Divorce under Muslim law- Modes of Talaq & Legal Implications

 

Synopsis

1. Introduction
2. Modes of Divorce/Talaq

III. Legal implications of divorce

 

1. Introduction-

Divorce means the legal dissolution of the marital union between a man and a woman. In India, divorce law and procedure generally varies depending on the community to which the couple belongs. The essence of divorce in Islam is the inability of the parties to live together. Divorce may be given either by a Muslim husband or wife.

This article discusses the different kinds of divorce recognized under Muslim law, the grounds available to a Muslim husband and wife for seeking divorce and the legal implications of divorce.

 

Modes of Divorce/Talaq-

“Talaq” is the Urdu term for divorce. Under Muslim law, divorce is considered to be the absolute privilege of the husband who may pronounce it at his pleasure through express words or implied acts. Divorce under Muslim law may be classified into four kinds:

1. Talaq by husband-

A Muslim husband of a sound mind has the right to divorce his wife at any time by merely pronouncing the same without assigning any reason. It is not even necessary to pronounce talaq in the wife’s presence or to address it to her but it is only necessary to ensure that such pronouncement is made known to her for it to be effective. Talaq may be oral or in writing and no particular form has been prescribed for effecting a talaq. Under Shia law, there are four conditions for the husband to be considered competent to pronounce a valid talaq-

• the husband should be major;
• the husband should be of a sound mind;
• the husband should have acted out of free will; and,
• an intention to dissolve the marriage must exist.

 

Talaq pronounced by a husband in the state of intoxication is considered as valid under Sunni law but invalid under Shia law. Talaq by a Muslim husband can be further classified into the following kinds:

 

1. Talaq-ul-Sunnat – It is a kind of talaq which conforms to the traditions of the Prophet and is more approved by Muslims. It is classified into 2 kinds which are:

 

• Talaq Ahsan – It consists of a single pronouncement of talaq in the period of ‘tuhr’ or purity i.e. when the wife is free from her menstruation course. It is followed by abstinence from sexual intercourse during the period of tuhr and whole of the Iddat period. Iddat is the period during which a wife is prohibited from re-marrying after the dissolution of the first marriage. Talaq Ahsan is considered to be the most approved form of talaq as it is revocable during the period of Iddat. The husband may revoke the talaq by express words or by conduct including the resumption of sexual intercourse.

 

• Talaq Hasan – Talaq Hasan is also an approved form of talaq but lesser approved compared to talaq Ahsan. It consists of three successive pronouncements of talaq which are made by the husband during three consecutive periods of Tuhr (purity). During each Tuhr period, no sexual intercourse must have taken place else the pronouncement made during that period shall not be considered as valid. In a case where the wife has crossed the age of menstruation, the three pronouncements have to be made at successive intervals of 30 days. When the last pronouncement has been made, the talaq becomes final and irrevocable.

 

2. Talaq-ul-Biddat – It is a sinful and disapproved form of talaq among Muslims. It is not recognized by Shias. Talaq-ul-biddat consists of three successive pronouncements of talaq made in a single Tuhr and these 3 pronouncements may also be made in a single sentence. Hence, it is commonly known as triple talaq.

 

In Shayara Bano vs. Union of India and others, AIR 2017 SC 4609,  the Hon’ble Supreme Court of India declared the practice of triple talaq to be unconstitutional being in violation of Article 14 of the Constitution of India. Currently, a bill intending to ban Talaq-ul-Biddat is pending in the Parliament and remains to be passed by the Rajya Sabha after having been passed by the Lok Sabha.

 

3. Talaq-i-Tafweez – Muslim law permits the husband to delegate his power of giving talaq to any third person or to the wife herself. It is called Talaq-i-Tafweez. An agreement permitting the wife to pronounce divorce on herself is considered as valid provided that the option to pronounce divorce is not absolute or unconditional and the conditions imposed on the exercise of such right are reasonable and not against public policy. For instance, a stipulation permitting the wife to pronounce talaq if the husband marries another woman is a valid stipulation. This form of talaq is considered as one of the most potent weapons in the hands of a Muslim wife to obtain divorce without court intervention.

4. Talaq by Mutual Consent- 

Muslim law also recognises divorce/talaq by mutual consent of the parties. It is of 2 kinds:

1. Khula – Khula is a right of divorce purchased by the wife from her husband. It means a divorce at the wife’s instance in lieu of which she agrees to give some consideration to the husband for her release from the marriage tie. In such case, the husband shall have the right to sue the wife for payment of the consideration agreed upon. Since Khula takes place at the wife’s instance, it is not a divorce by mutual consent in the true sense.

