1

INTRODUCTION

In Muslim law, although matrimony is a civil contract, the husband usually enjoys special
privileges and the wife suffers corresponding disabilities. No Muslim marriage either Sunnis or
Shias is “permanent” in the sense in which 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 inequality of the low 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. However under Muslim law
divorce by wife is also possible only in the following situations:

1. Where the husband delegates to the wife the rights of talaq, i.e. talaq-i-tafweez.
2. Where she is party to divorce by mutual consent, i.e. Khula and Mubarat.
3. Where she wants to dissolve the marriage under the dissolution of Muslim marriage
Act, 1939.

Firm union of the husband and wife is a necessary condition for a happy family life. Islam
therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract
should be avoided. Initially no marriage is contracted to be dissolved but in unfortunate
circumstances the matrimonial contract is broken. One of the ways of such dissolution is by way
of divorce. Under Muslim law the divorce may take place by the act of the parties themselves or
by a decree of the court of law. However in whatever manner the divorce is effected it has not
been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of
marriage.
The Prophet declared that among the things which have been permitted by law, divorce is the
worst. Divorce being an evil, it must be avoided as far as possible. But in some occasions this evil
becomes a necessity, because when it is impossible for the parties to the marriage to carry on their
union with mutual affection and love then it is better to allow them to get separated than compel
them to live together in an atmosphere of hatred and disaffection. The basis of divorce in Islamic
law is the inability of the spouses to live together rather than any specific cause (or guilt of a party)
on account of which the parties cannot live together. A divorce may be either by the act of the
 2

husband or by the act of the wife. There are several modes of divorce under the Muslim law, which
will be discussed hereafter.1

1
http://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html on 27/02/2019 at 12:57 am.
 3

CONCEPT

Nikah:

Hedaya : “Marriage is a legal process by which several processes, procreation and legitimization
of children between a man and woman is perfectly lawful and valid.”

Amar Ali: “Marriage is an institution ordained for protection of society and in order that human
being may guard themselves from foulness and unchastity.”

The main issue is whether Nikah is sacrament or contract- the Supreme Court in case of Ameena
v. hasan koya2 has clearly stated that it is a settled law that under Muslim law, Nikah is a contract
unlike Hindu law where marriage is a sacrament. However the Supreme Court in this case has not
cited its reason for considering it to be a contract. The contractual character of Nikah cannot be
denied as such it cannot be asserted that it is a pure civil contract.

Dissolution of marriage:

Firm union of the husband and wife is a necessary condition for a happy family- life. Islam
therefore, insists upon the subsistence of a marriage and prescribes that breach of the marriage-
contract should be avoided. Initially no marriage is contract to be dissolved in future, but in
unfortunate cases the dissolution takes place and the matrimonial contract is broken. A marriage
may dissolve:

(1) By act of God i.е. death of the husband or wife, or

(2) By act of the parties i.e. divorce.

Among pre-Islamic Arabs, the powers of divorce possessed by the husband were unlimited. They
could divorce their wives at any time, for any reason or without any reason. They could also revoke
their divorce, and divorce again as many times as they preferred. Moreover, they could, if they
were so inclined, swear that they would have no intercourse with their wives, though still living
with them. They could arbitrarily accuse their wives of adultery, dismiss them, and leave them
with such notoriety as would deter other suitors; while they themselves would go exempt from any

2
2003, SC
 4

formal responsibility of maintenance or legal punishment. Even though, the provision of divorce
was recognized in all religions, Islam is perhaps the first religion in the world which has expressly
recognized the dissolution of marriage by way of divorce. In England, divorce was introduced only
hundred years back. Divorce among the ancient Arabs was easy and of frequent occurrence. In
fact, this tendency has even persisted to some extent in Islamic law, in-spite of the fact that Prophet
Mohammad showed his dislike to it. It was regarded by the Prophet to be the most hateful before
the Almighty god of all permitted things; for it prevented conjugal happiness and interfered with
the proper bringing up of children.

Position after advent of Islam:

The institution of arbitrary talaq at the sweet – will of the husband exist since the pre-Islamic days.
In those days, there were no restraints whatsoever. The husband was at liberty to pronounce talaq
any number of times and to revoke it by taking the women back and resuming marital connection.
This power of divorce was recognized by the Prophet but he imposed certain restrictions, moral
and legal which constitute some checks on the husband’s powers. Morally, talaq was declared to
be the most detestable before God of all permitted things, according to a hadis. The legal restraints
imposed are the following:

1. the fixing of dower;

2. provision for revocation of talaq in some cases; and
3. Restraints on re-marriage between the parties.

