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Divorce Under Muslim Law

Classification of Divorce

By the Husband

The divorce available to the husband is of two kinds:
  • Talaq-al-sunnat or Masnun (according to the rules laid down in the traditions of the prophet)
  • Talaq-i-biddat or Ghair Masnun( not according to the rules laid down in the traditions of the prophet).

Talaq-al-sunnat

This is the regular divorce. It is of two kinds- Talaq Al-Ahsan and Talaq-Al–Hasan

Talaq-al-Ahsan

One single revocable divorce is pronounced by the husband who has consummated the marriage, during the period in which the wife is free of menstruation and in which there has been no co-habitation, and then leaves her to the observance of iddat of three months prescribed time, unless she is pregnant, in which case till she is delivered of the child. The divorce remains revocable during iddat, and the parties retain the right of inheritance. This kind of divorce is termed as the most approved one.

Talaq-Al–Hasan

This is also an approved form of divorce where a husband who has consummated the marriage pronounces one divorce during each successive period in which the wife is free from menstruation (tubr) and has not been cohabited with. Through this method of Talaq, the husband has been given two chances of divorcing and then taking the wife back, but if the third time, he does so, the Talaq becomes irrevocable.

Talaq-Al-Biddat

This is an irregular divorce. This is of two kinds:
  1. Three declarations: Here a husband repudiates his wife by three divorces at a time in one sentence or where he repeats the sentence separately thrice within one period of purity.
     
  2. One Irrevocable declaration: the husband may say that he divorces his wife a hundered times, the Talaq is complete. He can write, I by my free will divorce my wife by one Bain Talaq (irrevocable divorce), an irrevocable divorce is effected. Here neither purity or abstinence from intercourse is taken into consideration. Such a divorce is sinful but valid under Hanafi law. Under the Shia sect, no divorce is effected by the pronouncement of three divorces at a time.
     
  3. Divorce under intoxication: According to the hanafi jurists, the divorce pronounced in an intoxicated condition occasioned by willful use of liquor or other unlawful intoxicating substances with the purpose of bringing on intoxication and thereby enjoying its pleasure, shall take effect. But if he was intoxicated under compulsion or from necessity, there is no divorce. Shias do not recognize divorce under intoxication.
     
  4. Divorce under compulsion: Hanafi jurists consider consider a Talaq given by a man under compulsion as valid, while the Shia jurists consider it invalid.
     
  5. Divorce pronounced in a jest: According to the Hanafis, if a person uses the words of divorce of for his wife even in a jest without the intention of really effecting it, Divorce shall duly take effect. Under Shia Law, Such a kind of divorce is not valid.
     
  6. Should three utterances of Talaq be treated as one Talaq: The question arises, as to how should three utterances of Talaq be treated? Should the three utterances of Talaq on a single occasion be equated with three utterances of Talaq made separately over a three months period.

    There is a hadith recorded by imam abu dawud and several other traditionalists- Rukana ibn Abu yazid said Talaq to his wifr three times on a sibgle occasion, then he was extremely sad on the step he had taken.

    The prophet asked him exactly how he had divorced her. He replied that he had said Talaq to her three times in a row. The prophet then observed. All three counts as one. If you want, you may revoke it.

Ila/Aila (Vow of Continence)

Ila in its primitive sense signifies a 'vow'. It is when a person swears that he will not have sexual intercourse with his wife and abstains from it for four months; an irreversible divorce is effected on its termination.

If intercourse is had within a period of four months, the ila shall lapse but he has to atone for breaking his oath. Where the husband having made ila abstains from having intercourse with his wife for four months, the marriage is dissolved with the same legal results, as if there had been an irrevocable divorce pronounced by the husband.

In Bibi Rehana Khatun v/s Iqtidar-Uddin Hasan, after the marriage ceremony was over, the parents of the boy pushed him into a room where his wife was waiting for him. It appears from the facts of the case that the husband was not interested in that marriage. Immediately on entering the room, he took a vow in the presence of his wife that he would never have sexual intercourse with her. Soon after giving this Statement he came out of the room and repeated the vow in the presence of his mother and his mother's sister.

His father then came out of another room and he again repeated that vow. The Court refused to accept the version of the husband. The Court said that the husband has failed to establish that there had been a divorce in the 'ila' form. A vow is a solemn thing and should not be taken in a moment of excitement. If the words are not express, the intention to effect a divorce must be proved.

Ila is not in practice in India.

Zihar (lniurious Comparison)

The word 'Zihar' means 'Zihr' the back. According to the Hedaya
It signifies a man comparing his wife to any of his female relations, within such prohibited degrees of kindred whether by blood, by fosterage or by marriage as renders marriage with them invariably unlawful as if he were to say to her you are to me like the back (Zihr) of my mother.

Its effect is to prohibit the person who pronounces it from carnal connection with his wife until he shall have performed an expiation.

The wife has a right (a) to refuse to have sexual intercourse with him till he has expiated himself from penance prescribed by law, such as by freeing a slave, fasting for two months or by feeding sixty poor persons; or (b) to apply to the Court for an order requiring him either to perform a penance or to grant her a regular divorce.

