KALINGA UNIVERSITY

NAYA RAIPUR

FACULTY OF LAW

Subject:-FAMILY LAW II

Course Code: BALLB401_BBALLB401

Course:- BALLB_BBALLB

Semester:- 4th
UNIT 3
Under the Muslim Law, Mehr (dower) means money or property which the wife is entitled to
receive from the husband in consideration of the marriage but this consideration is not the same as
that of the civil contract. Dower is an obligation imposed upon the husband as a mark of respect
for the wife

Mahr or Dower is a sum of money or other property to be paid or delivered to the wife. It is
either specified or unspecified but in either case, the law confers a mandatory right of Mahr or
Dower on wife.

Dower is mainly classified into two types namely-

(a) Specified dower i.e. dower which is fixed and
(b) proper dower, which is dower that has not been fixed.

Specified dower is further sub-categorized into prompt dower and deferred dower.

Prompt dower is payable immediately after the marriage.

Deferred dower is payable only after the dissolution of the marriage.
Prompt dower is only payable on the demand of the wife.
In deferred dower the wife is not entitled to demand it unless agreed.

A dower can be remitted by the widow at the funeral of her husband by the recital of a formula;
but, such a remission must be a voluntary act of the widow. The Court must be satisfied that she
realised what she was doing, as also its consequences. An oral relinquishment of a dower-debt by
a widow when she is overwhelmed with grief at the husband’s death is not binding on her;
otherwise, it is.

There are several rights that come into play when the question of dower arises for the woman.
The husband has failed to deliver the sum of money or the property whichever, the woman has
certain other rights to ensure that the right towards the dower is enforceable.
1. Conjugal rights
The man and wife, if have come upon this agreement that the mode of payment of the dower
shall be immediate. This infers that the husband shall be liable to pay the dower before the
woman leaves her maternal house and goes to her husband’s house. Moreover, it becomes not
only the responsibility but also lies as a liability of the man to pay the dower immediately.
.

2. Debt enforcement
With respect to the enforcement of the right to dower, the Madras High Court in Ameer Ammal
v. Sankaranarayana Chetty[3], observed that right of the wife to dower is like a right of any other
creditor and can be enforced like any other debt.
Where a marriage has been consummated, by refusing marital rights to a husband, the wife
cannot enforce her claims. In this case, the wife will recover her unpaid dower via court
proceedings. We have already seen that an unpaid dower is a wife’s reimbursement of action and
she can see the reimbursement of the loan from the husband in the same way as a creditor. If the
husband is alive and the dower is left unpaid, the wife may exercise its claim by suing the
husband to retrieve the unpaid Dower.
3. The right of restraint of the Widow
The practice of’ right of protection’ after the husband’s death is the most efficient way of
enforcing a dower. A widow whose Dower remains unpaid is entitled to keep the husband’s
property until his Dower debt is met. That right is known as the protection right rather than the
unpaid Dower and a widow can be given whether the parties agree or not on that right.
Furthermore, the woman can enforce her right to lien over the property of her husband until the
members or the legal heirs who are entitled to get the property pay the woman out of the property
which they have inherited from her husband. Hence, this is similar to the security which the bank
gets against the loan taken by the customer.
And under circumstances where the loaned amount is unpaid, that is when the bank exercises
their right to lien over the security against the loan until the payment is made by the customer.
This right to lien is also called right to retain the property.
The creditors of their deceased husband and his legitimate heirs exercise this privilege if any.
The husband’s legal heirs can not take possession (and profit) of the property of the deceased
until they make unpaid payments for their respective actions. This can, therefore, be considered
an unpaid Dower recovery method from the legal heirs of the husband.

Conclusion
The circumstance does become difficult when the husband dies, and then there is no one to pay
the unpaid dower. Then comes into play the property of the husband which is inherited by the
legal heir and then they become responsible to pay the woman out of the property equally.

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.
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.

