The Punjab and Haryana High Court in a recent judgement dated June 13, granted protection to a 16-year-old Muslim girl who had married a 21-year-old Muslim man. The one-judge bench of Justice Jasjit Singh Bedi held that the girl was of marriageable age under Muslim Personal Laws.[1]
This judgement not only drew mixed reactions from various communities and members of the society, but also started off a debate on the effects of such an order and the relevance of personal laws in Indian society. While people from across various spectrum may have various opinions, this research article aims at analysing a very important feature of the Muslim law in India- Divorce.
This research article will try to understand divorce as defined under Muslim law, it various kinds, how divorce can be obtained under Muslim law, different practices of various sects and the legal consequences of such divorces. In other words, the main aim of this research article is to understand the concept of divorce under Muslim law.
Introduction
Muslim law is considered to be divine in nature. These are unlike the man-made laws that are passed by legislatures or sovereign authorities, and are usually guided by the principles of western systems of law.
The two most fundamental beliefs in Islam are the existence and oneness of God, and the belief in the truth of Prophet Mohammed’s mission.[2] Muslims also believe that the holy Quran is the only revealed book of Allah, and that there is a day of judgement, followed by death.
The primary sources of Muslim law are the holy Quran, the Sunnat (traditions of the Prophet), the Ijma and the Qiyas. Other sources of relevance are legislations, judicial decisions and customs or traditions.
Divorce under Muslim law
Even though the provisions of divorce were recognised in all religions, Islam is probably the first religion that gave express recognition to termination pf marriages through divorce.
On the other hand, among Hindus, divorce was allowed only by Hindu Marriage Act, 1955. Before the passing of that Act, divorce was not recognized by Hindu Law.
Divorce has been very frequent and easy among the ancient Arabs. It is claimed that this practice has continued even though it is believed that the Prophet himself expressed his dislike for it, for it prevented conjugal happiness and interfered with the proper upbringing of children.
Classification of Divorce
Under the Muslim Law, a marriage can be dissolved either by the death of either spouse, or through divorce.
Generally, both the parties to the marriage contract have an option to go for divorce, but the husband’s rights in this respect are much greater than that of the wife. For example, the husband can dissolve the marriage at his will. Mutual agreement can also lead to a divorce. But the wife cannot seek divorce from her husband without his consent. She can have the marriage dissolved either by the practice of tafweez (i.e., purchase her divorce) or by judicial decree under Dissolution of Muslim Marriages Act, 1939.[3]
The Dissolution of Marriage is possible through:
1. By death of a party to marriage
2. By Divorce
2.1 By Husband
(1) Talaq
a. Talaq-ul-Sunnat
I. Ahsan
II. Hasan
b. Talaq-ul-Biddat
I. Written Divorce
II. Triple Divorce
(2) Ila
(3) Zihar
2.2 By Wife
(1) Talaq-e-Tafweez
2.3 By Mutual Consent
(1) Khula
(2) Mubarat
2.4 By Judicial decree under Dissolution of Muslim Marriages Act, 1939
(1) Lian
(2) Faskh
The terms used above can be understood as follows:
1. Talaq: Talaq means release from the tie of a marriage, immediately or eventually. Though it is a generic name for all kinds of divorce, it is in particular applied to repudiation by or on behalf of the husband. It is not necessary for the husband to obtain prior approval of his wife for such dissolution.
In order to be eligible to pronounce a valid talaq, the husband must possess the following qualifications. Under Shia law, every Muslim man of sound mind and who has attained the age of puberty is competent to pronounce talaq, in absence of any duress.
For Sunni Muslims, any major Muslim man of sound mind can divorce his wife without assigning any cause.[4]
2. Ila: Ila means the vow of continence. When a husband, who has attained majority and is of sound mind, swears by God that he will not engage in any sexual activities with his wife and leaves the wife, he is said to have made the ila. In the cases where the husband who has made the ila abstains from engaging in sexual activities with his wife for four months, the marriage is said to have been dissolved with the same legal results which a pronounced talaq would have carried. Ila is not a practice in India.
3. Zihar: If the husband, who is an adult and sane, compares his wife to his mother or any other female within a prohibited degree, the wife has the right to refuse herself to him until the husband performs penance. This can be done in various ways, which traditionally have included freeing a slave, fasting for two months or feeding at least sixty poor people. In case the husband fails to perform the penance, the wife gets a right to seek a judicial divorce.
4. Talaq-e-Tafweez: The doctrine of ‘tafweez’ or delegation of power is of great importance in divorce under Muslim law. A husband may, either himself, divorce his wife or may delegate this power to a third party, which in many cases is the wife herself.
An agreement may provide the wife with the liberty to divorce her husband under certain specified conditions. The wife exercising her power must establish that all such conditions have been fulfilled.[5] It is to be noted that the wife does not divorce her husband here- she cannot do that under Muslim law- but divorces herself on the behalf of her husband under powers delegated to her by him.
