Annexure-V- Cover Page for Academic Tasks

Course Code: LAW203 Course Title: Family Law- I

Course Instructor: Miss. Isha Manchanda Section – L1902

Academic Task No.- 2 Academic Task Title: Assignment

Date of Allotment: 24 Apr, 2020 Date of submission: 5 May, 2020

Student’s Name: Aman Kathuria Student’s Reg. no: 11915048

Evaluation Parameters: (Parameters on which student is to be evaluated- To be mentioned by students as

specified at the time of assigning the task by the instructor)

Learning Outcomes: (Student to write briefly about learnings obtained from the academic tasks)

Evaluator’s comments (For Instructor’s use only)

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Declaration:
I declare that this Assignment is my individual work. I have not copied it from any other
student’s work or from any other source except where due acknowledgement is made explicitly in the
text, nor has any part been written for me by any other person.

Student’s Signature:

Marks Obtained: Maximum Marks: 30

 MUSLIM LAW OF DIVORCE

Under Muslim Law, there is no provision for a decree of judicial separation. Though certain
agreement could be entered into at the time of marriage or subsequently thereto which stipulate
for ‘separation’ or ‘divorce’ on the happening of a stipulated contingency (e.g. that the wife will
have the right to pronouncing divorce on her husband on his taking a second wife or treating her
with cruelty).
Despite the precept of the Prophet, “oh, Allah, the most detestable of all permitted things is
divorce”, divorce is the most copious and uninhibited aspect of Muslim matrimonial law. “Men
are maintainers of women, because Allah has made some of them to excel others and because
they spend out their property (on their maintenance and dower)” (The Koran, IV, 35). The above
verse in support of the husband’s authority to pronounce unilateral divorce (talak) is often cited.

In Muslim law, although matrimony is a civil contract, the husband usually enjoys
special privileges and the wife suffers corresponding disabilities. No, Muslim marriage (either
among Sunnis or Shias) is “permanent” in the sense in which a Christian or a Parsi marriage is,
for the husband may divorce the wife at any time he likes. The wife remains at her husband’s
mercy owing to polygamy and the inequality of the law of divorce. He may divorce her even if
there was a promise on his part not to exercise the power of divorce. The husband is given an
almost unfettered power of divorce, the only restraints upon him being those imposed by the law
relating to dower and by his own conscience. He has to remember the Prophet’s Words: “of all
things permitted by the law, the worst is divorce.”
Another remarkable feature of Muslim Law of divorce is that in most cases no judicial
or non-judicial authority is needed to effect dissolution of marriage. Judicial divorce was
introduced in 1939 by the Dissolution of Muslim Marriage Act and under the Act only wife can
sue for divorce. However, unlike the husband, she has to prove the grounds for obtaining the
divorce. Islamic Law has never conferred the same power to pronouncing talak on the woman,
as it has on the man, though it recognizes that a Muslim wife has the right to seek divorce with
the consent of the husband (Khula or Mubara’at). Even in such cases, the husband can escape the
liability of paying dower and may also gain more property in the bargain if the wife is very keen
to obtain divorce.
However, there are certain safeguards against the husband’s power of talak, viz.
restraints on remarrying a divorced wife, payment of dower to divorced wife, delegated divorce
which allows the wife to secure the right of divorce from her husband, etc. The judiciary in India
has also looked down upon the free and arbitrary use of talak. In Itwari v Asghari , the court
observed that second marriage if the husband raises a presumption of cruelty to the first wife.
Essentials of Talak:
The word talak (‘repudication’) means “to release (an animal) from a tether”, or in the context,
to release a wife or free her from the bondage of marriage. Talak is an Arabic word. Any Muslim
of sound mind, who has attained puberty, may divorce his wife whenever he desires without
assigning any cause. Thus, Muslim law does not recognize the existence of any fault or
matrimonial offence as an excuse for talak.
A talak may be effected orally or by a written talak nama. The other conditions or requirements
of a talak are as follows:
1. No particular form of spoken words is prescribed for effecting a talak. If the words are
“express” or well understood as implying divorce no proof of intention is required (e.g.
“I have divorced thee”, “ Thou are divorced”). If the words are ambiguous, the intention
must be proved (e.g. “I give up all relations and would have no connection of any sort
with you”, “Thou art my cousin, my uncle’s daughter, if thou goest”).

2. It is not necessary that the talak should be pronounced in the presence of wife or even
addressed to her. But the wife must be named i.e., the words should refer to the wife.
Pronouncement of the word ‘talak’ in the presence of wife or when the knowledge of
such pronouncement comes to the knowledge of the wife, results in divorce. The
intention of the husband is consequential.

3. Since, on divorce, dower become payable and the wife has to undergo Iddat, the
communication of talak is necessary. A Sunni husband may make a written
acknowledgment of divorce, in which case the divorce is operative from the date of
acknowledgement.

4. Sunnis do not prescribe any formalities for talak. On the other hand, Shias insist that
divorce must be pronounced orally (unless husband is incapable of pronouncing it orally)
and in the presence of two competent witnesses (Muslim men). It is interesting to note
that the Shias do not require the presence of witnesses for marriage but insist on
witnesses for divorce, while vice versa for Sunnis.

5. Under Hanafi (Sunni) Law, a divorce pronounced under compulsion, fraud, or in a state
of voluntary pronounced intoxication, or to satisfy or please one’s father or some other
person, or in jest, is valid. Even when a talk is pronounced inadvertently by mere slip of
tongue, it is valid. Under all schools of Muslim law, it is necessary that at the time of
pronouncement of talak the husband be awake i.e. not asleep, unconscious or delirious or
in a faint. In other words, the consent of the husband must be a free consent. A dumb
person may pronounce divorce by signs.

