For happy family life, a solid union of husband and wife is required. This is
the reason Islam is determined for the maintenance of marriage and it
encourages that the contract of marriage should not be broken. From starting the
contract of marriage is seen as it will never be breached but in unfortunate
circumstances, it can be breached by divorce.
According to Islamic law, the act
of divorce can be initiated by the parties in the marriage. Irrespective of any
manner the divorce is initiated, it is not regarded as a rule of life in Islam.
It is regarded as an exception to the status of marriage.
Under Islam, there are three categories of divorce and each have separated
procedures. If a man initiates a divorce then the procedure is known as Talaaq.
When the wife is accused by the husband of adultery and he does not provide any
evidence and witness for it then the process is known as li’ an. If a woman
initiates a divorce then this procedure is known as khul’i. In the comparison of
Talaaq, Khul’i is difficult to obtain which also depicts the discrimination
The word Talaaq is generally delivered as renouncement, it comes
from the in roots 'Talaaq' which intends to deliver (creatures) from the tie.
The spouse or free her from the subjugation marriage in law connotes the total
force which the husband have of separating of his better half. This is in the
support of the husband’s authority to initiate the unilateral divorce. It is
often said that “ Men are the maintainers of the women” and the reason for this
saying is given that Allah has made them have authority over their wife because
they spend part of their property to maintain women.
In the Muslim law of talaq, all schools of Sunnis and Shias practice this
and perceive it by varying in some details. In talaaq, the husband is given
absolute power of divorcing his wife unilaterally. He does not need to provide
any reason. It can be done at his impulse, in a joke, in a state of
intoxication, without court and even in the absence of wife. Only necessary
thing is the pronunciation of talaq by the husband. Basically, it does not
matter in what state of mind or when he does it or why he does it. Sunnis
recognize talaq in an expressed, implied, contingent or in a delegated form and
among the Shias it has to be either expressed or in a delegated form.
Modes Of Divorce Under Muslim Law
A spouse may separate from his better half by renouncing the marriage without
giving any explanation. Proclamation of such words which imply his goal to
repudiate the spouse he is adequate. For the most part, this done by talaaq.
However, he may likewise separate by Ila and Zihar which vary from 'Talaaq just
in structure, not in substance. A wife cannot separate from her significant
She can separate from the spouse just when the husband has
appointed a privilege to her or under an arrangement. Under an arrangement the
spouse he may separate from her significant other either by Khul'i or Mubarat.
Before 1939, a Muslim spouse reserved no option to look for separate besides on
the ground of
Bogus allegations of infidelity, madness or impotency of the spouse. However,
the disintegration of Muslim Marriages Act 1939 sets out a few different grounds
based on which a Muslim spouse may get her separation order passed by the
request for the court.
Shia and Sunni Muslims have various guidelines for playing out a talaaq
separate. As indicated by certain Sunni schools of law, each talaq expression
ought to be trailed by a holding up time of three feminine periods for ladies or
multi month (iddah), when the couple should attempt to accommodate with the
assistance of go betweens from every family, until the third and last talaaq. A
few Sunnis who accept the act of triple talaq in one go to some unacceptable.
regardless acknowledge it as last, particularly the Hanafi schools of the
Shia doesn't have the idea of verbal "triple separation" ie. Simply expressing
the expression "I separate from you" multiple times. Shia practice likewise has
a (iddah) holding up period. At the point when the couple should attempt to
accommodate with the assistance of arbiters from every family, except needs to
observers for the affirmation of talaaq.
On the off chance that two or three
breaks the holding up period, the separation is voided. After the holding up
period is finished, the couple is separated and the spouse is not, at this point
liable for the wife's costs, yet stays answerable for the upkeep of the
youngsters, until they are weaned.
