DISSOLUTION OF MUSLIM MARRIAGE (DIVORCE/TALAK)
INTRODUCTION:
The Pre-Islamic Arabs had unlimited power to give divorce to their wives at any time without giving any reason. They used to revoke divorce and then again divorce their wives as many times as they liked. However, the Prophet of Islam disapproved of these practices and warned people not to do things that would ultimately result in breaking down of marriage. Prophet Mohammed regarded divorce as ‘the worst of all permitted things. He asked people to use divorce as the last and necessary action in one’s matrimonial life. He advised if a couple eventually resorts to divorce then it must happen quietly and privately so as to discourage others from imitating them.
CLASSIFICATION OF DIVORCE:
A. DIVORCE BY THE DEATH OF THE SPOUSE-
Marriage comes to an end with the death of the husband or the wife. If the husband dies then the widow cannot remarry till the expiry of her period of iddat or if she is pregnant then till her delivery. This is to determine the father of her child. However, the husband can marry immediately after the death of his wife.
B. DIVORCE BY THE ACT OF THE PARTIES-
BY THE HUSBAND–
a. TALAK– Any Muslim man who is of sound mind and who has attained the age of puberty can divorce his wife by giving her talak either orally or in the form of a written document called talaknama. It must be noted that if the talak is given orally no proof of intention is required provided the words are expressed or Saheeh implies divorce. However, the intention must be proved if the words are ambiguous. A husband can divorce his wife even in her absence and divorce becomes binding on the wife when it comes to her knowledge and also has to observe iddat.
Different modes of talak by the husband are as follows-
1. Talak Ahsan– This is the most proper and approved form of talak by the husband to his wife. It consists of a single pronouncement of the word divorce or talak by the husband in a period of tuhur meaning purity when the wife is free from her menstrual courses. Further, the husband immediately abstains from having intercourse with his wife during the period of iddat. The husband can revoke divorce during the period of iddat. After the completion of the iddat, the divorce becomes complete and irrevocable. Revocation of divorce may be expressed or implied. Resumption of conjugal intercourse during the period of iddat revokes divorce.
2. Talak Hasan– This consists of three successive pronouncements of the word talak during three consecutive periods of tuhur or purity when the woman is free from her menstrual courses. Further, it must be noted that each of the three pronouncements of talk should have been made when no intercourse has taken place between the husband and the wife during that period of purity. Moreover, in talak Hasan divorce becomes complete and irrevocable on the third pronouncement irrespective of iddat.
3. Talak-ul-biddat– It means the husband makes three pronouncements of talak at one go either in one sentence or in separate sentences or a single pronouncement made during tuhur. As the name signifies talak-ul-biddat is an irregular mode of divorce and becomes irrevocable immediately after it is pronounced irrespective of iddat. This form of talak is common in India.
b. ILA (Vow of Continence)- In Ila, the husband first swears in the name of Allah that he will not have sexual intercourse with his wife and secondly he abstains from it for a period of four months. Then the divorce becomes effective. So, this abstinence is in pursuance of a vow taken by the husband. Ila may be revoked by the husband if he wants to within those four months.
c. ZIHAR (Unlawful Comparision)- It means the husband makes an unlawful comparison of his wife with his mother, sister, or any other woman within the prohibited degree of relationship. The holy Quran prohibits such type of unlawful and unethical comparison and if such comparison is made by the husband the marriage itself gets converted into a divorce. In such a case the wife has a right to refuse sexual intercourse with the husband until he performs penance.
BY THE WIFE-
a. TALAQ-E-TAFWEEZ (Delegated divorce)- In this form, the husband delegates his power to divorce either to his wife or any other person either absolutely or subject to some condition. The husband asks his wife to repudiate herself and the wife can do so within the time stated by her husband. The husband can so delegate his power of divorce to his wife either before or after marriage by making an agreement with his wife that if the husband fails to fulfill his matrimonial duties towards his wife then she has the right to give him Talak-e-Tafweez.
b. DIVORCE BY MUTUAL CONSENT– Here, the divorce is initiated by one party to the marriage as an offer and is accepted by the other party mutually.
Divorce by mutual consent is of two types-
KHULA– The wife due to her unwillingness does not want to continue with her marriage wants to take divorce she may obtain release from the contract of marriage either by giving up her dower, money, or any other property. This is called Khula. The husband in such a case may accept or refuse to grant a divorce upon consideration of a dower. If the wife fails to pay the consideration of Khula then the husband can claim a release of dower or the money or property due under Khula. In Khula, consent should be given in clear and definite words. ‘Khulanama’ is a deed of release or document of release.
Mulla- Khula is only at the instance of wife and the husband cannot propose Khula.
MUBARA’AT- When the divorce effected by mutual consent is proposed by the husband and is accepted by the wife it is called Mubara’at. Here, there is the mutual consent of both the husband and the wife. They free each other mutually from the contract of marriage.
Khula and mubara’at are irrevocable forms of divorce. In both cases, the wife has to observe iddat and she is entitled to maintenance during her iddat.
C. DISSOLUTION OF MARRIAGE BY JUDICIAL PROCESS– This kind of divorce is executed with the help of a decree of a court.
Following are the modes of taking divorce by the judicial process-
1. LIAN (False charge of Adultery)- In Lian, the wife can sue her husband for divorce on the ground that he has falsely charged her with adultery. The husband is not able to prove his allegation of adultery against his wife. In the suit’s hearing, the husband has two alternatives. Firstly, the husband may retract the charge of adultery before the end of the trial then the wife could not get a divorce. Secondly, the husband may stand strong with his accusation and will be asked to accuse his wife on oath. After this, the wife also takes an oath of innocence. If the husband proves his charge of adultery against his wife then the wife’s action for divorce fails.
2. FASKH (Judicial Annulment)- In Faskh the court of law has the power to annul a marriage on the wife’s application. In India, Section 2 of the Dissolution of Muslim Marriage Act, 1939 governs such judicial annulment of marriage.
This Act lays down the grounds on which the courts of law can grant a decree of divorce to a wife-
i) The wife has no knowledge of the husband’s whereabouts for four years
ii) Husband fails to provide maintenance to the wife for two years
iii) Husband is imprisoned for seven years or more
iv) Husband is impotent at the time of marriage and continues to be so even after the marriage
v) Husband fails to perform his marital obligations towards his wife for three years without any reasonable cause.
vi) Husband has been insane for two years or is suffering from leprosy or any viral venereal disease.
vii) If the wife repudiates her non consummated before she attains 18 years when she was married by her father or any guardian before 15years
viii) Husband treats his wife with cruelty by habitually assaulting her, establishes an unlawful relationship with a woman of evil reputation, forces his wife to live an immoral life, disposes of her property or does not let her use it, obstructs her in professing her religion, does not treat his wife equally if the husband has more than one wife.
ix) Any other ground recognized by Muslim Law.
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