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Assignment
On
DISSOLUTION OF MUSLIM
MARRIAGE
ACT, 1939
Divorce is the end of such a marital relationship, as under Muslim law there are two modes
given for the dissolution of marriage-
Divorce
Talaq
In daily life, these two terms are alternatively used, but under Muslim law, if a person seeks
“divorce”, he will be governed by the provisions of Dissolution of Muslim Marriage Act,
1939. Whereas, “Talaq” proceedings are governed by Muslim Personal Laws.
Classification of Dissolution of Marriage
Above the table is provides a brief view about the different kinds of methods for dissolution of
marriage under Muslim law.
By Husband
There are four modes available before a husband for dissolving the tie of marriage:
This form of talaq is effective in accordance with the traditions established by the Prophet. It is
further divided into two parts:-
Ahsan
It is known as the best form of talaq as the name clarifies the same. The procedure followed by
the husband is as follows –
Hasan
The Arabic meaning of Hasan is good, therefore divorce pronounces through Hasan mode is a
good but lesser worth than the one pronounced in Ahsan. Husband has to make three
successive pronouncements for divorce.
2. Talaq-ul- Biddat
This form of talaq is introduced by “Umayyads” in order to escape from the strictness of Law.
This is a sinful form of talaq, as it is recognised among the Hanafis. Sunni law recognises this
mode of talaq, though recognised as sinful by that too. Whereas Shias and Malikis do not
recognise this mode.
Partners separated through triple talaq can’t remarry without the formality of the woman
marrying another man and getting divorced from him, this process is called Nikah Halala.
In the recent judgement of Shayara Bano vs Union Of India And Ors., Supreme Court of India
declared that the practice of triple talaq is unconstitutional, as this form of Talaq is violative of
the fundamental right provided under Article 14 of the Constitution of India.
If the husband resumes sexual intercourse within the iddat period being observed by wife, it will
lead to cancellation of Ila It is pertinent to note that Ila is not practised in India.
Zihar (injurious Assimilation)
A husband must be of sound mind and above the age of 18 years to be eligible to use this mode
dissolution of marriage. If he compares his wife to his mother or any of the female within
prohibited degrees, the wife has a right to refuse to have sexual intercourse with him. Such
refusal can be accepted until he has expiated himself from penance prescribed by law. Muta
marriage(practised among Shias) which admits no other sort of divorce may be dissolved
by zihar.
Talaq-e-tafweez
This is the only way through which a woman can give divorce to his husband, however, such
power to give divorce needs to be delegated by the husband only. It is a form of
an agreement made either before or after marriage providing that wife will be privileged to get
separated from her husband via divorce under the specified condition as:-
If the conditions agreed in the agreement by the husband are well practised by him then, the
wife without any prejudice to Law can dissolve her marital ties.
The fact that husband delegates the power to the wife does not dispossess him of his right
pronounce talaq.
Although the practice of giving Divorce by mutual consent was not recognised in the Muslim
Law, it was only available to the Muslim women after the enactment of Dissolution of Muslim
Marriages Act, 1939.
1. Khula
The literal meaning of khula is “to lay down” before the law. The husband lays down his right
over his wife. It signifies an arrangement entered into to dissolve a connubial connection in lieu
of compensation paid by the wife to her husband out of her property, everything that can be
given as dower.
Khula is a divorce with mutual consent and at the instance of a wife in which she agrees to give
some consideration to her husband. It is basically a “redemption” of the contract of marriage.
Essentials
Under Shia law, husband can’t revoke divorce once accepted whereas the wife has been given
the power to reclaim the consideration during the iddat period.
2. Mubarat
It signifies mutual discharge from the marital tie. The most essential element is that the mutual
consent of both the partners is required in regards to the dissolution of marriage.
Under Shia law, parties can dissolve their marriage, if it is not possible for them to continue
their marriage by way of mubarat.
The last mode mentioned in the above table for dissolution of marriage is, by way of judicial
separation.
Dissolution of Muslim Marriage Act, 1939.
Lian
Lian can simply be described as the wrong charge of adultery on wife by her husband.
Whenever a husband imposes false adultery charges on his wife, then a wife can sue him and
can also obtain a divorce on the same ground under the Act, by filing a regular suit for
dissolution of marriage. In case of Zafar Husain v Ummat – ur – Rahman, Allahabad High Court
held that a wife under Muslim law is entitled to file a suit against her husband for dissolution of
marriage and can obtain decree on the ground that she was falsely charged with adultery by
him.
Essentials
Retraction can be made by the husband before the end of the trial, admitting that he made the
charge of adultery against her wife and such charge was false.
Faskh
Quran says that husband and wife are duty bound to respect each other and treat each other
respectfully and obey all lawful orders of each other.
If both of them find that they can’t live as husband and wife further, they can approach qazi
who after careful examination may terminate their marriage.
Section 2 of Dissolution of Muslim Marriage Act, 1939 states nine grounds on which a Muslim
wife can obtain a decree of divorce:-
Absence of Husband– whereabouts of the husband are not known from the past four years.
Dissolution of marriage decree on this ground will take effect after six months from the date of
such decree is passed, and during that period if the husband appears in person or through an
authorizes agent. Court if satisfied from same may set aside the said decree.
Some of the ways through which grounds for cruelty could be claimed as follows.
Physical assault.
Making defamatory statements affecting her reputation.
Forces her to lead an immoral life.
Obstructing her from practising her religion.
Husband having more than one wife and does not treat them equally.
Talaqnama
Talaqnama is talaq given in the written form. Talaq via talaqnama can be provided in the
absence of wife and also there is no necessity to be signed in the presence of Qazi or wife’s
father.
1. Talaq pronounced under intoxication is not recognised valid under Muslim law.
2. For a valid talaq, intention is not an essential element.
3. Husband may give talaq by mere words without any talaqnama or deed.
1. An ailing Muslim (generally men) has been given the power to pronounce talaq, just
to prevent his right of inheritance moving to his wife after his death.
2. If the man pronounces irrevocable talaq in death illness and dies before the expiry of
the iddat period, a wife is entitled to claim her share.
3. In case the husband dies after the expiry of the iddat period than there is no right of
inheritance.
When two people enter into a marital relationship, they might not know each other so well, as
they got to know each other after living together. And after that, if there is no compatibility
between the two, living apart is the best choice to be made.
Bad relations may spoil the life of both the individuals and under Muslim law, talaq is an ancient
practice and is not recognised as a sinful act, unlike under Hindu law.
Bibliography
Family Law (By R.K Bangia)
Legal point-india.blogspot.com
en.wikipedia.org