Chapter 3

DIVORCE BY HUSBAND

A Muslim husband may, under all schools of Muslim law, impact an out-of-court divorce by
his own presentation and declaration. This is called talaq.1 Theologically, the power of the
husband is not absolute; it is restrained within definite bounds by the numerous formulae
which are attached to its exercise, but in practice it is absolute.2

In its primitive sense, the word talaq means „dismission‟, but in law it signifies release from
the nuptial tie.3 The word talaq is an Arabic word which means „undoing of or release from
knot‟. It is used by Muslim jurists to denote the release of women from the marriage tie and
means a divorce.4 The word talaq comes from a root tallaqah, which means to release (an
animal) from tether; whence, to repudiate the wife or free her from bondage of marriage.5

In the Encyclopedia of Islam, the term talaq has been defined as the absolute power which
the husband possesses for divorcing his wife at all times.6 The Fatwa-i-Alamgiri terms talaq
in its original sense, that is, repudiation or rejection, but under Muslim law it is a release
from the marriage tie, either immediately or eventually.7

i. Talaq

For all the marital disputes cases, the Qur‟an8 enjoins that the couple must strive for an
amicable settlement for which two arbitrators should be named i.e. one from the husband‟s
side and the other from the wife‟s side. “If you fear any breach between a man and his wife,
appoint one arbiter from her family and one arbiter from his family. If they both want to set
things right, God will bring about a reconciliation between them: He is all knowing and all

1
Tahir Mahmood and Saif Mahmood, Muslim Law in India and Abroad, Universal Law Publishing Co. Pvt. Ltd.,
New Delhi, 2012, p. 103
2
Kauser Edappagath, Divorce and Gender Equity in Muslim Personal Law of India, LexisNexis, 2014, p. 71
3
Thomas Patrick Hughes, Dictionary of Islam, Indigo Books, New Delhi, 2004, p. 89 quoted by Kauser
Edappagath, Divorce and Gender Equity in Muslim Personal Law of India, LexisNexis, Haryana, 2014, p. 71
4
Ibn Qudamah, Al-mughni 96, Cairo, Vol. VII, 1376 AH, p. 96 cited by Kauser Edappagath, Divorce and Gender
Equity in Muslim Personal Law of India, LexisNexis, Haryana, 2014, p. 71
5
Furqan Ahmad, Triple Talaq: An Analytical Study, Regency Publications, New Delhi, 1994. P. 16
6
M Th Houtsma, Encyclopedia of Islam, Leiden-London, 1913-37, pp. 634-40 cited by Kauser Edappagath,
Divorce and Gender Equity in Muslim Personal Law of India, LexisNexis, Haryana, 2014, p. 71
7
The Fatwa-i-Alamgiri, Vol. I, p. 491 quoted by Kauser Edappagath, Divorce and Gender Equity in Muslim
Personal Law of India, LexisNexis, Haryana, 2014, pp. 71-72
8
Qur’an, Chapter IV: Verse 35

30
aware.”9 When two persons have differences between them, their minds become intolerant.
They do not think about each other in a healthy manner anymore. In such a situation, the best
way of resolving the matter is to bring an arbiter who is not involved with the issue
personally and who will be able to think without bias and reach a decision based on the facts
of the case.

The Qur‟an further enjoins men not to act in haste and to coolly think before deciding on
Talaq since “you may dislike something about your wife but, may be, God has put in her
some good for you.” This injunction clearly means that a man can think of pronouncing a
divorce only for a reason and not a whim. In several verses, all being clear in their meaning,
the Qur‟an prescribes the process for divorce:

“For those who swear that they will not approach their
wives, there shall be a waiting period of four months: if
they revert to conciliation, surely, God is most forgiving
and ever merciful; but if they decide upon divorce, God is
all hearing and all knowing.”10
“Women divorced have to wait for three menstrual cycles;
it is unlawful for them, if they have faith in God and the
Last Day, to shroud what God has made in their wombs.
Their husbands have the privilege to take them back if
they wish to reconcile. The wives have rights relating to
those which the husbands have as indicated by what is
perceived to be reasonable, however men have a position
above them. God is all-powerful and all-wise.”11
“There are a few people who keep taking oaths carelessly,
just because they are habitual of it. This is wrong. A
believer must abstain from it. However, between the
husband and wife, such meaningless oaths have been held
invalid, that too legally, due to the delicate nature of a
marital bond. But the case of sincere, intended oaths is
different. If a man deliberately promises by the name of
God that he will not go to his wife, this is taken seriously
and then Islamic law will take its path. In the family
system, both the man and the woman have responsibilities
as well as privileges. Each of them must, as well as
demanding his or her rights, honour the rights of others.
That is, if we want others to fulfil their obligations to us,
we must also fulfil obligations to them. If one misuses his
power and gainful position to act discriminatorily towards

9
Ibid.
10
Qur’an, Chapter II: Verses 226-227
11
Qur’an, Chapter II: Verse 228

31
 others, then he cannot save himself from God‟s
chastisement.”
“Separation might be articulated twice and afterwards a
woman must be held respectably or discharged with
generosity. It isn't legitimate for you to take away
anything of what you have given to your wives, except if
both dread that they would not have the option to watch
the limits set by God. In such a case it will be no
wrongdoing to separate them if the wife decides to give
something for her discharge. These are the limits set by
God; don't violate them. The individuals who violate the
limits of God are miscreants.”12
“What's more, if man at last separations his significant
other, he can't remarry her until she has married another
man. At that point if the husband separates from her, there
will be no fault of either of them if the previous a couple
come back to each other, if they believe that they can
keep inside the limits set by God. These are the limits
endorsed by God, which He clarifies to men of
comprehension.”13
Divorce is an abnormal occasion that takes place in abnormal circumstances. But, in this
sensitive matter too, the Holy Qur‟an provides us with guidelines to adhere to going in fear
of God and to being both just and generous. From this way we may understand what kind of
behaviour God desires from a believer in this life. We have been instructed to break the
marital bond and if this becomes unavoidable, it must be done in three stages and not all at
once. This procedure takes three months to finalise. The prescribing of a very seriously
thought-out- procedure in such an extremely emotional issue displays how a believer should
behave in these scenarios of discord and difference. His behaviour and attitude towards his
opponent should be dispassionate, well-considered, and the decision-making must be done
patiently rather than impulsively in a rash and hasty manner. Thus, the process of dissolution
of marriage holds an important life-lesson in general.

The Qur‟an says:

“O Prophet! When any of you divorce your wives,

divorce them during their period of purity and calculate
the period carefully: be mindful of God, your Lord. Do
not drive them out of their homes-nor should they
themselves leave-unless they become openly guilty of
immoral conduct. These are the bounds set by God. He

12
Qur’an, Chapter II: Verse 229
13
Qur’an, Chapter II: Verse 230

32
 who transgresses God‟s bounds wrongs his own soul. You
never know, after that, God may well bring about some
new situation.14 And when their waiting term is ended,
either keep them honourably or part with them in honour.
Call to witness two reliable men from among you and
bear true witness for God. This is an admonishment for
those who believe in God and the Last Day. To one who
fears God, He will grant a way out [of his difficulties],15
and God will provide for him from an unexpected source;
God suffices for anyone who puts his trust in Him. God
will surely bring about what He decrees. He has set a
measure for all things.”16
Divorce is a permitted process in Islam but only in exceptional, unavoidable circumstances
and this process must be completed within a specific period. In this way, the procedure of
divorce has been subjected to a few conditions. The purpose of these conditions and
limitations is that, till the last moment, the parties must have the opportunities to reconcile
and a chance for rapprochement and the dissolution should not cause any disturbance in the
family or the society.