The Shias do not recognize a divorce pronounced under compulsion or under intoxication
(voluntary or otherwise).
 6. A talak by minor or insane husband is void and ineffective. However, a talak pronounced
during ‘lucid interval’ by the lunatic husband is valid. Although a guardian cannot
pronounce talak on behalf of a minor husband, according to Tyabji, guardian of a
husband of unsound mind may pronounce talak on behalf of such husband if it is in the
interest of the husband. Where there is no guardian, the Kazi or a judge has right to
dissolve the marriage in the interest of such husband.
Leading Case: Rashid Ahmed v Anisha Khatoon (AIR 1932 PC 25)
[ A talak actually pronounced under compulsion or in jest is valid and effective. After
pronouncement of triple talak, the husband again lived together with divorced wife without
observing the proper procedure of remarriage; the legitimacy of children of such marriage also
arose in the case]
In this case, it was held by the Privy Counsel that the validity and effectiveness of an irrevocable
divorce in the biddat form would not be affected by the husband’s mental intention that it should
not be a genuine divorce. Thus, it is immaterial that the talak was given in a fit of anger. A talak
actually pronounced under compulsion or in jest is valid and effective.
The High court came to the contrary conclusion on the ground that the divorce was
fictious and inoperative because it was a mock ceremony, performed by Ghiyas Uddin to satisfy
his father, but without any intention on his part that it should be real or effective.
The Privy Counsel observed: The divorce called “talak” may be either irrevocable (bain)
or revocable (raja). A talak Bain, while it always operates as an immediate and complete
dissolution of the marriage bond, differs as to one of its ulterior effects according to the form in
which it is pronounced. A talak bain may be effected by words addressed to the wife clearly
indicating an intention to dissolve the marriage either:
(a) once, followed by abstinence from sexual intercourse, for the period called the iddat; or
(b) three times during successive intervals of purity, i.e., between successive menstruation, no
intercourse taking place during any of the three intervals, or
(c) three times at shorter intervals, or even in immediate succession; or,
(d) once, by words showing a clear intention that the divorce shall immediately become
irrevocable. The first named of the above methods is called ahsan (best), the second hasan
(good), the third and fourth are said to be biddat (sinful), but are, nevertheless, regarded by
Sunni lawyers are legally valid.
In the present case the words of divorce addressed to the wife, though she was not
present, were repeated three times by Ghiyas Uddin as follows:
“I divorce Anisha Khatun for ever and render her haram for me” which clearly showed an
intention to dissolve marriage. There can be no doubt that the method adopted was the fourth
above described, and this is confirmed by the deed of divorce, which states that the three
divorces were given “in the abdominal form, “i.e., bidaat. The learned Judges of the High Court
have erred in treating the divorce as in the ahsan form, instead of the bidaat form.
The talak was addressed to the wife by name, and the case is not affected by the decision
of the High Court of Calcutta in Farzund v Janu Bibee [(1878) 4 Cal. 588] where the words of
divorce were alone pronounced. In the bidaat form of divorce at once becomes irrevocable,
irrespective of the (Baillie’s Digest, 2nd Edn., p. 206). It is not necessary that the wife should be
present when the talak is pronounced and though her right to alimony may continue until she is
informed of the divorce.]
7. All that is necessary is that the husband should pronounce talak; how he does it, why he
does it, when does it, or in what manner he does it, is not very material. Thus, in Muslim
law, the men must face the consequences of his rash and hasty act. In a proceeding
initiated by the wife for maintenance (or for restitution of conjugal rights), the husband
raised a plea of divorce. It was held that the plea by itself was sufficient to terminate the
marriage. A plea of divorce in written pleadings amounts to a valid from the date of the
statement [(1975) 1 A.P. LJ 20].

LEADING CASE: Shamim Ara v State of U.P. [(2002) 7 SCC 518]

[In this case, the whole jurisprudence of Talak has undergone a vast improvement
particularly with regard to communication of pronouncement particularly with regard to
communication of pronouncement of Talak to the wife and with regard to attempt of
reconciliation before finalisation of dissolution of marriage.
Talaq in order to be effective has to be pronounced. A mere plea taken in the written
statement of a divorce having been pronounced sometime in the past cannot by itself be
treated as effectuating talaq on the date of delivery of the copy of the written statement to
the wife.]
In this case, The singular issue arising for decision is whether the appellant wife can be said to
have been divorced and the said divorce communicated to the appellant so as to become
effective from 5.12.1990, the date of filing of the written statement by the respondent No. 2
(husband) in these proceedings.
It was held that talaq in order to be effective has to be pronounced. The term
“pronounce” means to proclaim, to utter formally, to utter rhetorically, to declare, to utter, to
articulate (Chambers 20th Century Dictionary, New Edition, p. 1030). In this case, there was no
proof of talaq having in the written statement of a divorce having been pronounced sometime in
the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the
written statement to the wife.
Likewise, a similar statement made in an affidavit by the husband in some other case, to
which the wife was not a party, be of any evidentiary value in this regard. Therefore, it was held
that neither the marriage between the parties stood dissolved nor did the liability of the husband
to pay maintenance come to an end. He shall continue to remain liable for payment of
maintenance until the obligation comes to an end in accordance with law.
The court observed: No such text has been brought to our notice which provides that a
recital in any document, whether a pleading or an affidavit, incorporating a statement by the
husband that he has already divorced his wife on an unspecified or specified date even if not
communicated to the wife would become an effective divorce on the date in which the wife
happens to learn of such statement contained in the copy of the affidavit or pleading served on
her.