National Law University, Jodhpur

Family Law-I: Tabulated inputs on “Divorce (Talaq system) Structure in Muslim Personal Law of India “
Faculty in-charge: Ashok Wadje, Assistant Professor
FEMALE
Classification SPOUSE
MALE SPOUSE (MUSLIM HUSBAND) MUTUAL
by Parties:- (MUSLIM
WIFE)
Talaq-a-Sunnat Talaq-a-Biddat
Forms of Talaq by Oath ‘Ila’ & Faskh (Judicial
(Approved form (Disapproved Talaq-Tafwiz Khula Mubarat
Divorce:- ‘Zihar' divorce)
of divorce) form of divorce)
Talaq-a-ahsan:
Ila: Vow to abstain
Best way of Divorce Divorce
Disapproved Delegated from Faskh:
Meaning divorce & Talaq- at wife’s by Mutual
form of Talaq divorce sex Zihar: Calling wife Dissolution
a-hasan: 2nd option Consent
‘Mother’
degree of talaq
Judicial/Non- Non- Non-
Non-judicial Non-judicial Non-judicial Non-judicial Judicial
judicial judicial judicial
Fault Grounds
1) Ahsan 1) Oral 1) Ila (Section 2 of
Dissolution of
Classification N.A.
Muslim
2) Hasan 2) Writing 2) Zahar Marriage Act,
1939)
Approved & ‘Ahsan': highly
Unapproved &
Unapproved approved Approved but obsolete Approved by
disliked by Approved
(by Prophet & ‘Hasan’: in India Legislature
Prophet
Mohammad) approved
YES: Grounds
Reasons/Cause N.A. N.A. N.A. N.A. u/Sec. 2 of
DMMA, 1939
Ahsan:
Revocable till
Oral: Irrevocable
completion of
Iddat
Hasan: Revocable within 04
Revocable Irrevocable N.A.
Revocable till 3rd months
pronouncement Written:
(During any Tuhr, Irrevocable
Husband may
revoke the same
Express words,
Conduct and Ila: Resumption of
Sexual conjugality or
intercourse consummation; Zahar:
Revocation by N.A. by payment of some N.A.
money by way of
expiation or observe
fast for certain period

Ahsan: After
completion of
Oral: Irrevocable On completion of 4
When Iddat (03 months N.A.
forthwith months or judicial
Irrevocable after
pronouncements) Irrevocable confirmation
(Binding &
(whichever is
Final) Hasan: After 3rd Written: applicable)
pronouncement Irrevocable N.A.
(During 3rd Tuhr) forthwith
1) Ahsan: 01
Delegated Ila: Oath as to
single Proof of Fault
divorce abstinence from
pronouncement (ground)
03 (Delegation sexual intercourse
during her Tuhr.
pronouncements by an
2) Hasan: 03 at one go. (E.g. I agreement Adversarial
Modality consecutive litigation
divorce you! I either
pronouncements divorce you!! I to/with Wife or Zahar: Oath to treat
during each Tuhr divorce you!!!) to the third wife like ‘the back of
(when a woman is person) his mother’ Decree/Judicial
free from [Mulla 336] confirmation
Menstruation
 periods) (For
e.g.: [Tuhr
1]: Talaq!, [Tuhr
2]: Talaq!! [Tuhr
3]: Talaq!!!
1) Ahsan:
Competition
Ila: 04 months after
Waiting Period of Iddat (03 lunar pronouncements
(after months after
N.A. N.A. N.A.
pronouncement pronouncement)
by husband) 2) Hasan: 03
consecutive Zahar: court decree
pronouncements
Codified [DMMA, Codified Un- Un-
Codification: Un-codified Un-codified Un-codified
1939] [DMMA, 1939] codified codified

Hanafi Law/School:
Decree of
Judicial NO
N.A. N.A. N.A. appropriate
Confirmation Decree; Ithna Laws:
court
Decree is necessary

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Ashok Wadje

Assistant Professor (Law),

Asstt. Controller of Examination

Nodal Officer,

Member, Centre for Post Graduate Legal Studies,

Coordinator, LL.M. Programme

National Law University, Jodhpur (NLU-J)

©Ashok Wadje

Divorce by Mutual Consent (DMC)