“In the case of your wives who have passed the age of
menstruation, if you have any doubt, know that their
waiting period is three months; and that will apply
likewise to those who have not yet menstruated; the
waiting period of those who are pregnant will be until
they give birth. God makes things easy for those who are
unmindful of Him.”17
“Such is the commandment which God has revealed to
you. He who fears God shall be forgiven his sins and
richly rewarded.”18
The law of shariah has subjected a man to some rules when it comes to divorce and other
matters. These rules are apparently restrictive of man‟s free nature. But in reality, these are
blessings. The benefit of these regulations in that man is saved from various avoidable and
unnecessary harms. Furthermore, the system of this world is so framed that every harm is
compensated for in some way or the other. However, such recompense is available only to
individuals who do not go beyond the nature‟s sphere.

“Let the woman who are undergoing the waiting period

live in the same manner as you live yourselves, in

14
Qur’an, Chapter I: Verse 65
15
Qur’an Verse 65:2
16
Qur’an Verse 65:3
17
Qur’an Verse 65:4
18
Qur’an Verse 65:5

33
 accordance with your means; and do not harass them in
order to makes their lies difficult. If they are pregnant,
maintain the until they give birth; if they suckle your
infants, pay them for it; discuss things among yourselves
in all decency-if you cannot bear with each other, let
another woman suckle for you19-let the man of means
spend in accordance with his means, and let him whose
resources are restricted, spend in accordance with what
God has given him. God does not burden any person with
more than He has given him. God will soon bring about
ease after hardship.”20
Islam needs an individual to adopt the way of open-mindedness and open-heartedness as well
towards others, even at tough times of divorce. He should tolerantly bear such behaviour in
others as goes in contradiction of his nature and discharge his obligations towards them in
spite of the disagreeableness on their part. When a man acts in this manner, he does good not
only to the other party but also to himself. In this way, he creates a realistic nature within
himself. And a realistic temperament is undeniably the most important factor in achieving
success in this world.

The man pronouncing divorce must be:

a) Major
b) Sane

Jurists of the past decided that a divorce that is pronounced in a position of anger,
intoxication, jest or duress, or by way of threat or inducement, could be given effect. This
was a pro-woman move to help disgruntled wives who wished to get rid of their harsh and
cruel husbands and the idea was not to compulsorily give effect to divorce in every such case
even against the wishes of the wife or of both the parties. Now a divorce pronounced by a
man in such situations has been declared to be completely ineffective by legislation in several
Muslim countries.

A divorce cannot be pronounced when the wife is going through menstruation, since this is a
period of physical distance between the spouses not fit for taking a decision on separation. A
man thinking of divorce must therefore wait till the wife is in a Tuhr (menses-free time), as

19
Qur’an Verse 65:6
20
Qur’an Verse 65:7

34
getting emotionally closer to the wife, he might change his mind. A divorce given in
violation of this rule, which by no means is merely recommendatory, would be ineffective.21

I. Talaq-us-Sunnat (Revocable Talaq)

This is the regular divorce. It is of two types:
 Ahsan (most proper)
One single revocable talaq is pronounced by the husband who has consummated the
marriage during the period in which the wife is free of menstruation and in which there
has been no cohabitation and then leaves her to the observance of iddat of 3 months
prescribed time, unless she is pregnant, in which case till she is delivered of the child.
The divorce remains revocable during iddat and the parties retain the right of
inheritance. This kind of divorce is termed as the most proper and most approved form
of divorce.22 Since pronouncing a divorce this way leaves room for remarriage between
the parties by mutual consent whenever they do so desire, it is described as „Ahsan‟
(best).23
 Hasan (proper)
If a man pronounces a divorce and revokes it but finding it difficult to pull with his
wife by pronounces her once again, he will have one more chance to revoke the divorce
and or remarry her after iddat with her consent. If ever in life he pronounces divorce
for a third time, that will be the dead end leaving no room for revocation or remarriage.
If before taking recourse to such a terminal step he has endeavoured to save his
marriage by pronouncing but revoking a divorce twice, his conduct in the eyes of law
has been Hasan (good).24 Talaq-e-Hasan attempts to stop a ruthless pre-Islamic custom
of separating from wife and take her back as many times so as to abuse her. Through
this technique of talaq, the husband has been given two odds of separation and
afterwards taking the wife back, however, if he does the same the third time, the talaq
gets unavoidable. Thus, the way towards separating and renouncing can't be proceeded
uncertainly.25

