DIVORCE
In Muslim law, there are three kinds of divorce:
1. Talaq- Where the marriage is terminated unilaterally by husband
2. Khula- When proposal to end marriage is made by wife.
3. Mubaraat- Where both the parties mutually decide to culminate the marriage.
TALAQ
Sunni Law- Under Sunni law, talaq may be oral or in writing by way of a talaqnama, in presence
or even in absence of wife or witnesses, but the words must refer to wife and should be
communicated to her. It is essential to prove talaq when words are ambiguous.
Shia Law- Under Shia law talaq must be pronounced orally in presence of two competent
witnesses. Shias recognize only one form of talaq i.e talaq – e- Sunnat
There are generally four kinds of talaq
1. Talaq- e- Sunnat- Talaq-e- Sunnat are called as revocable talaq. There are two forms of
Talaq- e – Sunnat:
(i) Ahsan- It refers to the pronouncement of talaq in the tuhr period and should be
followed by abstinence from sexual intercourse. Tuhr refers to a period between
two menstrual cycle of a women, it is also called as period of purity. The period of
iddat starts after the pronouncement of talaq. In the period of iddat if the parties
resumes cohabitation, then the talaq is revoked but if there is no resumption of
cohabitation talaq becomes final.
(ii) Hasan- In this form husband makes pronouncement of talaq during three
successive Tuhr. The parties can get back together during this time period. Once
the third pronouncement is made the period of iddat starts running after which talaq
becomes final if the cohabitation is not resumed in the given time.
2. Talaq- e- Biddat- Talaq-e- biddat is also known as Talaq- e bain or triple talaq. This talaq
comprised of either a single pronouncement or three pronouncements which are made in
succession by the husband with an intention to end the marriage. This kind of talaq is
irrevocable. This kind of talaq is presently void and punishable under Muslim Women(
Protection of rights on Marriage) Act, 2019.
Case- Shayara Bano vs Union of India1- In this case the validity of triple talaq was challenged
as being unconstitutional and the court held that triple talaq is void ab initio as it is not integral to
religious practice and violates the constitutional morality.
CONCEPT OF HALALA
Halala is a practice in which a women after getting divorced with a man by means of triple talaq
cannot return to her first husband before doing Khiwat- us- Sahih. Khiwat – us – Sahih basically
1
2017 SCCOnline SC 963
means the valid sexual intercourse. It means that if wife wants to come back to his first husband
she must marry the other person and consummate that marriage and then after giving divorce to
her she can come back to her first husband.
3. Contingent Talaq- The divorce which is based on the happening of the certain future event
is called as contingent talaq. This talaq becomes valid only when certain thing in future
happens. This kind of talaq is only recognized under Sunnis.
Case- Hasna Parveen vs Rashid Ahmed- In this case wife after marriage went to her parents
house. Husband wrote a letter to him, that if she did not come within 3 days to her matrimonial
house, she will be considered as divorce. The wife did not come within 3 days and the court declare
this divorce as a valid divorce on the suit of declaration by the husband.
4. Delegated Talaq- Delegated talaq is known as talaq-i- tafweez. Generally it is husband
who has the capacity to pronounce talaq on his wife. But the husband is empowered to
delegate this power in favour of another person, including his wife. The person who gets
the delegated authority can also pronounce talaq.
PERIOD OF IDDAT
The period of iddat (or iddah) for a Muslim woman after divorce, as per Islamic law, is generally:
Three menstrual cycles for a woman who menstruates.
Three lunar months for a woman who does not menstruate.
Until childbirth if the woman is pregnant at the time of divorce.
The iddat period serves to confirm pregnancy status and ensure legal and financial rights for the
woman.
PROCESS OF TALAQ
Bombay High court in the case of Dagdu Pathan Latur vs Rahimbi Dagdu Pathan Ashabi2 explains
the process of talaq and said:
Divorce by husband is talaq and can be oral or written
Oral form of talaq can be effected in three modes viz. Talaq-e- Ahsan, Talaq-e- Hasan and
talaq- e- boddat.
It is not upon the free will of husband to give divorce without assigning the reasons, he can
give talaq but by following the proper procedure.
Firstly he must make it known to wife regarding her mistake and must be given time to
change her behavior.
If the wife did not change her behavior at own, then he should talk to her parents and resort
to process of conciliation.
2
2003 (1) Bom CR 740
Arbitrators must be appointed by the parties to solve the discord between the parties, and
if the dispute is not solved then the husband can give talaq
KHULA
The right of wife to opt out of marriage is called Khula. In khula wife proposes the divorce and
husband accepts it. The following conditions should be satisfied for a divorce by khula:
Divorce must be proposed by wife.
Wife must give or agree to give consideration to husband for her release
Husband must accept the divorce.
A proposal of khula can be revoked before the acceptance is made by husband
Abu hanifa provide three days for wife to accept or revoke the khula.
Case- S. Basheria vs State of Tamil Nadu3- In this case the wife went to her parents place and
in the meantime husband remarried on the basis of alleged Khulanama executed by her and by
obtaining a fatwa from the chief kazi dissolving the marriage. In this case it was held that kazi can
only solemnize the marriage and cannot dissolve it and if the khulanama is denied by the alleged
excusants, the same is null and void.
