Amongst all nations of antiquity, divorce was regarded as natural corollary of marital rights. Islam is the first religion in the world which has expressly recognized the termination of marriage by way of divorce. In India the divorce was recognized after the passing of Hindu Marriage Act, 1955. Under Muslim law there is no provision for decree of judicial separation. Divorce is the most copious and uninhibited aspect of Muslim Law.
In Muslim Law, matrimony is a civil contract the husband usually enjoys special privileges and the wife suffers corresponding disabilities. The husband may divorce his wife at any time he likes. The wife remains at her husband’s mercy owing to polygamy and the inequality of law of divorce.
Another remarkable feature of Muslim law is that no judicial or non-judicial authority is needed to effect dissolution of marriage. Judicial divorce was introduced in 1939 by the dissolution of Muslim Marriage Act, 1939 under which only wife could sue for divorce. However unlike the husband she has to prove the grounds for obtaining the divorce. Institution of divorce is recognized as ‘one side engine of oppression in the hands of Muslim husband’.
Difference between Talaq and divorce –
A clear distinction cannot be made between divorce and Talaq. It can be used in two senses-
(i) In a restricted sense in which it is confined to separation which is effected by use of certain appropriate words by the husband
(ii) And in a wide sense it covers all separations for causes originating from the husband.
Talaq is an act of repudiation of marriage by the husband in exercise of his power which has been conferred upon him. The term ‘divorce’ includes all separation originating from the husband and repudiation of Talaq in the limited sense namely separation effected by use of appropriate word.
DIFFERENT MODES OF TALAQ
Among the Sunnis, Talaq may be expressed, implied, contingent, constructive or delegated. The Shias recognize only the express and delegated Talaq.
(i) Express Talaq-
When clear and unequivocal words are uttered the divorce is express. It may be Talaq- ul- sunnat(approved and revocable) or Talaq-ul-bIddat (unapproved and irrevocable).
- Talaq-ul- Sunnat – It means Talaq which is sanctioned by the sunnat or traditions or customary Talaq. It has two forms – ahsan and hasan. The former is the most approved and the latter is less approved.
- Ahsan Talaq – this consists of single pronouncement of Talaq which is made during a tuhr (period between menstruations or period of purity) followed by abstinence from sexual intercourse for the period of Iddat. This rule need not be followed when the wife has passed the age of menstruation, or the parties have been away from each other for a long period of time, or when marriage has not been consummated. The advantage of this form of divorce is that it can be revoked at any time before the completion of Iddat period i.e. 90 days. The revocation can be done through cohabitation or by saying that “I have retained thee”. The revocability makes it the most proper and approved form of divorce.
- Hasan Talaq -this consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the three tuhrs. The moment the third pronouncement is made, the marriage stands dissolved irrespective of the Iddat.
2. Talaq- ul- bIddat – it means Talaq which is sinful or irregular though valid. It has two forms – triple divorce or three declarations at one time, and one irrevocable declaration.
- Triple Talaq – it consists of three pronouncements in a single tuhr either in one sentence or three separate sentences. Talaq becomes irrevocable immediately it is pronounced, irrespective of the Iddat. As the talq becomes irrevocable at once it is called irrevocable Talaq. It is the most common form of divorce that is prevalent among Sunnis in India.
- Single irrevocable declaration – it consists of single pronouncement made during the tuhr clearly indicating an intention irrevocably to dissolve the marriage.
(ii) Implied and contingent divorce
When a husband pronounces divorce so as to take effect on the happening of future event, the Talaq is known as contingent. Shia law does not recognize contingent divorce.
(iii) Delegated divorce (Talaq-i-Tafweez)
Although the power to give divorce belongs to the husband, he may delegate the power to the wife or third person, either absolutely or conditionally, and either for a particular period or permanently. The person to whom power is delegated may then pronounce the divorce accordingly. A permanent delegation of power is revocable but not a temporary delegation.
In form it is divorce of the husband by the wife, but in law it operates as Talaq of the wife by the husband. Delegation of power to divorce may be made before or after the marriage and it may be made contingent upon the happening of an event. The mere happening of the event under which the wife would be entitled to exercise the right does not ipso facto dissolve the marriage.
(iv) Constructive divorce
- Ila – In some cases the husband’s conduct will have the effect of a repudiation though he did not use the word Talaq or any other expression with the intention of dissolving the marriage. Where a husband who has attained majority and is of sound mind, swears by god that he will not have sexual intercourse with his wife and leaves the wife to observe Iddat he is said to make ila. Where the husband making Ila abstains from the intercourse with his wife for four months, the marriage is dissolved from the same legal results, as if there had been an irrevocable divorce pronounced by the husband.