The husband has the power to revoke the divorce after the first divorce and after the
second divorce in case he has had a change of heart and mind. The husband gets
21
Ibid.
22
Kahkashan Y. Danyal, Muslim Law of Marriage, Dower, Divorce and Maintenance, Regal Publications, New
Delhi, 2015, p. 70
23
Supra Note 1 at p. 180
24
Ibid.
25
Supra Note 22 at p. 71

35
 sufficient time to think over the consequences of his decision, revise it and consult his
well-wishers. It also allows time for relatives to reconcile in the hope of persuading
both the husband and the wife to avoid getting a divorce. That is why divorce
proceedings must go through a long period of time.26

In case of a revocable divorce by law, a divorce pronounced for the first or the second
time in life being revocable, the wife shall continue living in the marital home and must
not be turned out. There is specific path set in this regard in the Holy Qur‟an27. In all
such cases the marriage remains intact and living under the same roof helps the man in
reconsidering the matter and revoking the divorce by words or conduct. If she leaves or
is made to leave the marital home, the purpose of keeping a divorce revocable gets
defeated. In any case it is a violation of a clear Qur‟anic injunction.28

II. Talaq-ul-Biddat (Irrevocable)

Traditional interpreters of Sunni law give effect to a Talaq pronounced by a man even
in sheer violation of law and procedure for divorce explained above, calling it Talaq-
ul-Biddat, that can also be termed as innovative divorce. It is opposite to Talaq-us-
Sunnat, a term they use for a divorce pronounced in accordance with the prescribed law
and procedure. According to them, a Talaq-ul-Biddat is sinful but effective. This is a
strange motion rendered into English as “bad in theology but good in law”.29

The law says that a divorce uttered for the first or the second time in life will be
necessarily revocable within the permissible time. Yet, if a man declares an irrevocable
divorce it is supposed to be Talaq-ul-Bidat having the effect of dissolving the marriage
straight away.30

If a man adds the word „triple‟ or its equivalent to his divorce declaration, or repeats
the word Talaq thrice, this is supposed to be a Talaq-ul-Bidat having the legal effect of
a third time divorce and hence instantaneously leading to the marriage being dissolved

26
M. Wahiduddin, Woman in Islamic Sharia’h, Goodword Press, New Delhi, p. 203
27
Qur’an, Chapter LXV: Verse 1
28
Supra Note 26
29
Ibid.
30
Ibid.

36
 ruling out revocation of separation during iddat or for reestablishment of marital tie
ever after that.31

It is an irregular divorce. These are the following kinds32:

 Three Declarations: here a husband pronounces divorce to his wife by three divorces at
a time in one sentence or where he repeats the words thrice separately within one
period of purity.
 One Irrevocable Declaration: the husband may say that he divorces his wife a hundred
times, the Talaq is complete. He can write, “I, by my free will divorce y wife by one
bain talaq”, an irrevocable divorce comes into effect. In this case, the husband does not
pay any attention to the tuhr period and does not consider the abstention of intercourse.
The divorce is valid, but the pronouncer of such divorce shall be a sinner. This divorce
is sinful but lawful under Hanafi law. According to Hamilton‟s Hedaya, the divorcer is
an offender against the law.33 Under Shia sect, no divorce is affected by the
pronouncement of three divorces at a time.
 Divorce under Intoxication: according to the Hanafi jurists, the divorce pronounced in
an intoxicated condition occasioned by wilful use of liquor or other unlawful
intoxicating substances with the purpose of bringing on intoxication and thereby
enjoying its pleasure, shall take effect. But if he was intoxicated under compulsion or
from necessity, there is no divorce. Shias do not recognise divorce under intoxication.
 Divorce under Compulsion: Hanafi jurists consider a Talaq given by a man under
compulsion as valid, while Shia jurists consider it invalid. According to Hanafis,
divorce pronounced under compulsion does take effect in spite of the husband‟s
helplessness.
 Divorce pronounced in Jest: According to Hanafis if a person uses the words of divorce
for his wife even in jest and without the intention of really effecting it, divorce shall
duly take effect. Shia do not recognise this as a valid divorce.

