By Vaidehi Sharma, a student of BALLB at Mohanlal Sukhadia University
Introduction
Divorce, known as talaq in Islamic law, is a significant aspect of family law within the Muslim community. The Islamic legal system, based on the principles laid down in the Quran, Hadith (sayings of Prophet Muhammad), Ijma (consensus of scholars), and Qiyas (analogical reasoning), provides specific guidelines and rules governing the dissolution of marriage. Although marriage in Muslim Lawmatrimony is a civil contract, the husband usually enjoys special privileges and the wife suffers corresponding disabilities. No Muslim marriage (either among Sunnis or Shias) is ‘permanent’ in the sense that a Christian or a Parsi marriage is, for the husband may divorce the wife at any time he likes. The wife remains at her husband’s mercy owing to polygamy and the inequality of the law of divorce. He may divorce her even if there was a promise on his part not to exercise the power of divorce. Thus, the institution of talaq has been described as a one-sided engine of oppression in the hands of the Muslim husband.
Another remarkable feature of Muslim law of divorce is that in most cases no judicial or non-judicial authority is needed to effect dissolution of marriage. Judicial divorce was introduced in 1939 by the Dissolution of Muslim Marriages Act and under the Act only wife can sue for divorce. However, unlike the husband, she has to prove the grounds for obtaining the divorce.”
Types of Divorce in Muslim Law
Muslim law recognizes several forms of divorce, which can be broadly categorized into three main types om the basis of its pronouncement Thus, Talaqis a divorce initiated by the husband), The wife can initiate Khula, the second type of divorce, and lastly mutual divorce with the consensus of both husband and wife widely known as Mubarat. Each type of divorce under the Mohammedan Law has its procedures and conditions.
1. Talaq
Talaq is the most common form of divorce under Muslim law and is primarily initiated by the husband. There are various forms of talaq, each with its own legal implications: There are some essentials of Talaq that need to be complied with otherwise the talaq will not be valid. These essentials are:
- No particular form of words is prescribed under the Muslim Literature for the pronouncement of talaq. Thus, it should be intimidated through some clear words that reasonably resemble the pronouncement of a divorce.
- It is not necessary that the pronouncement be done only in the presence of the wife or addressed to her. But it is a prerequisite that the pronouncement must be referred to the wife.
- Under Muslim law, the dower becomes payable on divorce, and the wife has to undergo the period of iddat. The pronouncement of divorce must be communicated to her.
- Only marriages performed according to the Shriati.e. nikah can be dissolved by Talaq. A marriage performed in any other manner cannot be dissolved by talaq.
Talaq-e-Sunnat:
This form of talaq is considered the most appropriate and follows the principles of the Quran and Hadith. It means talaq as per Sunnat or the traditions of Prophet Mohammad. It is further divided into two types:
- Talaq-e-Ahsan: In this form, the husband pronounces talaq(I divorce you) once during a period oftuhr (when the wife is not menstruating) and abstains from sexual relations during theiddat period (waiting period). The marriage is dissolved if reconciliation does not occur during iddat. This form is revocable during iddat and is the most recommended in Islamic law.
- Talaq-e-Hasan: The husband pronounces talaq three times during three consecutive tuhrs(period during menstruation or period of purity).The marriage is dissolved after the third pronouncement. This form is also revocable until the third pronouncement, allowing for reconciliation.
Talaq-e-Biddat (Triple Talaq):
It means talaq which, though valid, is sinful or irregular. It is widely criticized by various scholars for being hasty and unusual form. It has two forms: triple divorce or three declarations at one time, and one irrevocable declaration. The Shias do not recognize talak-ul-biddat.
- Triple talaq – It consists of three pronouncements in a single tuhr either in one sentence (“I divorce thee thrice”) or in three separate sentences (“I divorce thee, I divorce thee, I divorce thee”). Talak becomes irrevocable immediately it is pronounced, irrespective of the Iddat. As the talak becomes irrevocable at once, it is called talak-i-bain i.e. irrevocable talak.
- Single irrevocable declaration – It consists of a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage e.g. “I divorce thee irrevocably” or “I had divorced thee in talak-ul-biddat or talaq-i-bain” [here the use of the expression “bain” (irrevocable) manifests of itself the intention to effect an irrevocable divorce].
The Supreme Court of India declared talaq-e-biddat unconstitutional in 2017, in the case of Shayara Bano v. Union of India[1] which led to the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalized the practice.The five-judge bench, consisting of Chief Justice Jagadish Singh Khehar, Justice Abdul Nazeer, Justice Rohinton Nariman, Justice U.U. Lalit, and Justice Kurian Joseph, ruled 3:2 in favor of the decision.
Differences between Sunnis and Shias in the matters of Talaq
Divorce under Shias and Sunnis differ on some points relating to the presence of witnesses etc.
Difference as to formalities: To elaborate Sunnis do not prescribe any formalities for talaq. However, under the Shias, the pronouncement shall be made orally in Arabic language in the presence of two competent witnesses. Shias prescribes no such rule i.e. presence of a competent witness is not necessary.