- Zihar (Unlawful comparison/injurious assimilation) – it is a form of incomplete/inchoate divorce. When the husband expresses his dissatisfaction with the wife by comparing her with mother or sister or any other woman within the degree of prohibited relationship, the wife acquires a right to refuse cohabitation with her husband till the performance of the penance. If the husband refuses to do so, she gets the right of judicial divorce.
- Lian – in it, the wife is entitled to sue for dissolution of marriage on the ground that the husband has falsely charged her with adultery. If the charge is proved to be false, she is entitled to a decree but not if it is proved to be true.
(v) Divorce at wife’s instance –(khula)
- A divorce by khula is a divorce by consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. Once the husband accepts the khula, he has no power of revocation, but the wife at any time during Iddat re-claim consideration , and if she does so, the husband may revoke the khula. A proposal for khula made by the wife may be retracted by the wife at any time before the husband has accepted it.
(vi) Divorce by mutual consent (Mubarat)
- Mubarat is a form of dissolution of marriage contract which signifies a mutual discharge from the marriage claims. In mubarat the aversion is mutual and both the sides desire separation. Thus it involves an element of mutual consent. In this mode of divorce, the offer may be either from the side of the wife or husband. When an offer of mubarat is accepted, it becomes an irrevocable divorce and Iddat is necessary.
(vii) The dissolution of Muslim marriage act, 1939
The dissolution of Muslim marriages Act, was passed in order to consolidate and clarify the provisions relating to suits for dissolution of marriage by women married under Muslim law, and to remove doubts as to the effect of renunciation of Islam by a married woman on her marriage tie. Section 2 of the Act makes available the nine grounds for a Muslim woman married under Muslim law.
(i) Four years absence of the husband –the whereabouts of the husband is not known for the period of four years.
(ii) Failure to provide maintenance for two years – the husband has neglected or has failed to provide maintenance for two years.
(iii) Seven years imprisonment of the husband –a decree on this ground can e passed only if the sentence has become final (after an appeal preferred against the judgement has been disposed of). Remission of the sentence does not affect the right of the wife.
(iv) Failure to perform marital obligations – if the husband has failed to perform without reasonable cause, his marital obligations for a period of three years, the wife can get her marriage dissolved by means of a decree.
(v) Impotency of the husband – if the husband was impotent at the time of marriage and continues to be so, the wife is entitled to judicial divorce for the dissolution of the marriage.
(vi) Insanity, leprosy or venereal disease – if the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease the wife may claim a judicial divorce under section 2 (vi) of the above Act.
(vii) Repudiation of the marriage by wife –if the wife having been given in marriage by her father or her guardian before attaining the age of 15 years, repudiated the marriage before attaining the age of 18 years and the marriage is not consummated, she is entitled to a decree of divorce.
(viii) Cruelty by husband – Judicial divorce may also be claimed by a Muslim wife, if the husband treats her with cruelty, that is to say –
- Habitually assaults her or makes her life miserable by cruelty or bad conduct even if such conduct does not amounts to physical ill- treatment;
- Associates with women of ill- repute or leads an infamous life ;
- Attempts to force her to lead an immoral life;
- Disposes of her property or prevents her from exercising her legal right over it;
- Obstructs her in the observance of her religious profession or practice;
- If he has more wife than one but does not treat her equitable in accordance with the injunctions of the Quran;
DIFFERENCE BETWEEN SUNNI AND SHIA LAW OF DIVORCE
|Shia Law||Sunni Law|
|Divorce must be pronounced orally.||Do not prescribe any formalities for Talaq; it may be communicated in writing or through a delegate.|
|Divorce must be in the presence of two competent witnesses.||No witnesses are required for divorce.|
|The Shias does not recognize such divorce.||A divorce pronounced under compulsion or in a state of voluntary intoxication or to satisfy one’s father or some other person is valid.|
|The Shias recognize only the delegated and express Talaq.||Among the Sunnis, Talaq may be expressed, implied, contingent, constructive or delegated.|
|The Shias do not recognize Talaq- ul- biddat.||Talaq-ul –biddat is recognized.|
|Such a marriage will be vioid, similar would be the case if they do not remarry and start living together.||If after the pronouncement of Talaq, the parties marry immediately, then their marriage will be irregular, but if they do not remarry and start living together, then their cohabitation will be void.|
Aqil Mohammed, “Mohammedan Law” (Central Law Agency, 27th Edn.) 148
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