Controversy of The Divorce under Muslim Personal Law - An Overview

Recently, a daring Muslim woman Shayara bano filed a writ petition in the year 2016 before the Apex Court challenging the practices of Polygamy, talaq-e-bidaat and halala prevalent among the Muslim Community terming these practices as violative of individual’s fundamental right to equality, right against discrimination and right to live with human dignity guaranteed by the Constitution of India.

This article is an attempt to look into the concept of dissolution of marriage under the Muslim personal law, talaq-e bidaat and halala being a part thereof. The concept of Polygamy has been left as being out of the purview of this article.

Concept of Marriage under Muslim Personal Law

 Marriage or Nikah under Muslim personal law is defined to be a civil contract having for its objective the procreation and legalization of children. Every Muslim of sound mind and of the age of puberty  is competent to enter into a contract of marriage. Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians. However, marriage of a Muslim who is of sound mind and has attained puberty is void if it brought about without obtaining his consent. There is a presumption of puberty, in absence of evidence on completion of the age of fifteen years.

Since marriage under Muslim law is a contract as has been explained above, this contract may be dissolved in any of the following ways:

Modes of Dissolution of Marriage under Muslim Personal Law

The Delhi High Court has in the case of  Masroor Ahmed V. State (NCT of Delhi) 2008 (103) DRJ 137 (Del.)  has elucidated the various modes of dissolution of marriage under Muslim law. The Honourable Court elaborating Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937  averred that the key words in the sections 2 are 'notwithstanding any customs or usage to the contrary, the rule of decision in cases where the parties are Muslims shall be Muslim personal law (Shariat)'. This provision requires the court before which any question relating to, inter-alia, dissolution of marriage is in issue and where the parties are Muslims to apply the Muslim personal law irrespective of any contrary customs or usage. What is also of great significance is the expression 'dissolution of marriage, including talaq, ila, zihar,lian, khula and mubaraat'. This gives statutory recognition to the fact that under Muslim personal law, a dissolution of marriage can be brought about by various means, only one of which is talaq. 

 When divorce emanates from the husband, it is termed as 'talaq';

In 'Khula', wife proposes to her husband for dissolution of the marriage. This may or may not accompany her offer to give something in return. In general, the wife offers to give up her claim to 'Haq Mehr' (dower). 'Khula' emanates from wife which the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return.

'Mubaraat' is where both the wife and husband decide to mutually put an end to their marital tie. Since this is divorce by mutual consent there is no necessity for the wife to give up or offer anything to the husband.

It is important to note that under 'Khula' and mubaraat,  there is no need for specifying any reason for the divorce. It takes place if the wife (in case of khula) or wife and husband together (in case of mubaraat) decide to separate on a no fault/no blame basis. The pronouncement of talaq by husband also entails no need of specifying any reasons whatsoever.  

'Ila' ( Divorce effected by abstinence from sexual intercourse for the period of not less than four months pursuant to a vow) and 'Zihar' ( wherein the husband compares his wife to his mother or any other female within prohibited degrees, the wife has a right to refuse herself to him until he has performed penance. In default of expiation by penance, the wife has the right to apply for judicial divorce) as modes of divorce are virtually nonexistent in India. However, 'lian' is sometimes resorted to. If a man accuses his wife of 'zina' (adultery), but is unable to prove the allegation, the wife has the right to approach a qazi (judicial authority) for dissolution of marriage. In India, a regular suit has to be filed. Once such a suit is filed by the wife, the husband has the option of retracting his charge of adultery, where upon the suit shall fail. However, if he persists, he is required to make four oaths in support of the charge. The wife makes four oaths of her innocence, after which the court declares the marriage dissolved. This is the process of dissolution of marriage by 'lian'.

It may not be out of place here to mention The Dissolution of Muslim Marriage Act, 1939 (the 1939 Act) which empowered the Muslim women of all sects to seek dissolution of marriage by a decree of the court under various ground enumerated in Section 2 thereof.  