Zihar is a wrong, an injustice to the wife, hence a proper punishment has been provided for the husband by making the wife unlawful to him by a prohibition and that prohibition cannot be removed unless he performs the expiation.

After a husband has committed Zihar ar, the wife can prevent her husband from intimacy with her till he has made the expiation. According to Shia jurists, Zihar must be pronounced in presence of two reliable witnesses, who must hear the words of Zihar.

Zihar is no more prevalent anywhere.

By the Wife

Talaq-e-Tafweed (Delegated Divorce)

Delegation of the right of divorce is the entrustment by the husband with the wife of the right to act as her husband's delegate in effecting divorce to herself. Delegation of authority by the husband to the wife can be either at the time of entering the marriage contract or any time during married life. By this delegated right to divorce, the wife can break-off the marital relationship and this divorce is as effective as pronounced by the husband himself.

This doctrine of Talaq-e-tafweed is recognized by all the Sunni schools of thought. Under the Sunni law, power of divorcing a wife can be delegated either prior to the marriage, at the time of the marriage, or subsequent to the marriage. Muslim jurists hold that the delegation of the power is perfectly valid at whichever of the Stages it is done.

There are two ways of delegation of the power of divorce: (1) either it is restricted in time so that it has to be exercised within the time Stipulated, or (2) it is unrestricted by time, i.e., for an indefinite period to be exercised as and when the wife chooses. In case of former, if the period expires, the right of the wife shall become void and ineffective. In the event, where the husband has delegated his power of effecting divorce to his wife, the husband's own right of effecting divorce does not lapse. That means he can still divorce her and once he pronounces divorce to the wife, the wife's right shall become void and ineffective.

Delegation by the husband of the power of divorce has been classified into:

  • Tafweed or delegation
  • Tawkil or agency
  • Risalah or messenger ship
 
  1. Tafweed-Here the wife to whom the power is delegated has absolute right to exercise the power as she chooses in respect of her person. This power cannot be revoked by the husband.
     
  2. Tawkil-Here the husband appoints an agent to divorce his wife on his (the husband's) behalf. The agent exercises the power delegated to him in respect of divorcing the wife
     
  3. RisaIah-In Risalah, the husband appoints a person as his messenger, to convey his message to the wife that he has delegated his power of divorce to her (wife).
The power given by Tafweed cannot be revoked, but the other two, i.e., Tawkil (agency) and Risalah (message) can be revoked by the husband as long as they have not been exercised.

Delegation of power may be conditional or unconditional Conditional delegation of power is where its exercise may be made to depend on the occurrence or non-occurrence of a certain specified contingency-for example, the husband may authorize the wife to divorce herself if he marries another woman.

Here the wife shall be entitled to exercise the power only when he marries another woman. Similarly, he may authorize the wife to divorce herself if a certain condition agreed between the parties as regards maintenance is breached. But she should not have contributed to the breach of the condition by the husband. Such condition or contingency should not be opposed to any law or public policy or the spirit of Muslim Law.

Cases
It was held in Mirjan Ali v. Mst. Maimuna Bibi that in such cases there should be a formal pronouncement of Talaq and it should be made either to the husband or in the presence of witnesses.

In Buffatdin Bibi v. Sheikh Abdul Salim, it was held that an anti-nuptial agreement by a Muslim husband that he would pay separate maintenance to his wife in case of disagreement and that the wife would have power to get herself divorced in case of the failure of husband to pay the amount, was not opposed to public policy and was enforceable under the Muslim Law.
A stipulation conferring an authority on the wife to exercise her right of divorce may be made either at the time of marriage or after the marriage."

In Sainuddin v. Latifunnessa Bibi, the parties were married in April 1901. On 12' July, 1905, the husband executed a post-nuptial Kabinnama, in place of an unregistered ante-nuptial Kabinnama, in favour of his wife, who was stated therein to be a minor. The husband delegated his power of divorce to his wife to be exercised by her in case of a breach of any condition specified in the document. The husband married a second wife, according to him, with the consent of his first wife.

But the first wife said that her consent was never obtained. She left her matrimonial home and started living with her mother. The husband instituted a suit for restitution of conjugal rights. Thereafter, the defendant wife executed a Talaqnama divorcing her husband, in exercise of the delegated power of Talaq. The main issue in this case was whether there had been a valid divorce. The Court held that the delegation of power of divorce is not revocable and that a post-nuptial delegation of the power of divorce was a valid delegation of power. Hence, the divorce was held to be valid.

In Ayatunnessa Bibi v. Karam Ali, a queStion was raised as to whether a wife, who has been given power by her husband to terminate the marriage in the event of her husband taking a second wife, loses her option by failing to exercise it the very moment she knows that he has done so. The Court held that this right is a continuing right and the wife does not lose this right if she does not immediately exercise it the moment she comes to know that the husband has committed a breach of the stipulation in the contract.