Categories Of Divorce Under Muslim Law
- Extra Judicial Divorce
- Judicial Divorce
Extra Judicial Divorce
The extra judicial divorce is divided into three types
- Talaaq, Ila and Zihad (by Husband)
- Talaaq-e-tafweed and Li’an (by wife)
- Khul’i (by mutual agreement)
Divorce Initiated By Husband
When words like “I have divorced thee” are produced by the husband the Talaaq is
considered expressed. There are two types of Talaaq.
Talaaq-is-sunnah- Talaaq-is-sunnah is viewed as per the directs of Prophet
Mohammad it comprises of a solitary proclamation of separation made in the
time of tuhr (immaculateness between two feminine cycles), or at a time, if the
spouse is liberated from feminine cycle, trailed by forbearance from sex during
the time of idda. The prerequisite that the profession he made during a time of
tuhr applies just to oral separation and doesn't matter to talaaq recorded as
a hard copy.
Essentially, this necessity isn't relevant when the spouse has
passed the time of period or the gatherings have been away from one another for
quite a while, or when the marriage has not been fulfilled. The benefit of this
structure is that separation can be repudiated whenever before the consummation
of the time of iddah, along these lines hurried, neglectful separation can be
forestalled. The disavowal might be affected explicitly or impliedly.
these lines, if before the finishing of iddab, the spouse resumes living
together with his better half or says "I have held you'' the separation is
disavowed. Resumption of sex before the finishing of time of iddah additionally
brings about the repudiation of separation.
Talaaq-il-Bid'ah: It came into vogue during the second century of Islam. It has
- The triple revelation of talaaq made in a time of virtue, either in one
sentence or in three.
- The other structure comprises a solitary irreversible profession of
separation made in a time of Tuhr (immaculateness) or even something else. This
sort of Talaaq isn't perceived by the Shias. This Form of separation is
denounced. It is viewed as unorthodox, due to its unavoidability.
Requirements For A Valid Talaq
Every Muslim husband of sound mind, who has accomplished the period of
pubescence, can articulate talaaq. It isn't required for him to give any
justification his act of talaq. A husband who is minor or of unsound cannot
initiate because talaaq by a minor or of an individual of unsound brain is void
and incapable. Notwithstanding, in the event that a husband is crazy person,
talaaq articulated by him during "clear stretch" is legitimate.
can't pronounce talaaq for a minor husband. At the point when a husband of
unsound mind has no guardian, the Qadi or a Judge has the authority to break
up the marriage in light of a legitimate concern for such a husband.
The pronouncing of talaq by the husband has to be with his free
consent. Hanafi law is an exception in this case. Under Hanafi law a talaaq
pronounced out of an impulsive reaction, fraud, coercion or voluntary
intoxication is valid and may dissolve the marriage. But talaaq under
involuntary intoxication is considered invalid even under Hanafi law. Under the
Shia law (and also under other schools of Sunnis) a Talaaq pronounced under
compulsion, Coercion, undue influence, fraud, or voluntary intoxication is void
Under Sunni law, a Talaaq, might be oral or recorded as a hard
copy. It could be essentially expressed by the husband or he may compose a
talaaq. No particular equation or utilization of a specific word is needed to
comprise a substantial talaaq. Any articulation which plainly demonstrates the
husband's longing to break the marriage is adequate. It need not be made within
the sight of the observers.
As per Shias, Talaaq, should be vocal-led orally, with the exception of where
the husband can't talk. In a circumstance where the husband can talk however
he gives in writing as a hard copy then the talaaq is void under Shia law. Two
witrnesses are required for the pronounciation of talaaq to considered valid.
The expressions of Talaaq should plainly show the husbands
intentions to break down the marriage. Assuming the declaration isn't express
and is absurd, it is required to demonstrate that the husband has clear
intentions to break down the marriage.