Whereas, “Talaq” proceedings are governed by Muslim Personal Laws.

By Husband

There are four modes available before a husband for dissolving the tie of marriage:

1. Talaq- ul- Sunnat

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 –

 He has to make a pronouncement of divorce in a single sentence, such pronouncement

must be made in a purity state(when a woman is free from her menstrual cycle).
 A husband must not indulge in any form of sexual intercourse during the iddat
period(period of chastity a Muslim woman is bound to observe after the dissolution of marriage,
either by the death of her husband or by divorce) and if he does so, then it will be considered as
implied revocation of talaq. It is pertinent to note that once the iddat period has expired, the
divorce becomes irrevocable.
 When the partners have not consummated, talaq-e-Ahsan can be pronounced even if the
wife is in her menstruation.
 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.

 In the case of a menstruating wife, such three pronouncements should be made in three
consecutive tuhr(state of purity).
 In the case of a non-menstruating wife, pronouncement should be made at three successive
intervals of 30 days.

No sexual intercourse should take place during these periods of three pronouncements and if
such an act takes place then the process of divorce will be revoked.

Talaq Hasan becomes irrevocable on the third pronouncement irrespective of iddat period.

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.
 Three pronouncements made in a single tuhr either in a single sentence or in separate
sentences eg. “Talaq, talaq, talaq” or “I divorce thee, I divorce thee, I divorce thee.”
 Single pronouncement clearly indicates an intention to dissolve a marriage and makes it
irrevocable. It is usually pronounced as – “I divorce thee irrevocably”.

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.

 Ila (Vow of Continence)

The situation wherein a husband who is of sound mind and has attained the age of majority
swears in the name of God that he will not have sexual intercourse with his wife and leaves her
to observe iddat, he is said to make Ila.

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.

Such form of divorce is no longer in use

anymore. Talaq by the wife

Divorce given by wife under the husband’s delegated power.

 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:-

1. In case the husband marries a second wife

2. The husband is unable to maintain her for a specified period of time any other condition that
must not be opposed to public policy.

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.

Divorce by Mutual Consent

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

 There must be an offer from the wife’s side

 Offer must be accepted by the husband with the consideration for it.
 Observance of the iddat period is necessary.

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.

In this mode of divorce-

 Offer can be made from either of the sides.

 Acceptance of offer makes divorce irrevocable.
 Iddat is necessary

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.

Further, there are two ways-

 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

 A husband must be adult and sane.

 He charges his wife of adultery.
 Such a charge must be false.
 False charges do not ipso facto (by that fact itself) dissolve the marriage, it just provides a
ground to the wife to move to the court to dissolve the marriage.
 Marriage will continue until the decree for dissolution of marriage is passed by the court.
 Judicial seperation via mode of lian is irrevocable.
 This mode is applicable only to Sahih marriages not on fasid ones.

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.

 Failure to maintain- If a husband fails to provide maintenance to his wife for two years.
There is no defence available before husband on the ground of poverty, failing health or
unemployment.
 Imprisonment of a husband- If the husband is imprisoned for seven years or more.
 Failure to perform marital duties- If, without any reasonable cause, the husband is unable
to perform his marital obligations for three years.
 Impotency of husband- husband was impotent at the time of marriage and continues to be
so. If the husband within one year from the date of the order obtained by wife for dissolution of
marriage on the grounds of impotency on application satisfies the Court that he ceased to be
impotent. If the husband satisfies the court, then no decree shall be passed on this ground.
 Insanity, leprosy or venereal disease- If the husband is insane or suffering from leprosy, or
any venereal disease from a period of two years, judicial divorce by wife can be claimed on the
same ground.
 Repudiation of marriage by wife- If a girl is married before the age of 15 years by her
father or guardian, then under Muslim law she has been provided with a right to repudiate such
marriage after attaining the age of 18 years provided that marriage is not consummated. She is
entitled to a decree of divorce for same.
 Grounds of dissolution recognised by Mohammedan Law- Wife is also entitled to obtain
a divorce on the ground recognised valid under the law.
 Cruelty by husband- if the husband treats his wife with cruelty, then she can approach the
Court and claim for a decree of judicial separation on the same ground.

