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Divorce Under Muslim Law: The Concept

  • Even though the provision of divorce was recognized in all religions, Islam is perhaps the first religion in the world which has expressly recognized the termination of marriage by way of divorce
  • In Pre-Islamic Arabia, divorce was used as an instrument of torture. The power of divorce possessed by the husband was unlimited. Such social and moral ills and injustices engaged the attention of Prophet of Islam for removal of prevailing evils and to ensure permanence of marriage without impairing individual freedom.
  • An effective check placed by Islam on frequent divorce and remarriage was that in case of irrevocable separation, it is essential for remarriage with the same person, that the wife should marry another man, and this marriage should be consummated before divorce, and the wife should observe Iddat (Doctrine of Halala).
  • The Muslim law relating to divorce raises two significant questions for consideration, one relates to the method of divorce, i.e., triple pronouncement of divorce and the other to the problem of inequality of two sexes in respect of the right to divorce.

Classification of Divorce

Talaq:
  • Talaq is an Arabic word and its literal meaning is ‘to release', Under Muslim law, Talaq means repudiation of marriage by the husband. As a mode of divorce, Talaq is peculiar because a Muslim husband has an unrestricted right to divorce his wife without giving any reason
  • In Islam "Talaq” is permitted only when the wife by her conduct or her words does injury to the husband or happens to be impious. The Islamic policy has never been to confer an absolute authority of Talaq upon a husband to be misused by him.
  • The Prophet Muhammad pronounced “Talaq to be the most detestable before God of all the permitted things” for it prevented conjugal happiness and interfered with the proper bringing up of children.

Conditions for a valid talaq

  • Capacity

    • Every Muslim husband of sound mind, who has attained the age of puberty is competent to pronounce talaq even without assigning any cause.
    • According to Tyabji, guardian of a husband of unsound mind, may pronounce Talaq on behalf of such insane husband if such Talaq is in the interest of the husband.
    • When husband has no guardian, the Kazi or a Judge has right to dissolve the marriage in the interest of such husband.
       
  • Free Consent
    • Except under Hanafi Law (pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication, etc. is valid and dissolves the marriage), the consent of the husband in pronouncing Talaq must be a free consent.
       
  • Formalities under Sunni Law
    • According to Sunni law a Talaq may be oral or in writing (Talaqnama).
    • No specific formula or use of any particular word is required to constitute a valid Talaq. Any expression which clearly indicates the husband’s desire to break the marriage is sufficient to dissolve the marriage through Talaq.
    • A Talaq whether oral or in writing, need not be made in presence of the witnesses. Under Sunni Law, Talaq without witnesses is valid.
       
  • Formalities under Shia Law
    • According to Shia law, the Talaq must be pronounced orally, except where the husband is unable to speak. If the husband has capacity to utter the words but gives it in writing, the Talaq is void and ineffective under Shia law.
    • Shia law provides that Talaq must be pronounced in the presence of two competent witnesses. Every male Muslim of sound mind, who has attained the age of puberty, is competent to act as witness. However, in place of one male, two adult female Muslims of sound mind may be substituted to act as witnesses. A Talaq without witnesses or in presence of incompetent witnesses, is void under Shia law.
    • Shia law requires the use of specific Arabic words in the specific formulae in the pronouncement of Talaq.
       
  • Express Words
    • The words of Talaq must clearly indicate the husband’s intention to dissolve the marriage. Therefore, the pronouncement must be express. If Talaq is in express terms, proof regarding the husband's motive or intention is not necessary.
       
    • Where the husband clearly uses the word Talaq he cannot say that he did not mean divorce. But, if the pronouncement is not express and is ambiguous and confusing then it is necessary to prove that husband actually intends to dissolve the marriage.
       

