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Nullity of Marriage under Muslim Personal Law And Muslim Marriage Act,1939

A pleasant family life necessitates a successful marriage between the husband and wife. As a result, Islam stresses the importance of maintaining a marriage and advises against breaking a marital contract. No marriage is intended to be dissolved in the outset, but bad circumstances force the matrimonial bond to be broken. The inability of the couples to live together is the premise of divorce in Islamic law[1], rather than a specific reason for the parties' inability to live together.

A divorce can be obtained by either the husband or the woman demonstrating their intent. Personal law in India is a law that applies to people of diverse religions and material backgrounds, depending on their religion. For a long time, Muslim women have fought for gender equality in Islamic law, which governs rights such as marriage, divorce, and property ownership.

Muslim women's rights to marriage, divorce, and inheritance have aided a number of Muslim women campaigners in their fight for equality. Personal laws in India, particularly Muslim personal law, have been a contentious political topic that has sparked widespread debate. Since the independence, it has served as a focal point for Muslim organisations.

A Contractual Relationship

Under Muslim Law, Marriage is a contractual relationship between two parties. All the essentials that are required for a contract are present under Muslim Marriage.[2] There is an offer, acceptance, consent, consideration, the capacity of parties, etc.

The purpose of such a form of marriage are:
  • Legalising sexual intercourse.
  • Procreation of children.

End of Marital Relationship

Divorce is the end of such a marital relationship, as under Muslim law there are two modes given for the dissolution of marriage 3:
  • Divorce
  • Talaq
In daily life, these two terms are alternatively used, but under Muslim law, if a person seeks divorce, he will be governed by the provisions of Dissolution of Muslim
Marriage Act, 1939. Whereas, Talaq proceedings are governed by Muslim Personal Laws.

Categories of Dissolution of Marriage:

  1. Talaq by Husband

    1. Talaq-ul-Sunnat
      Talaq ul Sunnat is also called as revocable Talaq for the reason that it does not become final at once and there always remain a possibility of compromise between the husband and wife. This type of talaq is effective since it is based on the Prophet's traditions.[3]

      It can be subdivided into two parts:
      1. Ahsan
        As the name implies, it is considered the best form of talaq.
        The procedure that the husband follows is:
        • He must make a single-sentence divorce declaration, and this declaration must be made in a state of purity (when a woman is free from her menstrual cycle).[4]
        • If a husband engages in any type of sexual activity during the iddat period (the period of chastity that a Muslim woman is required to observe after the breakdown of her marriage, whether by death or divorce), it will be deemed an implied revocation of talaq. Even though the wife is in her menstruation, talaqe-Ahsan can be uttered if the parties have not consummated their relationship.[5]
      2. Hasan
        Hasan means "good" in Arabic, hence divorces pronounced in Hasan mode are good but not as valuable as those uttered in Ahsan mode. The husband must issue three divorce declarations in a row.
  2. Talaq by Wife

    Divorce given by wife under the husband's delegated power.
    1. Talaq-e-tafweez
      This is the only option for a woman to divorce her husband; however, the power to divorce must be transferred solely by the husband.[6] It's a type of pre-marital or postmarital agreement that gives the wife the right to divorce her husband provided certain conditions are met, such as:
      1. In case the husband marries a second wife.
      2. Any other condition that must not be contrary to public policy is that the spouse is unable to maintain her for a specified period of time.
      If the husband adheres to the terms of the agreement, the woman can break her marital connections without violating the law. The fact that the husband delegated power to the wife does not absolve him of his responsibility to issue talaq.
  3. Divorce by Mutual Consent

    Although divorce by mutual consent was not recognised by Muslim law, it became available to Muslim women after the passage of the Dissolution of Muslim Marriages Act in 1939.
    1. Khula
      The word Khula, in its unique sense means "to draw," "uncover," or "to take off," as in removing one's clothing or garments. The couples are said to resemble clothing to one another, and when they take Khula, they each remove their garments, in other words, they dispose of one another.[7]

      The husband lays down his right over his wife. It signifies an arrangement entered into to dissolve a connubial connection in lieu of compensation paid by the wife to her husband out of her property, everything that can be given as dower. Khula is a divorce by mutual consent and at the request of a wife, in which she agrees to offer her husband some consideration. It's essentially a "redemption" of the marriage contract.

