Marriage is a holy union of two souls but under the Mohammedan Law, marriage (Nikah) is defined as ‘The Union of Sexes’. Further Prophet Mohammed defines marriage as a civil contract and not a sacrament under the Muslim Law with the intent of procreation and legalizing the childbirth.[1]
Table of Contents
Introduction
The Mohammedan Law prescribes that any person with a sound mind and who has attained puberty[2] is eligible to get ‘married,’ where the proposal (Ijab) is accepted (Qubul) by the parties intending to get married. Even though such a marriage is a contract and not a sacrament, the union falls or ‘dissolves,’ which is termed as ‘Divorce’. Moreover, it was found that Islam was amongst the first religions to expressly talk about the termination or dissolution of marriage. Though the Prophet of Islam states “with Allah, the most detestable of all things permitted is divorce,” i.e. divorce is permitted but it is always believed that a marriage must be given a second chance.
Under Muslim law, the marriage comes to an end either due to the death of one of the spouses or by divorce. If in a situation where the marriage comes to an end due to the death of the wife, the husband in such a case can remarry immediately, if the husband dies, the wife has to observe the period of ‘iddat[3]’. Generally, a husband enjoys more powers to give divorce to his wife but the Prophet expressed that “if a woman is prejudiced with marriage, let it be broken off.” This ensures that the right to give a divorce is equally vested with both husband and wife.
REASONS FOR DIVORCE UNDER DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939
Section 2 of Dissolution of Muslim Marriage Act entitles women to file a decree for divorce on the grounds where:
- Where there are no details about the whereabouts of the husband for a period of 4 years.
- The husband has failed to maintain his wife for a period of two years.
- Where the husband has been imprisoned for a term of 7 years or more.
- Where the husband fails to perform marital obligations.
- Where the husband has been impotent at the time of marriage and continues to be.
- Where the husband mistreats his wife.
- In the case, where the marriage of the wife takes place before the attainment of the age of puberty, such a wife can after attaining the age of majority, seek divorce provided such a marriage is not consummated.
- Where the husband has more than one wife, the husband must treat all the wives equally, else the wife can file a suit for divorce.
- Where the husband suffers from insanity, leprosy, or any venereal disease.
WHAT ARE THE MODES OF DIVORCE AVAILABLE UNDER THE MUSLIM LAW?
Different modes of divorce are broadly classified into two categories that are:
- Extra-Judicial Divorce
- Judicial Divorce
The detailed explanation is as follows:
EXTRA-JUDICIAL DIVORCE
This includes divorce by the husband: Talaq, Ila, Zihar; Divorce by Wife: Talaq-e-tafweez; Divorce by Mutual Consent- Khula and Mubarat.
Talaq: The term talaq is defined as a repudiation from the marriage tie, which can be in oral or in writing. It further explains:
a) Talaq-ul-Sunnat which defines Ahsan and Hasan. Where Ahsan is the most approved form where the husband can divorce his wife in a single statement provided the divorce is done when the wife is in the state of purity(i.e. Free from the menstrual course) and Hasan is a good mode of talaq where the husband must divorce in three successive pronouncements, each done during three successive periods of tuhr keeping in view that there is no sexual intercourse during the tuhr.
b) Talaq-ul-biddat: The disapproved mode of Divorce includes three pronouncements during a single tuhr clearly indicating the irrevocable intention to dissolve the marriage. In Shayara Bano v Union of India[4], it was found that such a divorce lacks the consent of the wife. There are times when even the communication of such a divorce is not conveyed to the wife. This case also raised concern over Nikah Halala where if the divorced woman wants to marry her previous husband, she first has to observe the period of iddat then marry a second husband, divorce him, and after observing the period of iddat can remarry her first husband.
c) Ila: This is also known as ‘Vow of Continence’ wherein the husband who is major and in the name of lord swears that he would not have any sexual intercourse with her wife, such wife after observing iddat, it is deemed to be divorced.
d) Zihar: If the husband compares his wife as his mother or compares to any female from the prohibited degree, such a marriage would dissolve provided that the husband is an adult and of a sane mind.