The Prophet Mohammad looked upon these customs of divorce with extreme disapproval and
regarded their practice as calculated to undermine the foundation of society. However, under the
existing conditions of society, it was impossible to abolish the custom entirely. The Prophet had
to mould the mind of an uncultured and semi-barbarous community to a higher development.
Accordingly, he allowed the exercise of the power of divorce to husbands under certain conditions.
He permitted to divorced parties, three distinct and separate periods within which, they might
endeavour to become reconciled; but should all attempts at reconciliation prove unsuccessful, then
in the third period, the final separation became effective. The reforms of Prophet Mohammad
marked a new departure in the history of Eastern legislation. He restrained the husband’s unlimited
power of divorce and gave to the woman, the right of obtaining the separation on reasonable
grounds. The Prophet Mohammad is reported to have said, “If a woman be prejudiced by a
 5

marriage, let it be broken off” He pronounced “talaq” to be the most detestable before god of all
permitted things for it prevented conjugal happiness and interfered with the proper bringing up of
children. An effective check placed by Islam on frequent divorce and remarriage was that, in case
of irrevocable separation, it is essential for remarriage that the wife should marry another man, and
this marriage should be consummated before divorce, and the wife should observe iddat period.
This was a measure which rendered separation rarer. Certain critics accuse this procedure as “a
disgusting ordeal” and “revolting”, but they ignored that among a proud, jealous and sensitive race
like the Arabs, such a condition was one of the strongest antidotes for the evil. It intended to control
one of the most sensitive nations of the earth, by acting on the strongest feeling of their nature, the
sense of honour. Divorce signifies the dissolution of the marriage tie. All separations effected for
causes directly originating in the husband are termed Talaq, and separations effected otherwise by
the decree of the court are known as Farqat.
 6

MODES OF TALAQ

Talaq in its literal sense means “the taking off of any tie or restraint”. The right of divorce
is conceded in Muslim law, but the law prohibits its exercise by threats of divine displeasure, “it
was”, says Baillie, originally forbidden and is still disapproved, but has been permitted for the
avoidance of greater evils. A divorce may be effected by the act of the husband, but in certain
special circumstances, also by wife or by mutual agreement or by the operation of law. The law of
nullity of marriage was practically unknown in Muslim law. Something akin to annulment of
marriage existed: in cases where a minor has a right to repudiate the marriage or to exercise the
option of puberty, an annulment of marriage could be sought from the Kazi. The term Faskh means
annulment or abrogation. The matrimonial reliefs of restitution of conjugal rights and the judicial
separation were totally unknown. The remedy of restitution of conjugal rights by way of a civil
suit was made available by the British government in India at an early date of Muslims as it was
made available to others, and in modern India, a Muslim spouse can still seek restitution of
conjugal rights by a civil suit. A Muslim husband and wife can separate from each other as any
other spouses by a separation agreement under the general law of contract. The dissolution of
marriage under Muslim law can be studied under following heads:

1. Extra judicial divorce.

It can be again divided into three:

i) Divorce at the instance of husband (talaq) - In this, there are two types of dissolutions:
a. talaq pronounced by the husband himself;
b. talaq delegated by the husband (talaq-i-tafweez).
ii) Divorce at the instance of wife: - Under this heads, falls-
a. Khula
b. ila
c. zihar
d. Lian.
iii) Divorce by mutual consent (mubaraat).
1. Judicial divorce.
 7

The following diagram shows various types of divorces–

Essentials of talaq:

i. Divorce at the instance of husband (talaq) - In this, there are two types of dissolutions:
c. talaq pronounced by the husband himself;
d. talaq delegated by the husband (talaq-i-tafweez).
a. talaq pronounced by the husband himself;

Shia - He must be of sound mind and attained the age of puberty. It must be pronounced orally in
the presence of two witnesses unless he is unable to speak. Further, Talaq must not be pronounced
under duress or compulsion otherwise Talaq is void. It must be spoken in Arabic terms and strictly
in accordance to sunnat. The Shias requires the presence of two witnesses at the time of
pronouncement of talaq.