      This divinely granted right of Khula is stated in the Qur'an as follows:
      "If you (the judge) do indeed fear that they would be unable to keep the limit ordained by Allah, there is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah, so do not transgress them.'[8]

      • There must be an offer from the wife's side
      • The husband must accept the offer in exchange for consideration.
      • It is vital to adhere to the iddat period.
    2. Mubarat
      It signifies mutual discharge from the marital tie. The most essential element is that the mutual consent of both the partners is required in regards to the dissolution of marriage.[9]

      • Offer can be made from either of the sides.
      • Acceptance of offer makes divorce irrevocable.
      • Iddat is necessary.
      Under Shia law, parties can dissolve their marriage, if it is not possible for them to continue their marriage by way of mubarat.

      The last method of dissolution of marriage listed in the table above is judicial separation.
  4. By Judicial Decree

    1. Lian
      Lian can simply be defined as a husband's false accusation of adultery against his wife. When a husband falsely accuses his wife of adultery, she can sue him and seek a divorce under the Act on the same grounds by bringing a regular suit for dissolution of marriage.[10]

      In the case of Zafar Husain v. Ummat Ur Rahman12, the Allahabad High Court found that a Muslim wife has the right to initiate a divorce suit against her husband and receive a decree on the grounds that she was wrongfully accused of adultery by him. Retraction can be made by the husband before the end of the trial, admitting that he made the charge of adultery against her wife and such charge was false.

      • A husband must be sane and adult.
      • He charges his wife of adultery.
      • Such a charge must be false.
      • False charges do not dissolve the marriage ipso facto (by virtue of their fact); rather, they give a basis for the wife to petition the court to terminate the marriage.
      • The marriage will continue until the court issues a decree of dissolution of marriage.
    2. Faskh
      According to the Quran, husband and wife have a duty to respect each other, treat each other with respect, and obey each other's authorised directives. If they discover that they can no longer live as husband and wife, they can contact a Qazi, who, after a thorough assessment, may decide to end their marriage.[11]
    3. Dissolution of Muslim Marriages Act, 1939
      On April 17, 1936, Qazi Mohammad Ahmad Kazmi proposed a measure in the Legislature to address the issue. The Dissolution of Muslim Marriages Act 1939, on the other hand, became law on March 17, 1939.15

      According to Section 2 of the Act: A woman married under Muslim law has the right to obtain a divorce judgement for the dissolution of her marriage on any one or more of the following grounds:
      • That the husband's whereabouts have been unknown for four years: if the husband has been missing for four years, the woman may file an appeal for the dissolution of her marriage. The decree of dissolution of marriage on this ground will take effect six months after it is issued, and during that time if the husband appears in person or through an authorised representative. If the court is satisfied, the decree may be set aside.
      • That the husband has disregarded or neglected to accommodate her upkeep over a period of two years: it is a legitimate obligation of every husband to keep up his wife, and if he fails to do so, the wife may seek divorce on this basis. A husband is not required to keep up with his wife, either because he disregards her or because he lacks the financial means to do so. In both circumstances, the end result would be the same. The husband's commitment to keep up his wife is liable to wife's own presentation of marital commitments. There is no defence available before husband on the ground of poverty, failing health or unemployment.
      • When the husband has been sentenced to a term of imprisonment of seven years or more: the wife's right to a judicial divorce on this basis begins on the date that the sentence expires. Along these lines, the announcement might be made to support her just after the husband's claim deadline has gone or after the husband's intrigue has been rejected by the last court.
      • That the husband has failed to fulfil his conjugal obligations for a period of three years without valid reason: the Act defines "conjugal commitments of the husband." Under Muslim law, the husband has a few conjugal obligations. However, the end purpose of this statement is to examine the husband's inability to perform only those matrimonial duties that are not excluded in any of the conditions of Section 2 of this Act[12].
      • That the husband was impotent at the time of the marriage and continues to be impotent: in order to obtain a divorce on this basis, the wife must show that the husband was barren at the time of the marriage and continues to be barren until the suit is recorded. Prior to passing a pronouncement of divorce of divorce on this ground, the court will undoubtedly provide for the husband one year to improve his power gave he makes an application to it.
      • If the husband has been insane for two years or is suffering from uncleanliness or a harmful venereal infection: his insanity must have lasted for at least two years prior to the filing of the complaint. In any case, this conduct has no bearing on whether or not the mental illness is treatable or significant. The disease may be white or dark in colour, and it may cause the skin to shrink. It could be curable or life-threatening. Venereal disease is a sexual organ infection. This condition must be of a serious character, according to the Act. Moreover, regardless of whether the wife herself is to blame for the husband's illness, she is entitled to a divorce on this basis.
      • If a girl is married by her father or guardian before the age of 15[13], she has the right under Muslim law to repudiate the marriage once she reaches the age of 18, as long as the marriage is not consummated. For the same, she is entitled to a divorce decree.
      • Cruelty by the husband- If the husband treats his wife cruelly, she can file an appeal for a judicial separation decree on the same grounds.18
      The following are some of the ways that grounds for cruelty could be claimed.:
      • Physical assault
      • Making defamatory statements affecting her reputation.
      • Forces her to lead an immoral life.
      • Obstructing her from practising her religion.
      • Husband having more than one wife and does not treat them equally
      In Syed Ziauddin v. Parvez Sultana[14], Parvez Sultana was a science graduate and she wanted to take admission in a college for medical studies. She needed money for her studies. Syed Ziaudddin promised to give her money provided she married him. She did. Later she filed for divorce for non-fulfilment of promise on the part of the husband.

