Divorce under Muslim Law- A critical Legal study
Authored By- Divya Surana
Divorce is considered a sin in Quran, but at the same time, it is inescapable sin for the happy and healthy living of individuals tied together through the bond of marriage but in some cases, this bond is running in the name of adjustments and compromises which do not work for long. Hence, there are several options for dissolving a marriage in Islam.
Divorce means to discontinue or to dissolve the union of husband and wife. There are different procedures of divorce in every religious community as per their personal laws. This article deals with divorce in the Muslim community, particularly.
The dissolution of marriage is a sin as per Quran. Islam expresses divorce but only in exceptional circumstances because according to Prophet Mohammad divorce an evil. It must be kept away to the highest extent possible. It should only be granted when it has become impossible for the parties to keep on the union.
In pre- Islamic Arabia, the husband was free to divorce his wife without stating any cause of divorce. The power of divorce bestowed to the husband was unlimited and they were free to revoke the divorce as well. The women barely had any right to divorce. However, these evils were unfastened by the efforts of the Prophet.
Modes of Divorce:
Broadly there are two modes of divorce in Islam is majorly divided into two categories i.e.
· Extra -Judicial Divorce and
· Judicial Divorce
Extra-Judicial Divorce simply indicates that there is no intervention of the court; this is done just by the act of husband. Judicial divorce is just opposite to the same.
The Extra-Judicial divorce is further divided into three broad categories i.e.
1. By husband-
a. Expressed talq
3. by mutual agreement
Husband can disown his wife by his unilateral act without the consent of his wife by any of the following ways. This act of husband is known as ‘talaq’.
Expressed talaq: under this type of talaq the husband has unilateral power to dissolve the marriage between him and his wife. A Muslim husband can disown his wife without stating the cause of it to his wife and without recourse to any judicial authority. Expressed talaq is further divided into two segments:
1. Talaq-i-sunnat: this is a revocable form of divorce. Where the husband have chance to revoke the divorce before the final pronouncement. It is the most followed practice. The correct way of pronouncing divorce has been described in the Quran that the husband should pronounce the divorce when the wife is not in her menses. Similarly, the second pronouncement should be made in the next month when that period gets over. The same way third and final pronouncement should be made. Meanwhile, the gap between the pronouncements gives the time to reconsider the matter but after the third pronouncement, the husband loses the power of revoking divorce.
2. Talaq-I-Bidai: this is an irrevocable form of talaq. This form of divorce is purely against the procedure prescribed by the Quran and hence averse to the principles of Islam. This is generally done in the way of pronouncing Talaq in a single sitting, without reconsidering the pronouncement. This is one of the biggest sin in Islam. This form of talaq was followed in India commonly known as the practice if Triple Talaq but in the case of Shayara Bano vs. Union of India popularly known as triple talaq case the constitutional bench held that the practice of instantaneous triple talaq is unconstitutional with the majority of 3:2.
Ila: under this type of divorce the husband takes the oath of not having carnal intercourse with his wife. If there is no intercourse between husband and wife for 4 months continuously, then at the end of the fourth month the marriage gets dissolved permanently.
Zihar: the third kind of talaq by husband is of the nature that the husband starts comparing his wife with the women within prohibited relationship like sister, mother, etc. if the husband does not consummate for a period of four months after such comparison then marriage between them gets dissolved after the expiry of four months.
Wife under Muslim Law barely had any powers to divorce her husband but as the society evolved the status of women also raised.
Talaq-I-Tawfeez: this is the delegation of power of pronouncing divorce by husband in the favor of his wife. This delegation of power is irrevocable and can be delegated pre or post marriage. Here delegation can be simply understood in a way that there is an agreement between husband and wife which expressly states some conditions and circumstances on the breach of which wife can ask for divorce to husband.
Lian: if husband charges his wife of false charges of unchastity or adultery and the character of wife is questioned on those charges then the wife has got right to ask for a divorce and this is called lian.
By mutual agreement: this is done with the mutual consent of both the husband and wife. This can be done in two ways i.e. Khula and Mubarat .
Khula: The wife initiates this, and she asks her husband for his consent for divorce. The wife has to give some amount of consideration to her husband in return for his consent. This is also known as divorce by purchase.
Mubarat: either husband or wife can initiate the divorce, in this kind of divorce both the parties desire to separate from the bond of marriage. The wife has to give up her dower or a part of it with her husband. This is an irrevocable form of divorce.
Judicial Divorce: this is the formal form of divorce which includes no direct intervention of husband and wife but the courts separate them according to the procedure established by law. Under The Dissolution of Muslim Marriage Act, 1939 there is provision made for husband and wife to seek divorce. Section 2 of the act deals with it. States that a woman married under Muslim Law shall be entitled to obtain a decree of dissolution of her marriage on any one or more of the following grounds:
· Whereabouts of the husband have not been known for a period of 4 years.
· Husband has been sentenced to imprisonment for a period of seven years or upwards.
· Husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.
· Husband was impotent at the time of the marriage and continues to be so.
· Husband has been insane for a period of two years or is suffering from leprosy or virulent venereal disease.
· Any other valid ground under Muslim Law.
Every law or custom has its own pros and cons similarly there are positives and negatives of divorce under Islam as well, on the face of it the extra-judicial divorce has given extra powers to man but at the same time as the society is evolving the repute of Muslim women is also escalating gradually with the help of legislature and judiciary.
 Sayara Bano vs. Union of India , AIR 2017 S.C. 4609.
· The Dissolution of Muslim Marriage Act, 1939