Traditional interpreters of Sunni law give effect to a Talaq pronounced by a man even
in sheer violation of the law and procedure for divorce explained in the Qur‟an. In

31
Supra Note 1 at pp. 181-82
32
Supra Note 22 at pp. 71-72
33
Id. at p. 73

37
 other words, they endorse Talaq-ul-Biddat. According to them, Talaq-ul-Biddat is
sinful but effective i.e. bad in theology but good in law. In Shia law there is no concept
of Talaq-ul-Biddat nor is it recognised by the Salafi Ahl-e-Hadith section of the Sunni
Muslims. Both of these sects, lay down that Talaq must be in strict compliance with the
legal conditions and procedures.34

The Muslim Women (Protection of Rights on Marriage) Act, 2019

The Hon‟ble Supreme Court in the case of Shayara Bano v. Union of India35 and other linked
matters on 22nd August, 2017, in a majority judgment of 3:2 set aside the practice of talaq-ul-
bidat that was practiced by some Muslim husbands to dissolve their marriages. This
judgment gave an upliftment to unshackle the aggrieved Muslim women from the
longstanding practice of capricious and whimsical process of divorce, by a few Muslim men
who would leave absolutely no room for reconciliation as laid down in the Holy Qur‟an.

The petitioner in the 2017 case challenged talaq-ul-bidat to be discriminatory and against a
woman‟s dignity. The judgment justified the stand taken by the Government of India that this
practice of triple talaq is against constitutional morality, a woman‟s dignity and the concepts
of gender equity and equality of genders guaranteed under the Indian Constitution. The
seventh respondent in this matter, the All India Muslim Personal Law Board contended in an
affidavit that the judiciary must not decide matters of religious practice and the legislature
must not frame any law on such matters. They submitted to the Apex Court that they would
issue advisories to the community members against the exercise of this practice.

In spite of the Apex Court banning the arbitrary practice of talaq-ul-biddat and despite the
declaration of All India Muslim Personal Law Board, there have been cases of triple talaq
being arbitrarily used as a method to dissolve marriages in many parts of the country. It was
observed that the judgment passed by the Hon‟ble Supreme Court did not have any deterrent
effect in bringing down the number of reported cases of triple talaq. Thus, it was observed
and felt that there a State action is needed to give effect to the order passed by the Supreme
Court of India and redress the objections and grievances of the victims of this illegal practice.

34
Supra Note 1 at pp. 181-182
35
2017 SC 415

38
Therefore, to thwart the constant pestering being faced by the wretched married women in
the Muslim community due to talaq-ul-biddat, pressing appropriate law was necessarily
required to give them some respite.

The Government of India formulated a Bill after innumerable pending cases of triple talaq in
India. Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill, 2017
on December 28, 2017. The Bill makes Talaq-ul-Biddat in any form whether it is spoken or
in writing or by any electronic means such as email, SMS and instant messengers illegal and
void. It was introduced by the Law Minister of India, Ravi Shankar Prasad (Ministry of Law
and Justice). It was passed in the Lok Sabha again. It became an Act on 31st July, 2019

This legislation aims to achieve the constitutional motives of gender equality and gender
justice of married Muslim women and sub-serve the basic rights of empowerment and non-
discrimination that they acquire.