MUBAARAT
Mubaarat is the divorce by mitual consent. In this type of divorce if both the parties do not want
to live with each other, they can sit together and work out the terms and conditions agreeable to
both of them.
GROUNDS FOR DECREE FOR DISSOLUTION OF MARRIAGE
The grounds of decree for dissolution of marriages are given under the dissolution of muslim
marriages act, 1939. These are the grounds which can only be availed by the women. Section 2 of
the act defines the following grounds:
1. Whereabouts not known for 4 years- The first ground on which a muslim women can
get decree of divorce is that the whereabouts of husband is not known for 4 years of more.
2. Failure to maintain wife- The second ground enabled the wife to take divorce on the
ground that husband has failed to maintain her for a period of two years or more.
Case- Zainaba vs TA Abdul Rasheed4- In this case it was held that wife`s desertion without
reasonable excuse, would not result in the forfeiture of her rights to the petition for divorce on the
ground that husband has not maintained her for two years or more.
3. Imprisonment for a period of 7 years or more- If the husband is sentenced to
imprisonment for a period of 7 years or more, then the wife can get divorce on this ground.
3
(2017) 1 MLJ 518
4
AIR 2013 Ker 54
4. Failure to perform marital obligation- If the husband fails to perform marital obligations,
then the wife can grant the decree of divorce. Marital obligations include conjugal company
to wife, maintaining her, looking after her etc.
Case- Jabir Mustafa vs Manal Abdul Salam- In this case it was held that failure to abide by
court`s order of maintenance, desertion, remarrying and not treating both wives equitably in
accordance with the injunctions of the quran, entitles wife the decree of divorce.
5. Impotency- The fifth ground on which the wife can obtain the decree of divorce is that the
husband was impotent at the time of marriage and continues to be do so.
Case- Sirujmohedkhan Janmohamadkhan vs Hafizunnisa Yasinkhan5 - In this case it was
held that if the husband is impotent, then the wife can have separate habitation and will be entitled
to maintenance after divorce.
6. Insanity or any venereal disease- If the husband is insane or suffering from any venereal
disease, then also the wife can apply in court for the dissolution of marriage.
7. Option of puberty- This ground provides that if a girl child is married before 15 years of
age, then in such a situation she can approach the court for divorce after she becomes 15
but before 18 years of age. But the marriage should not be consummated by the parties.
This concept is basically known as option of puberty.
Case- Mustafa vs Khursida6- In this case it was held that wife was seven years old at the time of
nikah. Later after she attained the age of 15 years she present a petition for divorce and the decree
of divorce was given to her.
8. Cruelty- The husband treats wife with cruelty, that is to say:
(a) habitually assaults her or makes her life miserable by cruelty or
(b) associates with women of evil repute or leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property of prevents her exercising her legal rights over it, or
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one, does not treat her equitably in accordance with the
injunctions of the Quran;
9. Any other ground- The other grounds on which a women can take divorce under muslim
law are:
(i) Ila- It is a ground of divorce where the husband swears before the god that he would
not have anything to do with his wife and keep his word for a period of four months.
Here the wife has a right to seek divorce by approaching the appropriate judicial
authority.
(ii) Lian- It means a false accusation of adultery. Where a husband charges wife of
committing adultery and the charge is false, the wife has a reason to seek divorce.
Then she can do so by filing a suit in the court for dissolution of her marriage.
5
AIR 1981 SC 1972
6
AIR 2006 Raj 31
(iii) Zihar- It is a form of amorphous divorce. When husband compares wife with
someone who stands in prohibited decree of relationship, then the wife has right to
refuse herself to submit to his authority.
PYQ
Q. State the time period of iddat when husband gives divorce to muslim wife(2016) 1 marks
Q. Define Ila(2016) 1 marks
Q. Explain delegated divorce(2017) 1 marks
Q. Explain contingent talaq(2018) 1 marks
Q. What is talaq-e- Ahasan(2018) 1 marks
Q. What do you mean by option of puberty(2019) 1 marks
Q. What is meant by term Zihar(2022) 1 marks
Q. Explain the impact on the power of divorce of a husband when he delegates his right to wife at
the time of nikah under Muslim law(2022) 1 marks
Q. What is option of puberty? Is there any difference between the right of a husband and wife
while using the option of puberty in muslims? Explain the effect of dissolution of muslim marriage
act, 1939(2017, 2018) 4 marks
Q. What is khiwat- us Sahih. Explain in context of Halala(2022) 4 marks
Q. Describe dissolution of marriage provided under muslim law(2016) 8 marks
Q. What do you mean by talaq? Is there any difference between talaq and dissolution of marriage?
Explain kinds of talaq in muslims(2018) 8 marks
Q. Define talaq. Describe its various forms under muslim law(2022) 8 marks
Q. What is meant by Khiyar ul bulugh? Explain the impact of the dissolution of muslim marriage
act, 1939(2022) 8 marks