Marriage under Muslim Law: Restitution, Divorce, Iddat, and Mahr

INTRODUCTION

Marriage under Muslim law includes restitution of conjugal rights, divorce (talaq), iddat, and mahr (dower). These aspects reflect cultural and religious nuances governing marital relationships. The right to restitution of conjugal rights stresses cohabitation and mutual obligations. It reinforces the importance of maintaining marital unity. Talaq highlights the differing rights and responsibilities of husbands and wives in ending a marriage. Muslim law does not provide a comprehensive statutory basis for all matters. Instead, it relies on cultural and religious principles. These principles shape the intricate framework of marriage in Islamic jurisprudence. Understanding these elements is crucial for grasping the complexities of Muslim family law and its impact on individuals and society.

RESTITUTION OF CONJUGAL RIGHTS

The Muslim law does not specifically statutorily provide for the matrimonial relief of restitution of conjugal rights. However, ‘where a wife, without lawful cause, ceases to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights,’[i] and similarly, ‘the wife has the right to demand the fulfilment by the husband of his marital duties.’[ii] Generally, however, it is the husband who brings the suit for restitution because of the dominant position of the husband, especially in regard to divorce. His right is not absolute, and the wife has her defenses where a husband files a suit for restitution. Marriage under Muslim law grants both spouses certain rights and obligations, but the husband’s dominance often influences the legal proceedings.

Cruelty is a very strong defense. In Moonshee Buzloor Ruheem v. Shumsoonnissa Begum [iii], the Court held that a suit for restitution of conjugal rights would lie in a civil court by a Muslim husband to enforce his marital rights; but if the husband’s cruelty reached a degree that rendered it unsafe for her to return to his dominion, or if he grossly failed to perform the obligations imposed on him by the marriage contract, the court would justify refusing such relief. Such legal interpretations highlight the intricacies of marriage under Muslim law, balancing the husband’s rights with the wife’s protections.

False Charge of Adultery

A false charge of adultery by a husband against his wife provides a good ground for the court to refuse a decree of restitution. However, if the charge is true and the husband made it at a time when the wife was actually living in adultery, then it does not provide a ground for refusing the decree on the husband’s petition.

Expulsion of the husband from the caste is another valid defense for the wife to resist the husband’s suit for restitution. A wife is not bound to live with him in such a case. The principles governing marriage under Muslim law ensure that while a husband can seek restitution, the wife retains her right to defend herself against unjust demands.

TALAQ (DIVORCE) IN MARRIAGE UNDER MUSLIM LAW

A contract of marriage under the Muslim law may be dissolved:

1. By the husband at his will, i.e., talaq;
2. By the wife under a power delegated to her, i.e., talaq-e-tafweez;
3. By mutual consent of the husband and wife, i.e., khula and mubara’at; and
4. By judicial decree under the Dissolution of Muslim Marriages Act, 1939.

Talaq

Talaq in its original sense means repudiation or rejection, but under Muslim law, it means a release from the marriage tie. It serves as a generic name for all kinds of divorce but particularly applies to the repudiation by or on behalf of the husband. Any Mohammedan of sound mind, who has attained puberty, may divorce his wife whenever he desires, without assigning any cause.[iv] A talaq pronounced under compulsion or intoxication or fraud is also effective under Sunni law [v] but void under Shia law. [vi]

A husband may effect a talaq either orally, by spoken words, or through a written document called talaqnama. Islamic law does not prescribe any particular form of words for effecting a talaq. Unlike the husband, a wife has no absolute right to divorce her husband. She can, however, seek a divorce under certain conditions and grounds through a court.

Prior to the Shariat Act, i.e., the  Muslim Personal Law (Shariat) Application Act, 1937, the wife could sue the husband for divorce on the following grounds, viz.:

Grounds to Sue Husband

1. Impotence: it had to be proved that:
   1. The wife was a virgin at the date of filing the suit;
   2. The husband was impotent at the time of marriage;
   3. The wife had no knowledge of his impotency at the time of marriage; and
   4. The husband could not consummate the marriage during the one year in which the court adjourned the case.
2. Li’an, i.e., false charge of adultery.