Kinds of Talaq

From the point of view of the mode of pronouncement and effect, there are two kinds of Talaq:
  1. Talaq-ul-Sunnat (Revocable Talaq/Approved Mode)

    • Talaq-ul-Sunnat is regarded to be approved form of Talaq and is effected in accordance with the traditions of Prophet (Sunna). Also, known as Talaq-ul-raje.
    • It is further sub-divided into:
      1. Ahsan (Most Proper):

        • The reason being the most proper is twofold: First, there is possibility of revoking the pronouncement before expiry of the Iddat period. Secondly, the evil words of Talaq are to be uttered only once. Being an evil, it is preferred that these words are not repeated.
        •  In the Ahsan Talaq, there is a single declaration during the period of purity followed by no revocation by husband tor three successive period of purity. In this form, the following formalities are required:
          1. The husband has to make a single pronouncement of Talaq during the Tuhr (the period of wife's purity i.e. a period between two menstrual cycle) of the wife. As such, the period of Tuhr is the period during which cohabitation is possible. But if a woman is not subjected to menstruation, either because of old age or due to pregnancy, a Talaq against her may be pronounced any time.
             
          2. After this single pronouncement, the wife is to observe an Iddat of three monthly courses. If she is pregnant at the time of pronouncement the Iddat is, till the delivery of the child. During the period of Iddat, Talaq in the Ahsan form by the husband is revocable. Revocation may be expressed or implied. Cohabitation with the wife is an implied revocation of Talaq. If the cohabitation takes place even once during this period, the Talaq is revoked and is presumed that the husband has reconciled with the wife.
             
      2. Hasan (Proper):

        • It is not the best mode because evil words of Talaq are to be pronounced three times in the successive Tuhrs.
        • The formalities required under this form are as under:
          1. The husband has to make a single declaration of Talaq in a period of Tuhr.
             
          2. In the next Tuhr, there is another single pronouncement for the second time. It is significant to note that the first and second pronouncement may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, the words of Talaq become ineffective as if no Talaq was made at all.
             
          3. But, if no revocation is made after the first or second declaration then lastly the husband is to make the third pronouncement in the third period of purity (Tuhr). As soon as this third declaration is made, the Talaq becomes irrevocable and the marriage dissolves and the wife has to observe the required Iddat.
             
          4. Talaq-ul-Biddat (Irrevocable Talaq/Disapproved Mode):
            • Biddat means sinful. It is a sinful and disapproved mode of divorce; also known as Talaq-ul-Bain. Under the Shia law, an irrevocable Talaq is not recognized. It is recognized only under Sunni law.
               
            • According to Ameer Ali, this mode of Talaq was introduced by the Omayyad Monarchs because they found the checks in the Prophet's formula of Talaq inconvenient and endeavored to find an escape from the strictness of law.
               
            • A Sunni husband who wants to divorce his wife irrevocably, may do so in any of the following manners:
              1. The husband may make three pronouncements in a period of purity (Tuhr) saying: “I divorce thee, I divorce thee, I divorce thee”. He may declare his triple-Talaq even in one sentence saying: “I divorce thee thrice”, or “I pronounce my first, second and third Talaq.”
              2. The husband may make only one declaration in a period of purity expressing his intention of divorce the wife irrevocably saying: “I divorce thee irrevocably” or “I divorce thee in Bain”.

Case Laws:
  • In Saiyad Rashid Ahmad v. Anisa Khatun[2], the Privy Council recognized triple divorce pronounced at one time validly effective. In this case – husband – “triple talaq” in absence of her but in presence of witnesses – after 4 days – executed talaqnama – later started living together without any proof of compliance of the doctrine of Halala – five children born and husband treated them as legitimate – privy council agreed with the observation of the lower court that triple talaq broke the marriage then and there
     
  • In Rahmatullah v. State of UP[3], Justice H. N. Tilhari of Allahabad HC (Lucknow Bench) observed:
    Talaq ul-Biddat is, giving an irrevocable divorce at once or at one sitting or pronouncing it in a tuhr once in an irrevocable manner without allowing the period of waiting for reconciliation or without allowing the will of Allah to bring about reunion, by removing differences or cause of differences and helping the two in solving their differences, runs counter to the mandate of holy Quran and has been regarded as, by all under Islam-Sunnat, to be sinful.” – only an “Obiter dicta” of the judgment therefore not binding.
     
