Dissolution of Muslim Marriage

By
Dr. Ashok Salve
 Introduction
Dissolution of Muslim marriage means, ‘ putting the marriage to an end’. It is the
mechanism by which marital relationship comes to an end. In Muslim law, marriage
come to an end in following ways

By divorce

At the instance of the husband

(Talaq) By judicial process

At the instance of the

By death of either party wife (Talaq-e-Tafwid)

By the mutual consent of both, the husband and wife

 Dissolution of Muslim Marriage

By death of either spouse By divorce

By judicial
At the instance process
At the of the wife By the
instance of (Talaq-e-Tafwid) mutual
the husband consent
(Talaq)
Ikhtiar Amr Bi-yad Mashiat

Khula Mubaraat
Talaq-al-Sunnat Talaq-al-biddat

Ila Zihar Lian Faskh

Ashan Hasan
 Dissolution of marriage by death of
either spouse
• In case of death of wife, the husband is free to
marry another women immediately if he wish
to marry again.
• In case of death of the husband, wife has to
undergo and observe period of Iddat or in
case of she is pregnant, until she delivers,
before she is entitled to marry, if she so
wishes.
Dissolution of marriage at the instance / will of
the husband
• When husband desires to divorce the wife, he
can effect it by pronouncing talaq or by
written document called ‘ talaq nama’.
• It may be pronounced in her absence. It must
come to her knowledge for the purpose of
dower.
• Talaq is pronounced in the presence of Kazi or
of the wife’s father or other witnesses.
 Talaq-al-Sunna
Talaq-al-Sunna: ( conforming with the dictates of Prophet) This form of Talaq is
based on the Prophet’s tradition (Sunna) and as such is considered as most approved
form of Talaq.

 It is also called as revocable Talaq for the reason that Talaq does not become final
at once and there always remain a possibility of compromise between the husband
and wife.

 Only this kind of Talaq was in practice during the life of the Prophet.

 This mode of Talaq is recognized both by Sunnis as well as by the Shia’s. Talaq-ul-
Sunnat may be pronounced either in Ahsan or in the Hasan form.
 Talaq-al-Ashan
• Talaq Ashan ( Most Approved) :It consist of single pronouncement during
Tuhr period. Tuhr is the period between two mensurations. As such, the
period of Tuhr is the period during which cohabitation is possible
• The husband has to make a single pronouncement of Talaq during the
Tuhr of the wife.
• If a woman is not subjected to menstruation, either because of old age or
due to pregnancy, a Talaq against her may be pronounced any time.
• After this single pronouncement, the wife is to observe an Iddat of three
monthly courses. If she is pregnant at the time of pronouncement the
Iddat is till the delivery of the child. During the period of Iddat there
should be no revocation of Talaq by the husband.
• Revocation may be express or implied. Cohabitation with the wife is an
implied revocation of Talaq. If the cohabitation takes place even once
during this period, the Talaq is revoked and it is presumed that the
husband has reconciled with the wife.
• When the period of Iddat expires and the husband does not revoke the
Talaq either expressly or through consummation, the Talaq becomes
Irrevocable and final.
 Talaq-al-Hasan
• Talaq –al-Hasan is also regarded to be the proper and approved form of Talaq. There is
a provision for revocation. But it is not the best mode. Word Talaq should to be pronounced
three times in the successive Tuhrs.
• The husband has to make a single declaration of Talaq in a period of ‘Tuhr.
• In the next Tuhr, there is another single pronouncement for the second time.
• It is significant to note that the first and second pronouncements may be revoked by the
husband. If he does so, either expressly or by resuming conjugal relations, the words of Talaq
become ineffective as if no Talaq was made at all.
• But, if no revocation is made after the first or second declaration then lastly the husband is to
make the third pronouncement in the third period of purity (Tuhr). As soon as this third
declaration is made, the Talaq becomes irrevocable and the marriage dissolves and the wife
has to observe the required Iddat.
• It may be noted that the important feature of Talaq Hasan is its revocability before the third
pronouncement and its irrevocability after the third.
• In order to make an effective Talaq, the words must be uttered three times in three
consecutive period of purity.
 Talaq-al-Biddat (Triple Talaq) Banned
• Talaq-ul-Bidaat (Irrevocable):
• This Talaq is also known as Talaq-ul-Bain.

