12212020 Divorce under Mustim law- Modes of Talag & Legal Implications: LAWNN Divorce under Muslim law- Modes of Talaq & Legal Implications yore under Musi fw Mods of Tala & Lapa Impleations- LAWN Divorce under Muslim law- Modes of Talaq & Legal Implications Synopsis 1. nedution 2 Modes of Divorce/Talag IL. Legal ienpleations of divorce : Introduction- Divorce means the legal dissolution of the masta union between a man and a woman, In India, divorce law and procedure generally vaties depending on the community to which the couple belongs. The essence of divorce in Islam is the inability of the partes to lve together: Divorce may be given either by a Muslim husband or wife "Vhis atcle discusses the different kinds of divorce recognized under Muslim lw, the grounds available to a ‘Maslin husband and wife for seeking divorce and the legal implications of divore. Modes of Divorce/Talag- -ntpsmaww awn comidvarce-under-muslin aw! 1s12212020 Divorce under Mustim law- Modes of Talag & Legal Implications: LAWNN “Tala” isthe Urdu term for divorce, Under Muslim law, divorce is considered to be the absolute privilege of the Jhushand who may pronounce it at his pleasure throug express word or implied acts, Divorce undee Muslim law ‘may be classified into four kinds : Talaq by husband- A Muslim hosband of « snd mind has the sight to divorce bis wife st any time by merely pronouncing the same ‘without assigning any reason, Tt is not even necessary o pronounce talag in the wife's presence or to address ito hher but tis only necessary to ensure that such pronouncement is made known to her fori to be effective. Tala may be onal o in writing and no particular form has been prescribed for effecting a talag, Under Shia law, there are foxe conditions for the husband 10 be considered competent to pronounce a valid talag + he hasband shouldbe major, 4+ the husbind should be ofa sound and; + the husband should have seed ut of fce wil and, + an mention to dsslve she marsage mus exis. "Talag pronounced by a husband in the state of intoxication is considered as valid under Sunni law but invalid ‘under Shia av: Talag by a Muslin husband ean be further classified into the following kinds ~ this akind 1. Walag al Sune ‘schasifed int 2 kinds which ate ag which confor ta the tton ofthe Prophet and is ore approved by Mass It + Tag Alan ~Ie consis of sage pronouncement of slag in the period of uh’ or purty i. whe the wif fee fom hee menstraaton course. ts fllewe by absnence fom sexual inereourse during the peo of the and whole of the ida psi. Ldat ste pesiod dating which a wifes peoibited from se-sarying afer the disolution ofthe St saris, “Talag Ahsan is considered oe the most appeeved form of tag ast is revocable during the peo of Ida, Te husband may revoke the tala by expres words ot by conduct inchadng the resumption of semua intercourse, + Talag Hasan Tala Hasan is aso an approved form of alag but lesser approved compared to talag Ahsan. It consists of hace suecstve pronouncements of tag which ae tnd by the husband dusing tee conseeuvepetods of Tu put. ring each Tub peo no sens ntercouree mast have taken place ele the pronouncement made during ths peo shal ‘ot be considered as val Incase whete the wife has crossed the age of menstruation, the hee pronouncements have to bbe made a successive intervals of 40 days When helt pronouncement hasbeen made, the tag becomes final and inrevocabe. 2 Talag-ul-Biddat— Ie sinful and disapproved form oftalag smnong Moin, Is not recognized by Shi. slag bide consts of thee scessive pronouncements of tilg made in single Tuhe and these 3 pronouncemens may also be made ina single eatence, Hen, its commonly kaowa a ple tag 1 Shera Bano os, Union of India and thers, AIR 2017 SC. 4609, the Hostble Supreme Court of India declared the pracce of tiple talag to be unconstitutional being in violation of Arce 14 of the Constitution of India ‘Currently bill intending co ban Talag-ul-Biddat is pending inthe Parlament and remains to be passed by the [Rajya Sabha after having been passed by the Lok Sabha. -ntps:lmwactawnn,comiivorce-under-mustinaw!12212020 Divorce under Mustim law- Modes of Talag & Legal Implications: LAWNN 5, TalagscTafweez~ No aw permis the hatbend to delegste is power of ging ang to any hid peson ot she wie ets Iti called Talay -Tafweer. An agreement permiting the wife o pronounce divorce on herself is considered a valid provided that dhe option to pronounce divorce is not abasic or uncondtéonal andthe conditions imponed on the exeriee ‘of sac right ate reasonable and not against public pics. Fornstance, a spulation permiing the wife to pronosnce tla if the husband mates another worn ta valid stpulton. This fora of talaqis considered a. one of de ost potent ‘weapons inthe hands ofa Musi wife to obain divorce without cour intervention 4. Talaq by Mutual Consent- “Maslim aw also recognises divore/talag by ut consent ofthe parties Is of 2 kinds 1. Kula Khulna sgh of ore porch bythe wife from her hus means doc the wi isan ine of which she reso ge sme consent th ata fr her ele fromthe mariage In sch asthe thus shall ave dhe ght to ue the wife for paynent ofthe consideration agreed upon. ince Khu takes place at the wife insane, tis aot divorce by mutsal eonsentin the tue sense. 