Divorce - Muslim Law

Dissolution of Muslim marriage
1) By death
2) By act of both or either of the parties divorce.
Modes of divorce - 2 categories of divorce under the Muslim law:

1)Extra judicial divorce, and
2) Judicial divorce
Extra judicial divorce can be further subdivided into

a) By husband- talaaq, ila, and zihar;
b) By wife- talaaq-i-tafweez, lian; faskh
c) By mutual agreement- khula and mubarat.
Judicial divorce right to wife under DMMA, 1939

Talaq
- means dissolution of marriage by husband using appropriate
words.
- Revocable and irrevocable talaq.
- Conditional or contingent only under sunni law
Conditions for valid talaq
1) Capacity muslim husband of sound mind who has attained the
age of puberty
2) Consent Hanafi (sunni) law - talaaq, pronounced under
compulsion, coercion, undue influence, voluntary intoxication etc.,
- valid
- Shia law (and also under other schools of Sunnis) -
pronounced under compulsion, coercion, undue influence, or
voluntary/involuntary intoxication - void.
3) Formalities may be oral, written. No specific formula/ use of any
particular word required
A) Express Talaq
Express talaaq, falls into two categories:
1) Talaaq-i-sunnat, (as per custom)
2) Talaaq-i-biddat
Talaaq-i-sunnat has two forms:

a) Talaaq-i-ahasan (Most approved)
b) Talaaq-i-hasan (Less approved)
Express Talaq
1) Talaaq-i-sunnat - a) Ahsan -
Conditions (1) husband must pronounce formula of
divorce in single sentence and
(2) must be in state of purity (tuhr) and
(3) must abstain from intercourse for period of iddat.
- Advantage - can be revoked before completion of iddat
expressly or impliedly
- Becomes irrevocable on expiry of period of iddat.
Express Talaq
Talaaq-i-sunnat - b) Hasan talaq
Conditions (a) three successive pronouncements of formula for
divorce;
(b) in case of menstruating wife first pronouncement during tuhr
period of tuhr, second during next tuhr and third during successive
tuhr
(c) and no sexual intercourse should take place during these three
periods of tuhr.
- First and second pronouncement may be revoked by husband
expressly or impliedly but it becomes irrevocable on third
pronouncement.
Express Talaq
2) Talaq-i-biddat - Biddat means sinful/condemned.
- Though sinful but lawful under Hanafi (Sunni) but
not recognized under Shia
- becomes irrevocable immediately irrespective of
iddat.
- 2 forms
(i) triple declaration made in period of purity or during
menstruation either in 1 sentence or in 3, and
(ii) single irrevocable pronouncement made in a period
of tuhr or during menstruation.
B) Ila
Conditions under Illa:
(a) husband must have attained majority and must be of sound
mind (b) swears by God or takes a vow (c) not to have sexual
intercourse with his wife (d) followed by no consummation for a
period of 4 months.
After the expiry of the fourth month, the marriage dissolves
irrevocably
Revocation of Ila a) husband resumes cohabitation within four