• It is a disapproved mode of divorce. A peculiar feature of this Talaq is that it

becomes effective as soon as the Talaq word is pronounced three times ‘ Talaq,
Talaq, Talaq’ at one go in a period of purity (Tuhr) and there is no possibility of
reconciliation between the parties.

• The Prophet never approved a Talaq in which there was no opportunity for
reconciliation. Therefore, the irrevocable Talaq was not in practice during his life.

• The Talaq-ul-Bidaat has its origin in the second century of the Islamic-era.
According to Ameer Ali, this mode of Talaq was introduced by the Omayad Kings
because they found the cheeks in the Prophet’s formula of Talaq inconvenient to
them.
• Since then this mode of Talaq has been in practice among the Sunni Muslims.

• Under the Shia Law, an irrevocable Talaq is not recognised.

 Criminalization of Triple Talaq
The Muslim Women (Protection of rights on Marriage) Act 2019
• Sayara Bano moved to SC to challenge instant talaq/ Triple Talaq.
• In August 2017, the Supreme Court of India declared triple talaq, which enables
Muslim men to instantly divorce their wives, to be unconstitutional.
• Many experts suggested the Parliament to consider appropriate legislation
governing triple talaq in the Muslim community

• The Muslim Women (Protection of Rights on Marriage) Act, 2019 is an Act of the
Parliament of India criminalising triple talaq.

• In December 2017, citing the Supreme Court judgment and cases of triple talaq in
India, the government introduced The Muslim Women (Protection of Rights on
Marriage) Bill, 2017.
• The bill proposed to make triple talaq in any form—spoken, in writing, or by
electronic means—illegal and void.
• Punishment for breach of the law was proposed to include up to three years
imprisonment for the husband pronouncing triple talaq. The bill was passed by the
Lok Sabha, the lower house of the Parliament of India, on the same day.
• The bill was reintroduced and passed by the Lok Sabha and by the Rajya Sabha in
July 2019.
• The acts stands to be retrospectively effective from 19 September 2018.
 Criminalization of Triple Talaq
The Muslim Women (Protection of rights on Marriage) Act 2019
• Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or
written or in electronic form or in any other manner whatsoever, shall be void and illegal.
• Any Muslim husband who pronounces talaq upon his wife shall be punished with
imprisonment for a term which may extend to three years, and shall also be liable to fine.
• A married Muslim woman upon whom talaq is pronounced shall be entitled to receive from
her husband such amount of subsistence allowance, for her and dependent children, as may
be determined by the Magistrate.
• A married Muslim woman shall be entitled to custody of her minor children in the event of
pronouncement of talaq by her husband, in such manner as may be determined by the
Magistrate.
• An offence punishable under this Act shall be cognizable, if information relating to the
commission of the offence is given to an officer in charge of a police station by the married
Muslim woman upon whom talaq is pronounced or any person related to her by blood or
marriage;
• An offence punishable under this Act shall be compoundable, at the instance of the married
Muslim woman upon whom talaq is pronounced with the permission of the Magistrate, on
such terms and conditions as he may determine;
• No person accused of an offence punishable under this Act shall be released on bail unless
the Magistrate, on an application filed by the accused and after hearing the married Muslim
woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for
granting bail to such person.
 Talaq at the instance of wife
The divorce by wife can be categorized under three categories:
(i) Talaaq-i-tafwid(Delegated right to divorce): Talaq-e-Tafwid protects the woman’s rights. In this form of divorce a
man, at the time of marriage, can delegate his right to divorce to his wife.
• She can exercise it when any of the conditions of the marital contract is violated.
• However this could not deprive the husband of his own right to divorce his wife under certain circumstances.
• If a woman has right to divorce delegated to her either before or after marriage, she can separate herself
from her husband by divorcing herself.
• The divorce considered as valid as is the husband himself has given it.
• Types of tafwid
A. Ikhtiyar: Giving her the authority to talaq herself
B. Amar Bi-yad: leaving the matter in her own hands
C. Mashiat: Giving her the option to do what she likes
(ii) Lian:If the husband levels false charges of unchastity or adultery against his wife then this amounts to
character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce
is called Lian.
(iii) By Dissolution of Muslim Marriages Act 1939: Section 2 of the Act :
A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her
marriage on any one or more of the following grounds
I. That the whereabouts of the husband have not been known for a period of four years
II. That the husband has neglected or has failed to provide for her maintenance for a period of two years
III. That the husband has been sentenced to imprisonment for a period of seven years or upwards
IV. That the husband has failed to perform, without reasonable cause, his marital obligations for a period of
three years
 Talaq by mutual consent
• Khula and Mubarat: They are two forms of divorce by mutual consent but in either
of them, the wife has to part with her dower or a part of some other property
• Khula: Although consideration for Khula is essential, the actual release of the
dower or delivery of property constituting the consideration is not a condition
precedent for the validity of the khula.
• Once the husband gives his consent, it results in an irrevocable divorce. The
husband has no power of cancelling the 'khula' on the ground that the
consideration has not been paid. The consideration can be anything, usually it is
mahr, the whole or part of it.
• It may be any property though not illusory.
• Mubarat: In mubarat, the outstanding feature is that both the parties desire
divorce. Thus, the proposal may emanate from either side.
• In mubarat both, the husband and the wife, are happy to get rid of each other .
• Among the Sunnis when the parties to marriage enter into a mubarat all mutual
rights and obligations come to an end.
• The Shia law is stringent, It requires that both the parties must bona fide find the
marital relationship to be irksome and cumbersome
 Divorce by Judicial process
• Shariat Act 1937 , recognized Ila, along with talaq, Zihar, Khula, Lian and Mubarat
to obtain divorce.
ILA:
• If the husband takes an oath not to have cohabitation with his wife.
• Followed by this oath, there is no consummation for a period of four months.

