Divorce under muslim law


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Divorce under muslim law

  2. 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 By Husband (i) Talaq (ii) Ila (iii) Zihar By Wife (Delegated Talaq) Judicial Divorce (By wife under the Dissolution of Muslim Marriages Act, 1939) By Mutual Agreement (i) Khula (ii) Mubarat
  3. 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. 4. CONTD. 2. 3. 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. 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. 5. CONTD. 4. Express words: The words of Talaq must clearly indicate the 5. Presence 6. Notice of Talaq: It is not necessary for husband to communicate 7. Conditional and Contingent Talaq: husband’s intention to dissolve the marriage. So the pronouncement must be express. 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. 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. 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 unIslamic. Shia Law : A conditional or contingent Talaq is void and inefective.
  6. 6. KINDS OF TALAQ Talaq Talaq–ul-Sunnat (Revocable) Talaq Ahsan (Most Proper) Talaq-ul-Bidaat (Irrevocable) Talaq Hasan (Proper)
  7. 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 become Talaq final at as the once. consequences There is do possibility not 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. 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. 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 declaration of Talaq in a period of Tuhr. 2. In next Tuhr there is another single pronouncement for second time. 3. If no revocation is made after first or second declaration then the husband has to make the third pronouncement in the third period of Tuhr. After this Talaq becomes irrevocable and marriage dissolves and wife has to observe Iddat period. 4. In order to make an effective Talaq the words must be
  10. 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 Talaqul-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. 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 not
  12. 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. 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. 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-eTafweez 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. 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 1. 2. Law. There are two forms of divorce by mutual consent: Khula Mubarat
  16. 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. 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. 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. 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. 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 to have knowledge of the husband, is unable to locate the husband. Section 3 provides if the wife files the petition on this ground then she has to provide the names and addresses of all such persons who would have been legal heirs of the husband upon his death. The court issues notice to all such persons to appear before the court and to state if they have any knowledge about the missing husband. The decree under this section becomes effective only after the expiry of six months from the date of such decree. If the husband appears in person or communicates through his agent to the court and satisfies the court that he is prepared to perform his conjugal duties, the
  21. 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. 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. 23. HUSBAND’S FAILURE TO PERFORM MARITAL OBLIGATIONS FOR THREE YEARS [327] dissolution of her Under section 2(iv) a wife is entitled to the 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. 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. 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. 26. OPTION OF PUBERTY [330] 1. 2. 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: The minor's marriage was contracted by her father or father’s father. But now this exception has been removed under the Act. 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 consummated.
  27. 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. 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 incompatibility matrimonial in itself relations ahs been or total regarded reasonable ground for dissolution of marriage. mental as a
  29. 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