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KEY TAKEAWAYS

  • Divorce in Islamic law can take place either through the spouses' own actions or through a court order.
  • There are three types of divorce in Islamic law (sharia), each with its own set of rules. The procedure is known as talaq when a man initiates a divorce.
  • Khula and Mubarat are two types of mutual consent divorces, but in both, the wife must give up her dower or a portion of her other property.
  • In Shaikh Taslim Shaikh Hakim vs State of Maharashtra and Anr., the Court held that under Muslim Personal Law, a family court can dissolve a Muslim couple's marriage by mutual consent, and the Bombay High Court quashed criminal proceedings against the husband based on the couple's amicable settlement in the Family Court petition.

INTRODUCTION

A happy family life is dependent on a strong marriage between the husband and wife. As a result, Islam emphasises the importance of marriage and warns against breaking a marital contract. No marriage is intended to be dissolved at the outset, but bad circumstances force the matrimonial bond to be broken. Divorce is one way to dissolve such a relationship. Divorce in Islamic law can take place either through the spouses' own actions or through a court order. However, divorce has never been viewed as a rule of life, regardless of how it is influenced. Divorce is regarded as an exception to the status of marriage in Islam. There are three types of divorce in Islamic law (sharia), each with its own set of rules. The procedure is known as talaq when a man initiates a divorce.

The process is known as li'an when a husband accuses his wife of infidelity without providing witnesses and the wife rejects it. Khul'i is the term for a divorce initiated by a woman. Talaq is relatively easy to come by, however, khul'i is harder to come by.

TALAQ

TALAQ: It is a noun derived from the Arabic verb talaaq. Which means "to untangle" or "to set free." Technically, talaaq gives a Muslim husband the unilateral ability to divorce his wife whenever he wants. The word Talaaq is commonly translated as "rejection," however it derives from the root "Talaaq," which means "to free (an animal) from its leash." The wife is releasedfrom the bonds of marriage in law, which denotes the husband's unlimited ability to divorce his wife. "Men are maintainers of women, since Allah has made some of them to excel others and because they spend out of their possessions," says the verse in defence of the husband's unilateral divorce right (on their maintenance and dower). Talaaq is the legal term used when a husband utilises his right to declare divorce. The most striking characteristic of Muslim talaaq law is that it is recognised by both Sunni and Shia schools, with minor differences. The practice of talaaq has become so common in the Muslim world that it has even been practiced by Imams. Islam recognises a Muslim husband's absolute ability to divorce his wife unilaterally, without assigning any reason, literally at his whim, even in jest or while inebriated, and without appeal to the court, and even in the absence of the woman. All that is required is for the husband to recite Talaaq; the manner in which he does so, when he does so, or what he does is unimportant. Talaaq might be spoken, implicit, contingent, constructive, or even delegated among Sunnis. Only the express and delegated forms of talaaq are recognised by Shias.

The husband does not have to use the precise phrases "I divorce thee" or "1 divorce you" in Talaq (divorce). Other phrases are permissible under Shariah law. As a result, talaq declarations can be divided into two categories:

- Talaaq-Sareeh: This is a formal divorce proclamation, such as "I divorce thee."

- Talaaq-Kinaya: An ambiguous or oblique pronouncement of divorce, utilising phrases that are not specifically mandated for issuing divorce yet alludes to it.

"You are divorced," "you are clear," "you are irrevocable," "you are cut off," "you are concluded," "you are a free woman," and "you are forbidden," according to Islamic scholar Ibn Abdul-wahhab.

If the husband intended to provide talaaq, Talaq-Kinaya will result in irreversible divorce (Talaq- Bayyin), but it will not count if he did not want to signal a divorce, according to at least one school of Islam.

MUTUAL CONSENT DIVORCCE

Khula and Mubarat are two types of mutual consent divorces, but in both, the wife must give up her dower or a portion of her other property. "And it is not lawful for you to take anything from women out of which you have given them," says a verse in the Holy Quran, "except (in the case) when both fear that they may not be able to keep within the limits (imposed by Allah), in which case it is no sin for either of them if the woman ransom herself." In its original connotation, the word khula means "to draw," "dig up," or "to take off," as in removing one's clothes or garments. The couples are supposed to be like clothes to one other, and when they take khula, each of them removes his or her garments, i.e., they get rid of each other.

It is considered to represent an agreement between the spouses to dissolve a connubial union in exchange for compensation paid out of the wife's property to her husband. Although the actual release of the dower or transfer of the property constituting the consideration is required for the khula to be legal, it is not a condition prior. When the husband agrees to the divorce, it is final.

The husband does not have the authority to cancel the 'khul' because the consideration has not been paid. The subject of consideration can be anything, but most often it is mahr, in its entirety or in part. However, it might be any property that isn't illusory. The most notable element of mubarat is that both parties want to divorce. As a result, the proposal may come from either side. Both the husband and the wife are pleased to be rid of each other in mubarat. When the parties to marriage enter into a mubarat, all mutual rights and duties are terminated.