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.

 Husband has to execute a proper deed.

 A deed must contain the name of the women whom he has divorced and his name.

Points to be considered for a valid talaq

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.

Talaq made during death illness

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.

Legal effects of divorce

 Mutual rights of inheritances cease.

 Cohabitation becomes illegal, and children born after such intercourse will be illegitimate.
 Dower becomes immediately payable.
 Parties can contract another marriage.
 Wife is entitled to maintenance during the iddat period.

Conclusion

After the 2017 judgement of the supreme court held and declared triple talaq unconstitutional,
under Muslim law, both husband and wife are given equal rights to dissolve their marital
relationship.

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.

Shayara Bano vs Union of India (2017) 9 SCC 1- Triple Talaq – Case Summary

All the above stated types of Divorce are valid in Islamic law however, it is Talak-ul-Biddat
which is the issue of controversy. This is known as Tripe Talaq which was challenged before the
SC in this case. Talak-ul-biddat is although banned in Shias.However, in Hanafi School is
thought as sinful but is practiced by a large Muslim community who follow Hanafi school. In
this type of Talaq the Husband does not follow the approved form of Talaq i.e. talaq-ul-sunnat
and he neither waits for iddat period nor to the abstention from sexual intercourse. This was an
escape route developed by the Islamic patriarchal society to avoid their marriage.

In this form of Divorce husband repudiates his wife by three divorces in one sentence. The
biggest problem with this type of talaq is that it is one of irrevocable nature unlike its
counterparts.

This immediate appeal was filed in the apex court by ShayaraBanoa victim of this demonic
practice. She claimed the enforcement of the Fundamental Rights mentioned under Article 14. In
the mean-time there were numerous petitions challenging the same issue therefore, SC clubbed
all the petitions in one and heard it. Various NGO’s and even union government was supporting
the cause.
Issue

1. The validity of triple talaq.

2. Whether Triple Talaq is an essential religious practice?

Judgment

The Supreme Court laid down this judgment on August 22, 2017 in 3:2 majority holding the
practice of Triple Talaaq unconstitutional. The majority judgment was written by Justice
Nariman for himself and on the behalf of Justice Lalit, while Justice Joseph concurred by the
majority opinion Chief Justice Kehar for himself and on behalf of Justice Nazeer wrote the
minority opinion. While the majority upon lengthy discussion came to the conclusion that Triple
Talaq is not an essential religious practice but minority bench found this practice to be an
essential religious practice.

Under Article 25 of the Constitution the state cannot take away the essential religious practice of
a person. Therefore, if a practice which is arbitrary and not an essential religious practice it will
be hit by the exception laid down u/a 25. Therefore, the whole issue was whether or not the
practice is an essential religious practice of Islam.

Therefore, as per majority it was held that the Triple Talaqor Talaq-e-biddatis not protected by
the exception laid down in Article 25 i.e. the court found the said practice not an essential
element of Islamic religion. The court justified its point of view in the sense that although it si
practiced by the Hanafi School but it is considered sinful in it. Triple Talaqis against the basic
tenets ofQuoran and whatever is against Quoranis contrary to Shariat therefore, what is bad in
theology cannot be good in law. The majority bench relied on its earlier decision Shamim
Ara[1]which held that this practice of Triple Talaq is against both theology and law and just
because it is followed by a large number of people it cannot be validated. Therefore, such
practice is declared unconstitutional and set aside.