  • In Yousuf v. Swaramma[4], Justice Krishna Iyer pointed out:
    The view that the Muslim husband enjoys an arbitrary unilateral power to inflict instant divorce does not accord with Islamic injunctions. It is a popular fallacy that a Muslim male enjoys under the Quranic law unbridled authority to liquidate the marriage. The whole Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him.”
     
  • The Gauhati High Court in Rukia Khatun v. Abdul Laskar[5], wherein Justice Baharul Islam speaking for the Division Bench observed that the correct law of talaq as ordained by the Holy Quran is:
    1. that 'talaq' must be for a reasonable cause; and
    2. that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, 'talaq' may be effected.
       
  • The Supreme Court in its landmark judgment in Shamim Ara v. State of UP[6], has derecognized the husband's dictate to divorce in any manner, from any date past or future and without any proof. The Apex Court approving the views taken by Justice Baharul Islam further observed that the condition precedent for effectiveness of divorce was the pronouncement of divorce which has to be proved on evidence. When the husband failed to prove the pronouncement of talaq, order of Court negativing plea of divorce would be proper.
     
  • In Masroor Ahmed v. State[7]

Constructive Divorce (Ila and Zihar)

Ila (Vow of Continence)

  • Where a husband takes an oath, swears by God that he will not have sexual intercourse with his wife and observe four months continence, he is said to make ila
  • Where the husband having made ila abstains from 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.
  • The Hanafi jurists argue that since the husband acted unjustly towards his wife, it is equitable that on the expiration of four months he should be deprived of the benefit of marriage.
  • Under Ithna Asharia (Shia) school, the wife is entitled and obligatory to apply to the Court for passing a decree dissolving the marriage to effectuate Ila divorce.
  • But if the husband resumes cohabitation within the prescribed period of four months, Ila is cancelled and the marriage does not dissolve.

Zihar (Injurious Assilimation)

  • If the husband (sane and adult) compares his wife to his mother or any other female within a prohibited degree, the husband does not cohabit with his wife for a period of four months
  • The wife has a right to
  • to refuse to have sexual intercourse with him until he has expiated himself from penance prescribed by law, such as – (i) freeing a slave; fasting, for two months; feeding, sixty poor persons,
  • to apply to the Court for an order requiring him either to perform a penance or to decree her a regular divorce.
  • Upon expiry of the fourth month, the Zihar is complete
  • But the marriage does not stand dissolved there, instead the wife must apply to a Court for an order requiring him either to perform a penance or to decree her a regular divorce.
  • The Shia law insists on the presence of two witnesses when any injurious assimilation is made to the wife.
  • Muta marriage which admits no other sort of divorce may be dissolved by Zihar.

Delegated Divorce (Talaq-e-tafwiz)

  • A Muslim husband has unrestricted right to divorce his wife whenever he pleases and this right is so absolute that he may exercise it either himself or may delegate his right to another person, including his own wife. Divorce by such other person, who acts as agent of the husband under his authority, is called Talaq-e-tafwiz
  • The authority is given to the wife under an agreement at the time of marriage or anytime after it. The delegation of the power of divorce to the wife may either be – permanent (revocable) or temporary (power irrevocable).
  • The delegation may be conditional or unconditional, but the conditions must not be opposed to the principles of Islam and public policy.

Divorce by Mutual Consent (Khula and Mubarat)

Khula (Redemption: Divorce at the request of wife)
  • Khula or redemption literally means “to lay down”. In law, it means laying down by a husband of his right and authority of his wife.
     
  • Khula has been aptly defined by their Lordships of the Judicial Committee in Moonshee-Buzlu-ul-Raheem v. Lateefutoonissa[8], “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. It signifies an arrangement entered into for the purpose of dissolving a connubial connection in lieu of compensation paid by the wife to her husband out of her property. Khula, in fact, is thus a right of divorce purchased by the wife from her husband.”
     