Sunni - Only two requirements - Sound mind, attained majority. A Talaq pronounced under
compulsion or intoxication is effective. The Sunnis permit divorce in writing too; but the Shias
 8

insist that talaq should be oral; unless the husband is physically incapable of pronouncing it orally.
The Ithna Asharis also require that, certain Arabic words must be used in the formula of divorce.
So long as the intention is clear, no specific form is necessary. Any words may be used.

b. Delegated Divorce: (Talaq-i-Tafweez)

Talaq-i-tafweez is also known as Talaq-i-Tawhid. Literally, tafweez means ‘delegate’. A Muslim

husband can delegate his power of pronouncing talaq to his wife or to any other person. But such
power does not deprive the husband of his own right to pronounce a talaq. A Muslim husband is
entitled to pronounce a talaq. He is also entitled to delegate his power to another person to do so.
He may confer the power upon the wife herself or a third party to repudiate the marriage.

Capacity to delegate the power: A husband:

a) Who is of sound mind, and

b) Who has attained the age of puberty may delegate his right of pronouncing talaq.

If a husband becomes insane after delegating his power, the delegation will not be invalidated. It
is not necessary that the wife or any other person, to whom the power is delegated, should also
have attained the age of puberty. A Muslim husband has unrestricted right to divorce his wife
whenever he likes. This right is so absolute that he may exercise it either himself or may delegate
his right to another person, including his own wife. Divorce by such person, who acts as agent of
the husband under his authority, is known as delegated divorce. In the delegated divorce, the talaq
pronounced by that other person is as effective as if it was made by the husband himself and the
marriage dissolves.

A Muslim husband may delegate the power absolutely or conditionally, temporarily or

permanently. A permanent delegation of power is revocable, but a temporary delegation of power
is not. The delegation must be made distinctly in favour of the person to whom the power is
delegated; and the purpose of delegation must be clearly stated. This form of delegated divorce is
perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the
intervention of any court. An agreement made with her giving such power will be deemed to be
tafweez and binding on the husband. Such a talaq, although made by the wife is, by virtue of the
 9

delegation, really a talaq by the husband and operates effectively as a talaq by the husband himself.
It does not require any declaration from a court of law. The power given to her is itself sufficient.

ii) Divorce at the instance of wife:

a) (khula):- Khula or redemption literally means “to lay down”. In law, it means laying down by
a husband of his right and authority over his wife”. The word Khula literally means “to take off
clothes” and thence, to lay down one’s authority over wife. In law, it is laying down by a husband
of his right and authority over his wife for an exchange” “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 a consideration to the
husband for her release from the marriage tie. In such a case, the terms of the bargain are matters
of arrangement between the husband and wife, and the wife may, as the consideration, releases her
dyn mahr (due dower) and other rights or make any other arrangement for the benefit of the
husband”.

Fatwai-i-Alamgiri lays down that “when married parties disagree and are apprehensive that they
cannot observe the bounds prescribed by the divine laws, that is, cannot perform the duties imposed
on them by the conjugal relationship, the woman can release herself from the tie by giving up some
property in return in consideration of which, the husband is to give her, a khula; and when they
have done this, a talaq-ul-bian would take place. Khula signifies an arrangement entered into for
the purpose of dissolving a connubial connection in lieu of compensation paid by the wife to her
husband out of her property. Khula infact is thus a right of divorce purchased by the wife from her
husband. In India, the word khula is also spelt as khoola or khula and even khola. Khula literally
means “to take off clothes, and thence, to lay once authority over a wife.

Conditions for khula:

Both the husband and the wife must be of sound mind and have attained puberty. Under Hanafi
law, the guardian of a minor wife may enter into a khula on her behalf; but the guardian of a minor
husband cannot enter into a khula on his behalf. A khula may be entered into by any party through
an authorized agent who will act within the scope of his authority. A khula given under compulsion
is not valid under the Shia law; but it is valid under the Sunni law. Proposal and acceptance must
be made at the same meeting in express words. Under Shia law, the Arabic language must be used
 10

in khula and presence of two witnesses is also required. The consent to khula may be conditional
or unconditional under the Sunni law; but under the Shia law, conditional khula is not recognized.

b) ila: (vow of continance): - ila means “oath” or “vow”. In law, it means that, when a husband
takes an oath that he will not do sexual intercourse with his wife for four months or above on the
expiry of four months after making ila, if the husband has abstained from sexual intercourse during
this period, the marriage shall stand dissolved. There is no limit prescribed for the longest period.
ila made under compulsion or intoxication would be valid as in the case of talaq under similar
circumstances. The words expressing ila are either express or implicative.

