This powerpoint seeks to explain the various aspects of divorce law under Mohammedan Law in India with the help of flowcharts and relevant case laws.

1. DIVORCE
UNDER
MUSLIM
LAW
By Yusra Raouf,
Ex-Intern @ Prime Legal

2. Why I chose
this topic?
Significance
Overview of
my
Presentation

3. • Scenario before British Raj
• Enactment of legislation during British India
• Sources of Muslim Law
• Shariat Act 1937
Evolution of Divorce
Overall Framework/Classification of types of divorce
• Repudiation
• Mutual Consent
• By Law
• By Court
Detailed Analysis of each type along with Case Laws to assist
understanding
The Dissolution of Marriage Act, 1939
• Sharia Court v Family Court
• Talaqnama
• Maintenance
Procedural Difficulties involved

4. Marriage is a contract under Muslim Law unlike the Hindu Law
governed by the rules of contract
Divorce – meaning termination of this contract, and is highly
discouraged and an exception only
Divorce stock ratio, This ratio is 2.0 for Hindus and 3.7 for
Muslims. About 78.7% of Muslim divorcees are women; for
Hindus, this figure is 64.2%.
Reasons- Male Dominance/control, Discrimination in form of
unilateral Divorce, Polygamy, Lack of future support,
economic bw
Mahr or Dower is the total money or property that the husband is
required to give the wife at the time of marriage .
Significance of Divorce under
Muslim Law
the fixing of dower
revocation of
talaq
restraints on
re-marriage

5. During the British Raj, the colonial courts were directed to apply “indigenous
legal norms” in matters relating to family law and religion, with “native law
officers” advising the courts on the determination of those norms.
Legal commentators on the development of the indigenous system of “Anglo-
Muhammadan” law. attach varying degrees of significance to the subsequently
authoritative position of these works (and the quality of the translations)
There was the absence of judicial expertise in Muslim law which is why courts
had to introduce principles of English law and procedure through judges trained
in the English legal tradition and through interpretation of the residual formula of
justice and right and the reliance was placed on customary law.
Divide and Rule by British India And Jinnah’s attempts at Muslim
Representation led to creation of The Muslim Shariat Act, 1937

6. The Muslim Personal Law Application Act 1937 (Shariat Act) directs the
application of Muslim Personal Law to Muslims in a number of different
areas mainly related to family law.
Application of Personal Law to Muslims.-
Notwithstanding any custom or usage to the
contrary, in all questions ... regarding intestate
succession, special property of females,
including personal property inherited or
obtained under contract or gift or any other
provision of Personal Law, marriage,
dissolution of marriage, including talaq,,ila,
zihar, lian, khula and mubaraat, . . the rule of
decision in cases where the parties are
Muslims shall be the Muslim Personal Law
(Shariat)

7. Shariat Law
(Quran & Sunnah)
Juristic
Interpretations
(Hanafi school)
Legal Precedents Customs
Sources

8. Classification
of Divorce
Extra
Judicial
Mutual
Consent
By
husband
Himself
TALAQ
By
Delegati
on
Talaq-e-
Tafweez
By wife
Khula Ila Lian Zihar
Judicial

9. Extra Judicial- 1. By husband (Repudiation/Talaq)
1
•Talaq-e-Ahsan
•Before consummation of marriage
•Irrevocable
2
•Talaq-e-Ahsan
•After consummation of marriage
•Can be revoked within 90 days
3
•Talaq-e-Hasan
•Cannot be revoked after 90 days
4
•Talaq-e-biddat
Talaq in its literal
sense means “the
taking off of any tie
or restraint”
Moonshee Bazloor
Raheem v.
Shamsoonissa
Begum (1867)11
MIA 551 (610)
“Matrimonial law of
the Muhammadan
like that of every
ancient community
favours the stronger
sex where the
husband can
dissolve the marital
tie at his will”

10. "Talaq-e-Ahsan" is the 'most proper' form of talaq in which the
husband expresses divorce in single sentence - "I have divorced
thee" - during the period of tuhr (when the wife is not
menstruating) and then has to wait till the iddat period is over.
Iddat period for a woman who has been divorced by her husband is
usually three menstrual cycles. In case the woman is pregnant,
the iddat period lasts until she gives birth
During this time, she cannot marry another man. If before the
completion of iddat, the husband resumes co-habitation with his
wife or says that "I have retained thee", the divorce is revoked.
"Talaq-e-Hasan" is the 'proper' form of talaq.
In this form, three successive pronouncements of talaq are made
by the husband in three successive tuhrs In case of a
nonmenstruating woman, its pronouncement may be made after
the interval of a month or thirty days between the successive
pronouncements. This form of talaq can be revoked any time
before the third pronouncement.

