Unlike Hindu marriage in a Muslim marriage, the marriage is a contract.in Muslims marriage is an areligious thing too but it is more of a contract. Prophet Mohammad told that divorce is the worst thing in Muslim marriage it is more like a curse and it should be avoided till the time worst circumstances come across.
The contract between husband and wife consists of all the essentials of a contract ie an offer, acceptance, consent, and capacity of the parties this contract gives the right to the party to have consensual sex and give birth to raise children
In Islam, there are two modes in which marriage could be ended-
● Talaq (Muslim personal law)
● Divorce (Dissolution of Muslim marriage act 1939)
There are two types and under that, there are different modes for husband and wife.
● Dissolution of marriage by the husband
Talaq ul Sunnat - this type of talaq would only apply to the wife. These traditions were established by Prophet Mohammad. The mode is further divided into two parts-
Ahsan - in this type of mode the husband can dissolve the marriage under these conditions.
● The husband has to pronounce the dissolution of the marriage. The husband pronounces the statement while the wife is in her pure state of hers; the purest state is the state when the wife is not menstruating.
● The husband must not please himself with any form of sexual activity while the wife is in her iddat period if he does such an act he would be responsible for revoking the divorce ( the iddat period is the period of observation after the dissolution of marriage by the death of the husband or by any form of divorce)
● If the partners are not consummated under talaq e Ahsan even if the wife is in her menstrual cycle.
Hasan - in this mode the husband has to take 3 successive pronouncements and that too in her state of purity which is also known as consecutive tuhr. In the cases of menstruating the wife, the pronouncement shall be in the gap of 30 days each for 3 months. No sexual involvement should be in between the pronouncement periods. After that the divorce became irrevocable.
Talaq ul Biddat- this type of divorce is followed by Sunnis. This form is usually followed by Hanafis. In this form of divorce, the husband has to pronounce talaq talaq talaq in a single line when the wife is in her state of purity.
The single pronouncement makes the divorce irrevocable and cannot be revoked. The wife cannot remarry the same husband she can only marry the husband when she will marry another man and then the husband gives her the divorce and then only, she can marry the husband this procedure is called nikah halal.
In this type of form the famous judgement was given which led to a lot of protests in the country, the case was Shayara Bano v. Union of India this case is also known as the triple talaq case. Shayara Bano filed a case against Talaq ul biddat, polygamy, and nikah halala unconstitutional as these provisions are violating articles 14,15,21 and 25 of the Indian constitution. The judgement which was given under 3:2 majority said that talaq e biddat is unconstitutional as it is violating the right of equality which is mentioned under article 14 of the constitution.
This judgment would help many Muslim women to live freely.
Ila - if the husband who is of sound mind and has attained a major age refuse to have sexual intercourse with the wife and tells her to observe iddat period is said to dissolute marriage under Ila. if the husband has sexual intercourse with the wife during her iddat period.
Zihar - if the husband compares the wife to her mother or any woman within a prohibited degree. The wife has the right to deny a sexual relationship with the husband. Such refusal can be accepted until he has expiated himself from penance prescribed by law.
Dissolution of marriage by the wife
Talaq e Taweez - if before or after marriage a woman makes an agreement and writes down conditions that in these conditions the woman can take a talaq from the husband. In the agreement, the conditions could be if he marries another woman or he is unable to maintain her. The wife can pronounce divorce in such cases.
Divorce by mutual consent
Khula - it is a form of divorce under mutual consent which can be taken under the following circumstance the wife has to give an offer to the husband then the husband accepts the offer after that the iddat period is observed
Mubarat - in this form the offer could be given by any of the parties after the acceptance of the offer the divorce becomes irrevocable and the iddat period is necessary.
Dissolution of Muslim marriage act 1939
This type of divorce consists of two types
● Lian - if the husband claims false charges of adultery on her wife the wife can file for a divorce under the dissolution of Muslim marriage act 1939. A famous judgement that was being heard in this case was Zafar Hussain v. Ummat ur Rahaman the court said in this that the wife has the right to take divorce when the husband claims false charges of adultery against the wife.
● faskh - the husband must respect and treat her wife well. The same goes vice versa but if the husband or wife cannot do so they can take divorce by approaching qazi. Section of the dissolution of Muslim marriage act 1939 says that a wife can take divorce if such circumstances occur -
Absence of husband (4 years)
Impotency of husband
Imprisonment of husband
Failure to maintain
Unsound mind
Failure to perform marriage duties
Cruelty of husband
Talaqnama is a type of divorce in writing the husband can take talaqnama even in the absence of the wife but the qazi or wife’s father should be present at that time and the name and proper deed of the talaqnama should be there.
Conclusion
The decision shall be at the discretion of the husband and wife and these provisions mentioned for the Muslims are sometimes contrary. That is why, like in the case of Shayara Bano, the triple talaq case. The child after being out of the marriage would be illegitimate. A divorce is something that should be normalised under the circumstances if the husband and wife cannot live with each other.
References
Subodh Asthana, Elucidating the provisions of Muslim Law on Divorce, Pleaders
URL:https://blog.ipleaders.in/muslim-law-divorce/ (June 26, 2022, 12:00 am)
Debalina Roy, SHAYARA BANO vs UNION OF INDIA Case Summary 2017 SCC
(June 25, 2022 8:03pm)
This article is written by Kriti Joshi of Trinity institute of professional studies.