Salient features of the Bill are:

 Declaration of Talaq-ul-Bidat void and illegal

 Punishment for resorting to it up to 3 years and fine
 Subsistence allowance to protect the rights of married Muslim women from their
husbands for themselves and their dependent children. Magistrate has the authority to
determine the amount of such allowance.
 Custody of minor children shall be granted to the woman.
 Offences under this Act are cognizable, compoundable and non-bailable.
In this Act, talaq means talaq-ul-bidat or any other like form of talaq having the impact
of momentary and unavoidable separation articulated by a Muslim husband.36

The Act is divided into three chapters. The first chapter contains the preliminary part
which deals with the ambit of the Act and the important definitions. The second chapter
deals with the provisions declaring instantaneous talaq in any form to be void and illegal
and provides punishment for the offence. The third chapter deals with the protection of
the rights of married Muslim women. It discusses the matters relating to subsistence
allowance and custody of the minor children. It holds the offence of uttering triple talaq
to be cognizable, compoundable and non-bailable. The last section of the Act repeals the
statute, The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018.

36
Section 2 (c), The Muslim Women (Protection of Rights on Marriage) Act, 2019

39
 Section 3 lays down that utterance of talaq by the husband on his wife by words either
orally or in writing or in any electronic form or any other way shall be deemed to be
illegal and void. Section 4 provides for the punishment for such offence laid down under
Section 3 of the Act. It punishes the offender with three-year imprisonment and fine.

Chapter 3 starts with Section 5 that discusses subsistence allowance that an aggrieved
wife shall receive from her husband for herself and their dependent children. This amount
of allowance shall be decided by the Magistrate [Magistrate of first class as laid down
under section 2(b)]. Section 6 very clearly lays down that the custody of the minor
children shall be with the wife in the event of pronouncement of talaq. Section 7 states
that the offence of pronouncement of talaq-ul-bidat shall be cognizable, compoundable
and non-bailable. Section 8 lays down the fact that the Muslim Women (Protection of
Rights on Marriage) Ordinance, 2018 has been repealed.

ii. Ila (Vow of Continence)

Ila in its primitive sense signifies a „vow‟. Ila is when a person swears that he will not have
any sexual intercourse with his wife and abnegates from it for four months, an irrevocable
divorce comes into effect. It means if recourse is had within four months and one has sexual
intercourse with his wife within these four months, Ila shall be revoked but he has to make
amends for breaking his oath. Where the husband having made Ila constrains from
cohabiting with his wife for four months, the nuptial tie between them gets dissolved with the
same legal consequences, as if an irrevocable divorce has been pronounced.37

After the expiration of four months, in Hanafi law, the marriage is dissolved without legal
proceedings, but in Ithna Ashari and Shafi law, legal proceedings are obligatory. As per Ithna
Ashari, this type of dissolution can be given just when the marriage has been fulfilled. Hanafi
law gives that Ila can be withdrawn by resumption of cohabitation or even by verbal
withdrawal of cohabitation in actuality is absurd because of specific reasons. Considerably
after the end of four months, the man can drop Ila with the consent of his wife. This form is
obsolete in India and apparently there is no case law on the subject.38

37
Supra Note 22 at p. 72
38
Ibid.

40
 In Bibi Rehana Khatun v. Iqtidar-uddin Hasan39, the husband on entering the room of the
wife on the very first day of the marriage called her “a wife in name only”. It appeared from
the facts of the case that he was not interested in that marriage. He took a vow in the presence
of his wife that he won‟t have any sexual relations with her. He repeated the same in front of
his family. The court refused to accept it as an Ila in absence of a clear intention.

As indicated by Asharis, this type of separation must be given after cohabitation has taken
place in marriage. The Hanafi law gives that Ila can be withdrawn by culmination or even by
verbal withdrawal if living together is beyond the realm of imagination because of specific
reasons. Significantly after the expiry of four months the spouse can drop Ila with the
consent of the wife. Ila isn't mainstream in India.40

iii. Zihar (Injurious Comparison)

The word Zihar means ‘Zihr’ the back. According to Hedaya, it indicates a man equating his
wife to any of his female relations, within the prohibited degrees of kindred whether by
blood, by fosterage or by marriage rendering their marriage invariably illegal as if he were to
say to her … “you are to me like the back of my mother.”41

Its effect is to prohibit the person who pronounces it from carnal connection with his wife
until he shall have performed an expiation.42 According to Ameer Ali, the intention of the
husband must be to show disrespect to the wife. Shia law requires presence of two witnesses
to testify Zihar.43 This is an archaic form of oath and dates from pre-Islamic Arabia.