5. Khula: Khula, or redemption, literally means ‘to lay down’. Under Muslim law, it means laying down of the right and authority over his wife by the husband. In Mst. Bilquis Ikram v. Najmal Ikram[6],it was said that the wife was entitled to Khula as a matter of right if she satisfies the court that it will otherwise force her into a hateful union.[7]
6. Mubarat: Mubarat is also a form of dissolution of marriage contract. It signifies a mutual agreement to end the marriage. In mubarat, both the sides are desirous of separation and thus, it involves an element of mutual consent.[8] In this mode of divorce, the offer can be from either side. When such an offer is accepted, it becomes an irrevocable divorce (talaq-ul-bain). Under Shia law, the parties can dissolve their marriage by mubarat if it is impossible for them to continue their marriage.
7. Lian: Lian implies a false charge of adultery. In case a husband accuses his wife of adultery and that accusation turns out to be false, the wife is entitled to not only sue the husband but can also obtain a divorce. The Allahabad High Court had recognized the practice of lian in Zafar Husain v. Ummat-ur-Rahman.[9]
Merely levying the charges by the husband does not automatically dissolve the marriage. The wife has to apply to the court for such dissolution.
8. Faskh: Under the Muslim law, a woman can approach the Qazi for the dissolution of her marriage. According to the holy Quran, it is the duty of the husband to give proper treatment to the wife. The wife is duty bound to obey all lawful orders of her husband. If the married couple come to a mutual understanding that they cannot continue as husband and wife, they can refer the matter to the Qazi, who after successful examination, can terminate the marriage.
Faskh means cancellation or annulment. Before the passing of the Dissolution of Muslim Marriages Act, 1939, there was no piece of legislation allowing a Muslim woman to seek dissolution of her marriage. Therefore, Muslim women could apply for the dissolution of their marriages under the doctrine of ‘Faskh’.
Judicial Divorce
Prior to the Dissolution of Muslim Marriages Act, 1939, the British Courts did not allow Muslim women to have the right of dissolution available to them under the Shariat.
Finding no other way out of unwanted marriages, the Muslim women were forced to renounce their faith.
It was in the above circumstance that the Dissolution of Muslim Marriages Act, 1939 was passed. It is applicable to all Muslims irrespective of the school to which they belong. The Act is in force throughout India. The Act also has brought revolutionary change in this respect, and has restored a Muslim woman’s right to divorce, granted to her under the shariat.
Legal Consequences of Divorce
From the divorce arise the following legal consequences on the rights and obligations:
The parties become entitled to another marriage. If the marriage was consummated, the woman may remarry after completion of her iddat. If not, she is free to marry immediately.
Dower becomes immediately payable
Mutual rights of inheritance cease after the divorce becomes irrevocable
Cohabitation becomes unlawful and the children born of such an intercourse are illegitimate.
Mere cohabitation between divorced couples without the fulfilment of above conditions is void, and children of such unions are illegitimate.[10]
The wife becomes entitled to maintenance during the iddat of divorce but not during iddat of death.
Difference between Shia and Sunni Laws of Talaq
It is easier to give talaq under Sunni law than it is under Shia law, the basis being that the Shias do not want men to be frequent in pronouncing talaq. The main differences are:
According to Sunnis, talaq may be given orally or even in writing. On the other hand, Shias require the husband to physically pronounce it, until he is incapable of doing so, in which case he may present it in writing.
Under Sunni law, no witnesses are required during the divorce, while under Shia law, the presence of two male witnesses is necessary.
Under Shia law, intention is necessary for divorce, while there is no requirement of any such intention in Sunni law.
Sunni law recognises talaq-ul-sunnat and talaq-ul-biddat, whereas Shia law permits tala-ul-sunnat only.
Conclusion
In comparison to the Western world where divorce was relatively uncommon until modern times, and in contrast to the low rates of divorce in the modern Middle East, divorce was a common occurrence in the pre-modern Muslim world.
The modern-day acts not only maintain the sanctity of the religious practices of various groups or religions but also makes an effort to include modern day ideas and rules in such personal laws. The traditional practices have seen reform in the 21 st century and to adapt them to an ever-changing world, such reforms were necessary. Many practices, now considered bizarre, have been done away with and have been replaced by much humane and modern practices.
- [1] Gulam Deen & Anr. v. State of Punjab & Ors., CRWP-5744-2022 [2] Narantakath v. Prakkal, (1922) ILR 45 Mad 986 . [3] Dissolution of Muslim Marriages Act, 1939 (8 OF 1939). [4] Hedaya p.75 Sessions Jude; Medak v. Hajju Bibi, (1970) 1 Andh WR 138 [5] Buffatan Bibi v. Abdul Salim, AIR 1950 Cal 304 [6] (1959) 2 WP p.321 [7] Rashid Ahmed v. Anisa Khatun, (1931) 59 IA 21 All [8] Jani v. Muhammad Khan, AIR 1970 J&K 154 [9] (1919) 17 All. LJ 78: AIR 1919 All. 182 [10] Rashid Ahmed v. Anisa Khatun, AIR 1932 PC 25
This article is written by Dinesh Mundhra of National Forensics Sciences University.