Difference as to compulsion etc: As regards to pronouncement of divorce under compulsion or under the influence of intoxication, the Sunnis consider it a valid pronouncement on the other hand the Shias have a different take on such pronouncement. They do not recognize such pronouncement made under compulsion or intoxication either voluntarily or otherwise.
Talaq-E-Tawfweez:Although the power to pronounce a talaq rests with the husband yet he may delegate this power to his wife or any third party to pronounce a talaq on his behalf. The person to whom the power is delegated may then pronounce a talaq which shall be valid. However, it is notable that temporary delegation of this power is irrevocable but temporary delegation may be revoked. Power doesn’t need to be delegated before marriage. It may be delegated after the marriage or it may be contingent on the happening or non-happening of a certain event.
2. Khula
Khula is a form of divorce initiated by the wife, where she offers compensation to the husband in exchange for her release from the marriage. The words khul or ahul or khula mean “to put off.” It is the laying down by a husband of his right and authority over his wife for an exchange (redemption). A divorce by khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give consideration (give up her dower or give to her husband some other property or rights) to the husband for her release from the marriage tie (“divorce by purchase”). Failure on the part of the wife to pay the consideration for the divorce does not invalidate the divorce, though the husband may sue the wife for it.
Once the wife’s offer is accepted, it operates as a single irrevocable divorce (talak-i-bain), and its operation is not postponed until the execution of the khula-nama. Once the husband accepts the khula, he has no power of revocation, but the wife may at any time during the iddat re-claim consideration, and if she does so, the husband may revoke the khula.
It may be noted that in khula, though the divorce is given at the instance of the wife, the act of divorce is an act of the husband only, as much as it would be in ordinary talaq. The Pakistan Supreme Court has held that under Muhammad law, the wife is entitled to khula “as of right” if she satisfies the court that it would otherwise mean forcing her into a hateful union as was held in Khursheed Bibi v. Mohd. Amin[2].The husband must accept the compensation for the divorce to be valid. Khula is based on mutual consent and is recognized as a woman’s right to seek separation if she finds it impossible to continue the marriage.
3. Mubarat
The wordMubaratimplies freeing each other with mutual consent. It is a form of divorce by mutual consent, where both husband and wife agree to dissolve the marriage. In mubarat, either of the spouses can the offer of divorce and once accepted by the other it becomes effective.It is somehow similar to khula but differs in that both parties desire separation, whereas khula is initiated by the wife.
Difference between Khula and Mubarat
Both these forms prima facie look similar but they are different in operation. The main point of difference is that in Khula only the wife can initiate divorce on the other hand Mubarat may be initiated by either party. In Khula the wife has to pay compensation or give up her dower, nothing as such is required under Mubarat. However, the wife has to observe the period of iddat in both these forms i.e. Khula and Mubarat.
Legal Reforms and Impact of Modern Law
Over time, several legal reforms have been introduced to address the issues and challenges related to divorce under Muslim law. These reforms are aimed at protecting the rights of women and ensuring justice in marital disputes.
The Muslim Women (Protection of Rights on Divorce) Act, 1986
The enactment of this act was a significant milestone in protecting the rights of divorced Muslim women in India. The act was introduced in response to the Shah Bano case[3], where the Supreme Court of India awarded maintenance to a divorced Muslim woman under Section 125 of the Code of Criminal Procedure. The act provides for maintenance during the iddat period and makes it the responsibility of the relatives or the Waqf Board to maintain the woman after the iddat period.
The Muslim Women (Protection of Rights on Marriage) Act, 2019
As mentioned earlier, this act was introduced to criminalize the practice of talaq-e-biddat (triple talaq) which was held to be violative of Articles 14, 15, 21, and 25 and was held to be unconstitutional. The act made the pronouncement of instant triple talaq a cognizable and non-bailable offense, punishable with up to three years of imprisonment along with a fine as the court may deem fit. The act also provides for the protection of the rights of divorced women, including custody of minor children and maintenance.
Judicial Pronouncements
The judiciary has played a crucial role in shaping the modern understanding of divorce under Muslim law. Several landmark judgments have emphasized the need for fairness, justice, and gender equality in the interpretation and application of Islamic law. The courts have played an active role in modernizing Muslim Law and recognizing the rights of Muslim women. For instance, the court invalidated the practice of triple talaq, provided for the maintenance of Muslim women under section 125 of CrPC.
Conclusion
Divorce under Muslim law is a complex and multifaceted issue that involves a delicate balance between religious principles and modern legal norms. While Islam permits divorce, it encourages reconciliation and considers it a last resort. The various forms of divorce, such as talaq, khula, and mubarat, offer different avenues for dissolving a marriage, each with its conditions and procedures.
Legal reforms and judicial interventions have played an important role in addressing the social challenges and protecting the rights of women in cases of divorce. However, the journey towards gender equality and justice in the context of Muslim divorce law is ongoing.
[1]Writ Petition (C) No. 118 of 2016
[2]P.L.D. 1967 SC 97
[3]Mohammad Ahmed Khan v. Shah Bano Begum [(1985) 2 SCC 556]
