Divorce

Unit II
 Introduction

▪ Initially no marriage is contracted to be dissolved but in unfortunate circumstances the

matrimonial contract is broken. One of the ways of such dissolution is by way of divorce .
Under Muslim law the divorce may take place by the act of the parties themselves or by a
decree of the court of law. However in whatever manner the divorce is effected it has not
been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of
marriage.
▪ Divorce is the end of such a marital relationship, as under Muslim law there are two modes
given for the dissolution of marriage-
1. Divorce
2. 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
 Modes of Divorce

▪ A husband may divorce his wife by repudiating the marriage without giving any
reason. Pronouncement of such words which signify his intention to disown the wife
is sufficient. Generally this done by talaq. But he may also divorce by Ila, and Zihar
which differ from talaq only in form, not in substance.
▪ A wife cannot divorce her husband of her own accord. She can divorce the husband
only when the husband has delegated such a right to her or under an agreement.
Under an agreement the wife may divorce her husband by Talaqetafwiz.
▪ Before 1939, a Muslim wife had no right to seek divorce except on the ground of false
charges of adultery, insanity or impotency of the husband. But the Dissolution of
Muslim Marriages Act 1939 lays down several other grounds on the basis of which a
Muslim wife may get her divorce decree passed by the order of the court.
 Modes of Divorce

There are two categories of divorce under the Muslim law:

1. Extra judicial divorce, and
2. Judicial divorce
The category of extra judicial divorce can be further subdivided into three types,
namely -
I. Unilateral divorce at the instance of husband - talaaq, ila, and zihar.
II. Unilateral divorce at the instance of wife -talaaq-i-tafweez
III. Divorce by Mutual Consent -khula and mubarat.
 Husband

A. Talaaq –
▪ When the husband exercises his right to pronounce divorce, technically this is known as
talaaq.
▪ Talaaq in its primitive sense means dismission. In its literal meaning, it means "setting
free", "letting loose", or taking off any "ties or restraint". In Muslim Law it means freedom
from the bondage of marriage and not from any other bondage. In legal sense it means
dissolution of marriage by husband using appropriate words. In other words talaaq is
repudiation of marriage by the husband in accordance with the procedure laid down by
the law.
▪ The following verse is in support of the husband's authority to pronounce unilateral
divorce is often cited: “ Men are maintainers of women, because Allah has made some of
them to excel others and because they spend out of their property (on their maintenance
and dower)”.
 Husband

When clear and unequivocal words, such as 'I have divorced thee" are uttered, the divorce
is express talaq which falls into two categories -
1. Talaq-i-sunnat,
2. Talaq-i-biddat.

1. Talaq-i-sunnat –
It is considered to be in accordance with the dictates of Prophet Mohammad. It has two
forms:
i. Talaq-i-ashan (Most approved)
ii. Talaq-i-hasan (Less approved).
 Husband
i. Talaq-i-ashan
▪ It consists of a single pronouncement of divorce made in the period of tuhr (purity, between two
menstruations), or at any time, if the wife is free from menstruation, followed by abstinence
from sexual intercourse during the period of iddat.
▪ The requirement that the pronouncement be made during a period of tuhr applies only to oral
divorce and does not apply to talaq in writing. Similarly, this requirement is not applicable when
the wife has passed the age of menstruation or the parties have been away from each other for a
long time, or when the marriage has not been consummated.
▪ The advantage of this form is that divorce can revoked at any time before the completion of the
period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may be
effected expressly or impliedly.
▪ Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says I
have retained thee" the divorce is revoked. Resumption of sexual intercourse before the
completion of period of iddat also results in the revocation of divorce.
 Husband
ii. Talaq-i-hasan -
▪ The husband has to pronounce talaq consecutively in three tuhrs. If menstruation of wife
stopped, then three declaration after every 30 days, 3 times. After the last pronouncement,
talaq is irrevocable.
▪ It is necessary that each of the three pronouncements should be made at a time when no
intercourse has taken place during that period of tuhr.
▪ It was a pre-Ismalic practice where pronouncement of divorce in one tuhr, followed by its
revocation and again pronouncement of divorce so on like that lead to harassment and misery
of wife. Prophet laid down the divorce will become final and irrevocable at the third
pronouncement, irrespective of iddat period.
▪ Further condition was imposed that parties were not free to remarry unless the wife married
another man who had actually consummated the marriage and then divorced her. On the
completion of iddat, the woman could marry her husband. This process is called Nikah Halala.
This is a penal provision meant to chastise the husband who repudiates his wife thoughtlessly.
 Husband
2. Talaq-i-biddat –
▪ This is a sinful form of talaq, as it is recognized among the Hanafis. Sunni law recognizes this
mode of talaq, though recognized as sinful. Whereas Shias and Malikis do not recognize 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 -> Nikah Halala.
Shayara Bano v. Union Of India and Ors.,
- SC declared that the practice of triple talaq is unconstitutional, as this form of Talaq is violative of
the fundamental right provided under Art. 14 of the Constitution of India.
 Husband

Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila
and Zihar. They are called constructive divorce.
B. 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.
▪ 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.
▪ Under Ithna Asharia (Shia) School, 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. It is pertinent to note that Ila is not practiced in India.
 Husband
C. Zihar (Injurious Assimilation) –
▪ 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.
▪ After the expiry of fourth month the wife has
following rights –
(i) She may go to the court to get a decree of
judicial divorce
(ii) She may ask the court to grant the decree of
restitution of conjugal rights.
▪ Where the husband wants to revoke Zihar by
resuming cohabitation within the said period, the
wife cannot seek judicial divorce. It can be
revoked if:
(i) The husband observes fast for a period of
two months, or,
(ii) He provides food at least sixty poor people,
or,
(iii) He frees a slave.
▪ According to Shia law, Zihar must be performed
in the presence of two witnesses. 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.
 Wife
Divorce given by wife under the husband’s delegated power.
Talaq-e-tafweez –
▪ Muslim wife can get divorced by 2 other ways :
1. Mutual Consent – (i) Khula and (ii) Mubarat
2. Sec. 2 of Dissolution of Muslim Marriage Act, 1939
▪ Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim
husband is free to delegate his power of pronouncing divorce to his wife or any other person.
▪ He may delegate the power absolutely or conditionally, temporarily or permanently.
▪ A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation
must be made distinctly in favour of the person to whom the power is delegated, and the purpose of
delegation must be clearly stated.
▪ The power of talaaq may be delegated to his wife and as Faizee observes, "this form of delegated divorce is
perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of
any court and is now beginning to be fairly common in India".
 Wife

Hamidoola v. Faizunnisa
- Husband has delegated Talaaq-e-Tafweez to his wife for refusal to pay dower in future –
wife demanded prompt dower – he refused – she pronounced Talaq – husband
challenged it – court held – it is a valid dissolution.
Sainuddin v. Latifunnissa
-husband imposed a condition that if he goes for 2nd marriage without the permission of
1st wife, she can pronounce Talaq – he got married again – after looking at the 2 nd wife,
she pronounced Talaq – Court held that it is a valid dissolution.
Magila Bibi v. Noor Hussain
-before marriage he said he is a medical graduate – ground for talaq-e-tafweez was
cruelty – wife pronounced talaq for cruelty and fraud – court held that there is a
dissolution because even fraud leads to mental cruelty.
 Mutual Consent
1. Khula (at the request of wife)-
▪ 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 concubial 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 -
1. There must be an offer (for divorce) from the wife’s side.
2. Offer must be accepted by the husband with the consideration for it. (Wife can revoke offer
before it is accepted by the husband)
3. It should be made at the same sitting.
4. Observance of the iddat period is necessary.
 Mutual Consent

▪ Consideration for Khula – most common – relinquishment of dower. There is no

min./max. limit. It can be paid immediately or later.
▪ As soon as offer is accepted, it becomes an irrevocable divorce and wife is bound to
observe iddat. If in case, wife doesn’t pay consideration, divorce doesn’t become
invalid, husband has right to claim.
▪ Capacity for Khula – Husband must be :
1. Adult
2. Sound mind
3. For Shias – free agent (guardian cannot be party to khula)
4. For Shias – have intention to divorce her.
 Mutual Consent
2. Mubarat (mutual agreement) -
▪ 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-
1. Offer can be made from either of the sides.
2. Acceptance of offer makes divorce irrevocable.
3. Iddat is necessary.
Difference between –
--
--
--
--
 Judicial Divorce – DMMA, 1939

Lian - falsely charged with adultery by him.