  • Essentials of Khula:

    1. There must be an offer from the wife and the offer must be accepted with the consideration for the release by the husband,
       
    2. Consideration:
      As regards the consideration, all agree that it can be everything and anything that can be given as dower. Cases occur in which the wife agrees to pay something by way of consideration for her release but after being divorced by her husband fails to fulfill her promise. In such a case, the divorce doesn’t become invalid and the husband has a right to claim the consideration, because as soon as the offer for khula is accepted, it becomes an irrevocable divorce and the wife is bound to observe iddat.
       
    3. Capacity:
      Under Shia law, the conditions necessary for the effectuation of a valid talaq are also requisites for the performance of khula accordingly; that is, the husband must be:
      1. adult,
      2. of sound mind,
      3. free agent, and
      4. have intention to divorce her.

Under the Sunni law, only two requisites are essential, i.e., the husband must be:
  1. adult, and
  2. of sound mind.
  • In Mst. Bilquis Ikram v. Najmal Ikram[9], it was said that under the Muslim Law the wife is entitled to Khula as of right if she satisfies the conscience of the Court that it will otherwise mean forcing her into a hateful union.

     

Mubarat (Mutual Release)

  • Mubarat is also a form of dissolution of marriage contract. It signifies a mutual discharge from the marriage claims. In Mubarat. the aversion is mutual and both the sides desire separation. Thus, it involves an element of mutual consent.
  • In this mode of divorce, the offer may be either from the side of wife or from the side of husband. When an offer Mubarat is accepted, it becomes an irrevocable divorce (talaq-ul-bain) and iddat is necessary.

Legal Consequences of Khula and Mubarat

  • The legal effects of a valid Khula or Mubarat are the same as that of a divorce by any other method, i.e., iddat, maintenance during the period of iddat and after completion of Khula or Mubarat, the marriage dissolves and cohabitation becomes unlawful.

Distinction between Khula and Mubarat:

S. No. Khula Mubarat
1. Redemption of the contract of marriage. Mutual release from the marital tie.
2. Offer comes from the wife, the husband accepts. Any party may make the offer, the other side accepts.
3. Consideration passes from the wife to husband. No question of consideration.
4. Aversion is on the side of the wife. Mutual aversion.

Lian (False charge of Adultery)

  • Where a husband charges his wife of adultery and the charge is false, the wife is entitled to sue for and obtain the divorce. In India, a regular suit has to be filed for dissolution of her marriage.
     
  • Features of Lian:
    1. Husband (adult and sane) charges his wife (adult and sane) of adultery or, denies the paternity of her child
    2. Such charge is false. If such charge is proved to be true, decree for the dissolution of marriage would not be granted in favour of the wife.
    3. Such false charge does not ipso facto dissolve the marriage, it only gives an opportunity to the wife to move the Court to dissolve the marriage. The marriage continues till the decree is passed.
    4. She must file a regular suit for the dissolution of marriage. Mere 'application' is not enough. No such suit will lie if the marriage was irregular.
    5. The judicial separation due to lian is irrevocable.
    6. Lian is applicable only to sahih marriages not to fasid ones.
       
  • Retraction of Charge:
    The Muslim Law permits the man to retract the charge but the retraction must be (i) bona-fide; (ii) unconditional; and (iii) made at or before the commencement of hearing and not after the close of evidence.
     
  • Conditions necessary for valid retraction:
    1. husband’s admittance of charge being made;
    2. admittance of false charge; and
    3. must retract before the end of trial.

Judicial Divorce (Faskh) (The Dissolution of Muslim Marriage Act, 1939)

  • Despite the Quranic injunctions and the traditions of the Prophet, the Anglo-Indian Courts had denied to Muslim women the rights of dissolution available to them under the Shariat.
  • Before 1939, a Muslim wife could seek her divorce by a judicial decree only on the ground of:
    1. Option of puberty (Khyar-ul-Bulugh);
    2. Impotency of the husband;
    3. Lian, i.e., false charge of adultery by the husband against her.
       
  • On the other hand, the husband need not go to the court at all as all the forms of divorce (Talaq, Ila, Zihar, Khula or Mubarat) depend solely upon his will. The classical Hanafi law of divorce was causing great hardships as it consisted no provision whereby a Hanafi wife could seek divorce on such grounds as disappearance of the husband, his long imprisonment, his neglect of matrimonial actions etc. Finding no other way to get rid of undesired marital bonds, many Muslim women felt compelled by their circumstances to renounce their faith.
     