The express terms are:

a) ”I swear by god that I will not approach you”;

b) ”I swear by god that I will not cohabit with you”.

The implicative expressions are:

a) “I swear by god that I will not touch you”;

b) “I swear by god that I will not approach your bed”;
c) “I swear by god that I will not enter upon you”.

The shortest period of vow of abstinence must be four months. If the husband swears to abstain
for a period of three months, no ila shall take effect. But to say “By God, I will not approach you
for two months, and two months after these two months” is ila, because of the definiteness of the
period of four months. If a period of more than four months is mentioned, ila would be valid even
if it is pronounced during menstruation but if it is pronounced to be perpetual, it would be valid
only if pronounced during tuhr.

d) Zihar: (injurious assimilation): - The term “zihar” is derived from ‘zuhar’, the back.
When the husband compares his wife with his female relations within the degrees of
prohibited relationship. He may say ‘the back of my wife is as my mother’s back. The
woman so addressed was thereby promoted from the subordinate status of a wife to the
highly honourable position of an adoptive mother. During the time of ignorance (i.e.,
before the establishment of the Muslim faith), zihar stood as a divorce; and the law
 11

afterwards preserved its nature, but altered its effect to a temporary prohibition, which
hold until performance of expiation but dissolving the marriage. In old Arabia, it was a
system that, if the husband did not expiate after zihar, he was imprisoned. In India, The
Shariat Act has recognized zihar. After its legislative recognition, the right of wife to claim
a divorce on this ground may be granted by courts. Capacity to make zihar:

A husband who is: -

a) Of sound mind, and

b) Who has attained puberty can make zihar.

Once the husband makes it, the wife gets a right to refuse cohabitation with him until he performs
a penance and if the husband refuses to perform the penance, the wife may get a judicial divorce.
i.e., she may apply to the court for the penance to be performed by the husband or to pronounce a
talaq on her. On the refusal of the husband to do either thing, the court may grant a divorce.

The Quranic verses relating to zihar are:

“Allah has not made for any man two hearts in his (one) body: nor has He made your wives whom
you divorce by Zihar your mothers: nor has He made your adopted sons your sons. Such is (only)
your (manner of) speech by your mouths. But Allah tells (you) the Truth, and He shows the (right)

Way”.

“If any men among you divorce their wives by Zihar (calling them mothers), they cannot be their
mothers: none can be their mothers except those who gave them birth. And in fact, they use words
(both) iniquitous and false: but truly Allah is One that blots out (sins), and forgives (again and
again)”.

”But those who divorce their wives by Zihar, then wish to go back on the words they uttered, -
(itis ordained that such a one) should free a slave before they touch each other: this you area
dmonished to perform: and Allah is well-acquainted with (all) that you do” “And if any has not
(the wherewithal), he should fast for two months consecutively before they touch each other. But
if any is unable to do so, he should feed sixty indigent ones. This, that you may show your faith in
Allah and His Messenger. Those are limits (set by) Allah. For those who reject (Him), there is a
grievous penalty. The uttering of zihar does not by itself dissolve the marriage. Its legal effects are
 12

that sexual-intercourse between them becomes unlawful till he has expiated himself by performing
penance.

iii) Divorce by Mutual Consent :(Mubaraat)

Mubaraat means “release”, which puts an end to matrimonial rights. The word Mubaraa means an
act of freeing one from another mutually. It is a mutual discharge from marriage tie. It is a
divorce by mutual consent of the husband and wife. The formalities for Mubaraat are the same as
in thecase of khula.The aversion in Mubaraat is mutual and the proposal for divorce may emanate
fromeither the husband or the wife. Under Shia law, the parties con dissolve their marriage by way
ofMubaraa if it is impossible for them to continue. To enter in to Mubaraat, both the parties must
beof sound mind and have attained puberty. Formalities:Under Sunni law, no particular form is
required. But mutual agreement must be made at the same meeting and the word “Mubaraat” must
be clearly expressed in the proposal and if ambiguous expressions are used, intention must be
proved. But under Shia law, proper form is required. Mubaraat must be expressed in Arabic
language and the expression “Mubaraat” must be clearly expressed. Mutual agreement must
be made at the same meeting in presence of two witnesses under Shia law. if the husband were to
say to his wife, “I have discharged you for the obligation of marriage for such a sum, and you are
separate from me” ,the marriage would be dissolved. In this form, since both the parties are equally
interested in the dissolution of marriage, no party is legally required to compensate the other by
giving some consideration. Under Sunni law, when the parties enter into a “Mubaraat”, all mutual
rights and obligations come to an end; but under Shia law, it requires that, if both the parties bona
fide find the marital relationship to be irksome, then only, a marriage stands dissolved.
Immediately on the completion of divorce by way of Mubaraat, the parties must be separated, even
if the wife has not paid compensation. A wife, who has obtained a release from the marital tie by
Khula or Mubaraat, is entitled to maintenance during her iddat period.

