of law.
2. These grounds are available only to the wife and not
the husband as Muslim law has already given an
absolute right to the husband to divorce his wife
without judicial intervention and without any reason.
3. For filing a petition for divorce under the Act the wife
must be of 18 years of age so the age of puberty as
per Muslim law is not applicable in this case.
However a wife less than 18 years may file the

19. Contd.
4. Section 4 provides that if wife renounces Islam and
ceases to be a Muslim then the marriage does not
dissolve ipso-facto. So the wife even after renouncing
her religion is entitled to exercise her rights of divorce
under this Act. The grounds of divorce are available to a
woman married under Muslim law, so at the time of
filing of the Petition the wife need not be a Muslim.
5. The Act extends to the whole of India except Jammu
and Kashmir and it applies to all the Muslim wives of
any sect or school. Therefore, it made a uniform law in
respect of judicial divorce by a wife in any part of the
country.

20. Husband is Missing for Four
Years [324]
Section 2(i) of the Act
provides that if the husband is
missing and his whereabouts
are not known for a period of
four years or more then the
wife may file a petition for
dissolution of marriage. He
husband is deemed to be
missing if the wife, or any
such person who is expected

21. Husband’s failure to maintain
wife for two years [325]
Section 2(ii) provides that if he husband has neglected or
failed to provide maintenance to the wife for two or more
years the wife is entitled to obtain a decree for the
dissolution of marriage. It casts a legal obligation upon every
husband to maintain his wife. If the husband is unable to
maintain his wife due to poverty, unemployment,
imprisonment, ill-health or any other misfortune, even then
the wife has a right to get the decree for dissolving the
marriage.
However, the husband’s obligation to maintain his wife is
subject to wife’s performance of matrimonial obligations.
Therefore, if the wife lives separately without an reasonable
excuse then she is not entitled to get a judicial divorce on
this ground.

22. Imprisonment of husband
for Seven years [326]
Section 2(iii) ,read with proviso (a), lays down that
a wife is entitled to get her marriage dissolved
by an order of the court of law if her husband
has been sentenced to imprisonment for a
period of seven years or more. The wife’s right
of judicial divorce on this ground begins from
the date on which the sentence has become
final. Therefore, the decree can be filed only
after the expiry of the date for appeal by the
husband or after the appeal by the husband has
been dismissed by the final court.

23. Husband’s failure to perform
marital obligations for three
years [327]
Under section 2(iv) a wife is entitled to the dissolution of her
marriage if her husband fails to perform his marital
obligations for a period of three years without any
reasonable excuse. The Act does not define “marital
obligations of the husband”. But there are several
matrimonial obligations of the husband under Muslim law.
But for the purposes of this section only those conjugal
obligations will be taken into account which have not
been accounted for in any of the clauses in section 2 of
the Act.. If the husband deserts his wife or does not
cohabit with her without any reasonable excuse then it
amounts to failure of the husband to perform marital
obligations.

24. Husband’s Impotency [328]
Under Section 2(v) of the Act a wife may sue for dissolution of
her marriage on the ground of husband’s impotency. But for
getting a decree the wife has to prove the following two
facts:
1. That the husband was impotent at the time of the marriage;
and
2. That he continues to be impotent till the filing of the suit.
Before passing a decree on this ground the court is bound to
give to the husband one year’s time to prove his potency
provided he makes an application. Where the husband is able
to prove his potency within one year then the decree of
divorce cannot be passed. Impotency here means
impotency with respect to wife and not with respect to any

25. Husband’s Insanity, leprosy
or venereal disease [329]
Section 2(vi) entitles the wife to obtain divorce on the
ground that her husband is insane or is suffering from
leprosy or venereal disease. The husband’s insanity must
be for two or more years immediately preceding the
presentation of the suit but the Act does not specify
whether the unsoundness of mind should be curable or
incurable.
Leprosy may be white or black or cause the skin to wither
away. It may be curable or incurable. The Act does not
specify its form nor its duration.
Venereal disease is a disease of the sex organs. The Act
provides that this disease must be of virulent (permanent)
nature i.e. incurable. It may be of any duration.

26. Option of Puberty [330]
This ground of dissolution of marriage is not based on any
fault of the husband. It is an independent provision under
which a marriage is voidable at the option of the wife .
Under section 2(vii) a wife can obtain a decree for
dissolution of marriage if her marriage was contracted by
her father or any other guardian during her minority. Thus
this clause gives her the option of repudiating the
marriage before attaining the age of thirteen years,
provided the marriage has not been consummated. This
right was also available under the old Muslim law and
was known as Khayar-ul-Bulugh but this right was not
available to the wife under the old law when:
1. The minor's marriage was contracted by her father or
father’s father. But now this exception has been removed
under the Act.
2. The wife had to exercise her option of puberty
immediately after attaining the age of puberty. Now the
Act provides that wife can exercise this right up to the
age of eighteen years provided the marriage has not

27. Cruelty by Husband [331]
Section 2(viii) provides that a wife can sue for divorce if her
husband treats her with cruelty. Even under the old law this
ground was recognized but its scope was limited to physical
tortures and mental cruelty by husband was not a sufficient
ground for dissolution of marriage. The Act has now enlarged
the scope of the Act to include mental cruelty. The Act defines
cruelty by laying down following acts on the husband which are
regarded as cruelty against the wife:-
1. Habitual assault on the wife or making her life miserable by
cruelty of conduct if such a conduct does not amount to
physical ill-treatment.
2. Association of the husband with women of evil repute or that he
leads an infamous life .
3. The husband attempts to force his wife to lead an immoral life.
4. The husband disposes off her property or prevents her from
excersing her legal rights over it.
5. The husband obstructs her in the observance to her religious
profession or practise.
6. If the husband has more wives than one and he does not treat
her equitably in accordance with injunctions of Quran.

28. Any other ground recognized as valid
for dissolution for marriage under
Muslim Law [332]
Section 2(ix) a residuary clause under which a wife may
seek dissolution of her marriage on any ground which
could not be included in this section, but it is recognized
under the Muslim personal law. A false charge of adultery
by the husband against his wife (Lian) was a sufficient
ground for judicial divorce under Muslim law. This ground
may be invoked under this provision.
However section 2(ix) is not limited to Lian. The wife may
seek divorce on any other ground not included under any
of the clauses of section 2. Under this clause complete
breakdown of matrimonial relations or total mental
incompatibility in itself ahs been regarded as a
reasonable ground for dissolution of marriage.

29. Legal Effects of Divorce [336]
Divorce operates as complete severance of matrimonial
relationship between husband and wife. After divorce
the parties cease to be husband and wife and its legal
consequences are:-
1. Cohabitation between husband and wife becomes
unlawful
2. The wife is required to observe Iddat of three lunar
months after divorce or if pregnant till the delivery of
child. If divorce was before consummation had taken
place so no need of Iddat.
3. During Iddat the divorced wife is entitled to be
maintained by her former husband which is governed
by Muslim Women(protection of Rights on Divorce) Act,
1986.
4. The unpaid dower becomes immediately payable to
the divorced wife.
5. Both the parties are free to contract another marriage.
6. The mutual rights of inheritance between the spouses
cease to exist.

30. References
• 1.https://lh5.ggpht.com/qrJarYaufqnAJVNtOb46OMVgcVXrHgLgPQoyYBtGzqEUUgmFdd
Hh2vQ1QO7fPiYq083P=s153
• Mulla -Hindu Law, (18th Ed. 2002) Butterworth Publication
• Family Law: Paras Diwan,. Allahabad Law Agency
• http://www.slideshare.net/
•