Marriage is seen as a social foundation in Islam. Marriage is an institution that promotes human development while also ensuring the continuation of the human race. Divorce is the end of such a marital connection as per Muslim law[1]. In Muslim law, divorce can be granted by either the husband or the woman or through mutual consent or legal action. The Gauhati High Court ruled in Musst. Rebun Nessa v. Musstt. Bibi Ayesha & Others[2] that “Talaq must be for a reasonable cause and preceded by an attempt of reconciliation between the husband and wife by two arbiters, one from the wife’s family and the other from the husband. If an attempt fails, talaq may be implemented.”
Divorce under Muslim Law:
According to Muslim law, only the husband has the ‘right to divorce’. The husband may even do so without presenting any grounds and only saying the words that indicate his intention to end their marriage. Divorce under Muslim law is classified into the following categories:
- Divorce at the request of the husband (talaq):
The Arabic term “talaq” literally means “to release”. Talaq in Muslim law refers to a husband’s rejection of his marriage[3]. Husbands have the authority to end their marriage whenever they see fit, according to Muslim law. It is an arbitrary act of a Muslim husband to repudiate his wife without providing any reason[4]. He can say talaq at any time. He does not need his wife’s previous approval to end their marriage. The talaq can be pronounced arbitrarily. Husbands can pronounce talaq without court interference.
Modes of Talaq:
| Talaq –ul-Sunnat | Ila | Zihar |
| Talaq is conducted in accordance with the Prophet’s traditions. It was further subdivided into:
Talaaq-i-ahasan: In the event that a husband articulates “talaaq,” a requisite period of iddat ensues spanning three months to encompass the woman’s triad of menstrual cycles. Within this interlude, if the husband re-engage in cohabitation in conjugal relations with his spouse, the act of divorce is effectively nullified. |
In the case of Ila, the husband solemnly vows to abstain from sexual relations with his wife leading to a four-month period without consummation. If this duration lapse without resumption of conjugal relations, the marriage disintegrates irreparably. Conversely, if the husband recommences cohabitation within the four-month span, the Ila is annulled yet the matrimonial bond remains intact. | Zihar represents a form of incomplete divorce. When a husband equates his wife to a female relative in a manner that renders marital relations illicit, the wife is entitled to separate from him until he undertakes penance. If the husband fail to atone, the wife possesses the right to seek a judicial divorce. |
In ShayaraBano v. Union of India[5], the Supreme Court ruled 3:2 that triple talaq (Talaq-ul-Biddat) is unconstitutional and gave the Indian Parliament six months to develop legislation dealing with triple talaq and the global growth of Islamic family law in India.
- Divorce at the instance of wife:
A wife cannot divorce her husband on her own volition. She can only divorce her husband if he has delegated that authority to her or if there is an agreement.
| Talaaq-i-tafweez | Lian |
| Talaaq-i-tafweez or delegated divorce is acknowledged by both Shia and Sunni traditions. This method constitutes the sole avenue for a woman to initiate divorce from her husband contingent upon the husband’s delegation of the authority to her. This arrangement empowers the wife to sever marital ties through divorce. | The term “lian” literally means “imprecation”. Muslim law has harsh penalties for adultery and slander. Lian in plain terms denotes the incorrect charge of ‘Adultery on wife’. When a husband falsely accuses his wife of infidelity, she has the right to sue him and seek a divorce on these grounds. |
Women’s Right to Divorce Under the Dissolution of Muslim Marriage Act, 1939:
A Muslim woman can seek divorce on the following grounds:
- The husband’s whereabouts have remained unknown for four years.
- The husband has neglected or failed to provide for her maintenance for the past two years.
- The husband has been sentenced to imprisonment for seven years or more.
- The husband has disregarded his marital duties for three years.
- The husband has been mentally ill for two years or suffers from leprosy or a severe venereal disease.
- The husband was impotent at the time of marriage and continues to be so.
- Women who were married by their fathers or guardians before the age of 15 can reject the marriage before turning 18.
- Divorce by Mutual consent:
| Mubaraat | Khula |
| In mubaraat, both the husband and the wife are eager to be rid of one other. It is a mutual discharge from marriage tie[6]. When Sunnis enter into a Mubaraat, all mutual rights and obligations are terminated. Mubaraat must be expressed in Arabic and the term “Mubaraat” must be clearly stated. Shia law requires that mutual agreement be reached at the same meeting in the presence of two witnesses[7]. Mubarat is irrevocable under both Shias and Sunnis.
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A divorce granted by mutual consent and initiated by a wife who agrees to refund mahr (the groom’s obligation to the bride at the time of Islamic marriage) or provide some regard to her husband. It allows a woman to start a divorce.
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CONCLUSION:
To summarize, the complexities of divorce in Islamic jurisprudence represent a compromise between protecting marital bonds and allowing options for dissolution when necessary. In Muslim law, divorce known as talaq can be initiated by either the husband or wife or by joint consent. While the husband has the unilateral right to pronounce talaq, the wife may seek divorce under certain conditions or with delegated authority. Legal laws like the Dissolution of Muslim Marriage Act of 1939 protect women’s rights by permitting divorce on a variety of grounds. This framework assures that the procedure respects both religious traditions and individual rights with an emphasis on reconciliation prior to permanent separation.
[1] Shoharat Singh v. Musammat Jafri Bibi
[2] AIR 211 Gau 36
[3] Dr.R.K. Sinha- Muslim Law, 5th edn. 2003, p.82, Central Law Agency, Allahabad.
[4] Dr. M.A. Qureshi- Muslim Law, 2nd edn. 2002, p.68, Central Law Publications, Allahabad.
[5] AIR 2017 SC 4609
[6] Hedaya, Vol. I, p. 322; cf: Dr. M.A. Qureshi- Muslim Law, 2nd edn. 2002, p.83, Central Law Publications, Allahabad.
[7] Baillie, II, 134; cf: Dr.R.K. Sinha- Muslim Law, 5th edn. 2003, p.88, Central Law Agency, Allahabad.