▪ Lian can simply be described as the wrong ▪ It is only a voluntary and aggressive charge
charge of adultery on wife by her husband. of adultery made by the husband which, if
false, would entitle the wife to get the
▪ Whenever a husband imposes false adultery decree of divorce on the ground of Lian.
charges on his wife, then a wife can sue him
and can also obtain a divorce on the same Nurjahan v. Kazim Al
ground under the Act, by filing a regular suit
for dissolution of marriage. Calcutta High Court held that, where a
wife hurts the feelings of her husband with
Zafar Husain v. Ummat – ur – Rahman her behaviour and the husband hits back
an allegation of infidelity against her, then
Allahabad High Court held that a wife under what the husband says in response to the
Muslim law is entitled to file a suit against her bad behaviour of the wife, cannot be used
husband for dissolution of marriage and can by the wife as a false charge of adultery
obtain decree on the ground that she was and no divorce is to be granted under Lian.
 Judicial Divorce – DMMA, 1939

▪ Essentials - 6. Judicial separation via mode of lian is

irrevocable.
1. A husband must be adult and sane.
7. This mode is applicable only
2. He charges his wife of adultery. to valid marriages not on irregular ones.
3. Such a charge must be false. ▪ Husband has to prove the charge, if he
4. False charges do not ipso facto (by that fails, wife gets divorce OR
fact itself) dissolve the marriage, it just ▪ Retraction can be made by the husband
provides a ground to the wife to move to before the end of the trial, admitting
the court to dissolve the marriage. that he made the charge of adultery
5. Marriage will continue until the decree against his wife and such charge was
for dissolution of marriage is passed by false – in which case she can sue for
the court. defamation.
 Judicial Divorce – DMMA, 1939
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 khazi
who after careful examination may terminate their marriage. Currently, the court dissolves
the marriage.
▪ Faskh is recognized in Quran – Sura IV Ayat 35.
Characteristic Features of DMMA, 1939 –
1. It has 6 sections – Sec 2 : grounds for divorce for Muslim wife (9 grounds).
2. The Act and grounds are applicable only to Muslim wife.
3. Muslim Wife can get divorce at the age of 15. But she cannot approach court at the age of
15, hence, she must go with a guardian under Order 32 Rule 1 of CPC.
 Judicial Divorce – DMMA, 1939
4. It is applicable to a non-muslim wife, if her marriage is contracted as per muslim law (i.e,
she was a non-muslim at the time of marriage or the muslim wife converts after marriage)
– Nikah must exist.
5. Applicable to all schools of Muslims.
Sec. 2 - Grounds for judicial divorce by Wife :
i. 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. During that period if the husband appears in person or
through an authorized agent, Court if satisfied from same may set aside the said decree.
ii. Failure to maintain- If a husband fails to provide maintenance to his wife for two years.
There is no defense available before husband on the ground of poverty, failing health or
unemployment – he has to provide for his wife, her absolute right.
iii. Imprisonment of a husband- If the husband is imprisoned for seven years or more.
 Judicial Divorce – DMMA, 1939