• After the expiry of the fourth month, the marriage dissolves irrevocably. But if the
husband resumes cohabitation within four months, Ila is cancelled and the
marriage does not dissolve
• Ila does not operate as divorce without order of the court of law. After the expiry
of the fourth month, the wife is simply entitled for a judicial divorce.
Zihar:
• In this mode the husband compares his wife with a woman within his prohibited
relationship e.g., mother or sister etc.
• The husband would say that from today the wife is like his mother or sister.
• After such a comparison the husband does not cohabit with his wife for a period of
four months. Upon the expiry of the said period Zihar is complete.
 Effects of apostasy
• The renunciation of Islam by a married Muslim
woman, or her conversion to a faith other than
Islam, does not , by itself operate to dissolve her
marriage but after such renunciation or
conversion, woman is entitled to obtain a decree
for the dissolution of her marriage on any of the
earlier mentioned grounds.
• The conversion of a woman converted to Islam
from some other faith to her original faith does,
by itself, operate as an automatic dissolution of
her marriage.
 Legal effects of divorce
Right to contract another marriage:
1. If the marriage is not consummated, the wife is
not bound to observe the Iddat and she can
marry again immediately
2. If marriage is consummated, the wife is bound
to observe Iddat.
i. If the wife is pregnant, the Iddat period is up to
delivery
ii. If wife is not subject to menstrution period, the
period of Iddat is three Lunar monts
iii. In all other cases the Iddat period is three menstrual
periods
 Legal effects of divorce
• Maintenance: During Iddat period, husband is
bound to maintain the wife.
• Dower: If marriage is consummated, she is
entitled to full dower and If marriage is not
consummated then 50% of dower
• Mutual rights of inheritance: When the divorce
becomes irrevocable, mutual rights of inheritance
between husband and wife cease to exist.
• Remarriage with divorced wife: After iddat, the
parties can remarry each other, except divorce is
given by triple talaq or after three times of
separate talaq.
 Distinction between Sunni and Shia laws of
divorce
Shia Law
• Talaq must be pronounced
in the presence of two
witnesses. A talaq
communicated in writing is
not valid.
• The validity of Talaq-ul-
Biddat is not recognised.
• A talaq pronounced under
intoxication, compulsion or
to satisfy is invalid
Sunni Law
• A talaq can be
communicated in writing
through deligate and it is
valid.
• Talaq-ul- Biddat is frowned
upon, but recognised.
• A talaq pronounced under
intoxication, compulsion or
to satisfy is valid
Thank you