After the Shariat Act of 1937, the strict Mohammedan law recognized ila, i.e., the vow of continence followed by actual abstinence for four months, and zihar as good grounds for judicial divorce at the instance of the wife. The wife’s right on these grounds was, however, not enforced by Indian courts. Section 2 of the Shariat Act, 1937, does not recognize ila and zihar as grounds for divorce.

The legislature passed the Dissolution of Muslim Marriages Act, 1939, to consolidate and clarify the provisions of Muslim law and to remove doubts about the effect of a married Muslim woman’s renunciation of Islam on her marriage tie. The following are the grounds on which a woman married under the Muslim law is entitled to obtain a decree of dissolution of her marriage.

Grounds to Obtain Decree of Dissolution

1. The whereabouts of the husband have not been known for a period of four years. However, a decree passed on this ground will not take effect for a period of six months from the date of such decree. If the husband appears either in person or through an authorized agent within that period and satisfies the court that he is prepared to perform his conjugal duties, the court will then set aside the decree.
2. Failure of the husband to provide for the maintenance of the wife for a period of two years.
3. Sentence of imprisonment on the husband for a period of seven years.
4. Failure without reasonable cause to perform marital obligations for a period of three years.
5. Impotence of the husband at the time of the marriage and continuing. However, on an application by the husband, the court shall make an order requiring the husband to satisfy the court within one year from the date of such order that he has ceased to be impotent; if the husband so satisfies the court within such period, a decree on this ground cannot be passed.
6. Insanity of the husband for two years, or that he is suffering from leprosy or a virulent venereal disease.
7. Repudiation of Marriage under Muslim Law by the wife.

The husband is treating the wife with cruelty; that is to say:

• Husband Treating Wife with Cruelty

Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

Associates with women of evil repute or infamous life, or

Attempts to force her to lead an immoral life, or

Disposes of her property or prevents her exercising her legal rights over it, or

Obstructs her in the observance of her religious profession or practice, or

If he has more than one wife, he does not treat her equitably in accordance with the injunctions of the Quran.

Any other ground that Muslim law recognizes as valid for the dissolution of marriage.

IDAT IN MARRIAGE UNDER MUSLIM LAW

When death or divorce dissolves a marriage, Islamic law prohibits the woman from marrying within a specified time. This is known as iddat. It imposes a period of continence on the woman. The purpose of iddat is to ascertain whether the woman is pregnant and to avoid any confusion as to paternity. The death or divorce of the husband could dissolve a marriage. The period of iddat in these situations is as follows.

1. Death—in the case of a woman who is pregnant at the time of her husband’s death, the period of iddat is four months and ten days, or until delivery, whichever period is longer.
2. Divorce—if the woman is subject to menstruation, the period of iddat upon divorce is three courses; if the woman is not subject to menstruation, the period of iddat is three lunar months.

If death dissolves the marriage, the period commences from the date of death; in the case of divorce, it commences from the date of divorce. If the information of the husband’s death or divorce does not reach the wife until after the expiration of the period of iddat, then she is not bound to observe the iddat. If death dissolves the marriage, the wife must observe iddat, whether there has been consummation or not.

MAHR (DOWER) IN MARRIAGE UNDER MUSLIM LAW

Mahr or dower is a sum of money or other property that the wife is entitled to receive from the husband in consideration of the marriage. Scholars generally define dower as consideration for a marriage contract. Marriage under Muslim Law is a civil contract and dower is an essential part of it. The various kinds of dower are:

1. Specified Dower
2. Prompt Dower
3. Deferred Dower
4. Proper Dower

CONCLUSION

Muslim matrimonial law presents a unique perspective on marriage, emphasizing both rights and responsibilities within the marital framework. The provisions regarding restitution of conjugal rights, divorce, iddat, and mahr illustrate the balance of power and the legal recourse available to both husbands and wives. Despite the challenges and evolving interpretations of these laws, they continue to play a significant role in the lives of Muslim families, reflecting deep-rooted traditions and contemporary societal dynamics. As society progresses, ongoing discussions and reforms in Muslim family law remain essential to ensure justice and equity for all parties involved.

[i]Mulla, Principles of Mohammedan Law, 1972.

[ii] Fyzee, Outlines of Mohammedan Law, 1974.

[iii] Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, (1867) 11 MIA 551.

[iv] Mulla, Principles of Mohammedan Law, 1972.

[v] Ibrahim v. Enayetur, (1869) 4 Beng LR 13.

[vi] Baille, II.