The Shia legislation, on the other hand, is very strict. It necessitates that both partners genuinely find the marital relationship vexing and inconvenient. The Sunnis do not have a prescribed form, whereas the Shias insist on one. The Shias require that the term mubarat be followed by the word talaaq; else, there will be no divorce. They further stipulate that the pronouncement must be made in Arabic unless the parties are unable to do so. The intention to end the marriage should be stated unambiguously. Mubarat is unavoidable among Shias and Sunnis alike. Other conditions are the same as in khula, with the exception that the wife must endure an iddat period. In both cases, a divorce is largely an act of the parties, with no need for court participation.

THE DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939

The Dissolution of Muslim Marriages Act of 1939 governs the circumstances under which Muslim women in India can seek divorce. The Muslim Personal Law (Shariat) Application Act, 1937, is the title and text of the document, which deals with marriage, succession, and inheritance among Muslims. The 1939 act (Act No. 8 of 1939) was enacted to consolidate and clarify the laws of Muslim Law relating to divorce actions brought by women married under Muslim Law.

On March 17, 1939, the Governor-General gave his approval to the measure. In Muslim law, the woman has the option of seeking divorce through extrajudicial or judicial means. Talaaq-i-tafweez and Lian are the extrajudicial modes. The Dissolution of Muslim Marriages Act of 1939 governs the legal process. The act lays out the grounds and procedure for divorce.

Section 2 of this Act discusses the grounds for divorce -

A woman married under Muslim law is entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds:

(i) that the husband's whereabouts have not been known for four years;

(ii) that the husband has neglected or failed to provide for her maintenance for two years;

(iii) that the husband has been sentenced to imprisonment for seven years or more; and

(iv) that the husband has been sentenced to imprisonment for seven years or more.

(v) that the husband was and continues to be impotent at the time of the marriage;

(vi) that the husband has been insane for two years or is suffering from a virulent venereal disease; and

(vii) that she, having been given in marriage by her father or other guardians before the age of fifteen, repudiated the marriage before the age of eighteen.

SHAIKH TASLIM SHAIKH HAKIM VERSUS THE STATE OF MAHARASHTRA AND ANOTHER, 2022 [CRIMINAL APPLICATION NO.166 OF 2022]

In this case, the husband sought that an FIR filed with the Parbhani police for offences punishable under sections 498(A), 323, 504, and 506 of the Indian Penal Code, as well as the subsequent charge sheet should be quashed on the grounds that the parties had reached an amicable settlement. Shaikh Wajeed Ahmed, the husband's lawyer, claimed that the couple separated by mutual consent and went to the Family Court in Parbhani to have their matrimonial status declared under section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, and section 7(1)(b) Explanation (b) of the Family Courts Act, 1984.

On March 9, 2022, a Family Court judge granted the petition and stated that they are no longer husband and wife in accordance with their mutual agreement. After receiving Rs. 5 lakhs in complete and final settlement, the wife agreed to have the criminal proceedings quashed.

The Bombay High Court rejected criminal proceedings against the husband based on the couple's amicable settlement in the Family Court petition, observing that under Muslim Personal Law, a family court can dissolve a Muslim couple's marriage by mutual consent.

The court noted that under Section 2 of the Muslim Personal Law (Shariat) Act 1937, all property, marriage, dissolution of marriage including mubaraat, maintenance, dower, guardianship gifts, trusts, and trust properties concerning Muslims is governed by the Act. Moreover, the Family Court was empowered to adjudicate a suit regarding the validity of a marriage or a person's matrimonial status under section 7 (1)(b) of the Family Courts Act.

Following that, based on the Supreme Court's decision in Kulwinder Singh, which states that cases arising from matrimonial discord can be quashed if a settlement is reached, these proceedings were quashed.

OTHER RELATED CASE LAWS

The privy council ruled in Shoharat Singh vs Musammat Jafri Bibi [(1915) 17 BOMLR 13]that marriage is a religious event under Muslim law. Marriage is recognised as a foundation of society and an institution that leads to man's upliftment and is also a mechanism for the human race's continuation in Islam.

Their Lordships of the Judicial Committee in Moonshee-Buzlu-ul-Raheem v. Lateefutoonissa(1861)properly defined Khula. A divorce by khula is a divorce that occurs with the wife's permission and at her request, in which she gives or promises to give a consideration to the husband in exchange for her freedom from the marriage tie. It refers to a contract entered into with the aim of ending a sexual relationship in exchange for compensation given by the woman to her husband from her assets. Khula is, in fact, a divorce right purchased by a wife from her husband.

CONCLUSION

Marriage can be solemnised in a variety of ways in Muslim law, and divorce can be initiated for the dissolution of marriage in a variety of ways as well. To address the demands of changing conditions, the Government of India has introduced legislation to manage Muslim marriage and divorce, such as the Muslim Dissolution of Marriage Act, 1939, and the Muslim Women (Protection of Rights on Marriage) Act, 2019. Apart from these statutes and personal laws, the Uniform Civil Code is required to create a single set of informed rules that govern all citizens of the country in order to build national unity and integrity.

Click HERE to learn the practical aspect of Muslim laws.


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