11. In Yusuf v. Sowramma, IR 1971 Ker 261 the Kerala High Court
observed that, “it is popular fallacy that a Muslim male enjoys,
under Quranic law, unbridled authority to liquidate the marriage.
The holy Quran expressly forbids a man to seek pretext for divorcing
his wife so long as she remains faithful and obedient.” He further
observed about the state of affairs in India, that Muslim law as
applied in India has taken a course contrary to the spirit of what the
holy Prophet (PBUH) or the holy Quran laid down and the same
misconception vitiates the law dealing with the wife’s right to
divorce.
Shamim Ara v. the State of U.P., (2002) 7 SCC 518 –NOTABLE CASE
“…The correct law of talaq as ordained by the Holy Quran is that talaq
must be for a reasonable cause and be preceded by attempts at
reconciliation between the husband and the wife by two arbiters — one
from the wife’s family and the other from the husband’s; if the attempts
fail, talaq may be effected (para 13).

12. Talaq-i-tafweez is also known as Talaq-i-Tawhid. Literally,
tafweez means ‘delegate’. A Muslim husband can delegate his
power of pronouncing talaq to his wife or to any other
person.
Extra Judicial- 1. By husband (Delegation)
Capacity to delegate the power: A husband:
a) Who is of sound mind, and
b) b) Who has attained the age of puberty may delegate his right
of pronouncing talaq. If a husband becomes insane after
delegating his power, the delegation will not be invalidated.
c) It is not necessary that the wife or any other person, to whom
the power is delegated, should also have attained the age of
puberty
Muslim husband may delegate the power absolutely or
conditionally, temporarily or permanently

13. Mubaraat means “release”, which puts an end to
matrimonial rights. The word Mubaraa means
an act of freeing one from another mutually. It is
a mutual discharge from marriage i.e. It is a
divorce by mutual consent of the husband and
wife.
But mutual agreement must be made at the
same meeting and the word “Mubaraat” must
be clearly expressed in the proposaland if
ambiguous expressions are used, intention must
be proved.
Extra Judicial- 2. By Mutual Consent (Mubarat)

14. “A divorce by khula is a divorce with
the consent and at the instance of the
wife in which, she gives or agrees to
give a consideration to the husband
for her release from the marriage tie.
In such a case, the terms of the
bargain are matters of arrangement
between the husband and wife, and
the wife may, as the consideration,
releases her dower mahr and other
rights or make any other arrangement
for the benefit of the husband”.
. Khula infact is thus a right of
divorce purchased by the wife
from her husband
Both the husband and the wife must be of sound mind and have attained
puberty. Under Hanafi law, the guardian of a minor wife may enter into a
khula on her behalf; but the guardian of a minor husband cannot enter into
a khula on his behalf.
Extra Judicial- 3. By Wife (A. Khula)
Husband’s
Consent or
not?

15. Ila means “oath” or “vow”. In law, it means
that, when a husband takes an oath that he will
not do sexual intercourse with his wife for four
months or above on the expiry of four months
after making ila, if the husband has abstained
from sexual intercourse during this period, the
marriage shall stand dissolved.147 There is no
limit prescribed for the longest period. ila made
under compulsion or intoxication would be
valid as in the case of talaq under similar
circumstances
Extra Judicial- 3. By Wife (B. Ila)

16. The term “zihar” is derived from ‘zuhar’, the
back. When the husband compares his wife with
the back of his female relations within the
degrees of prohibited relationship
Capacity to make zihar: A husband who is:
a) Of sound mind, and
b) b) Who has attained puberty can make zihar.
c) Once the husband makes it, the wife gets a right to refuse
cohabitation with him until he performs a penance and if the
husband refuses to perform the penance, the wife may get a judicial
divorce. i.e., she may apply to the court for the penance to be
performed by the husband or to pronounce a talaq on her. On the
refusal of the husband to do either thing, the court may grant a
divorce
Extra Judicial- 3. By Wife (C. Zihar)

17. Allahabad High Court:
Zafar Husain vs Ummat-Ur-Rahman on 3 January, 1919
The main question in the case is whether a Muhammadan wife is entitled to
bring a suit for divorce and obtain a decree for dissolution of marriage on the
ground that her husband has falsely charged her with adultery.
The defendant denies having made such a charge, but both the Courts below
have found that he made it and imputed to the wife incest with her own brother
and that the imputation was wholly without foundation.
“We have, therefore, to consider whether in these circumstances the plaintiff is
entitled under the Muhammadan Law, which must govern questions of marriage
and divorce, to have it declared that her marriage with the defendant has been
dissolved. The authorities of Muhammadan Law on the subject have been laid
before us and, in my opinion, they clearly establish that she is entitled to such a
declaration.”
The Muhammadan Law of evidence being no longer in force and the ordinary
Courts having taken the place of Kazis, these Courts are the authorities which
should make a decree for divorce on being satisfied according to the ordinary
rules of evidence that a false imputation was made by the husband and it is
unnecessary to comply with the formalities of laan.
Lian

