A firm union between a husband and wife is essential for a happy family life, which is why Islam insists on the subsistence of marriage and discourages its breach. However, when the marriage contract faces inevitable dissolution, divorce becomes an option under Muslim law.
A lawyer expert in muslim divorce in India can guide individuals through this process, whether it occurs by the act of the husband or the act of the wife, or through a decree by a court of law.
Though regarded as an exception rather than a rule of life, divorce is sometimes a necessity when it becomes impossible for parties to maintain their union with mutual affection and love. As THE PROPHET declared, it is the worst of the permitted acts, an evil to be avoided unless absolutely required. The basis of Islamic law on this matter is not tied to a specific cause or guilt but rather the inability of spouses to live together harmoniously.
If their differences lead to hatred and disaffection, it is better to allow them to be separated rather than compel them to endure a strained relationship. There are several modes of divorce, each with unique legal and religious interpretations, which can be discussed based on individual circumstances.
A Summary of Muslim Divorce in India
Here are some key points to remember:
- In Muslim law, a husband can divorce his wife through mere pronouncement of specific words, making it sufficient to end the marriage, a concept known as talaaq.
- Other forms like ILA and Zihar also exist, differing from talaaq.
- A wife cannot disown her marriage unless she has been given this choice through an agreement where the husband has devoted this right to her.
- Before 1939, it was nearly impossible for a Muslim wife to obtain a divorce, except under false accusations such as insanity, adultery, or impotence.
- The Muslim Marriages Act, 1939, introduced legal grounds for separation, allowing a Muslim Divorce Lawyer to assist in such matters.
- The Act categorized divorce into:
- Judicial divorce
- Extrajudicial divorce, which is further divided into:
- By wife – talaq-i-Tafweez, lian
- By husband – talaq, ILA, Zihar
- By mutual consent – khula, mubarat
Talaq
In Muslim law, Talaaq in its literal sense means letting loose or setting free, signifying freedom from the bond of marriage. Legally, it refers to the dissolution of marriage by the husband, where specific conditions must be met for it to be valid.
One crucial requirement is free consent, though under Hanafi law, even if the pronouncing of Talaaq occurs under influence, compulsion, or fraud, it is still considered valid. Any Muslim husband who has reached the age of puberty and is of sound mind can pronounce it without any requirement to provide a reason.
DIVORCE BY HUSBAND
There are many ways a husband can give divorce.
Ṭalāq Ahsan (Most Approved)
The husband pronounces one ṭalāq (divorce) during a period of purity (tuhr) when his wife is not menstruating and has not had marital relations in that period.
After this, the wife goes through the ‘iddah (waiting period) of three menstrual cycles (or three months for a woman who does not menstruate). If the husband does not revoke the ṭalāq within this period, the divorce becomes final.
Ṭalāq Ḥasan (Good but Less Preferred)
The husband pronounces ṭalāq three times, once in each of three successive periods of purity (tuhr).
If he does not revoke it before the end of the third period, the divorce becomes final.
C. Ṭalāq al-Bid‘ah (Innovative & Disapproved)
The husband pronounces three ṭalāqs in a single sitting (e.g., “I divorce you three times”).
This method is discouraged (ḥarām or makrūh) in most Islamic schools but is considered valid and effective in some interpretations (e.g., Hanafi school).
Some modern legal systems (e.g., in many Muslim-majority countries) do not recognize this as an immediate divorce.
ILA
In this form of divorce, the husband has the authority to pronounce that he will not indulge in sexual intercourse with his wife. Following this pronouncement, the wife must observe iddat.
However, if the husband chooses to cohabit with his wife during this period, then the ILA is revoked. Once the Iddat period concludes, the divorce becomes irrevocable. Despite its historical presence, this type of divorce is not practiced in India.
ZIHAR
Similar to ILA, this is a constructive divorce where the husband compares his wife to a woman within a prohibited relationship, such as his mother or sister, and pronounces that she is like them. To do so, the husband must be of sound mind and above eighteen years.
While the wife cannot seek judicial divorce, she has the right to pursue judicial remedies, including restitution of conjugal rights and cohabitation. The husband can revoke this divorce by observing a two-month fast, feeding sixty people, and freeing a slave. However, this type of divorce is no longer in practice.
DIVORCE BY WIFE
TALAQ-E-TAFWEEZ
In Islamic law, delegated divorce is a provision where the husband has the power to delegate his right to divorce to his wife, provided he is of sound mind and above 18 years of age. This form of talaq is often part of an agreement that may be entered into by the parties either before marriage or after marriage.
If the terms of this agreement are not fulfilled, the woman has the only way to ask for divorce while ensuring that the husband’s right to divorce remains intact. However, this arrangement does not deprive the husband of his authority to pronounce the divorce independently.
DIVORCE BY MUTUAL CONSENT
KHULA
In Khula, the wife, through mutual consent with her husband, seeks a divorce by offering consideration from her property for her release from the marital bond. She willingly surrenders her Meher and other rights for the benefit of the husband, making it a form of dissolution where divorce is essentially purchased by the wife.
This process involves an offer from the wife, which must be accepted by the husband to be valid. After the dissolution, women are required to observe the period of iddat as per Islamic law.
MUBARAT
In Mubarat, both parties mutually agree to a release from their marital rights, ensuring that the divorce takes place with mutual consent to free themselves from the bond of marriage.
The formalities of this process are similar to Khula, where an offer is made by one party and accepted by the other. After the dissolution, women are required to observe the period of Iddat in accordance with Islamic law.
Divorce Through Court Decree Under the 1939 Muslim Marriage Act
LIAN
Lian is a form of divorce that takes place when a wife is falsely accused of adultery by her husband. To seek justice, she can approach the court with the assistance of a skilled Muslim Divorce Lawyer and file a regular suit for the dissolution of marriage under the Muslim Dissolution of Marriage Act, 1939.
The ground for this divorce must strictly be the false charge of adultery by a sane husband who is above 18 years of age. However, the marriage does not dissolve until the court passes a dissolution decree, after which the divorce becomes irrevocable. The husband may prevent the divorce if he withdraws the false assertion before the court issues its final decree.
FASKH
If a husband and wife find themselves incompatible, they may seek divorce under Section 2 of the Dissolution of Muslim Marriage Act, 1939, which provides several grounds for a wife to file for divorce. These include the husband’s whereabouts being unknown for four years, his failure to maintain his wife for two years, or his imprisonment for seven years or more.
A wife may also seek divorce if her husband has failed to perform marital obligations for three years without any reasonable cause, is impotent, suffers from insanity (for two years), leprosy, or a virulent venereal disease. Additionally, if a wife was married before the age of 15, she has the right to reject the marriage upon turning 18, provided the marriage was not consummated. Acts of cruelty by the husband, such as physical assault or defamatory statements, also constitute valid grounds for divorce.
CONCLUSION
Under Muslim Law, there are multiple ways in which a marriage can be solemnized, and various forms of divorce exist for the dissolution of marriage. To address evolving circumstances, alongside Muslim personal laws, the Government of India has introduced legislations such as the Muslim Dissolution of Marriage Act, 1939, and the Muslim Women (Protection of Rights on Marriage) Act, 2019 to regulate Muslim marriage and divorce.
However, despite these legislations and personal laws, discussions continue about the necessity of a Uniform Civil Code, which aims to establish a single, informed legal framework for all citizens to promote national unity and integrity. For guidance on the modes and procedures of Muslim divorce, seeking advice from a Muslim Divorce Lawyer or consulting Century Law Firm can help in navigating the legal complexities.