2 Mubaras Maburt means release. It involves divorce by mutual consent ofboth parses. Eer panty may make the oe of divorce and once an offer has been accepted by she other pare, the divorce Becomes iewoeabe In the case of both Khula and Mubarat, che divorce is irrevocable and marital life cannot be resumed by re ‘conciliation without a formal re-matrage. In both eases, once the divorce has been effeeced, the wife is requite to undergo period of Lddat 1 Jura Abdal Majid Pate ws. Atif Iqbal Manssr, (2014) 10 SCC736, the Hon'ble Supreme Court held, at pparageaph 14 hat th if oer not wn fo continue with marital ond tober me of Kala for doation of marriags, the is requied t pope br usband or dilation of marriage. Tit mayor may mot acmpany ber eft give somehing in return, The wf may fir tie mp er lai le Mabr (dow. The ‘Khalai mde of dire which reed from the ithe ‘sand cant refs sj ont reasonable negation with regard to what the wf bas efered ogo bie in rata” 2 Talaq by wife- ‘The Muslim Personal Law (Shatia) Application Act, 1937 makes the Muslim personal lw applicable to Muslims ‘esiing in India, Section 2 of the Act recognizes the following modes of divorce by a Muslim wife 1. I~ Ieis rein tain and of no practi importance In lhe husband sweats by gol aot wo ave excl intercourse wih bis wife fora peiod of alent Gur months. Ate exptyof suc pea, the mariage treated a iesevcahly daclved. The husband may revoke his cath before the expiry of four months by resuming sexual intercourse wih he wie -ntpsmaww awn comidvarce-under-muslin aw!12212020 Divorce under Mustim law- Modes of Talag & Legal Implications: LAWNN 2 Zihar In this form of ala, the husband compares his wife with his masher, ster or any ocher female within a prohibited lgre by making a delaaion to this effet. The wife ended to refuse cohabitation to dhe hatha tl he reve the Aecarton by undergoing proper atonement by ether doing the work of slave or fang fortwo months o feeding poor peons I the husband refises to undergo the atonement paces, the wife can approach te court for socking regula vores 4 Lian ~ Lian involves dhe husband accusing his wife of commiting adultery. makes the wife cated to clam jc Aivorceon the grounds of being fey charged with commiting adler. Talaq by Judicial Process- "The Dissolsion of Muslim Marziages Act, 1939 (hereinafter referred as the “Aet") provides certain grounds to 8 ‘Muslim wife for obtaining divorce from a coure of law. 'The Act applies to the whole of India except State of Jame and Kashmie Seetion 2 of the Act species the following grounds on which a Muslim wife can obtain a decree for dissolution of the marrage 1 tae the husbands whereabouts have not been known fer a petiod of four yeas provided hain such case the decree shall ot tke effect for dix month fom it date an the husband may te appear dung this psi and get the dcr revoked by safjng the Court that hei prepared to perform conga dis; 2 shat the husband nelese or Sled vo provide maiatenaace wo the wife fora pesiod of two yur: 4. sha the husband hasbeen renenced to imprisonment fora period of 7 years or more and the sentence has become Binal 4 tha the husband hs fale to peeorm his mail ablations fra petiod of 3 years without reasonable cause, 5 thatthe husband wes impotent a the Gime of eussinge and continues to hes, prided that, in such ese fore pasting the ocr, he cours may pss an order, upon an sppliition fed bythe hosband,reqring the hssband to satis thin 3 period of one year fm the passing ofthe order, that he as ceased to be inpotent. I dhe husband sale the court wo this effet, no deere on ground of impotency shal be peed thatthe husband has been insane for a pesiod of 2 yess o is suleing fom a vielen venereal dase, 17. tha the wife hd been given in mariage, by her fisher o guardian before stung the age of 15 years bt she repuaved he smatiage before asain the ape of 18 yen and the mateage was not consummated: A that the husband reat er with eral; and, 9. om anyosher ground secogrized as valid for disoluion of matage ander Maslin lve Section 5 of the Act clarifies thar nothing contained in the Act would affect the wife’ right to obtain dower from ther husband upon dissolution of the marriage Ill. Legal implications of Divorce- A divorce beeen « Muslim husband and wife gives rite tothe following legs implicstons: -ntpsmaww awn comidvarce-under-muslin aw! 4612212020 Divorce under Mustim law- Modes of Talag & Legal Implications: LAWNN + alee he divorce has become fsa, sexual intercourse bere the parses becomes unlawful an children ors out of such intercourse reconsidered to be legate; + incase where the martige had been consummated the wife has owt sil expttion of he Ist peo before macring other peso but she an matey ineaately the marae had not een consummated, + ifthe mariage had been consummated, whole dower eimmediately payable to che wife but fthe mariage had not been consummted, cay hal ofthe specified dower becomes payable, «dhe osha required o maintain the wife ding the dat psi and, “+m sights of instance exe til the dvore semaine revocable an these rights cease once the dvrce has become in LAWNN.cOM, efor -ntpsmaww awn comidvarce-under-muslin aw!