iv. Failure to perform marital duties- If, without any reasonable cause, the husband is unable
to perform his marital obligations for three years. Marital obligation is not defined and it
can be interpreted by the Court, based on circumstances and facts of the case. It can
include – non maintenance of children; non performance of cohabitation; refusal to pro-
create children.
v. Impotency of husband- husband was impotent at the time of marriage and continues to be
so. Before passing a decree of divorce of divorce on this ground, the court is bound to give
to the husband one year to improve his potency provided he makes an application for it. If
the husband does not give such application, the court shall pass the decree without delay.
Abdul Azim v. Fahimunnisa
- Husband was impotent – wife filed for divorce – husband made an application and got one
year time – he underwent treatment – doctor said he is potent, but the wife failed to co-operate
i.e, have intercourse in order to prove he is potent – court held that it cannot force the wife to
co-operate and accepted the medical certificate.
 Judicial Divorce – DMMA, 1939
vi. Insanity, leprosy or venereal disease- If the
husband is insane from a period of two years
or suffering from leprosy (curable or
incurable), or any venereal disease
(incurable), judicial divorce by wife can be
claimed on the same ground.
vii. Repudiation of marriage by wife (Option of
puberty)- 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.
viii. 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 –
a) Habitual assault on the wife making her
life miserable by cruelty of conduct -
Physical cruelty : assault, hitting etc.;
mental cruelty : making defamatory
statements affecting her reputation,
insults etc.
b) Association of the husband with a woman
of ill repute or lady who leads an immoral
life – habitual association is a ground for
divorce.
 Judicial Divorce – DMMA, 1939
c) Forces her to lead an immoral life –
anything against Islam – drinking or
prostitution.
d) Husband disposes off wife’s property or
prevents her from exercising her legal
right over her property, for selfish ends.
e) Obstructing her from practicing her
religion.
Aboobacker v. Mamu Koya
- husband and wife were going to a movie
– he told her to come in a saree and not
wear a burkha – wife filed for divorce.
Kerala HC held that the conduct of the
husband cannot be regarded as cruelty
because departure from standards of
suffocating orthodoxy does not constitute
un-islmaic behavior.
f) Husband having more than one wife
and does not treat them equally.
Asma Bi v. Umar
- husband had 2 wives – after his 2nd wife
came, he ignored his 1st wife – she left to
her parents house as she was unhappy –
he did not try to bring her back – this
shows unequal treatment – divorce
granted.
 Judicial Divorce – DMMA, 1939

ix. Grounds of dissolution recognised by to continue as the wife - divorce granted.

Mohammedan Law- Wife is also entitled to
obtain a divorce on the ground recognised Sec. 3 - Notice to be served on heirs of the
valid under the law. Eg – Lian. husband when the husband’s whereabouts are
not known. [Sec. 2 (i)]
Muhammad Usman v. Sainab Umma
Sec. 4 - Effect of conversion to another faith :
- Husband was a drunkard – wife claimed for
divorce under Sec. 2 (ix) – "Sec. 2 (ix) of the Act The renunciation of Islam by a married Muslim
is really in the form of a residuary ground where woman or her conversion to a faith other than
the courts have an area of discretion and Islam shall not by itself operate to dissolve her
freedom.” - court was convinced, there is marriage.
irretrievable breakdown of marriage, due to his If converted Muslim wife renounces, Islam –
habitual drinking, wife was suffering from This Act does not apply (marriage comes to an
physical and mental cruelty – the case of cruelty end).
has not been sustained on proof, the wife has
said in unequivocal terms that she is unwilling Sec. 5 - Rights to dower not to be affected.
 Legal effects of divorce
1. Mutual rights of inheritance ceases. remains unmarried.
Exception – Marz-ul-Maut : divorce by husband 2.
(pronounces talaq) during his death illness.
Sunni law – if husband dies during Iddat, wife can
inherit property. But if wife dies during iddat, 3.
husband cannot inherit her property. Provided
she has not requested for divorce, only then wife 4.
can inherit his property.
Shia law – if husband dies within 1 year of divorce, 5.
wife can inherit the property. If wife dies within 1 6.
year of divorce, husband cannot inherit the
property.
7.
Sunni and Shia law – applicable only if the wife
Cohabitation becomes illegal, and children
born after such intercourse will be
illegitimate.
Wife has to observe Iddat.
Wife is entitled to maintenance during the
iddat period.
Dower becomes immediately payable.
Parties can contract another marriage.
(husband – immediately; wife – after Iddat)
Remarriage between divorced couple –
Nikah Halala.