months or b) expressly remarks that he has revoked Ila.
- Not practiced in India.
C) Zihar
- unlawful/unjust comparison
- husband compares his wife with a woman within his prohibited
relationship
- Wife then gets right to refuse cohabitation unless he performs a
penance i.e., feeding sixty poor persons, or observance of fast
for 2 months or release a slave.
- If he refuses to perform penance wife may get judicial divorce
- Now become obsolete. Not in vogue in India.
Divorce by mutual agreement:
- May be Khula or Mubaraat.
D) Khula - divorce with the consent and at instance of wife
in which she gives or agrees to give consideration to
husband for her release from marriage tie.
- No particular form is required.
- Conditional Khula recognised by Sunni but not Shia
- Presence of witness not required under sunni but under
shia offer and acceptance must be made in presence of
two competent witnesses.
- As soon as offer of khula is accepted it becomes single
irrevocable divorce and wife is bound to observe iddat.
Divorce by mutual consent - E. Mubarat
- both the parties desire divorce therefore element of mutual
consent.
- Under Sunni law - no particular form required but must be
in same meeting and word mubaraat must be clearly
expressed in proposal.
- Shia a) insist on proper form. Word mubaraat should be
followed by word talaq otherwise no divorce would follow.
- b) it must be in Arabic unless both are incapable of
pronouncing Arabic words and intention should be clearly
expressed.
- When mubarat is accepted, it becomes an irrevocable
divorce and iddat is necessary.
F. Talaaq-i-tafweez
- delegated divorce recognised under both schools
- Delegation to his wife or any other person
- Delegation absolutely, contingent or conditionally,
temporarily or permanently.
- Permanent delegation power may be revoked but
temporary delegation power is non revocable
- Delegation may be made in pre-nuptial agreements or
even in the post marriage agreements.
G. Lian
- If husband levels false charges of unchastity or adultery
against his wife or denies paternity of her child then wife has
right to ask for divorce on these grounds. such a mode of
divorce is called Lian.
- Wife only of sahih marriage entitled to file such suit
- Wife to get decree of divorce on the ground of Lian only when
charges/accusations are found to be false
- it only gives a right to sue the husband for divorce
H. Faskh
- Before 1939 a Sunni muslim wife could seek
divorce by judicial decree only on the ground
of (i) lian or (ii) impotency and under Shia law
muslim wife could claim divorce on ground of
husbands failure to maintain her, desertion,
cruelty etc.
- conflicting provisions in vaious schools with
regard to divorce by wife granted by court
therefore DMMA, 1939 was enacted
I. Dissolution of Muslim Marriages Act
1939
- gives rights to wife only
- Sec 2 of the Act contains 9 grounds of which clause (ix)
is residuary clause
- Section 4 of Act provides that if wife renounces Islam
and ceases to be a muslim, marriage does not dissolve
ipso facto, therefore at the time of filing of petition
under the Act, she need not be a muslim wife.
1939 (S. 2)
- (i) whereabouts of the husband have not been known
for a period of four years.
- Proviso (b) is attached according to which decree to
this effect which becomes effective only after the
expiry of six months
- Section 3 provides that where a wife files petition for
divorce under this ground, she is required to give the
names and addresses of all such persons who would
have been the legal heirs of the husband upon his
death.
1939 (S. 2)
(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;
- Before passing a decree of divorce on this ground, the
court is bound to give to the husband one year to improve his
potency provided he makes an application for it.
1939 (s. 2)
(vi) If the husband has been insane for a period of two years or is
suffering from leprosy or a virulent veneral 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) 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
illtreatment, or
(b) Associates with women of ill-repute or leads an infamous life; or
1939 (S. 2)
(c) Attempts to force her to lead an immoral life; or
(d) Disposes of her property or prevents her exercising her legal
rights over it, or
(e) Obstructs her in the observance of her religious profession or
practice, or
(f) If he has more than one wives, does not treat her equitably in
accordance with the injunctions of the Holy Quran.
- clause (ix) is residuary clause i.e., wife could seek divorce on any
ground not included in 8 grounds.
Apostasy (Section 4 of Dissolution of Muslim
Marriage Act, 1939)
(a) apostasy by husband not governed by 1939 Act and applies as
was before i.e., if he renounces marriage dissolves immediately
and wife ceases to be a muslim wife and is free to marry another
without undergoing iddat.
(b) Apostasy by wife not dissolved ipso facto after 1939 Act and
continues to be muslim wife and can claim decree under section 2.
Exception Section 2 does not apply if she was not muslim by birth
i.e., if she was converted muslim at the time of marriage and such
converted wife renounces and again embraces her original religion
then marriage dissolves immediately.

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Divorce - Muslim Law

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Dissolution of Muslim marriage

Modes of divorce - 2 categories of divorce under the Muslim law:

Extra judicial divorce can be further subdivided into

Judicial divorce right to wife under DMMA, 1939

Talaaq-i-sunnat has two forms:

Revocation of Ila a) husband resumes cohabitation within four

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