In Meer Ashraf Ali v. Meer Ashad Ali, at the time of the marriage, a Kabinnama was executed by the husband fixing the dower and covenanting not to marry a second wife or to keep a concubine. If he did either of these things, the wife was to have the power of divorcing herself from him. The wife many times during her lifetime declared that in consequence of her husband's infidelity with a concubine, she had availed herself of the privilege granted to her in the Kabinnama, and had divorced her husband.

Dissolution Of Muslim Marriage Act

The Dissolution of Muslim Marriages Act, 1939 deals with the circumstances in which Muslim women in India can obtain divorce. Section 2 of the Dissolution of Muslim Marriage act, 1939 provides nine grounds under which a Muslim wife can obtain a decree for the dissolution of her marriage:

The Grounds Are:
S2i. Absence of Husband: that the whereabouts of the husband have not been known for a period of four years;

s2ii.Failure to maintain: that the husband has neglected or has failed to provide for her maintenance for a period of two years;

There are two views and different High Courts are divided on this point. It was held by the Lahore High Court in Akbari Begum V Zafar Hussian that in clause (ii) the words without reasonable cause do not occur. It must therefore be held that whatever the case may be, the wife is entitled to a decree for the dissolution of her marriage if the husband fails to maintain her for a period of two years even though the wife may have contributed towards the failure of maintenance by her husband.

It was reversed by the Lahore High Court itself in Zafar hussain v Akbari Begum, where it was held that it is not correct to say that Section 2 (ii) casts upon the husband an absolute duty to maintain his wife in all cases and any failure in that duty would be a ground for divorce, even if the wife herself was at fault and was really the cause of the husband refusing to maintain her. A husband is not legally bound to maintain his wife if the wife without valid and reasonable cause refuses to live with him and to obey his instructions and also refuses to cohabit with him.

S2iii. Imprisonment of the husband: that the husband has been sentenced to imprisonment for a period of seven years or upwards;

S2iv. Failure to perform marital obligatlons: that the husband has failed to perform, without reasonable cause his marital obligations for a period of three years ; continues to be so:

In Veeran Sayvu Ravuthar V Beevathumma, the court held that the wife had to leave the matrimonial home and go to her own family house as she was not treated decently because of the discriminatory treatment of the husband who had other wives also. But after she left the house he never made any attempt to get conjugal company and consortium of his wife, he did not take any action for restitution of conjugal rights. He also did not provide maintenance to her.

It was held that the husband has failed to perform his marital obligations without any reasonable cause entitling the wife to get a decree of divorce on the ground of Section 2iv of the dissolution of Muslim marriages Act, 1939.

S2v. Impotency of Husband: That the husband was impotent at the time of the marriage and
In Ghulam Mohammad khan v Hasina, was a case for dissolution of marriage on the ground of impotency of the husband. Suit was filed by the wife for dissolution of marriage on ground of impotency of the husband. The trial court directed the husband to get examined by the Medical board. The husband got himself examined by the board and a certificate to this effect was issued by the Board. Without giving consideration to the certifacte, the trial court passed another order directing the husband to appear before the said board again for a fresh examination. The court held that where the issue is potency of the husband, the trial court had no jurisdiction under any law or even under s141 CPC to order the husband to submit for any medical examination against his will, hence the second order for medical examination is prima facie without jurisdiction.

6. Insanity, Leprosy or venereal disease: that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

7. Repudiation of Marriage by wife: if she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years , Provided that the marriage has not been consummated;

In Ghulam Sakina v Falak Sher Allah Baksh, marriage of the girl was solemnized and consummated before she attained the age of 15. The court held that this did not amount to consummation within the meaning of the act, meaning thereby option to repudiate marriage would not be lost if consummation of marriage took place before puberty.

However it has been held by the Madhya Pradesh high court in Pir Mohammed v state that repudiation of marriage in the exercise of the option of puberty must be confirmed in the court.

8. Cruelty of Husband: that the husband treats her with cruelty that is to say:
  1. habitually assaults her or-makes her life miserable by ill-treatment, or of conduct even if such conduct does not amount to physical ilI-treatment
  2. associates with women of evil repute or leads an infamous life
  3. attempts to force her to lead an immoral life, or rights over it, or
  4. disposes of her property or prevents her exercising her legal practice, or (e) obstructs her in the observance of her religious profession or
  5. If he has more wives than one, does not treat her equitably in accordance with the instructions of the Quran;

In KPY Siddiqui v Amina, the respondent had succeeded in proving that the life with the appellant was miserable and his cruel conduct towards her was mainly responsible for it. It was cruelty to force a young woman who was desirous of becoming a mother to abort her pregnancy since it was not necessitated to save her own life.

In Itwari v Asghari, it was held that bringing a second wife during the subsistence of the first marriage will constitute cruelty.

In Tufail Ahmed v Jmila Khatun, It was held that a false imputation of adultery against the wife is recognized as a valid ground for divorce under Muslim law.

9. on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law.

Award Winning Article Is Written By: Mr.Prajjwal Singh

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