  • But now, the Dissolution of the Muslim Marriages Act, 1939 has introduced revolutionary change in this respect and had restored to her, right of divorce granted to her under Shariat. It is applicable to all Muslim woman irrespective of their school to which they belong. Section 2 of the Act contains nine grounds on the basis of any one of which a wife married under Muslim law, may filed petition for divorce.

    The grounds for matrimonial relief under Section 2 of the Act are available only to the wife, not to the husband. This is because the Muslim law has already given an absolute right to the husband to divorce his wife without judicial intervention and without any reason. The words used by Section 2 of the Act are a "woman married under Muslim law" and not a "Muslim Woman". This protects women who have already abjured Islam in the hope of getting their marriage dissolved and are thus no longer Muslims; they also can get their marriage dissolved on any of the grounds given in the Act.
     
  • Grounds in Section 2 of Dissolution of Muslim Marriage Act, 1939:

    1. Absence of Husband:
      If the whereabouts of the husband are not known for period of four years a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage, but, a decree passed on this sound will not take effect for a period of six months from the date of such decree; far the husband appears either in person or through an authorized agent within that period, and satisfied the Court that he is prepared to perform his conjugal duties, the court must set aside the said decree
       
    2. Failure to Maintain:
      If the husband has neglected or has failed to provide for her maintenance for a period of two years, a married Muslim woman can obtain a decree for the divorce.
       
    3. Imprisonment of husband:
      If the husband has been sentenced to imprisonment for a period of seven years or upward the wife is entitled to decree the Court dissolving her marriage, but no decree can be passed on this ground unless the sentence has become final.
       
    4. Failure to perform marital obligations:
      If the husband has failed to perform without reasonable cause, his marital obligations for a period of three years, the wife can get her marriage dissolved by means of a decree.
       
    5. Impotency of husband:
      If the husband was impotent at the time of the marriage and continues to be so, the wife is entitled to judicial divorce for the dissolution of her marriage. Before passing such a decree on this ground the Court shall, on application by husband, make an order requiring the husband to satisfy the court within a period of one year from the date of such order that he has ceased to be impotent, and if he does so satisfy, no decree shall be passed on this ground.
       
    6. Insanity, leprosy or venereal disease:
      If the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease, the wife may claim a judicial divorce under the Act. It is to be noted that leprosy and virulent disease need not to be two years old, it may be even recent
       
    7. Repudiation of marriage by wife (option of puberty):
      If she, having been given in marriage by her father or other guardian before attaining the age of 15 years repudiated the marriage before attaining the age of 18 years and the marriage is not consummated, she is entitled to a decree of divorce.
       
    8. Cruelty of husband:
      Judicial divorce may also be claimed by a Muslim wife, if the husband treats her with cruelty, that is to say:
      1. habitually assaults her or makes her life miserable by cruelty or bad conduct even if such conducts does not amount to physical ill-treatment
      2. associates with women of ill-repute or leads an infamous life, or
      3. attempts to force her to lead an immoral life, or
      4. disposes of her property or prevents her from exercising her legal right over it, or
      5. obstructs her in the observance of her religious profession or practice, or
      6. if he has more wives than one; does not treat her equitably in accordance with the injunctions of the Quran.
         
    9. Grounds of dissolution recognized by Muslim Law:
      The wife is also entitled to a decree for the dissolution of her marriage on any other ground which is recognized as valid for the dissolution of marriage under Muslim law. For example, under this clause, a wife may seek her divorce by judicial decree on the ground of false charge of adultery against her (Lian).
       