Article 25 in it carries the right of every person to freely practice and propagate any religion of
choice and such practice is only restricted in the context of the following exceptions:

1. Public Order
2. Health
3. Morality
4. Other Provisions of Part III of the Constitution

Although the said practice has no relevance to the first three exceptions but the said practice is
surely against other provisions of Part III namely Article 14. The said practice is in violation of
the Fundamental Right of equality since it is against the rights of women as they have no say in
the declaration of divorce unlike in other religions. Nariman & Lalit JJ. held that the impugned
practice is a tool by which marital tie can be broken on whims of Husband without any attempt
of reconciliation to save it. This form of Talaq therefore, is in violation of Article 14 and liable to
be struck down by the courts.

What is an essential religious practice? It depends on the background, history and tenets of the
religion. If some practice is not prohibited then it does not necessarily mean that such practice is
an essential religious practice. Essential religious practices are those on which the religion is
founded upon. Essential religious are those which are fundamental to the profession and
propagation of the religion. If taking away of a practice causes a substantial change in the
religion then such practice can be called as ‘an essential religious practice.’ Only such practices
are protected in Article 25(1). The usurpation of religious practices through state intervention
will result in violation in rights mentioned in Article 25(1) & not with the usurpation of
circumstantial and non-essential practices. The fact that majority of Islamic countries have done
away with the said practice also reflects that the said practice is not one which will be called as
an essential religious practice.

However, Justice Khehar, writing the minority opinion held that such practice is an essential
religious element of Islam. The Minority bench of the court justified this stance on the ground
that this practice is followed by a large population of people. Since this practice has the sanction
of religious denomination and followed by an overwhelming majority of Muslim population, the
said practice is declared to be constitutional and an essential religious practice.

Justice Kehar was, as far as the exceptions mentioned in Article 25(1) of the Constitution, of the
opinion that the impugned practice is not violative of any of these exceptions since Shariat or
Muslim Personal law is not based on any state legislative action.

Critical Analysis

The Triple Talaq judgment is widely appreciated throughout the jurisdictions as a protection
shield against the social evil such as this practice promoted. The majority bench on the face of it
criticized the government for not making relevant laws to prohibit such a regressive practice.
This act allowed the husband to end the marital tie on his whims and fancies, thereby making the
life of the women hell. The Muslim women have since many years demanding the protection
from such a regressive and bad practice and finally it was the apex court which gave them the
appropriate remedy.

Justice Nariman at the outset said that as soon as he would find any violation of Fundamental
Right, he will strike down the practice. There was no question that the said practice was an
essential religious practice or notsince majority of Islamic nations have already banned the
practice & in India only Hanafi School practices it. Therefore, it cannot be said that the practice
is one of religious importance. The majority finding the said practice in violation of Article 14 as
well as of the exceptions laid down in Article 25(1) struck down the regressive act with 3:2
majority. The bench observed that merely because the practice is widespread and continuing
from time immemorial it cannot be held as an essential religious practice. Hinduism also after
finding Sati Pratharegressive removedit from the religion. Sati was also practiced widespread
and practiced since time immemorial. Therefore, the court arrived at a very correct judgment.

The majority started its judgment by the phrase “what is bad in theology cannot be good in law”.
This statement makes it clear the stance of the majority bench on the impugned act. One does not
need to dwell down into the details and should understand that if Triple Talaqhad been a
essential religious practice of Islam then in that case it would not have been banned in almost all
Islamic nations. Further, the said practice is only practiced in Hanafi School who itself considers
it sinful. Therefore, the majority bench correctly held such practice as unconstitutional.

The minority judgment written by CJ Kehar on the behalf of himself and Justice Nazeer was
flawed in every aspect. The hon’ble judges should have considered that fact that

Firstly, an essential religious practice would not have been banned by the Islamic nations.

Secondly, an essential religious practice cannot be stated as sinful by the religion itself.

Thirdly, merely because one community of the religion follows the practice, then such practice
cannot be termed as an essential religious.

The minority bench ignored the atrocities that are committed by the said practice. It is the duty of
the courts to dispense justice and the courts should not be deterred by mere technicalities in
dispense justice.