This Article is written by Aparna Chaki, student of Heritage Law College (Calcutta University).
Divorce in simple terms means the legal cessation or dissolution of the marital unification between partners. In India, divorce law and procedures substantially differ subject to the varied communities that the couple belongs to. Marriage is a contractual relationship between two parties under Muslim law. It contains all the essentials that are required for a valid contract – offer, acceptance, consideration, consent, etc. A solidified union of the wife and husband is a requisite condition for a propitious as well as content family life. Islam, hence, importunes upon the sustenance of marriage and establishes that breach of marriage contract should be desisted from. Muslim law sets down that divorce in Muslims may occur by the act of the parties themselves or a decree passed by any law court. In Islam, divorce is regarded as an exception to the institution of marriage.
HISTORY AND CONCEPT OF TALAQ
Among the Arabs in the pre-Islamic era, the husband had an unlimited power to divorce their wife at any time, with or without any valid ground. The husbands also had the power to revoke their divorce and divorce them again as per their whims and preferences. They could capriciously accuse their wives of adultery, abandon them and leave them with ill-repute so that would dissuade other suitors from marrying the women. This would immune the husbands from taking any formal responsibility to maintain their wives or any legal punishment. During the pre-Islamic Arabian time, there were four types of dissolution of marriage known as – Talaq, Ila, Zihar, and Khula. Any woman who was divorced through any of these methods was free to remarry but only after the period of iddat had passed. This period of time was followed in order to ferret out the legitimacy of the child. During those times, the period of iddat was for one year in case the husband died.
The Prophet of Islam considered the practice of divorce with utmost disapprobation and regarded this custom as premeditated to sabotage the genesis of the society. However, it was not possible to eliminate this practice completely because of the existing conditions in society. The Prophet decided to shape the intellects of an unpolished and semi-boorish community to a higher evolution. Accordingly, he inhibited the incalculable power of the husband to divorce his wife and gave the woman the right to procure separation on valid grounds. He marked that talaq was an abhorrent system as it averted marital gaiety and impeded the suitable fostering of children. Divorce was considered evil by him and was asked to avoid it as much as possible. However, in certain cases, it became obligatory given the bedrock that the spouses were unable to live happily together and better choose different paths of life.
MODES OF TALAQ
There are various modes available under Muslim law for the dissolution of marriage. Some of them are mentioned below:
By the husband: There are four modes at the disposal of the husband to get talaq from his wife.
- Talaq-ul-Sunnat: This mode of talaq is efficacious analogously with the beliefs and ideas entrenched by the Prophet. It is also known as Talaq-ul-raje. This mode of talaq is considered an accepted form of talaq and recognized by both Sunni as well as Shia Muslims. It is further divided into:
- Talaq-e-Ahsan: This is considered as the most suitable type of repudiation of marriage mostly because in this case the decision of talaq can be revoked before the iddat period escapes. Also, the word ‘talaq’ is uttered only once in this case.
- Talaq-e-Hasan: This too is an approved form of talaq and the very word needs to be repeated thrice in this case in successive periods after the menstrual cycle. In this case, there is a provision for revocation of the decision which needs to be made after the first or second tuhr(purity period).
- Talaq-ul-Biddat: It is also known as Talaq-ul-Bain and is a condemned mode of divorce under Muslim law. This mode of divorce is mainly recognized and practiced by the Sunni Muslims. A distinctive characteristic of this divorce is that as soon as the words of ‘talaq’ is pronounced by the husband, it comes into effect and there stands no chance of reconciliation between the parties. In other words, the decision becomes irrevocable.
However, in a judgment given by the Hon’ble Supreme Court in the year 2017 in the case of Shayara Bano v. Union of India & Ors. declared the practice of triple talaq as unconstitutional as it was violative of Article 14 under the Indian Constitution. In the year 2019, the Parliament of India declared the practice of the same as unconstitutional and made it a punishable act and thereby signed by the President of India on July 31, 2019.
