"Family," regarded as the heart of the home. When this heart of the home dissolves, it completely shatters everyone. Since so long from the beginning time, divorce has been the primary cause of many broken families. In the modern world, divorces between married couples are occurring more frequently than ever.
"Divorce" is a phrase that, for the majority of us, has been defined by TV dramas, or by the number of law student’s reasons why they are interested in family law. Well, this specific term in a simple and general way means to either split up or end one’s marriage. It is the formal end to a marriage by a judge or other authority. It is definitely a common event and has nothing to do with being ashamed.
According to Cambridge Dictionary, Divorce is defined as an official or legal process to end a marriage. It has no need for any introduction for the topic of divorce. Divorce describes the frequently tumultuous and traumatic breakdown of a marriage. It is a pretty common event today, for better or worse.
In legal terms, a divorce is the dissolution of a marriage. It denotes the breakdown of the marriage contract. Divorce theoretical part to a court order dissolving a marriage. When a couple files for divorce, their legal marriage ends, and they are no longer referred to as the husband and wife. The couple might revert to their pre-divorce status after filing for divorce. They can now get married again. Divorce refers to the termination of a marriage's rights and duties.
India is a secular nation where many different religions are practiced openly. Marriages are solemnized in line with religious ceremonies and traditions, most of which are enshrined in statutory personal laws. Therefore, the personal laws of the spouses based on their religion, which are defined by statute, control matrimonial laws in India, including rules on marriage,
divorce, and other related matters.
In short, the Indian court system's secular outlook has led to the introduction of a number of personal laws based on various religious beliefs. In India, the laws governing marriage and grounds for divorce differ for Hindus, Christians, and Muslims.
According to Muslim law, the concepts of marriage and divorce were developed through ancient perspectives and from a historical perspective. In the Muslim world, it is seen as being so fundamental and sacred that Muslims believe it is unchangeable. Contrary to Hindu law, which views marriage as a sacrament, Islamic law views marriage as a civil contract. It is essential for the formation of the family, which is regarded as the basic unit of society.
Marriage is the sole halal or permitted method of establishing an intimate connection in accordance with Muslim law. The Quran (the holy book of Muslims), Sunna (precedent), Ijma (consensus), and Kiyas (analogical deductions) are the sources of creation of these personal laws, with the Quran serving as the principal source among these four.
Marriage between two people is the sole prerequisite for divorce in Islamic law. Muslim Law allows for a variety of forms and methods for dissolving a marriage. The Islamic law recognises two types of divorce. One is an extrajudicial divorce, while the second type is a legal/judicial divorce.
Talking about extra judicial divorce, there are around three categories of the same namely By husband- talaq, ila, and zihar
By wife- talaq-i-tafweez
In accord with each other/ Mutual agreement- khula and mubarat.
The next category is the judicial divorce through Dissolution of Muslim Marriages Act of 1939, which grants the woman the authority to grant a divorce.
1. Divorce by Husband-
In its metaphorical sense, talaq is to release or set free. Thus, it also refers to liberation from a connection known as marriage in terms of Islamic law. Additionally, this signifies the husband's legal divorce of the marriage. Free consent and capacity are two requirements for a legitimate talaq. The term "talaq" must be said with free permission, with the exception of Hanafi law. While a talaq made while under the influence, under duress, or through deception is also regarded as legal under Hanafi law. The term "talaaq" can be pronounced by any Muslim husband who has reached puberty and is of sound mind. As a result, no justification is necessary for the proclamation. whereas a husband who is old and infirm might find it difficult to say. There are two types of talaq, depending on how it is said and what it accomplishes.
According to the Prophet's traditions, Talaq-ul-Sunnat is recognised as an authorized form of Talaq (Sunna). Also referred to as Talaq-ul-Raje. Based on Muslim Personal Laws, this type of divorce. It is classified further into the following groups:
When the wife is free from her monthly cycle, the husband must announce the divorce in a single statement. Following a divorce, women must observe Iddat during which the husband is forbidden from engaging in any kind of sexual activity; if he does, the revocation of the talaq is impliedly revocable; otherwise, it is irrevocable. Even though the wife is having her period, this sort of talaq can be issued, but the couple must not be married as a result. It is the talaq that is most widely accepted.
A less favored variation of Talaq Ahasan is Hasan. There is a clause that allows for annulment of divorce. The word "talaq" must be said aloud three times at once. If the wife has not yet reached menstruation age, three announcements should be made in the three states of purity. If the woman has reached menstrual age, the announcement must be made 30 days apart from the previous announcements. If there are any sexual encounters within the three pronouncement period, the divorce will be revoked. This kind of divorce becomes final after the iddat time and is irrevocable.
This type of divorce exists. It is also referred to as triple talaq because it is irrevocable as soon as it is said three times. Only Sunni law recognises this type of divorce; Shias and Malikis do not. Parties are only permitted to remarry once the female spouse has performed nikah halala, which requires her to first marry another man before divorcing him.
Formalities of Talaq
Sunni Law's formalities-
Sunni law stipulates that a talaq may be issued orally or in writing (Talaqnama). To be considered a genuine Talaq, no particular formula or term must be used. To end a marriage by talaq, the husband only needs to make an outright declaration that he wants to divorce the wife. It is not necessary to make a talaq in front of the witnesses, whether it be verbal or written. Talaq without witnesses is legitimate in Sunni law.
