DIVORCE UNDER MUSLIM LAW

DIVORCE UNDER MUSLIM LAW

Divorce in Islam in India is governed by Muslim Personal Laws and may be initiated both by husband and wife.

Types of Divorce

Under the Muslim Law, the dissolution of marriage can be of various types and can be initiated by:

I. By Husband:

1. Talaq

   This means freedom from the ties of the marital bond or dissolution of the marriage by the husband in accordance with the law. Islamic law recognizes a man’s absolute right without assigning any reason. The law does not consider this type of divorce invalid even if the wife is not present when the husband announces talaq. Said talaq may be oral or written. There are various forms of talaq under which allow a man to divorce his wife at his will.

   Talaq-i-Sunnat: Further divided into – Ahasan: This type of divorce consists of a divorce announcement during the period of Tuhr ie. Period of Purity or the time between two menstrual cycles. This requirement of Tuhr is applicable only in the case of Oral and not written divorce. This type of divorce may be revoked before the period of iddat gets over. This helps in correcting a reckless or impulsive decision by the husband. Hasan: This requires the husband to pronounce talaq during a period of 3 successive Tuhr’s which then becomes final and irreversible.

    Talaq-i-biddat

   This means instant divorce. This is the controversial triple talaq [https://advocatetanwar.com/triple-talaq/] which was recently held unconstitutional by the Supreme court of India and henceforth struck down. This form of divorce grants an instant divorce to the husband without a period of waiting. The divorce is instantly finalized when the husband says ‘talaq’ 3 times. This is no longer valid in India.

It has been a matter of debate and discussion for decades with many countries striking it down. It was extremely unfair towards women and with the passing of the Triple talaq bill, it has been made a punishable offense with a punishment of up to 3 years imprisonment if practiced.

2. Ila: This is a type of divorce in which the husband pledges to refrain from being in sexual relations with the wife for a period of 4 months if he does participate in sexual relations with the wife in this period, the divorce is automatically dissolved.

3. Zihar – In this type of divorce the husband gives a title to his wife equivalent to another form of woman like his mother or sister. In lieu of such a comparison, he must refrain from cohabiting with the wife for 4 months. The divorce is automatically revoked when the husband starts living with the wife, provides food to 60 or more people. However, at the end of this period, the wife is given the right to approach the Court to get a judicial divorce. Engaging the best law firms in Gurgaon will help the wife in seeking a judicial divorce from their Husband.

The above-mentioned types of divorce are extremely favored towards men, giving them the sole right to begin divorce proceedings.

II. By Wife:

The law recognizes 2 forms of divorce in which the woman can exercise her rights and initiate divorce proceedings.

1. Talaq-i-tafweez – The man has the option to delegate his power of divorcing his wife or another person, either for a temporary period or permanently. If exercised to the wife, she can exercise the power to execute a valid and final divorce.
2. Lian – According to the Muslim Marriage Act 1939,

In a situation where the husband falsely accuses his wife of adultery, the woman has a right to get a divorce on the grounds of character assassination. The divorce is only applicable if the claim by the husband is false.

• By Mutual Consent: The Islamic law recognizes the right of the parties in a marriage to ask for divorce even without the fault of another, In such a case a divorce contract called khula can be drawn which species the terms of such divorce. Both the parties must enter the khula with free consent.
• By Judicial Decree: This category is the right of the wife to give divorce under the Dissolution of Muslim Marriages Act 1939 on the grounds of:
  1. The whereabouts of the husband are unknown for more than a period of 4 years.
  2. The husband has failed or neglected his duty to provide maintenance for a period of more than 2 years.
  3. The husband has been sentenced to imprisonment for a period of more than 7 years.
  4. The husband has failed to fulfill his marital obligation for 3 years.
  5. The husband has been suffering from leprosy or a form of venereal disease or insanity for 2 years.
  6. The husband was impotent at the time of marriage and continues to be.
  7. That the husband treats the wife with cruelty.
  8. This leads to an infamous life.
  9. Attempts to force or persuade her to lead an immoral life.
  10. Prevents her from exercising her legal right over her property.
  11. Obstructs her in her religious practices.
  12. If the husband has more than one wife, does not treat her equitably in accordance with the holy Quran.

Conclusion

The debate about divorce in Islam has been going on for a long time, especially over the triple talaq provision. It is believed that the divorce laws are more favorable in favor of the men as they have the right to end the marriage without any justification according to their whims. It is a heinous practice that gives such a powerful right to the man to end the marriage.

The judgment by the Supreme Court and the subsequent act legislature proves to be a step in the right direction tip the scales of power in balance in the case of divorce proceedings under Islamic law.

In a case in the Bombay high court, the same was held.  Due to the absence of provisions under the Muslim marriage act, the provisions of ‘The protection of Women from Domestic Violence Act, 2005’ may be applicable in cases of cruelty, etc. depending upon the discretion of the case.

A woman who has wrongfully been divorced by their husband can contact the best lawyer in Gurgaon to understand the legality of the situation and subsequently decide if they want to take action or not.