Theories of Divorce in Muslim Law
Authored By- Shreya Venkatesh
Keywords: Talaq-ul-Sunnat, Talaq-e-Biddat, Mutual consent, Irrevocable, Irretrievable breakdown of marriage.
Each religious community has its own set of personal laws that govern rights related to marriage, divorce, succession, inheritance and charities. These are called personal laws and are distinct for each religious community. The Muslim personal law is Mohammedan law and in India, it is governed by the Muslim Personal Law (Shariat) Application Act, 1937. Divorce is specifically addressed by the Dissolution of Muslim Marriages Act, 1939 which lays down the provisions and conditions for divorce. This paper follows the theories of divorce laid down by this 1939 Act.
Under Mohammedan Law, marriage is considered to be a civil contract between parties with the institution of the family at its main focus. Divorce under this school of law need not be one that is obtained only through the courts. The dissolution of a marriage can be done at the instance of the husband through talaq, by the wife through khula, or based on mutual consent by Mubarak. There are a few other methods by which the marriage can be terminated. The recent laws have also become more progressive, thereby putting women on a more equal footing.
The Different Theories
There are four forms of divorce:
1. Unilateral divorce by the husband
i) Talaq-ul-Sunnat (revocable divorce)
ii) Talaq-e-Biddat (irrevocable divorce)
· Triple Talaq by Husband
· Divorce initiated by the wife (khula)
· Dissolution of Marriage by Faskh-e-Nikah
iii) Tafweedh-e-Talaq (husband’s power of talaq transferred to the wife)
2. Divorce by mutual consent (mabaraa)
3. Irretrievable breakdown of marriage
Talaq-ul-Sunnat, also called talaq-ul-raje is a revocable form of divorce where “talaq” is said over a period of 3 Tuhrs or menstrual cycles. It is further categorised into talaq-e-ahasan and talaq-e-hasan.
This type of talaq consists of a single pronouncement of divorce made in a period of tuhr or at any time if the wife has undergone menopause. If the marriage has not been consummated, he can pronounce talaq even when she is menstruating. This is followed by abstinence from sexual intercourse during the Iddat period. If sexual intercourse or cohabitation is resumed during the Iddat period between the husband and wife, the divorce is considered to be revoked. Talaq can be said even without the wife’s presence but the husband is required to specifically name the wife and make it clear that he intends to dissolve the marriage. In Shia law, written talaq is not accepted. The talaq has to be oral and there have to be at least two competent witnesses. Sunni law however does not require witnesses and the talaq can be either oral or written. The divorce is said to be final and irrevocable after the completion of the Iddat period(3 menstrual cycles). This form of talaq is widely accepted since the husband has ample time to reconsider his decision. Therefore, thoughtless or hasty divorces can be avoided.
In hasan form of talaq, the husband pronounces three talaqs in three successive tuhrs. If the wife has undergone menopause, the talaq can be pronounced after one month or 30-day intervals. Once the third talaq has been pronounced, the divorce becomes final and irrevocable. It is mandatory that no intercourse should take place during the tuhrs. If before the third talaq, either cohabitation or sexual intercourse is resumed, the divorce is considered to be revoked. Here, it is not necessary to wait for the Iddat period for the talaq to become complete. So, although there is some time to reconsider, it is not as widely accepted as talaq Ahasan since the Iddat period is not considered. This practice originated in pre-Islamic Arabia where the prophet laid down that the third talaq would be final. This was to prevent husbands who kept endlessly pronouncing and revoking the talaq.
In this form of divorce, the husband pronounces talaq thrice during the same period of tuhr. On the third pronouncement of talaq, the marriage becomes irrevocable. There is no waiting period to essentially reconsider the decision. The couple cannot reconcile either. In the talaq-ul-Sunnat type of divorce, the husband and wife can even get immediately remarried after the Iddat period. However, in Talaq-e-Biddat, the wife has to marry another, consummate the second marriage and get a divorce. Only then will she be allowed to marry her former husband. This form of divorce has been struck down by the Supreme Court of India in the case ShayaraBanov. Union of India. Following this, the triple talaq bill was passed that made the pronouncement of triple talaq illegal. It further made it a cognizable offense at the instance of the wife. The husband would be further sentenced to a three-year jail term with a fine.