Shia Law formalities-
The Talaq must be pronounced orally in accordance with Shia law, unless the spouse is mute. Shia law declares the Talaq null and void if the husband has the capacity to speak but provides it in writing. Talaq must be administered in the presence of two qualified witnesses, according to Shia law. Every Muslim guy who is of sound mind and
has reached puberty and is qualified to testify. However, two Muslim women over the age of 18 who are of sound mind may serve as witnesses in place of one man. Shia law declares null and unlawful any talaq made without witnesses or in the presence of unreliable witnesses.
Even though India does not use this sort of divorce. In this type of divorce, the husband has the authority to declare that he would forgo having sex with his wife. After making this declaration, the wife must observe iddat. The Ila is revoked if the husband cohabitates with the wife during this time. Divorce becomes final and irrevocable once the iddat time has passed.
This kind of separation is no longer common. Like Ila, it is a constructive divorce. In this type of divorce, the husband declares that his wife is similar to his mother or sister by equating her with a woman who has some sort of forbidden relationship with him, such as his mother or sister. The husband must be at least 18 years old and of sound mind in order to perform this. While the wife is free to pursue legal remedies like restitution of marital rights, cohabitation, etc., she is not allowed to pursue a legal divorce. By maintaining a two-month fast, feeding sixty people, and freeing a slave, the husband can annul such a divorce.
2. Divorce by wife
The spouse, who must be of sound mind and older than 18 years old, has the authority to give the wife this authority. This kind of talaq, which can be made between the parties before or after marriage, is also known as an agreement. The woman has the right to file for divorce if the conditions of the agreement are not met. There is no other option for a woman to
request a divorce. The husband's right to divorce his wife is unaffected; he retains the ability to make the divorce decision. Delegated divorce is yet another name for it.
3. Divorce by Mutual Agreement
It literally means to "laid down," as in when a husband cedes control of his wife. The husband and wife must agree to this, and the wife must pay the husband compensation from her property in exchange for her release. For the benefit of her husband, the wife releases Mehr and other rights. So, the woman buys a divorce from the husband. The wife makes a proposal, which the husband accepts. After Khula, women are obligated to observe iddat.
Judicial Committee's definition of khula in Moonshee-Buzlu-ul-Raheem v. Lateefutoonissa, A divorce by khula is one where the wife initiates it and gives or agrees to give the husband anything of value in exchange for her release from the marriage contract. In place of remuneration given by the wife to her husband from her property, it denotes an agreement made for the purpose of ending a connubial relationship. Khula is actually a divorce right that the wife has acquired from her husband.
It signifies "release" and absolves the parties of their marriage obligations. Divorce is a legal separation of two people by agreement of both parties. Similar to Khula, where there is an offer from one side and an acceptance from another, it has similar requirements. Iddat must be observed by women. Another method of annulling a marriage contract is mubarat. It represents a mutual release from the marital claims. In Mubarat, there is a mutual antipathy and a desire for separation. This means that mutual consent is a factor. The offer in this type of divorce could come from the husband's or the wife's side. When a Mubarat offer is accepted, a talaq-ul-bain (irrevocable divorce) results, necessitating iddat.
4. Muslim Dissolution of Marriage Act of 1939 judicial divorce
This kind of divorce happens when a spouse accuses his wife of adultery on fraudulent grounds. In accordance with the Muslim Dissolution of Marriage Act of 1939, she may ask the court to initiate a standard divorce action. False accusations of infidelity against the wife, his spouse, must be the basis for the divorce. The husband imposing the charge must be mentally sound and older than 18 years old. Marriage cannot be dissolved until the court has granted the necessary dissolution degrees; once granted, divorce cannot be reversed. Before the court issues the decision, the husband has the option of retracting the false accusation of infidelity against the wife.
Personally, in my opinion all parents value their children above all else, therefore males in particular need to restrain themselves from ending their marriages over little transgressions by women and treat their wives with respect.
In order to maintain our stability and prevent these happiness losses while following the path of Islam, we should modify our lifestyles toconform to Islam. To have a happy life, both men and women must have confidence inthemselves and must work to retain that confidence. If there are any questions, they must bediscussed and settled by both. If a serious problem arises, it is the elders' responsibility to finda solution. Because we are Muslims, our success depends on our adherence to Allah's and theProphet Muhammad's teachings. To conclude, a husband and wife need to establish a strongmarriage in order to get a decent family relationship. Islam thus requires that marriage mustcontinue. They advise against violating a marriage contract. Additionally, the only time adivorce can occur in a Muslim marriage is when both parties agree. In accordance withMuslim law, there are numerous ways to conduct a marriage ceremony and file for divorce todissolve a marriage and also several legislation have been introduced by the Government ofIndia to address the needs of evolving circumstances in addition to Muslim personal laws.These laws regulate Muslim marriage and divorce. To reinforce national unity and integrity,there is a need for the Uniform Civil Code in addition to these laws and personal regulations.This will result in a single set of rules that apply to all inhabitants of the country.
This article is written by Adisree Telem of Amity Law School, Noida.