“Khula” and
legal Section 13-A of Section 28 of Special Section 32 B of Parsi
Section 10A of Divorce Act “Mubarata” in
Provisions Hindu Marriage Act Marriage Act, 1954 Marriage and Divorce Act
MPL
5)
Requirement
of “Second
Motion”
4) Requirement of “First
INGREDIENT 1) Consent of H & 2) Living Separately 3) Inability to live (Consideratio
Motion” (Date of Filing of
S W for one or more. together n of
Application for Divorce
application
on Merit and
grant of
divorce
 (Sureshtha Devi vs. Om
Prakash AIR 1992 SC
1904-absence of
cohabitation and living
like strangers) Saumya
Must be free,
Ann Thomas vs. UoI (IBM like
voluntary and must (Sureshtha Devi vs. Om Prakash AIR 1992
2010 KLT (1) 869, situation,threshold being
continued till the SC 1904 “Cooling Off Period”
Sec.10A different
grant of decree.
unconstitutional & it is
“01 yr”. Shiv Kumar vs
UoI Kan. HC and Albert
Anthony vs UoI (2015
SC)

Satisfaction of the Court as

Check of
Role and Check as to presence of to Ingredients (on Second Reconciliatio
Matrimonial bar Limitation as to duration
Duty of the Consent till the decree of Motion): Enquiry into the n (on First
(e.g. Forced (6-18 months)
Court Court facts, marriage and Motion)
consent)
developments in the same

Appearance of both the

parties for final
Living separately ever Deadline for the Court to
consideration: 13/07/2001 Withdrawal of
since, wait for being conclude the
[SECONN Consent on
Operative Date of eligible and Date of case: 12/07/2002[LIMITATI
MOTION] (Not necessarily any
Part of DMC Marriage: 10/01/20 Application for ON FOR THE
this date, as Court may day/dates
(Example) 00 DMC: 12/01/2001 [FIR COURT] (Duration of 18
assign any other date not mentioned
ST MOTION] Months to be counted from
exceeding 18 months from hereinbefore
first motion) the date of First Motion)

“Cooling Off Period”: 6 months duration

Contentious Part of dmc
Withdrawal of Consent: Grant or Dismissal? Period of Six Months: Waiver or Strict Adherence?

Not mandatory and can be relaxed on

Court has no jurisdiction in that case
Sureshtha following grounds:
Devi vs. Om Gracy vs. Cleetus (I 2002 1) Extreme hardship 2) Joint Affidavit 3) No
Prakash AIR Six Months duration is “time” & “opportunity” DMC Ker. 401) Force on any one 4) Compliance with the
1992 SC 1904 to give Application second thought, including requirements of DMC (See above in this
act of withdrawal of consent.
Chart) 5) Firm decision
Ashok Hurra Yes, but only in exceptional cases where
vs. Bipin marriage is completely broken down Anjana Kishore vs. Puneet Not necessary
Rupa Zaveri Kishore [2002] 10 SCC
AIR 1997 SC IBM+Failure of Reconciliation=Grant of 194 SC in this invoked Article 142 as the basis
1266 divorce to do so

Smriti Only SC can do so by invoking Article 142

Sureshtha Devi vs. Om Prakash got revived
Pahariya vs. of I.C.
Anil Kumar Jain vs. Maya
Sanjay Only on continued mutual consent divorce Jain (2009) II DMC 449 SC
Pahariya AIR can be granted and its an obligation on Trial No other Courts are allowed to do so
2009 SC 2840 Courts
Six months is
Neither SC nor any other to be looked
Manish Goyal vs. Rohini Court, as Article 142 must as the “time”
Consent of both the parties, until the
Goyal (2010) I DMC 601 not be exercised at the cost and
conclusion, is must
Hitesh SC of Substantive provision of “opportunity”
Bhatnagar vs. law. for both the
Deepa parites
Bhatnagar Kept silence
AIR 2011 SC IBM alone can not be the basis and on the
1637 observations made by Apex Court Soni Kumari vs. Deepak position of
Allowed by SC by exercising
in Ashok Hurra case is not a universal rule Kumar lower
its power under Article 142.
and is limited to the facts of that MANU/1043/SC/2015 courts/trial
case. Sureshtha Devi case holds the field. courts to do
so.
Allowed by
SC by
Nikhil Kumar vs Rupali Allowed by SC by exercising
exercising its
Kumar AIR 2016 SC 2163 its power under Article 142.
power under
Article 142.
 “Traffic
BITTERNESS IN THE MARRIAGE &
Signal” APPLICATION FOR DMC
COOLING OFF PERIOD DISSOLUTION OF MARRIAGE
Approach

©Ashok Wadje

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Ashok Wadje

Assistant Professor (Law),

Asstt. Controller of Examination