Kinds of talaq:3

From the point of view of the mode of pronouncement and effect, there are two kinds of Talaq:

1. Talaq-ul-Sunnat or revocable Talaq, and

3
http://www.shareyouressays.com/knowledge/what-are-the-kinds-of-talaq-under-muslim-law-in-india/117523 on
18/02/2019 at 11:11AM.
 13

2. Talaq-ul-Bidaat or irrevocable Talaq.

The Talaq-ul-Sunnat or revocable Talaq may be pronounced either in the Ahsan form or in the
Hasan form. That is to say, Talaq-ul-Sunnat may be further sub-divided into: (i) Talaq Ahsan (most
proper) and; (ii) Talaq Hasan (Proper). Talaq-ul-Bidaat is irrevocable and becomes effective as
soon as it is pronounced in any way, indicating husband’s desire to dissolve the marriage.

Talaq-ul-Sunnat (Revocable Talaq):

Talaq-ul-Sunnat is regarded to be the approved form of Talaq. It is called as Talaq- ul-Sunnat

because it is based on the Prophet’s tradition (Sunna). As a matter of fact, the Prophet always
considered Talaq as an evil. If at all this evil was to take place, the best formula was one in which
there was possibility of revoking the effects of this evil. With this idea in mind, the Prophet
recommended only revocable Talaq, because in this form, the evil consequences of Talaq do not
become final at once. There is possibility of compromise and reconciliation between husband and
wife.

Talaq-ul-Sunnat is also called as Talaq-ul-raje. Only this kind of Talaq was in practice during the
life of the Prophet. This mode of Talaq is recognised both by Sunnis as well as by the Shias. Talaq-
ul-Sunnat may be pronounced either in Ahsan or in the Hasan form.

(i) Talaq Ahsan (Most Proper):

This is the most proper form of repudiation of marriage. The reason is twofold: First, there is
possibility of revoking the pronouncement before expiry of the Iddat period. Secondly, the evil
words of Talaq are to be uttered only once. Being an evil, it is preferred that these words are not
repeated.

In the Ahsan Talaq there is a single declaration during the period of purity followed by no
revocation by husband for three successive period of purity. In this form, the following formalities
are required:

(a) The husband has to make a single pronouncement of Talaq during the Tuhr of the wife. Tuhr
is the period of wife’s parity i.e. a period between two menstruations. As such, the period of Tuhr
is the period during which cohabitation is possible. But if a woman is not subjected to
 14

menstruation, either because of old age or due to pregnancy, a Talaq against her may be
pronounced any time.

(b) After this single pronouncement, the wife is to observe an Iddat of three monthly courses. If
she is pregnant at the time of pronouncement the Iddat is, till the delivery of the child. During the
period of Iddat there should be no revocation of Talaq by the husband.

Revocation may be express or implied. Cohabitation with the wife is an implied revocation of
Talaq. If the cohabitation takes place even once during this period, the Talaq is revoked and it is
presumed that the husband has reconciled with the wife.

When the period of Iddat expires and the husband does not revoke the Talaq either expressly or
through consummation, the Talaq becomes Irrevocable and final.

It may be noted that the characteristic feature of the Ahsan form of Talaq is a single pronouncement
followed by no revocation during the period of three month’s Iddat. Therefore, where a husband
makes any declaration in anger, but realising his mistake afterwards, wants to cancel it, there is
sufficient time for him to do so. Single pronouncement of the civil words of Talaq and sufficient
opportunity to the spouses for reconciliation, are the two reasons for calling this form as the ‘most
proper’ form of Talaq.

