According to Islamic law, marriage and divorce emerged from both historical and ancient perspectives. The formation of these personal laws was motivated by the Quran, the Muslim religion's holy book, the Sunna, earlier rulings, the Ijma, and analogical reasoning, with the Quran serving as the primary source.
The present Muslim Law of marriage and divorce has been influenced by these ideas, traditions, precedents, Ijtihad (independent individual reasoning based on justice, equity, and good conscience), and laws.
Types of Divorce under Muslim Laws
In Muslim law, divorce can be categorized into two main types: extra-judicial divorce and judicial divorce. Extra-judicial divorce includes methods such as Talaq-ul-Sunnat, Talaq-ul-Biddat, Talaq-e-Tafweez, Khula, and Mubarat, where divorce is initiated directly by the parties involved. These methods reflect various scenarios of marital dissolution based on Islamic principles. On the other hand, judicial divorce operates under the Muslim Dissolution of Marriage Act, 1939, offering a legal framework for dissolution. This act addresses specific grounds and procedures for divorce
Husband-led divorce in Muslim
The four methods a husband can grant divorce are as follows.
Talaq-ul-Sunnat
Based on Muslim Personal Laws, this type of divorce is. It is classified further into the following groups:
Ahsan
- When the wife is not in her monthly cycle, the husband must announce the divorce in a single statement.
- If a woman divorces her husband, she must observe Iddat, during which time he is not permitted to engage in any sexual activity. If he does, the talaq is impliedly revoked; otherwise, it is irrevocable.
- This kind of talaq can be given even when the wife is menstruating, but the pair must not be married as a result.
- It is the talaq that is most widely accepted.
Hasan
- It is an unpopular variation of Talaq Ahasan.
- There is a clause that allows for the 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.
Talaq-ul-Biddat
- This unsavory/sinful divorce exists.
- It is also referred to as triple talaq because it is irrevocable as soon as it is said three times.
- Shia and Maliki law does not recognize this sort of divorce; only Sunni law does.
- 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.
- According to the Supreme Court's ruling in Shayara Bano v. Union of India and Others, this kind of divorce is unlawful in India.
Ila
- In this type of divorce, the husband can declare he would forgo 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.
- In India, this kind of divorce is not common.
Zihar
- 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 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.
- This kind of separation is no longer common.
Wife-led Divorce in Islam:
Under Muslim, a wife also has the ability to initiate divorce through below methods.
Talaq-e-Tafweez
- It also goes by the label of "delegated divorce."
- 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 decide on divorce.
Muslim Divorce Laws by Mutual Consent
Muslims can seek divorce by mutual consent through two distinct methods: Khula and Mubarat.
Khula
- The word's precise meaning is "laying down," as when a husband relinquishes 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 her husband.
- The wife makes a proposal, which the husband accepts.
- Women must observe iddat following Khula.
Mubarat
- It denotes "release" and frees the parties from their marital responsibilities.
- 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.
- Women must observe Iddat.
Divorce by Muslim Dissolution of Marriage Act,1939
The Muslim Dissolution of Marriages Act, 1939, governs the grounds and procedures for divorce among Muslims in India. "Lian" and "Faskh" are distinct concepts within Islamic family law that pertain to different aspects of marriage and divorce.
Lian
- This kind of divorce happens when a spouse accuses his wife of adultery on fraudulent grounds.
- She may seek the court to begin a traditional divorce action under the Muslim Dissolution of Marriage Act of 1939.
- 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.
- A divorce cannot be reversed once the court has approved it and the requisite dissolution degrees have been given.
- Before the court issues the decision, the husband can retract the false accusation of infidelity against the wife.
Faskh
- If a husband and wife believe their relationship is incompatible, they may apply for divorce.
- The Dissolution of Marriage Act, 1939's Section 2 lists the reasons a wife may file for divorce.
- The husband's whereabouts had been unknown for four years.
- The husband has neglected the wife for the past two years.
- The husband received a sentence of at least seven years in prison.
- The husband has neglected his three years of marital responsibilities without good reason.
- The husband has no sperm.
- The husband has leprosy, a severe venereal illness, or is insane (has been for two years).
- Being married before the age of 15, the wife rejects the legality of marriage after turning 18 as long as it is not consummated.
- Her husband abuses her physically and oppresses her. Creating false claims that harm her reputation, etc.
Grounds of Divorce under Muslim law
The Dissolution of Muslim Marriages Act, 1939, outlines several grounds on which a Muslim woman has the right to seek divorce in India. These grounds are as follows:
- Desertion: The husband has been missing for four years.
- Failure to Provide Maintenance: The husband has not provided for her maintenance for two years.
- Imprisonment.: The husband has been sentenced to seven years imprisonment.
- Non-Fulfillment of Marital Obligations: The husband has failed to perform his marital obligations for three years.
- Cruelty: The husband treats her brutally, causing domestic violence.
- Impotency: The husband has become impotent after the marriage.
- Insanity and incurable leprosy: The husband has become insane or suffered leprosy for two years.
Conclusion
Divorce under Muslim laws in India is governed by specific regulations and principles derived from Islamic jurisprudence. It is crucial for individuals seeking divorce under Muslim laws to consult with lawyers specializing in Muslim law. These lawyers possess the necessary expertise to navigate the complexities of the legal process, explain the rights and obligations of the parties involved, and provide tailored guidance and representation.