Effect of Apostasy on Marriage:

  • This is governed by Section 4 of the Dissolution of Muslim Marriages Act, 1939. Prior to this apostasy of either party, ipso facto dissolved the marriage. Now though husband's apostasy from Islam would ipso facto dissolve the marriage, the apostasy of wife will no more dissolve the marriage, ipso facto. A wife cannot, on the ground of her own apostasy, claim a decree for divorce, but she must establish any of the nine grounds of Section 2 of the Dissolution of Muslim Marriages Act, 1939
     
  • The section further lays down that on account of her own apostasy from Islam, the wife does not lose her right under the Act to claim a divorce on any of the grounds given under Section 2 of the Act.
     
  • This section does not apply to a woman being a convert to Islam from some other faith who re-embraces her former religion. In such case, the law as it stood before the above Act would apply and the conversion of the wo.nan to her former faith would dissolve the marriage tie.

Legal Consequences of Divorce

  • Irrespective of the mode of divorce following legal consequences on the rights and obligations of the parties follow from the divorce:
    1. the parties become entitled to contract another marriage. If the marriage was consummated, the wife may marry another husband after the completion of her Iddat, if the marriage was not consummated, she is free to marry immediately;

      If the marriage was consummated, and the husband had four wives at the date of divorce including divorced wife, he may marry another wife after completion of the iddat of the divorced wife.
       
    2. dower becomes immediately payable, if the marriage was consummated, the wife is entitled to immediate payment of the whole of the unpaid dower, both prompt and deferred;

      If the marriage was not consummated, and the amount of dower was specified in the contract, she is entitled to half of that amount. If no amount was specified all that she is entitled to is a present of three articles of dress.

      Where a marriage is dissolved upon the apostasy of the wife, she is entitled to the whole of the dower if the consummation of marriage has taken place. The Dissolution of Muslim Marriages Act, 1939 does not affect any right which a married woman may have under Muslim Law to her dower or any part thereof on the dissolution of marriage.
       
    3. mutual rights of inheritance cease after the divorce becomes irrevocable;
    4. cohabitation becomes unlawful after the divorce has become irrevocable and the children born of such an intercourse are illegitimate and cannot be legitimated by acknowledgment;
    5. remarriage between divorced couple is not lawful where the husband has divorced the wife by three declarations, unless and until the following course is adopted:
      1. the wife should observe Iddat
      2. after observing Iddat, she should be lawfully married to another husband;
      3. this intervening marriage must be actually consummated;
      4. the second husband must pronounce divorce or die;
      5. the wife should observe Iddat after this divorce or death.

        A marriage without the fulfilment of the above conditions is irregular, not void. But mere cohabitation between divorced couple without the fulfilment of above conditions is void, and the children of such union are illegitimate as was held in Rashid Ahmad v. Anisa Khatun[10].
         
    6. the wife become entitled to maintenance during Iddat of divorce but not during the iddat of death.

Distinction between Sunni and Shia Laws of Talaq

  • Under Sunni Law, talaq is easier to be given than under Shia law, the basis of which lies in the fact that the Shias do not want that men should be so liberal and frequent in pronouncing talaq.

The following differences may be marked between the two:

  1. According to Sunnis, talaq may be given orally or even in writing but the Shias do not recognise talaq in writing unless the husband is physically incapable of pronouncing it
  2. Under Sunni Law, no witnesses are required to be present at the time of pronouncing talaq while under Shia Law, the presence of two male witnesses is necessary.
  3. Under Shia Law, intention is a necessary ingredient which is dispensed with under Sunni Law. Hence a talaq pronounced under intoxication or compulsion, or in jest is invalid under Shia Law because under such circumstances man does not do what he intends, but in Sunni Law, even such talaq is valid and effective.
  4. Sunni Law recognizes talaq-ul-sunnat and talaq-ul-biddat both, whereas Shia Law permits talaq-ul-sunnat only.
End-Notes:
  1. Under Dissolution of Muslim Marriage Act, 1939
  2. AIR 1932 PC 25
  3. (1994) 12 Lucknow Bench Civil
  4. AIR 1971 Ker 261
  5. (1981) 1 GLR 375
  6. 2002 CrLJ 4726 SC
  7. (2008) 103 DRJ 137 (Del
  8. 8 MIA 395, 399
  9. (1959) 2 WP 321
  10. AIR 1932 PC 25

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