INTRODUCTION
Under Muslim law marriage (i.e., nikah) is recognized as a civil contract, which is made between two parties to legalize the cohabitation between a man and a woman. The concept of divorce under Muslim law is expressly recognized to terminate from the institution of marriage. In pre-Islamic Arabia, the husband has the ultimate and exclusive power to give divorce to his wife. He can give divorce to his wife without a valid reason or the acknowledgement of his wife. Moreover, he has the power to revoke the divorce and can retake it. It was after the prophet Muhammad (the messenger of the word of God through the divine revelations) of Islam, that the condition of women started improving. For the prophet, it was impossible to change the existing culture and tradition of that time but still, he started convincing the people and brought significant changes and development. He gave rights to the husband for taking divorce but put restrictions at the same time. He abolished the practice of taking unlimited divorce and gave certain rights to women as well to take divorce from their husbands. Earlier women didn’t possess any rights but it was after the advent of the prophet Mohammad that women got the power to seek separation on some reasonable grounds.
In the present time, there are 4 major categories of divorce under Muslim law which include: from the husband’s side, from the wife’s side, by mutual consent, and by judicial process.
FROM THE HUSBAND’S SIDE
The husband can take divorce (talaq) through Talaq-ul-Sunnat, Talaq-ul-Biddat, Ila. Talaq-ul-Sunnat[1] is the most approved form of divorce approved by the prophet himself and further divided into Ahsan and Hasan. Ahsan is the most approved form of divorce where the husband makes pronouncement of the word talaq only for 1 time but the wife must be in the period of purity (i.e. tuhr) which means free from the menstrual cycle., on the other side Hasan is a less approved form of divorce where the husband makes a pronouncement of the word talaq 3 times at an interval of every 1 month for 3 months. Talaq-ul-Biddat[2] is commonly known as triple talaq, which is disapproved by the Prophet Muhammad and is a sinful form of divorce. In this form, the husband pronounces the word talaq, three times and it becomes irrevocable immediately. This divorce form is only recognised under Sunni law but not Shia law. Immediately after this, the “Doctrine of Halala” came into existence. In India, after the judgment of Sharaya Bano v Union of India and another[3], talaq-ul-biddat became unconstitutional the court held that it is a violation of the fundamental rights of Muslim women. Ila means vow of continence, it is a form of divorce where the husband swears that he will not have a sexual relationship with his wife and abstains from doing it for 4 months. On this ground, the husband can take divorce if he has not consummated his marriage. If the husband cohabits during this period then the ila is revoked. This form of divorce is not practised in India.
FROM THE WIFE’S SIDE
The wife can get a divorce through Talaq-e-Tafweez and Zihar. Talaq-e-Tafweez is also known as delegated divorce, in this type of divorce there is an agreement between husband and wife before or after marriage where the husband delegates to his wife something and if the husband breaks that promise then the wife has the right to take divorce. The delegate must be made with clear terms and conditions, where the wife can exercise her rights if the husband fails to fulfil his promise. Zohar is also known as an injurious comparison, where the husband makes a comparison of his wife with his mother or sister or with any female who comes under the prohibited degree of relationship[4]. In such cases, the wife has the right to take a divorce because the husband intends to disrespect his wife.
MUTUAL CONSENT
Under mutual consent, both can take divorce through Khula and Mubarak. Khula means ‘laying down’. In this, the wife seeks divorce from his husband and for that, she has to consider this husband’s. The husband has the discretion to accept the consideration of dower and grant a divorce to the wife. Both husband and wife mutually end their relationship. In this case, the women has to observe the iddat period after khula[5]. The consideration can be of anything i.e. money, dower, property and if the wife fails to give consideration then that doesn’t mean it will invalidate the divorce. ‘Mubarat’ means release or discharge from matrimonial obligations. It is similar to khula and in this, there is offer and acceptance, where any one party seeks divorce and the other party accepts the offer. In this, no consideration is required and immediately after the divorce, the woman is required to observe his iddat period.
JUDICIAL PROCESS
Under the judicial process also two concepts are there i.e., through Lian and Fasakh. Under Lian wife can take divorce if the husband has put false allegations of adultery against his wife. Under the Muslim, Dissolution of Muslim Marriage Act, 1939 woman can go to court and file for divorce as her husband has put false charges of adultery on her but the wife must be sane and above 18 years of age. Under section 2 of The Dissolution of Muslim Marriage Act, 1939[6], Muslim women can seek divorce. Section 2 has laid down 8 grounds for Muslim women to file for divorce which include; a husband not known for 4 years, failure to maintain her wife for 2 years, sentenced to imprisonment for 7 years, a husband treating her with cruelty, such as physical assault, making defamatory statement, etc.
CONCLUSION
Muslim laws are not codified yet but still, they held their significance for so many years. With the change in time and society, they are also modified like in the case of triple talaq in 2017 but the basic features are not been changed since now. It was the contention of the prophet to give basic rights of divorce to the women also. Therefore, the declaration of the Supreme Court is accepted as giving equal status to both men and women. From ancient times divorce under Muslim law was not regarded as a sinful act, the prophet himself thought that if the relationship between the husband and the wife was not good then they could seek divorce.
Author(s) Name: Gursimar Kour Sudan (Lovely Professional University)
Reference(s):
[1] Tripaksha, ‘TYPES OF TALAQ/ DIVORCE IN ISLAM/ MUSLIM LAW’ (Jus Corpus, 25 January 2023) <https://tripakshalitigation.com/types-of-talaq-under-muslim-law/> accessed on 02 February 2024
[2] Ibid
[3] Shayara Bano vs Union Of India And Ors. (2017) 9 SCC 1 (SC)
[4] Aman Gupta, ‘Divorce Under Muslim Law: The Concept’ (Legal Service India,2022)< https://www.legalserviceindia.com/legal/article-5479-divorce-under-muslim-law-the-concept.html > accessed on 2 February 2024
[5] Ibid
[6] Dissolution of Muslim Marriage Act 1939, s 2