Other than talaaq, a Muslim husband can renounce his marriage by two different
modes, that are, ila and zihar. They are called valuable separation. In ila, the
spouse makes a vow not to have sex with his wife. Followed by this vow, there is
no consummation for a time of four months. After the termination of the fourth
month, the marriage gets dissolved irreversible. Be that as it may, if the
husband resumes cohabitation during four months, ila is dropped and the marriage
Under ithna Ashara (Shi'a) School, Ila doesn't work as
divorce without request' of the courtroom. After the expiry of the fourth month,
the husband is basically entitled to legal separation. even after expiry of
four months, the wife may record a suit for conjugal rights against the husband
if the husband had cohabitation within four month.
In this mode the husband considers his wife and a lady inside his denied
relationship e.g., mother or sister and so forth "The husband would say that
from today his wife resembles his mom or sister. After such a correlation the
spouse doesn't live together with his significant other for a time of four
months. Upon the expiry of the said period Zihar is finished.
After the expiry
of fourth month the wife has following rights:
- She may go to the court to get a declaration of legal separation
- She may request the court to give the announcement from compensation of
Where the husband deny Zihar by continuing cohabitation during the said period,
the wife can't look for legal separation. It can be revoked if:
- The husband does fast for a time of two months, or,
- He gives food to atleast sixty individuals, or,
- He liberates a slave.
As indicated by Shi'a law zihar must be acted within the sight of two witnesses
Divorce By Mutual Agreement
KHUL'I: Is the privilege of a lady in Islam to look for a separation or division
from her husband. A Muslim lady may appeal to a Qadi (judge), or in non-Islamic
zones an Islamic people group board, to grant her separation if the husband
rejects. The howling period (iddah) of a lady who looks for a divorce is
three feminine cycle or multi month if she is post-menopausal. This is to
guarantee she isn't pregnant. If that the lady is pregnant, the holding up
period is until she conceive an offspring.
As per sharia law, there are two reasons a wife may be allowed separate: At the
point when she can demonstrate that the husbband didn't have intercoarse with
her or over a quarter of a year or if the husband doesn't furnish her with what
she needs for living like food and home. While men can separate from their
companions effectively, women face legal and financial hindrances. For instance,
by and large, the lady should reimburse her endowment and marriage costs.
Overall she additionally needs to forfeit kid guardianship, if the kid is more
seasoned than seven years. Regardless of whether she is allowed youngster
guardianship, she needs to offer it to the dad when the kid arrives at the age
Divorce By Wife
Talaaq-it-tafweed or delegated divorce is perceived among both, the Shias and
the Sunnis. The Muslim husband is allowed to assign his delegate or initiating
dovorce from his wife or some other individual. He may designate the authority
totally or conditionally, briefly or for all time. A permanent assignment of
authority that is delegation is revocable nut a temporary designation of
authority is not.
This assignment should be made (unmistakably for the
individual to whom the authority is designated, and the motivation behind
appointment should be clearly expressed. The authority of talaaq may he
designated to his wife and as Faizee notices, "This type of delegated divorce is
maybe the most powerful weapon in the hands of a Muslim wife to get freedom
without the mediation of any court and is presently starting to the genuinely
normal in India". This type of delegated divorce is normally specified in
Delegation of authority to divorce might be settled on even in the
post-marriage arrangements. Consequently, where under an understanding it is
specified that in case of the husband neglecting to pay her support or making a
second wife, the agreement has given a privilege to women of pronouncing divorce
on herself, such an arrangement is valid, and such conditions are sensible and
not against public approach. It ought to be noticed that even in case of
contingency, regardless of whether the authority is to be excerised, rely on the
wife she may decide to practice it or she may not. The incident of the occurring
of contingency doesn't bring about automatic divorce.
If the husband puts misleading allegations of unchastely or adultery against his
wife then this adds up to character destruction and the wife has the option to
look for divorce on these grounds. Such a method of divorce is called li'an.
Notwithstanding, it is just an intentional and forceful charge of adultery made
by the husband which, assuming bogus, would qualifies the wife for getting
divorce on the ground of li'an.