      The court granted her divorce on the ground of cruelty. Thus we see the court's attitude of attributing a wider meaning to the expression cruelty. In Zubaida Begum v. Sardar Shah[15], a case from Lahore High Court, the husband sold the ornaments of the wife with her consent. It was submitted that the husband's conduct does not amount to cruelty.

      In the case of Aboobacker v. Mamu koya[16], the husband forced his wife to wear a sari and go to the movies. The wife declined because, in her opinion, it was against the Islamic way of life to do so. She requested a divorce based on mental cruelty. The Kerela High Court ruled that the husband's actions were not harsh because just departing from the oppressive orthodoxy's standards does not constitute un-Islamic behaviour.

      The Allahabad High Court noted in Itwari v. Asghari 22that Indian law does not recognise various types of cruelty, such as Muslim cruelty, Hindu cruelty, and so on, and that the test of cruelty is based on universal and humanitarian standards; that is, conduct by the husband that would cause such bodily or mental pain as to endanger the wife's safety or health.
  5. Legal Consequences of Divorce

    Regardless of the method of divorce, the following legal effects on the parties' rights and obligations result 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.[17]
    2. Payment of Dower
      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.24

      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. Rights of Inheritance
      Mutual rights of inheritance cease after the divorce becomes irrevocable.
    4. Cohabitation becomes unlawful
      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.
  6. Revoked triple talaq or Talaq-e-biddat

    In this form three pronouncements are made in one sentence, or in three sentences, where pronouncement of the word 'talaq' thrice in one sitting by a man to his wife results in an instant and irrevocable divorce. The moment the pronouncement is made the marriage stands dissolved irrevocably.[18]

    The Islamic practice of Muslim men divorcing their wives instantly has been declared unconstitutional, void and illegal after decades of Muslim women campaigning about it. The Supreme Court took up the issue when seven victims and women's group filed the petition against the same. Progressive Muslim women's groups say Islamic religious authorities especially males have been resistant to give up men's power to instantly leave their wives. India's Muslim community is also generally poor and lack the basic education which activists say has made it more difficult for women to mount legal and social campaigns against this practice.

    When it comes to Quran with reference to Triple Talaq, it is nowhere mentioned in Quran that Triple Talaq at a time will be considered three talaqs. In verses 229, 230 of the Holy Quran, it states that, Divorce for the reason of mutual incompatibility is allowed and in order to prevent erratic and fitful repeated separations and reunions, a limit of two divorces is prescribed Reunion after two divorces is permissible but, when divorce is pronounced for the third time, between the same parties, it becomes irreversible, until the woman marries some other man and he divorces her.[19][20]

    The word Marrataan (two times) in this verse means repeating the word talaq' or to give divorce with the specification of number. They say that if the words talaq, talaq, talaq are pronounced or three talaqs is uttered then it is three talaqs. The fact, however, is that marrataan does not mean to repeat the word talaq but it means to give talaq on a second time.[21]