(ii) Talaq Hasan (Proper):

This Talaq is also regarded to be the proper and approved form of Talaq. In this form too, there is
a provision for revocation. But it is not the best mode because evil words of Talaq are to be
pronounced three times in the successive Tuhrs. The formalities required under this form are as
under:

(a) The husband has to make a single declaration of Talaq in a period of ‘Tuhr.

(b) In the next Tuhr, there is another single pronouncement for the second time.

It is significant to note that the first and second pronouncements may be revoked by the husband.
If he does so, either expressly or by resuming conjugal relations, the words of Talaq become
ineffective as if no Talaq was made at all.
 15

(c) But, if no revocation is made after the first or second declaration then lastly the husband is to
make the third pronouncement in the third period of purity (Tuhr). As soon as this third declaration
is made, the Talaq becomes irrevocable and the marriage dissolves and the wife has to observe the
required Iddat.

It may be noted that the important feature of Talaq Hasan is its revocability before the third
pronouncement and its irrevocability after the third. In order to make an effective Talaq, the words
must be uttered three times in three consecutive period of purity.

In Ghulam Mohyuddin v. Khizer, a husband wrote a Talaqnama in which he said that he had
pronounced his first Talaq on 15th September and the third Talaq would be completed on 15th
November. He had communicated this to his wife on 15th September.

The Lahore High Court held that this was a Talaq Hasan. The Court observed that the Talaqnama
was merely a record of the first pronouncement and the Talaq was revocable. The Court further
observed that for an effective and final Talaq, the three pronouncements must actually be made in
three Tuhrs-, only a mention of the third declaration is not sufficient.

II. Talaq-ul-Bidaat (Irrevocable):

This Talaq is also known as Talaq-ul-Bain. It is a disapproved mode of divorce. A peculiar feature
of this Talaq is that it becomes effective as soon as the words are pronounced and there is no
possibility of reconciliation between the parties. The Prophet never approved a Talaq in which
there was no opportunity for reconciliation.

Therefore, the irrevocable Talaq was not in practice during his life. The Talaq-ul-Bid’at has its
origin in the second century of the Islamic-era. According to Ameer Ali, this mode of Talaq was
introduced by the Omayad Kings because they found the checks in the Prophet’s formula of Talaq
inconvenient to them.18 Since then this mode of Talaq has been in practice among the Sunni
Muslims.
 16

In case of Sayara Bano v. Union of India4 The Supreme Court by 3:2 majority held that triple
talaq is unconstitutional and unlawful because this kind of talaq is against the dictates of holy
quran, and also against the provision of the constitution of India.

Shia Law:

Under the Shia Law, an irrevocable Talaq is not recognised.

We have already seen that in a Bidat form there is no opportunity for the revocation of Talaq. A
Bid’at Talaq becomes final as soon as the words have been uttered and the marriage is completely
dissolved. A Sunni husband, who wants to divorce his wife irrevocably, may do so in any of the
following manners:

(a) The husband may make three pronouncements in a period of purity (Tuhr) saying: “I divorce
thee, I divorce thee, and I divorce thee”. He may declare his triple Talaq even in one sentence
saying: “I divorce thee thrice”, or “I pronounce my first, second and third Talaq.”

(b) The husband may make only one declaration in a period of purity expressing his intention to
divorce the wife irrevocably saying: “I divorce thee irrevocably” or “I divorce thee in Bain”.5

4
2007 SC
5
www.westlawindia.com
 17

LEGAL EFFECTS OF KHULA AND MUBARAT

1. Under Hanafi and Ismaili School, the dissolution of marriage on a Khula or Mubaraat has
the same effect as a single divorce after it has become irrevocable. The parties cannot
resume sexual-intercourse until and unless a fresh marriage was arranged between them.
2. Under Shia law, when the Khula is effected, the husband has no power of revocation.
However,the wife is at liberty to re-claim the consideration during the iddat period. Under
such circumstances, the husband can revoke the Khul at his option.
3. The wife is required to observe iddat and is also entitled to be maintained by the husband
duringthe period of iddat.
4. After completion of Khula or Mubaraat, the marriage dissolves and cohabitation between
the parties becomes unlawful. If the consideration in Khula is not the release of wife’s
dower, the wife is entitled to get her dower.6