18. Judicial Divorce - by DMMA
In 1939, British India enacted the Dissolution of Muslim Marriages Act ("DMMA").
The DMMA provides grounds for marriage dissolution unrecognized prior to its
enactment. Only a wife can file for divorce under the DMMA; a husband cannot
invoke the DMMA to divorce his wife.' 27 This is probably because husbands have
broad talaq rights and do not need the rights that the DMMA gives.
Injury/Discord
Cruelty-
Emotional
and
Physical
Immoral
Acts
Defect of
Husband
Impotent
Leprosy
Insanity
Maintenance
Failure
For two
continuous
years
Absence of
Husband
Missing for
four years
Imprisoned
for 7 years
without
bail

19. Under pure Islamic law, where a husband made an accusation of
adultery against his wife, he was required to prove his charge by the
testimony of four law worthy witnesses
If the husband levels false charges of unchastity or adultery against his
wife then this amounts to character assassination and the wife has got
the right to ask for divorce on these grounds. Such a mode of divorce is
called Lian.
2. Judicial Divorce - by Change of Relegion
and Prohibited Relationship (LIAN)
The DMMA governs the effects of one spouse changing faiths.
There are three possibilities that can occur .
First, if the husband renounces, or apostasies, Islam, the marriage is
immediately dissolved.
Second, it was true that if the wife apostatized, the marriage was
again dissolved.
Third, if the couple was married under a different religion and only
one spouse converted to Islam, then the marriage is terminated if
the other spouse refuses to convert also to Islam

20. COMMON
PROCEDURAL
DIFFICULTIES
WITH DIVORCE
UNDER
MUSLIM LAW

21. Shariat Court vs. Family Court
However, by stopping short of terming them illegal, it allows the continued
functioning of such parallel courts whose judgements are often enforced on the
strength of social sanction.
Sharia courts are those ‘courts’ which
seek to safeguard and enforce Sharia
laws. These courts are traditionally
called “Darul Qazas” (or house of qazi).
These Sharia courts are not courts in
their strictest sense but more of a
counselling and arbitration centres.
They are popular because they are
accessible, informal and voluntary
institutions that provide speedy and
inexpensive justice especially to the
poor.
It has also been held by Supreme Court
in Vishwa Lochan Madan v. Union of India
and others (2014) itself that the fatwas or
Islamic edicts given by the Sharia courts
have “no place in independent India”
and these must not be used to punish the
innocent. The court further noted that
the advice of these are not binding and
the parties are free to accept or reject it.
The verdict also solely referred to Sharia
Courts as “informal justice institutions”
with “laudable objectives
Therefore, these courts cannot produce verdicts that are binding on an individual or
infringe the fundamental rights vested in the citizens of India.

22.  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.
 Points to be considered for a valid Talaq
 Talaq pronounced under intoxication is not recognized 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 but
once challenged, it can be difficult for husband to prove the divorce.
Talaqnama

23. Shakil Ahmad Jalaluddin Shaikh vs Vahida Shail Shaikh And Anr on 20 January,
2016- HC of Bombay
 Mere existence of a document like talaqnama, is not sufficient to render a
valid Talaq. Justice M.S. Sonak held that, for a valid Talaq, it is not sufficient if
challenged by wife.
 Even in case of irrevocable Talaq in the presence of a Qazi or the wife's father
or two witnesses the factum of this form of Talaq is required to be proved, if
challenged before a competent court in appropriate proceedings. The
witnessed should be as per law that is two men or four female witnesses
 The husband is required to discharge his burden of proving that he had no
physical relationship with the wife during the waiting period and the reasons
for exercising such a right are required to be putforth.
 The factum of conciliation or arbitration is also one of the conditions
preceding the process of Talaq is also to be proved

24. With regard to maintenance upon divorce, classical Hanafi law has been
modified in India by the Muslim Women (Protection of Rights on
Divorce) Act 1986, passed following fierce protest by sectors of the
Muslim community that viewed the Supreme Courts ruling in the Shah
Bano case as a gross interference in matters of Muslim personal status.
In Mohammad Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945), the
Supreme Court ruled that there was no conflict between classical Hanafi
law, which only specifies the obligation to maintain a wife during her
iddat period (90 days), and the requirement to support a former wife
unable to maintain herself established by state legislation.
During the aftermath of the controversial judgement, the Congress
government passed the Muslim Women (Protection of Rights on
Divorce) Act. The Act entitles the divorced Muslim woman to “a
reasonable and fair provision and maintenance to be made and paid to
her within the idda period by her former husband.” The court practice
allows the Muslim divorce to appeal to the courts if her former husband
has not provided her with a reasonable sum for maintenance during her
iddat period
Divorce and Maintanence

25. The
END