Where a wife offends her husband with her
conduct and the husband hits back with a claim of unfaithfulness against her, at
that point what the husband says in light of the terrible conduct of the wife,
would not be able to utilized by the wife as a false allegation of infidelity
and no divorce will be allowed under li'an. This kind of divorce depends on
Qur'anic stanzas which educate the husband to "swear multiple times". If a man
accuses a woman for infidelity who is certifiably not a relative of his, he is
needed to give ecidence for it with four witnesses, and is dependent upon the
punishment of qazf (misleading allegation) being whipped with eighty stripes.
Financial Obligations in Divorce
It depends upon the length of marriage, if intercourse happened or if any
children are included and pay levels for one or the other husband or wife, the
husband might be needed to give a month to month maintenance to the kids to
guarantee their prosperity.
Qazi Mohammad Ahmad Kazmi had presented a bill in the Legislature in regards to
the issue on seventeenth April 1936. It anyway became law on seventeenth March
1939 and in this way stood the Dissolution of Muslim Marriages Act 1939.
according to Section 2 of the Act.
A woman married under Muslim law has the
right to obtain a divorce decree for the dissolution of her marriage on any one
or more of the following grounds
- Whereabouts of the husband are not known
- Failure to maintain for a period of two years
- When husband is sentenced to imprisonment
- Failure to perform marital obligations
- Insanity, leprosy and Viruleny vinireal disease
- Repudiation of marriage
- False accusation of cruelty
- Conversion of spouse to another religion
As opposed to the Western world where divorce was moderately extraordinary until
current occasions, and rather than the low paces of divorce in the cutting edge
Middle East, separate was a typical event in the pre-present day Muslim world.
In the archaic Islamic world and the Ottoman realm Northern Nigeria
comprehensive, the pace of divorce was higher than it is today in the cutting
edge Middle East.
In fifteenth century Egypt, Al-Sakhawi recorded the conjugal
history of 500 women, the biggest example on marriage in the Middle Ages, and
found that at any rate 33% of all women in the Mamluk Sultanate of Egypt and
Syria wedded more than once, with many wedding at least multiple times. As per
Al-Sakhawi, upwards of three out of ten relationships in fifteenth century Cairo
finished separation. In the mid twentieth century, a few towns in western Java
and the Malay Peninsula had separate from rates as high as 70%. Practically
speaking, in the vast majority of the Muslim present reality separation can be
very required as there might be isolated mainstream methodology to follow also.
Usually assuming her husband initiates a divorce, the divorced wife keeps her
mahr (settlement). Both the first gift and any advantageous property indicated
in the marriage contract. She is additionally given youngster support until the
time of weaning, so, all in all the kid's guardianship will be settled by the
couple or by the courts. Women's entitlement to divorce is extremely restricted
and that of men in most Muslim Communities. While men can separate from their
life partners effectively, women face a ton of legal and financial hindrances.
- Ahmed, F. (n.d.). Understanding the Islamic law of Divorce. Indian law
- An-Na'im, A. A. (2002). Islamic Family Law in A Changing World.
- Gupta, S. (n.d.). The Concept of Divorce under Muslim Law. legalserviceIndia.
- MEHRAJUDDIN*, M. M. (n.d.). Divorce under Islamic Law. Cochin University Law
Review Vol. IX, 1985 p. 315-349, 35.
- Tipshiaka Litigation . (n.d.). Matrimonial
- Sunni is a school of Islam which is divided into four schools of
jurisprudence Hanafi, Maliki, Shafi'i, Hanbali
- Shia- Shia Islam or Shi'ism is one of the two main branches of Islam.
- Prophet Mohammad was an Arab religious, social, and political leader and
the founder of Islam.
- Tuhr is the period of wife's parity i.e. a period between two
menstruations. As such, the period of Tuhr is the period during which
cohabitation is possible.
- Qadi is person who gives judgement according to the Shariah law
- In Islam, iddah or iddat (Arabic: العدة; period of waiting) is the
period a woman must observe after the death of her husband or after a
divorce, during which she may not marry another man.