Views of Indian Courts on Divorce under Muslim law

It is a general perception that the condition of women under Muslim personal law is in a grave dilapidated condition and the marital alliance of a woman under Muslim law is dependent upon the whims and fancies of her husband and this general perception found support in the case of  Mohammed Haneefa v. Pathummal beevi ( 1972 Ker LT 512) in which the Honorable Court stated citing a previous case :

'I feel it my duty to alert public opinion towards a painful aspect that this case reveals. A Division Bench of this Court, the highest Court for this State, has clearly indicated the extent of the unbridled power of  a Muslim husband to divorce his wife. I am extracting below what their Lordships have said in Pathayi Vs Moiden (1968 Ker LT 763):

The only condition necessary for the valid exercise of the right of divorce by a husband is that he must be a major and of sound mind at that time. He can effect divorce whenever he desires. Even if he divorces his wife under compulsion, or in jest, or in anger that is considered perfectly valid. No special form is necessary for effecting divorce under Hanafi law…The husband can effect it by conveying to the wife that he is repudiating the alliance. It need not even be addressed to her. It takes effect the moment it comes to her knowledge.

Should Muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Can it not be amended suitably to alleviate their sufferings? My judicial conscience is disturbed at this monstrosity. The question is whether the conscience of the leaders of public opinion of the community will also be disturbed.'

Thankfully, most of our Indian Courts have time and again taken a different view from what had been taken by their Lordships in the case of Pathayi v. Moideen  as cited above.  In an illuminating judgment, One of the biggest legal stalwarts of all times, V. R. Krishna Iyer.J. as he then was, has made extensive observations  in his judgment reported as  A.Yousuf Rawther V. Sowramma (AIR 1971 Ker. 261). His observations were thus :

'The interpretation of legislation, obviously intended to protect a weaker section of the community, like women, must be informed by the social perspective and purpose and, within its grammatical flexibility, must further the beneficent object. And so we must appreciate the Islamic ethos and the general sociological background which inspired the enactment of the law before locating the precise connotation of the words used in the statute.

Since infallibility is not an attribute of the judiciary, the view has been ventured by Muslim  jurists that the India-Anglian judicial exposition of the Islamic Law of Divorce has not exactly been just to the Holy Prophet or the Holy book (Quran). Marginal distortions are inevitable when the Judicial Committee in Downing Street has to interpret Manu and Muhammad of India and Arabia. The soul of a culture--law is largely the formalized and enforceable expression of a community’s cultural norms--cannot be fully understood by alien minds. The view that Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions.

It is a popular fallacy that a Muslim man enjoys, under the Quranic  Law, unbridled authority to liquidate the marriage. The whole Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him. 'If they (namely, women) obey you, then do not seek a way against the.' (Quran IV:34). The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife , by her indocility or her bad character, renders the married life unhappy, but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously.

Commentators on the Quran have rightly observed- and this tallies with the law now administered in some Muslim countries like Iraq- that the husband must satisfy the Court about the reasons for divorce. However, Muslim Law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce.

After quoting from the Quran and Prophet , the judgment illumines that ' divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of marriage by Talaq or by Khula…Consistently with the secular concept of marriage and divorce, the law insists that at the time of Talaq the husband must pay off the settlement debt (dower or Haq Mehar) to the wife and at the time of Khula she has to surrender to the husband her dower or abandon some of her rights, as compensation. '

A stream of brightening light is shed further more by two considerable decisions of the Gauhati High Court recorded by Justice Bharul Islam, sitting singly in Jiauddin Ahmed v. Anwara Begum (1981) 1 GLR 358)  and later speaking for the Division Bench in Rukia Khatun V Abdul Khalique Laskar (1981) 1 GLR 375).  In Jiauddin Ahmed case, a plea of previous divorce i.e. the husband having divorced the wife on some day much previous to the date of filing of the written statement in the Court was taken and upheld. The question posed before the High Court was whether there has been valid talaq of the wife by the husband under the Muslim Law?  The learned Judge observed that though marriage under the Muslim Law is only a civil contract yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity, that a high degree of sanctity is attached to it. But, in spite of the sacredness of the character of the marriage tie, Islam recognizes the necessity, in exceptional circumstances, of keeping the way open for its dissolution. Quoting in the judgment several Holy Quranic verses and from commentaries thereupon by well recognized scholars of great eminence, the learned Judge expressed disapproval of the statement that 'the whimsical and capricious divorce by the husband is good in law, though bad in theology' and observed that such state is based on the concept that women were chattel belonging to men, which the Holy Quran does not brook. The correct law of talaq as ordained by the Holy Quran is that talaq must be for reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters- one from the wife’s family and the other from husband’s; if the attempts fail, talaq may be effected.