2. Talaq-e-tafweez: Under this the husband delegates the power to divorce from his wife or any third party the power to repudiate the marriage on his behalf. Qazi Khan[5] states if a man says to his wife, “the authority to divorce yourself is in your hand as often as you please;” that means the husband gives the authority to the wife to divorce herself until and unless she revokes such authority.
3.Divorce by Mutual Consent: This includes divorce by either Khula or Mubarat. Khula means when the husband lays down his right to the wife, that is when the divorce is requested by the wife and the amount of Mehr is to be repaid to the wife. Whereas in Mubarat, the divorce takes place due to the mutual agreement between the husband and wife.
BY JUDICIAL DECREE UNDER DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939
- Lian: It is generally referred to as a false charge of adultery wherein the husband accuses his wife of the false allegations or charges of adultery, the wife can hence file for divorce on the grounds of Lian.[6] It must be noted that Lian does not ‘ipso facto’ dissolve a marriage, rather allows it to be heard in the court of law provided the charge of adultery is proved to be wrong.
- Faskh: Under Faskh, the wife can approach a Qazi for the termination or dissolution of marriage provided the marriage is irregular in nature, or such a marriage takes place amongst the prohibited degrees or when such a marriage takes place between non-muslims who converted into Islam. This kind of dissolution creates a liability for the husband to pay the outstanding amount of Mehr to the wife.
BARS TO REMARRY AFTER DIVORCE- IDDAT
Iddah, also known as iddat, is the period in which the divorced wife is not allowed to remarry. The wife has to observe three menstrual courses. If in between the period of iddah, the wife is found pregnant, her period of iddah will again begin after the delivery of the child. If she is not found pregnant within the course of iddah she will now be eligible for remarriage. Further, an important point to be noted is that even if the marriage is not consummated, the wife has to observe the period of iddat.
Offensiveness in Obscenity and the Legal Provisions
In case the marriage comes to an end due to the death of the husband, the iddat period observed by the wife will be of ‘four lunar months and ten days.’ However, the wife is bound to observe iddat even if the marriage was not consummated.
The main reason why the Muslim law imposes to follow ‘Iddat’ is to avoid any confusion relating to the paternity of the child so born and therefore no men are allowed to marry a woman observing the iddat period.
LEGAL CONSEQUENCES OF DIVORCE
As soon as the divorce takes place, be it any of the methods discussed above there are certain obligations that both the husband and wife need to follow which includes:
- The wife needs to observe the period of iddat and the husband can remarry only after the completion of his divorced wife’s iddat period. The divorced wife who is observing iddat will be counted for the limit of a maximum of four wives until the iddat period so observed by her comes to an end.
- The unpaid dower is paid immediately, even in case of prompt or deferred dower.
- The mutual rights available in case of inheritance become irrevocable.
- Any intercourse between the divorced husband and wife will be termed as ‘illegitimate.’
- The wife observing iddat after divorce is entitled to maintenance, whereas the wife observing iddat after the death of the husband is not entitled to maintenance.
PERSPECTIVE OF DIVORCE UNDER MUSLIM LAW
Shia Law and Sunni Laws have a difference in opinion and perspective when we talk about the dissolution of Muslim marriage. Sunni law in comparison with Shia Law, it is much easier to get a divorce. Under Sunni law, the divorce in written form is a valid mode whereas under Shia Law it is believed that the husband must be physically present at the event of pronouncing of divorce. It is observed that under Sunni Law the intention of divorce is not a matter of consideration whereas Shia Law believes that intention is necessary that is any divorce under intoxication would be valid in the eyes of Sunni Law and is disapproved under Shia Law.
ENDNOTES
- Hedaya,p.25
- Muhammad Ibrahim v. Atkia Begum & Anr [16 Ind Cas 597]; Discusses when a girl or boy attains puberty i.e either 15 years of age or any time when she attains puberty.
- Wife needs to confine herself for a period of 4 months and 10 days [V 228 – Chapter 2: Al Baqarah]
- (2017) 9 SCC 1 Writ Petition (C) No. 118 of 2016
- D.592 H.
- Zafar Husain v Ummat-ur-Rahman [AIR 1919 ALL.182]
BY- Khushboo Garg | University Institute of Law, Regional Center, Ludhiana.