    In the case of A.S. Parveen Akhtar v. Union of India [22]it was observed that the practice of Triple Talaq among the Muslims is illegal as per the Holy Quran and is considered sinful. Triple Talaq is nowhere mentioned in the Quran and this might be one of the reasons as to why this practice is banned in certain Islamic countries. The Quran gives equal rights to husband and wife to seek divorce and it does not even allow instant divorce by husbands.
    1. Status Quo
      A watershed moment in the history was witnessed when judiciary of India criminalized the practice of Talaq-ul-biddat (instant triple Talaq). In a renowned case of Shayara bano vs Union of India and ors[23]. with Majority opinion of justice Rohinton Nariman and U.U. Lalit J. and a Concurring opinion of Kurian Joseph J. and a Dissenting opinion of CJI J.S. Khehar and Abdul Nazeer J. It was held that any man who pronounces instant triple Talaq would be punished with an imprisonment of three years and fine.[24]
    2. The Muslim Women (Protection of Rights on Marriage) Act, 2019
      The Muslim Women (Protection of Rights on Marriage) Act [25]makes the declaration of talaq-e-biddat a crime. The objective of the ordinance is to protect the rights of married Muslim women. The ordinance reiterates the Supreme Court verdict that any pronouncement of talaq by:
      A Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.

      According to Section 4, any Muslim husband who pronounces instant talaq will be punished with imprisonment of up to three years and will be liable to a fine. Section 5 entitles a married Muslim woman upon whom talaq is pronounced to receive a 'subsistence allowance', to be determined by a First Class Judicial Magistrate, from her husband for herself and their dependent children.

Islamic law is so progressive that it can become basis for a Uniform Civil Code. However, conservative Muslim society dragged the Quran pronouncement to its own level and introduced, through human reasoning many measure, which curbed women's rights. India is a standout amongst the most tolerating and progressive nations and invests heavily in being the most common democratic state on the planet.

It has constantly upheld what is correct and has annulled what is not. There has been an out of line interpretation of Islam and it is upon the Legislature and Judiciary to change that. It is significant for India to acknowledge that occasions are changing, and personal laws need some reorganization.

  1. Lawal Mohammad Bani & Hamza A. Pate, 'Dissolution of Marriage (Divorce) under Islamic Law' (2015) 42 JL Pol'y & Globalization 138
  2. IPleaders. 2021. Elucidating the provisions of Muslim Law on Divorce- iPleaders. 3 Id.
  3. Bai, J., 2018. Concept of Divorce and Dissolution of Muslim Marriages Act 1939 - Ignited Minds Journals
  4. Id
  5. India, l., 2021. The Concept of Divorce under Muslim Law.
  6. Saba Habachy, 'The System of Nullities in Muslim Law' (1964) 13 Am J Comp L 61.
  7. Supra Note 4.
  8. Omar, Shagufta. 'Dissolution of Marriage: Practices, Laws and Islamic Teachings.' Policy Perspectives 4, no. 1 (2007): 91�117.
  9. Lawal Mohammad Bani & Hamza A. Pate, 'Dissolution of Marriage (Divorce) under Islamic.
  10. Khan, M., 2014. Divorce: A Critical Analysis of Islamic Law. [online] 12 Zafar Husain vs Ummat-Ur-Rahman, 49 Ind. Cas. 256. 13 Supra Note 2.
  11. Omar, Shagufta. 'Dissolution of Marriage: Practices, Laws and Islamic Teachings.' Policy Perspectives. 15 Diwan Paras, Law of Marriage and Divorce, 5th Edn., (New Delhi:2008).
  12. The Dissolution of Muslim Marriages Act 1939.
  13. India, l., 2021. The Concept of Divorce under Muslim Law. [online] 18 Id
  14. Syed Ziauddin v. Parvez Sultana, (1943) 210 IC 587.
  15. Zubaida Begum v. Sardar Shah, (1971) KLT 663.
  16. Aboobacker v. Mamu koya, A.I.R. 1960 All 684. 22 Itwari v. Asghari, 1960 All LJ 523.
  17. Gupta, A., 2021. Divorce Under Muslim Law: The Concept. 24 Id
  18. Furqan Ahmad, Triple Talaq: An Analytical Study With Emphasis On Socio-Legal Aspect (Regency Publications) (1994).
  19. Abdullah Yusuf Ali, the Holy Quran: Text Translation and Commentary (Kitab Bhawan, New Delhi, 14th ed
  20. Shams Prizada, Triple Talaq In The Light Of Quran and Sunnah (Dara dawat ul Quran Publications, Mumbai) (1996).
  21. A.S. Parveen Akthar v. Union of India, 2002 (3) K.L.T. 537.
  22. Shayara Bano v. Union of India (2017) 9 SCC.
  23. The Hindu. 2021. Criminalising talaq-e-biddat.
  24. The Muslim Women (Protection of Rights on Marriage) Act, 2019.

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