The wife in this case scenario has the right:

- To refuse from having carnal cohabitation with him till he repents and makes reparation from
penance prescribed by law, for example, by freeing a slave, fasting for two months or by
feeding sixty poor people,

39
AIR 1943 All 184
40
M.M. Siddiqui, Women in Islam, Islamic Book Service, New Delhi, 1998, p. 111
41
Maulana Abul Kalam Azad, Tarjumman-ul-Quran, p. 119 cited by Shiv Sahai Singh, Unification of Divorce
Laws in India, Deep and Deep, New Delhi, 1993, p. 117
42
Ibid.
43 th
Khalid Rashid’s Muslim Law, Eastern Book Company, Lucknow, revised by V.P. Bhartiya, 5 Edn., p. 112

41
- To apply to the court for an order requiring him either to perform a penance or to grant her a
regular divorce.

Zihar is wrong, an injustice to the wife, hence a proper punishment has been provided for the
husband by making the wife unlawful to him by prohibition and that prohibition cannot be
removed unless he performs the expiation.44

It was a form to dissolve muta marriages. Zihar is out of vogue and is no more prevalent in
India. Tyabjee says:

“Zihar has hardly any significance so far as the courts of law in India are concerned. The
word does not come naturally to Indian Muslims. A person wishing deliberately to give his
wife a cause of action for restitution of conjugal rights in India, probably adopt an easier
more usual, and better understood mode of doing so.”45

iv. Lian (Mutual Imprecation)

The word is derived from „Laan‟ the literal meaning of which is “to put away” because one
who is subjected to lian is put away from the all-pervading mercy of God. In lian, it is
imputation of adultery of the wife, made by the husband, which entitles her to file a suit for
dissolution of marriage and get a decree for divorce, if she proves the charge of adultery to be
false.46

The law of Islam penalised the offense of infidelity harshly thus it takes a genuine
perspective on an attribution of unchastity against a wedded woman. In the event that a man
blames his wife for unfaithfulness, he was obligated to a punishment for criticizing his wife
except if he demonstrates his charge. In the event that there was no evidence inevitable, the
procedure of lian was resorted to. This form is supported by tradition of the Prophet. It is
reported that a man from Ansar accused his wife of adultery. The Prophet thereupon asked
them both to take an oath and then he ordered them to be separated from each other.47

44
Supra Note 22 at p. 73
45
Faiz Badruddin Tyabji, Muslim Law: The Personal Law of Muslims in India and Pakistan, N M Tripathi,
th
Bombay, 4 edn., 1969, p. 184
46
S.A. Kader, Muslim Law of Marriage and Succession in India: A Critique with a Plea for Optional Civil Code,
Eastern Law House, Calcutta 1998, p. 43
47 th
A. A. A. Fyzee, Outlines of Muhammedan Law, Oxford University Press, New Delhi, 4 edn., 1974, p. 166

42
Both the husband and wife must be adults and sane, the charge must be false, i.e., must not
be proved to be true, the wife must file regular suit for the dissolution of marriage making the
false charge the ground for seeking divorce.48 On the wife‟s complaint, the court would take
statement of both, on oath, as per the prescribed procedure-each of them swearing in four
times affirming or denying the charge and then invoking the divine curse for them should
they not be speaking the truth, and thereafter pronounce the marriage as dissolved.49

The doctrine of lian is still accepted by the courts as a valid Muslim law procedure. In
Nurjahan Bibi v. Md. Kajim Ali50, the High Court of Calcutta held that:

“The doctrine of lian has not become obsolete under

Mohammedan law and therefore, a Mohammedan wife
can bring a suit for divorce against her husband on the
ground section 2(ix) of the Dissolution of Muslim
Marriage Act, 1939.”
The Bombay High Court has laid down that there are three conditions necessary for a valid
retraction:

“The husband must admit that he has made a charge

of adultery against the wife; he must admit that the
charge was false; he must make the retraction before
the trial ends.”51
There is a discrepancy of judicial opinion whether the wife is entitled to a decree if her
husband retracts the charge of adultery. The High Court of Calcutta allowed the retraction at
any time before the evidence closes.52 In an earlier decision, the Oudh High Court53 held that:

“When the husband admitted the accusation of lian but

expressed regret, the retraction is valid.”
The Bombay High Court has held, on the other hand, that:

“Retraction has no place in the procedure of Indian

Courts.”54
The Allahabad High Court took a plea that:

48
Supra Note 43 at pp. 107-8
49
Supra Note 22 at p. 102
50
AIR 1977 Cal 90
51
Mahomedali Mahomed Ebrahim Querashi v. Hazrabai AIR 1955 Bom 265
52
Shamsunnessa Khatun v. Mir Abdul Manaf AIR 1940 Cal 95
53
Mt. Fakhre Jahan Begam v. Mohamed Hamidullah Khan AIR 1929 Oudh 16
54
Ahmed Suleman Vohra v. Mt. Bai Fatma AIR 1931 Bom 76

43
 “Retraction of false charge is not available to the husband
after passing of the Dissolution of Muslim Marriage Act,
1939.”55
The doctrine of lian is a peculiar feature of Muslim law. While an unsubstantiated charge of
adultery is of no consequence under most modern laws, in Muslim law it leads to divorce.56

According to Prof. Tahir Mahmood, lian, ila and zihar are erroneously mentioned as „forms
of divorce‟. He lays down that:

“These processes were in fact pre-Islamic Arab customs

of forsaking a wife by the husband without divorcing her,
in respect of which the Holy Qur‟an provided adequate
protection to women. The rules of Islamic law in respect
of all these customs are, in the fitness of things, to be
regarded as part of law for automatic termination of
marriage.”57
Conclusion

The surge of divorce by Muslim men in our present times is alarming and a cause of great
concern. In fact, the divorce rate among Indian Muslims is scandalous which gained
momentum after the legislation relating to the Triple Talaq. The mention of the word (Talaq)
divorce became so cheap that in some marriages, many arguments lead to this word with the
husband threatening the wife with it. Hence, women are divorced even for minor reasons.

Islam considers marriage, an institution that is looked forward to, therefore, the concept of
marriage is the rule of life and divorce is merely an exception to that rule. It is a fallacy
declaring that a Muslim male enjoys an arbitrary power to dissolve his marriage by unilateral
pronouncement of talaq. Islam permits divorce, but it also emphasises on it being a measure
to be undertaken only when there is no other alternative. It must be the last resort. The
Qur‟an clearly lays down the procedure of divorce that is fair, just and gives time to the
couple to make efforts of reconciliation. Muslims as well as non-Muslims have always been
under a big misconception regarding the right of Muslim males to divorce without any reason
and get rid of their wives and their obligations towards them. This is not in any way, in
accordance with the Shariah law. The methods of Talaq-us-Sunnat must be resorted to by the
husband, only if all attempts of reconciliation fail. It is a method that has been approved by

55
Kalloo v. Mt Imaman AIR (36) 1949 All 445
56
Supra Note 43 at p. 121
57
Supra Note 1 at p. 191

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the Qur‟an and the Holy Prophet. Methods of ila, lian and zihar are not that prevalent in
India.

The next chapter is an attempt to find the crux of this research thesis, i.e. the rights given to
Muslim women to dissolve their marriages by Islam where all the possible methods that can
be initiated by women to divorce have been discussed in detail.

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