This form of divorce is initiated by the wife and has the consent of the husband. He agrees to grant her divorce in return for a consideration. This can be any property or can also be a proportion of her Mehr. Both spouses should be majors and of sound mind. The wife herself can enter into the khula or it can be done through an agent. Hanafi law, the minor wife’s guardian can enter into Khul on her behalf but the consideration will be payable by him. The guardian of a male minor doesn’t have this power.
This form of divorce is similar to khula but it shouldn’t be confused with it. There are two main differences between the two. Here, the wife wants a divorce and initiates it, however the husband does not give his consent for the divorce. This is the first difference. However, if the wife is claiming divorce on valid grounds, the husband has no other choice but to pronounce talaq. The second difference is that the husband has to pay Mehr to the wife. Therefore, the wife benefits through this divorce instead of having to pay consideration to her husband.
This type of talaq is also called delegated talaq. The husband’s power to pronounce talaq is delegated to his wife or any other third person. It may be delegated absolutely, conditionally, temporarily or permanently. A permanent delegation of power is revocable but a temporary one is irrevocable. This becomes a powerful weapon in the hands of a Muslim wife who otherwise has no power to divorce her husband. If the wife invokes the delegated talaq, she will essentially be pronouncing talaq on herself on the happening of an event, thereby freeing herself of her husband. It is contingent in nature but the happening of the event alone will not finalise the divorce. It is entirely up to the wife. The power can be delegated to the wife under either a pre or post marriage agreement and is not revocable.
When the aversion is mutual, either spouse may propose a divorce. It is essentially divorce by mutual consent. The Shias insist on a particular form of divorce and believe that it should be obtained if both parties feel bona fide that the marriage is becoming irksome. However, the Shias follow no such rule. Although the husband is usually compensated through a portion of the Mehr, it is not an essential feature of the divorce. Here, both parties want to mutually be rid of each other.
Irretrievable breakdown of marriage
TheNoerbibiPirBux case established that incompatibility of temperaments and irretrievable breakdown of marriage were legitimate reasons for divorce. This was done in the belief that if “the limits of god will not be observed, it is better to dissolve the marriage”. Subsequent cases also referred to the Quran where there were instances of the prophet granting divorce to his wives who claimed they could not live in matrimony or that they hated their husband. In order to preserve the sanctity of family, spouses were released from being imprisoned in quarrelsome wedlock. The two grounds for granting divorce under this is non-payment of maintenance by the husband according to clause (ii) of Section 2, Dissolution of Muslim Marriage Act and total irreconcilability between the spouses under clause (ix) of Section 2 of the same Act. In Mohd. Abdul Zadil Ahmed v. Marina Begum, the Guwahati High Court added a new dimension to Section 2 by granting divorce by mutual consent as the parties had agreed on a compromise despite a provision for the same not being a provision of the Act.
Muslim Personal laws in general have given more power to the husband as they are considered to be the superior gender. However, laws are changing. The Muslim Women (Protection of Rights on Marriage) Bill, 2019 (triple talaq bill) and the judgements on irretrievable breakdown of marriage are signs that the law is becoming more inclusive and progressive in nature. Even the concept of delegated talaq gives women substantial power and control over the situation. It is to be kept in mind that all personal laws come from custom and tradition. Changing them completely isn’t feasible but by tweaking and amending these laws as the times’ progress, we are constantly striving towards inclusive, more equal and progressive laws.
ShayaraBanov. Union of India, (2017) 9 SCC 1. NoerbibiPirBux, AIR 1950 Sind 8. Mohd. Abdul Zadil Ahmed v. Marina Begum, AIR 1999 Gau 28.
· Dr. Paras Diwan, Family Law, ch.10 131-135.
· Dr. Paras Diwan, Family Law, ch.12 197-199.
· Dr. Paras Diwan, Family Law, ch.13200-205.