In Rukia Khatun  case, the Division bench stated that the correct law of talaq, as ordained by the Holy Quran is 1) that talaq must be for a reasonable cause; and 2) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by wife from her family and other by husband from his. If their attempts fail, talaq may be effected.

Talaq explained

The Apex Court in Zohara Khatoon V. Mohd. Ibrahim [(1981) 2 SCC 509)] has observed that a divorce given unilaterally by husband is especially peculiar to Mahomedan law. In no other law has the husband got a unilateral right to divorce his wife by a simple declaration.

The Delhi High Court in the case of Masroor Ahmed V State (NCT of Delhi) 2008 (103) DRJ 137 (Del.)  elaborated the three forms of talaq in existence  :

1) Ahsan Talaq : When the husband makes a single pronouncement of talaq during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat*. It is revocable during the period of iddat and becomes irrevocable when the period of iddat expires.

2) Hasan Talaq : Where the husband makes a single pronouncement of divorce during three successive tuhrs, without any sexual intercourse during the said tuhrs. The first two pronouncements are revocable during the period of iddat. The third is irrevocable.

3) Talaq-E-bidaat : When three pronouncements are made in one go (triple talaq) either in  one sentence signifying a clear intention to divorce the wife, for instance, the husband saying 'I divorce you three times' or ' I divorce you, I divorce you, I divorce you' or the much publicized 'Talaq, talaq, talaq'.

The Court  elucidated that it is accepted by all schools of law that talaq-e-bidaat is sinful. It was deprecated by the Prophet. It is definitely not recommended or even approved by any school. It is not even considered to be a valid divorce by shia schools. There are views even amongst the sunni schools that the triple talaq pronounced in one go would not be regarded as three talaqs but only as one .

The Court took judicial notice of the fact that the harsh abruptness of triple talaq has brought about extreme misery to the divorced women and even to the men who are left with no chance to undo the wrong or any scope to bring about a reconciliation. It is an innovation which may have served a purpose at a particular time in history but , if it is rooted out, such a move would not be contrary to any basic tenet of Islam or the Quran or any ruling of the Prophet Muhammad.

The Court held in this case that a triple talaq/talaq-e-bidaat, even for sunni  Muslims be regarded as one revocable talaq. This would enable the husband to have time to rethink and have ample opportunity to revoke the same during the iddat period . All this while, family members of the spouses could make sincere efforts at bringing about reconciliation.

Once the talaq has become final and irrevocable and the estranged couple want to re-enter matrimony, it can only be done after contracting a fresh nikah. However, the fresh nikah between the estranged  couple cannot be entered into unless the wife enters into a matrimonial alliance with someone else and consummate such a marriage. This process is called 'Halala'.

Conclusion

The above discussion signifies one fact that even though the judicial opinion by and large is tilted for the welfare of the Muslim Women, there have been plethora of mixed judgments. In fact, A married Muslim women lives in a constant fear of being divorced at the whim of  her husband. In addition to triple talaq, the process of 'Halala' is derogatory to the dignity of Muslim women and hampers her right to life and personal liberty and to live with human dignity. 

Now, all eyes are on  the Honorable Supreme Court to settle the law for good by giving an elaborate judgment on the petition filed by Shayara bano and pronounce whether or not Articles 14,15 and 21 of the Constitution would have precedence in case of conflict with freedom of religion guaranteed under Article 25 of the Constitution. A decision in favour of Articles 14,15,21 will usher in such a reform as will ameliorate the Muslim women from the practices as challenged and usher in a much required positive change in favor of the fairer sex of a significant community of our country who have been shown a glimpse of shining light after a long dark tunnel by a brave lady named Shayara Bano.

*iddat period means in the case of a divorced woman -

(i) three menstrual courses after the date of divorce, if she is subject to menstruation;

(ii) three lunar months after her divorce, if she is not subject to menstruation’ and

(iii) if she is enceinte (pregnant) at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy, whichever is earlier.

 

Published in Family Law
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