- Dissolution of marriage under Muslim personal law.
Under Muslim law, a marriage is dissolved either by the death of the husband or wife or by divorce. The essence to dissolve the marriage in Islam is the inability of the parties to live together. In Islam, the absolute privilege to dissolve the marriage is given to the husband. The wife cannot dissolve the marriage from her husband without his consent, except under a contract made before or after the marriage, but she can obtain a judicial decree under the dissolution of the Muslim marriage act,1939. A divorce can also take place with mutual consent or mutual agreement.
After the death of the wife, the widower may immediately remarry but the widow cannot, she has to perform a specified period known as the Iddat period. In the Iddat period, a woman has to remain in seclusion and is abstain to remarry. The completion of the iddat period will make talaq irrevocable.
- CLASSIFICATION OF DISSOLUTION OF MARRIAGE
- BY DEATH OF EITHER PARTY
- BY DIVORCE
- By husband
- By Wife
- By mututal consent
- By judicial Separation (under dissolution of Muslim marriage act, 1939).
The above mention is some ways through which a Muslim can dissolve a marriage.
1. BY DEATH OF EITHER PARTY.
If any parties of a marriage expire then that marriage will be concluded as that marriage has been dissolved.
2. BY DIVORCE
Under divorce there are four ways through which parties can end their marriage, the absolute privilege to dissolve the marriage is enjoyed by the husband, but a woman can obtain a divorce under an agreement made before or after the marriage or by mutual consent.
The first form of divorce under Muslim marriage is talaq.
- BY HUSBAND
WHAT IS TALAQ?
A Muslim husband of a sound mind has the right to divorce his wife at any time by just pronouncing talaq without assigning any reason.
- The husband should be major
- He should be of sound mind
- He should act the same out of free will
- An intention to dissolve the marriage should exist
Whereas, Shia law is concerned he should pronounce the same in the presence of two competent witnesses. Talaq pronounced under intoxication is valid under Sunni law but invalid under Shia law.
Talaq can further be of two forms Talaq-Ul-Sunnat and Talaq-Ul-Biddat.
Talaq-Ul-Sunnat: this form of talaq is the most approved form of talaq. This further has two sub-forms known as Talaq Ahasan and Talaq Hasan.
- Talaq Ahasan
It can be done in a single pronouncement of divorce made in a period of tuhr (when the wife is free from menstruation). It is prohibited to have sexual intercourse during the period of tuhr and the whole of the Iddat period. The oral pronouncement of divorce can be made during the period of tuhr but doesn’t apply to talaq in writing. This form of talaq can be revoked at any time before the completion of the iddat period.
- Talaq Hasan
It is also an approved form of talaq but lesser than talaq ahasan. The pronouncement of talaq hasan is made during three consecutive periods of tuhr. During each tuhr period, no sexual intercourse must have taken place or else the pronouncement made during the period shall not be considered. Pronouncement must be at successive intervals of 30 days. When the last pronouncement has been made talaq becomes final and irrevocable.
Talaq-Ul-Biddat: It is a sinful and disapproved form of talaq among Muslims. it consists of three successive pronouncements of talaq made in a single tuhr and can also be made in a single sentence. It is commonly known as triple talaq. It is not recognized by shais.
Shayara bano VS Union of India
In this case, the supreme court held that it violates the woman’s fundamental rights Article 14,15 and 21 of the constitution. Therefore the practice of triple talaq was declared unconstitutional.
Ila: In this, the husband swears to his wife that he won’t have sexual intercourse with her for at least four months. He can revoke this oath before the expiry of the period of four months by recommencing sexual intercourse with his wife. Once the expiry of the period of four months has lapsed the marriage is considered dissolved.
Zihar: Here the husband expresses his dissatisfaction with his wife by comparing her with a woman who falls under the prohibited degrees, such as his mother, sister, mother-in-law, half-sister, etc. such comparison is prohibited by The Holy Book of Quran. The wife has a right to acquire forgiveness from him and also can refuse to cohabitation with him, if he refuses to plead forgiveness she has the right of judicial separation.
- BY WIFE
- Talaq-E-Tafweez: Muslim husband has the right to delegate the power of talaq to his wife or any other person. Delegation of power of talaq can be absolute, conditional, temporarily or permanently. Permanent delegation of power can be revocable but temporary delegation is irrevocable. It must be clear and certain in words. In some situations, an agreement is been made that if the husband marries any other woman the wife is authorized to divorce him and it will a valid divorce. The happening of such an event doesn’t result in automatic divorce.
- BY MUTUAL CONSENT
- Khula: Muslim law allows divorce by mutual arrangement for divorce at the instance of the wife is called as Khula. The proposal for divorce is made by the wife. In consideration of the compensation paid by the wife to her husband. The consideration can be release of her dower or any agreement made by her for the benefit of her husband but it should not be illusory.
Under Sunni law, khula may be conditional or unconditional. An unconditional khula results in irrevocable divorce, while conditional khula takes place on the fulfillment of the condition.
Under this law, both the khula and option are void.
- Mubarat: The proposal can be made from either side of the party.it is submitted that mubarat may be considered as divorce by mutual consent. The wife is not required to pay any compensation. It is done by muftis. After mubarat, the wife is bound to observe the iddat period and husband is bound to maintain her and his children by her during her iddat period.
- BY JUDICIAL SEPARATION
Lian: Here the husband accuses his wife of committing adultery. The wife has the right to divorce her husband on the grounds of being falsely charged with committing adultery.
Fashk: We have seen that the absolute power or right to divorce is to be given to the husband. In 1939, the dissolution of the marriage act to muslim women was known as the dissolution of muslim marriage act, 1939. Under section 2 of the act, there are grounds for a decree for dissolution of marriage where the husband is not known for four years, where the husband is neglected or has failed to provide her maintenance for two years, where the husband has been sentenced to imprisonment for seven years or more, where the husband has failed to perform, without any reasonable cause for three years, where the husband was impotent at the time of marriage and continues to be so, where the husband has been insane for two years or is suffering from leprosy or virulent venereal disease.
In this article, there have been briefly explained the different forms or types of dissolution of marriage under Muslim personal laws. Further, it is very important to know some terms such as tuhr, iddat period, prohibited degrees/relations under muslim law for husband. It is also important to take note that talaq-ul-biddat or triple talaq is no more in practice and has been declared unconstitutional because it was observed by the Supreme Court of India that triple talaq practice is violating article 14, article 15 and article 21 of the constitution. Therefore, the apex court has held it unconstitutional and violative.
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