DIVORCE UNDER MUSLIM LAW (TALAQ)
Talaq, in its original sense means repudiation, or rejection. But under Muslim law it has special reference which means divorce, a release from the marriage tie. In Muslim law it is a generic name for all kinds of divorce. In particular, it is a repudiation or rejection which is applied by the husband or on behalf of the husband. According to the Muslim law any Mohammedan of sound mind, who has attained puberty, depending on his desire may divorce his wife. He does not even need to give any reason.
Talaq even when pronounced under the effect of intoxication or under compulsion or even Fraud is effective under Sunni law as it can be found in the case of Ahmed Kasim v. Khatun Bibi,1932 and similar observations were made under Medak v. Hajju Bibi, 1970. But it is to be noted that it is void under Shia law.
MODES OF DISSOLUTION
Talaq or Divorce under Muslim law can be given in many forms. The modes for dissolution of marriage under Muslim law are:
- By the husband at his will, – Talaq
- By the wife under a power delegated to her, – Talaq-e-tafwid
- By mutual consent of the husband and wife, – Khula and Mubarat
- By judicial decree under the dissolution of Muslim marriage Act, 1939.
TALAQ (By the husband at his will)
A Talaq may be given either orally or in writing.
- Oral Talaq
- Under this no particular form of words has been prescribed for effecting a talaq.
- No proof of intention is required. If the saheeh is understood as Divorce it would be considered as considered. It only needs to be proved when the words are ambiguous (kinayat).
- If the husband pronounced the word talaq before a family council, naming the wife is considered valid.
- In the case of Rashid Ahmad v. It was held valid that even the talaq is pronounced in the absence of the wife, but if the name of the wife is taken. The divorce under Muslim law will be valid.
- Talaq in writing (Talaqnama)
- It may be in writing and no particular form is necessary.
- It may be the mere record of the oral talaq or the deed by which the talaq is affected.
- Case law: Ma Mi v. Kallandar Ammal, 54 IA 61. In this case the husband properly executed a deed under Sunni law mentioning his wife name and the writer name, it constitutes a valid divorce under Muslim law without any regard to intention.
- It is to be noted that in such a case a deed should be in a customary form, called manifest. If it is not properly scribed and addressed, the intention must be proved.
- Talaq – e – biddat
Talaq-e-biddat or Talaq – I – badai is one of the disapproved forms of talaq. The essential feature of this talaq is its irrevocability. It is of two kinds;
- Three pronouncements within one tuhr. This pronouncements may be made either in one sentence or in separate sentences. The triple repetition is not a necessary condition of talaq – ul – biddat, and intention to render talaq irrevocable may be expressed even by a single declaration. Thus, if I man says ” I have divorced you by a talaq – ul – bain (irrevocable) divorce”, the talaq is talaq ul biddat and it will take effect immediately
- Talaq ul biddat affected by a triple pronouncement is valid even if it is pronounced when the wife is in her masturbation. It is to be noted that Shia law does not recognise the validity of this form of law.
- Case law: SHAYRA BANO V. UNION OF INDIA & others; In this landmark case, the Supreme Court mainly focused on the triple talaq and set aside the practice of triple talaq. The Supreme Court of India rendered the instant triple talaq unconstitutional under article 14 read with art. 13(1) of the constitution of India by the majority of 3:2.
In the year 2019, after the expiration of the triple talaq ordinance, the government introduced a fresh bill in the Lok Sabha to replace the triple talaq ordinance on 21st June.
It was passed by the Lok Sabha on 25th July and by Rajya Sabha on 30th July.
This act makes triple talaq a criminal offence and provides a punishment for imprisonment up to three years. This also makes it a cognizable and non bailable offence.
Under the Mohammedan law, a husband has the power to delegate his own right of pronouncing divorce to some third person or to the wife herself.
It is to be noted that this power could be absolutely or conditionally or it may be permanently or for a particular period of time. The divorce granted under the temporary delegation of the power is irrevocable. But if the divorce is granted under a permanent delegation of power it may be revoked.
An agreement made before the marriage or after the marriage the wife can under certain circumstances may pronounce divorce upon herself is a valid condition. The only ground which is to be met for this is that it should be reasonable and not opposed to the policy of Mohammedan law. And after this agreement the wife may pronounce the divorce upon herself anytime given that the condition or circumstances are met.
Case law – Maharam Ali v. Ayesha Khatun, 1915, In this case an agreement was made before marriage that if the husband marries with a second wife, the wife is authorised to divorce herself and it has been held to be valid.
Khula and Mubara’at
A Marriage may also be dissolved by an agreement made between the husband and wife. This form of dissolution of marriage may happen in the form of khula aur Mubara’at
- Khula: Khula or khoola is a divorce given with the consent and at the request or permission of the wife. It literally means to lay down. In law it means that the husband has laid down his authority and right over his wife.
Features of khula;
- There is an offer from the wife
- the offer is accompanied by some consideration or compensation by the wife to husband in live of release from the marital bond
- The offer must be accepted by the husband.
- This is also a form of divorce under Muslim law where it is dissolved like in khula by agreement between the parties.
- But unlike in khula, the consent is mutual and both the parties desire a separation. It is considered more liberal and more progressive under the modern Indian statutes.
- It may take place by bilateral agreement between the husband and wife and court does not interfere in this. It is also to be noted that it may be initiated by any of the parties which are the husband and wife.
Dissolution of Muslim marriage Act, 1939
Under this act the wife has no absolute right to divorce her husband. But she can seek the divorce under certain conditions and grounds through a court.
The dissolution of Muslim marriage act, 1939 was passed in order to bring together and to clarify the provisions of Muslim law and to remove any doubts regarding to the renunciation of Islam by a married Muslim women on her marriage tie.
The grounds under the act on which a woman can seek dissolution of marriage;
- The whereabouts of the husband has not been named for four years and after passing the decree, the degree will not take effect for six month and under this 6 month if the husband reappears the decree will be dissolved.
- Failure of a husband to provide for the maintenance of the wife and the time period for this is 2 years
- If the husband is awarded imprisonment for a period of seven years
- If the husband has not perform marital obligation for over a period of three years and without any reasonable cause
- Impotence of the husband at the time of marriage and continuing
- Insanity of the husband for over a 2 years of period aur this suffering from a virulent venereal disease
- Repudiation of marriage by the wife
- Treating wife with cruelty
- Any other grounds recognized under Muslim law for the dissolution of marriage which is valid.
Case law – Zafa Hussain v. Akbari Begum, 1944;
Whether the mere fact of the husband not maintaining the wife could be sufficient ground for the wife to seek dissolution of her marriage has been an issue on which judicial opinion has varied.
In this case it was held that if the non-payment of maintenance by the husband is due to the wife’s unreasonable withdrawal from his company, then he is under no legal obligation to maintain her and his failure to maintain her in that case would not afford her any ground for dissolution of marriage. Whereas in the Case of Manak Khan v. Mulkhan, 1941 it was held that the husband’s duty is absolute and the wife may seek the dissolution of marriage under this act.