 

2. Mubarat – Mubarat means release. It involves divorce by mutual consent of both parties. Either party may make the offer of divorce and once an offer has been accepted by the other party, the divorce becomes irrevocable.

 

In the case of both Khula and Mubarat, the divorce is irrevocable and marital life cannot be resumed by re-conciliation without a formal re-marriage. In both cases, once the divorce has been effected, the wife is required to undergo period of Iddat.

 

In Juveria Abdul Majid Patni vs. Atif Iqbal Mansoori, (2014) 10 SCC 736, the Hon’ble Supreme Court held, at paragraph 14, that “if the wife does not want to continue with marital tie and takes mode of ‘Khula’ for dissolution of marriage, she is required to propose her husband for dissolution of marriage. This may or may not accompany her offer to give something in return. The wife may offer to give up her claim to Mahr (dower). The ‘Khula’ is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return.”

 

2. Talaq by wife-

The Muslim Personal Law (Shariat) Application Act, 1937 makes the Muslim personal law applicable to Muslims residing in India. Section 2 of the Act recognizes the following modes of divorce by a Muslim wife:

 

1. Ila – It is rare in India and of no practical importance. In Ila, the husband swears by god not to have sexual intercourse with his wife for a period of atleast four months. After expiry of such period, the marriage is treated as irrevocably dissolved. The husband may revoke his oath before the expiry of four months by resuming sexual intercourse with the wife.

 

2. Zihar – In this form of talaq, the husband compares his wife with his mother, sister or any other female within a prohibited degree by making a declaration to this effect. The wife is entitled to refuse cohabitation to the husband till he revokes the declaration by undergoing proper atonement by either doing the work of a slave or fasting for two months or feeding 60 poor persons. If the husband refuses to undergo the atonement process, the wife can approach the court for seeking regular divorce.

 

3. Lian – Lian involves the husband accusing his wife of committing adultery. It makes the wife entitled to claim a judicial divorce on the grounds of being falsely charged with committing adultery.

 

Talaq by Judicial Process- 

The Dissolution of Muslim Marriages Act, 1939 (hereinafter referred as the “Act“) provides certain grounds to a Muslim wife for obtaining divorce from a court of law. The Act applies to the whole of India except State of Jammu and Kashmir. Section 2 of the Act specifies the following grounds on which a Muslim wife can obtain a decree for dissolution of the marriage:

 

1. that the husband’s whereabouts have not been known for a period of four years provided that, in such case, the decree shall not take effect for six months from its date and the husband may re-appear during this period and get the decree revoked by satisfying the Court that he is prepared to perform conjugal duties;
2. that the husband neglected or failed to provide maintenance to the wife for a period of two years;
3. that the husband has been sentenced to imprisonment for a period of 7 years or more and the sentence has become final;
4. that the husband has failed to perform his marital obligations for a period of 3 years without reasonable cause;
5. that the husband was impotent at the time of marriage and continues to be so, provided that, in such case, before passing the decree, the court may pass an order, upon an application filed by the husband, requiring the husband to satisfy, within a period of one year from the passing of the order, that he has ceased to be impotent. If the husband satisfies the court to this effect, no decree on ground of impotency shall be passed;
6. that the husband has been insane for a period of 2 years or is suffering from a virulent venereal disease;
7. that the wife had been given in marriage, by her father or guardian, before attaining the age of 15 years but she repudiated the marriage before attaining the age of 18 years and the marriage was not consummated;
8. that the husband treats her with cruelty; and,
9. on any other ground recognized as valid for dissolution of marriage under Muslim law.

 

Section 5 of the Act clarifies that nothing contained in the Act would affect the wife’s right to obtain dower from her husband upon dissolution of the marriage.

 

III. Legal implications of Divorce-

 

A divorce between a Muslim husband and wife gives rise to the following legal implications:

• after the divorce has become final, sexual intercourse between the parties becomes unlawful and children born out of such intercourse are considered to be illegitimate;
• in case where the marriage had been consummated, the wife has to wait till expiration of the Iddat period before marrying another person but she can marry immediately if the marriage had not been consummated;
• if the marriage had been consummated, whole dower is immediately payable to the wife but if the marriage had not been consummated, only half of the specified dower becomes payable;
• the husband is required to maintain the wife during the Iddat period; and,
• mutual rights of inheritance exist till the divorce remains revocable and these rights cease once the divorce has become final.