6
http://www.legalserviceindia.com/article/l162-Concept-of-Marriage-in-Muslim-Law.html
 18

JUDICIAL DIVORCE

Section 2 of Muslim Marriage Dissolution Act, 1939

The Dissolution of Muslim Marriages Act, 1939 contains several fault grounds. The pre-Act fault
grounds too have been saved. Section 2 contains 8 fault grounds. Clause (ix) of section 2 saves the
existing grounds on which, wife may sue for divorce. The wife may obtain a decree of divorce on
any one of the grounds specified in the Act by filing a suit in the lowest civil court. The benefits
of this Section may be given to a wife whether her marriage was solemnized before or after the
commencement of the Act. The provisions of Section 2 may be given retrospective effect. A
woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her
marriage on any one or more of the following grounds, namely —

i) that the whereabouts of the husband have not been known for a period of four years;
ii) that the husband has neglected or has failed to provide for her maintenance for a period
of two years;
iii) that the husband has been sentenced to imprisonment for a period of seven years or
upwards;
iv) that the husband has failed to perform, without reasonable cause, his marital obligations
for a period of three years;
v) that the husband was impotent at the time of the marriage and continues to be so;
vi) that the husband has been insane for a period of two years or , is suffering from leprosy
or a virulent venereal disease;
vii) that she, having been given in marriage by her father or other guardian before she
attained the age of fifteen years, repudiated the marriage before attaining the age of
eighteen years; provided that the marriage has not been consummated;
viii) that the husband treats her with cruelty, that is to say,--a) habitually assaults her or
makes her life miserable by cruelty of conduct even if such conduct does not amount
to physical ill-treatment, or b) associates with women of evil repute or leads an
infamous life, or c) attempts to force her to lead an immoral life, or d) disposes of her
property or prevents her in exercising her legal rights over it, or e) obstructs her in the
 19

observance of her religious profession or practice, or f) if he has more wives than one,
does not treat her equitably in accordance with the injunctions of the Quran;
ix) on any other ground which is recognized as valid for the dissolution of marriages under
Muslim law: provided that —
a) no decree shall be passed on ground (iii) until the sentence has become final;
b) a decreepassed on ground (i) shall not take effect for a period of six months from t
he date ofsuch decree, and 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 shall set aside he said decree; and
c) before passing a decree on ground on ground (v) the court shall on application by
the husband, make an order requiring the husband to satisfy the court within a
period of one year from the date of such order that he has ceased to be impotent,
and if the husband so satisfies the court within such period, no decree shall be
passed on the said ground. After passing of the Dissolution of Muslim Marriage
Act, 1939, the position of Muslim women is improved. This is the most progressive
enactments passed by the legislature. Now she can release from an unhappy marital
tie on various grounds recognized by Islam and also by legislation, through judicial
process. Thus, with these changes, the position of Muslim women is improved.
These are welcome changes which are desirable in the present day society.

Consequences arising from Talaq:

1. Marriage – Parties are entitled to contract another marriage. If the marriage was
consummated the wife has to wait until the period of iddat is over, otherwise, she may re-
marry immediately. If the marriage was consummated and if the husband had four wives
at the time of divorce, he can take another wife after the period of iddat.
2. Dower - Dower becomes payable immediately if the marriage was consummated,
otherwise, the wife is entitled to half of the amount specified in dower. If no amount is
specified, she is entitled to 3 articles of dress. Where the marriage is dissolved due to
apostasy of the wife, she is entitled to whole of the dower if the marriage has
beenconsummated.
3. Inheritance - Mutual rights of inheritance cease after the divorce becomes irrevocable.
 20

4. Cohabitation - Cohabitation becomes unlawful after the divorce has become

irrevocableand children from such intercourse are illegitimate and cannot be legitimated
byacknowledgment as held in In Saiyyad Rashid Ahmad vs Anisa Khatoon7
5. Remarriage -

Remarriage between the divorced couple is not possible until;

i. the wife observes iddat

ii. after iddat she lawfully marries another man
iii. this intervening marriage is consummated4.
iv. the new husband pronounces divorce or dies
v. the wife again observes iddatA marriage done without the fulfilment of the above is
irregular, not void. But merecohabitation after an irrevocable divorce is void.
6. Maintenance - The wife becomes entitled to maintenance during the period of iddat. Death
of the husband or wife during subsistence of marriage dissolves the marriage immediately
under all ‘he personal law systems. The very fact of the death of any party to the marriage
is sufficient to terminate the marriage.

There is no need of any formality or decree of the court to dissolve the marriage. Where a marriage
terminates by act of the parties, the dissolution is called divorce. Under Muslim law the divorce
may take place by the act of parties themselves or through a decree of the court of law.

However, in whatever manner a divorce is effected, it has not been regarded as a rule of life. In
Islam, divorce is considered as an exception to the status of marriage. The Prophet declared that
among the things which have been permitted by law, divorce is the worst.

Divorce being an evil, it must be avoided as far as possible. But sometimes this evil becomes a
necessity. When it is impossible for the parties to carry on their union with mutual love and
affection, it is better to allow them to be separated instead of compelling them to live together in
an atmosphere of hatred and sufferings.

7
1932
 21

The basis of the Islamic law of divorce is the inability of the spouses to live together rather than
any specific cause (or guilt of a party) on account of which the parties cannot live together. It is to
be noted that with this idea behind a divorce, Muslim law recognises several modes of divorce.

A divorce (or dissolution of marriage by act of parties) may be either by act of husband or by act
of the wife. A husband may divorce his wife by repudiating the marriage without giving any
reason. Pronouncement of such words which signify his intention to disown the wife, is sufficient.
Generally this is done by Talaq. But he may divorce the wife also by Ila and Zihar which differ
from a Talaq only in form not in substance. A wife cannot divorce her husband of her own accord.
She can divorce the husband only where husband has delegated such right to her or under an
agreement. Under an agreement a wife may divorce the husband either by Khala or Mubarat.
Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charge of
adultery by the husband (lian), insanity or impotency of husband. But the Dissolution of Muslim
Marriages Act, 1939, now lays down several other grounds (including lian) on the basis of any one
of which a Muslim wife may get her marriage dissolved by an order of the court. The chart given
below, presents a clear picture of the various kinds of dissolution of a Muslim marriage.8

8
http://www.legalserviceindia.com/article/l162-Concept-of-Marriage-in-Muslim-Law.html
 22

CONCLUSION

The institution of divorce, as provided under Islam, has been the subject of repeated controversy
and is still a live issue capable of generating much heat and passion due to the changing concept
of gender equality and emancipation in the western civilization and its impact on the woman in
general. The present study constitutes an academic venture into the dynamics of Muslim Personal
law relating to the Dissolution of a Muslim Marriage at the instance of a wife. A ceaseless effort
has been made to establish, after making an exhaustive study of relevant verses of the Holy Qur'an,
Hadith literature and the juristic works, that as the Muslim Husband has been given the right to
divorce his wife with whom he can no longer pull on for the just and reasonable cause, likewise, a
Muslim wife also enjoys the privilege of being able to discard her husband with whom it has
become impossible for her to continue marital life with observance of limits set by Allah and His
Holy Prophet. The wife's right to dissolve the marriage under the classical Muslim law, such as
Khula, Mubara'at and Talaq-e-Tafwid are in no sense inferior to the right of divorce given to her
counterpart.
 23

BIBLIOGRAPHY

Books:

 Manzar saeed, Commentary on Muslim Law in India, (Orient Publishing Company. 2011,
New Delhi)
 I.B. Mulla, Commentary on Mohammedan Law, (2nd Ed, Dwivedi Law Agency, 2009,
Allahabad)
 Prof. I.A. KAN, Mohammedan Law, (23rd Ed, Central law agency, 2010 Allahabad)
 Prof. G.C.V. subba rao, Family Lawin India, (10th Ed, S. Gogia & Company, 2012
Hyderabad)
 Mulla; Lexis Nexis: Buttersworth Publications, Islamic Law
 I.B. MULLA, Commentary on Mohammedan Law, (2nd Ed, Dwivedi Law Agency, 2009,
Allahabad) Page no. 638
 Tanzeem Fatima; Islamic Law and Judiciary
 Aqil Ahmad; Mohammedan Law

Websites:

 www.westlawindia.com
 www.indiakanoon.com
 www.manupatra.com
 http://kanwarn.wordpress.com
 http://www.scribd.com
 http://www.legalserviceindia.com/article/l162-Concept-of-Marriage-in-Muslim-Law.html
 http://shodhganga.inflibnet.ac.in/bitstream/10603/8109/9/09_chapter%202.pdf