- Ila: Ila is a mode of divorce wherein a husband who is of a sound mind takes an oath to refrain from any kind of sexual intercourse with his wife. Post taking such an oath, there is no consummation for a time period of four months. Once the fourth-month lapses, the marriage becomes irrevocably dissolved. However, if the husband indulges in any sexual intercourse with his wife within the time-frame of four months, Ila is called off and marriage is not dissolved. Nevertheless, the Ila form of divorce is not practiced in India.
- Zihar: This is a mode of divorce which is obsolete in itself. In this, the husband having a sound mind, and having attained the age of 18 years when compares his wife to his mother or sister (his prohibited relationship), the parties to the marriage don’t cohabit for a time-frame of four months. Once such a time period is over, Zihar is complete i.e. the marriage dissolves.
- By the wife
- Talaq-e-tafweez: This is the only mode of divorce through which a wife gets the liberty to divorce her husband. It is recognized by both the Shia Muslims as well as Sunni Muslims. It is also known as a delegated form of divorce as the husband, in this case, is at his own liberty to delegate the power to pronounce talaq to his wife or someone else. It is pertinent to note that the delegation when made to the concerned person should be done exquisitely and the impetus for doing so must be clear. There are two conditions under which the wife can attain talaq in this case: (i) when the husband remarries and gets another wife (ii) the husband is not able to maintain his wife or some other circumstance which is not in defiance with public policy.
- By Mutual Consent
- Khula: When the mutual relationship between the husband and wife gets strained, the wife, if she wishes so, may seek a Khula divorce. In other words, she relinquishes her claim to the dower. It, thereafter, depends on the husband to receive the consideration of dower and concede to divorce. Similarly, the husband may also propose a Khula mode of divorce, if he wishes so. It is on the wife’s decision to accept or refuse it. It is considered to be a ‘redemption’ of the marriage (a contractual obligation) between the parties.
- Mubarat: Mubarat in Muslim law denotes mutual dismissal from the marriage claims. The abhorrence in this case towards each other is mutual and both the parties yearn for separation. This is an irrevocable form of divorce. Idda,tin this case, is necessary to be followed by the wife and she is entitled to maintenance. When the parties to the marriage go for Mubarat, all mutual rights and obligations cease to operate.
- Judicial Divorce
- Lian: Under Lian, the wife can sue her husband and obtain a divorce for accusing her of wrong charges of adultery. For attaining divorce, she needs to file a regular suit under the Dissolution of Marriage Act, 1939 for dissolution of the marriage. It is essential that for this case that the marriage between the parties should be sahih and not fasid. Later, the husband is left with two choices – either to retract the false charges before the trial ends wherein the divorce does not take place or accuse his wife on oath that she committed adultery. A prerequisite condition for this is that the husband needs to be of sound mind and must have attained the majority.
- Faskh: The law of Faskh is founded upon the Holy Koran. Faskh, in other words, means annulment. When the husband and wife find it difficult to cohabit together, they approach the court of law. In this case, the Kazi (law courts in India) has the power to carefully examine the case of the husband and wife and cease the marriage.
- The Dissolution of the Marriage Act, 1939 contains provisions under Section 2 where a wife can divorce her husband based on few grounds: They are as follows:
- The husband’s whereabouts have not been known for a time-frame of four years.
- The husband has failed to care for the wife or unable to furnish her maintenance for a span of two years.
- The husband has been sentenced to imprisonment for a time period of seven years or more.
- Without appropriate cause, the husband has ineffectively performed his marital obligations for a period of three years.
- The husband was impotent at the time of marriage and continues to remain so.
- The husband has been mentally unstable, i.e. insane for a span of two years, has been suffering from leprosy or any virulent venereal disease.
- If the wife before having attained fifteen years of age was given in marriage by her father or any other guardian, repudiated the marriage.
- If the wife has been subjected to any form of cruelty by her husband.
GROUNDS FOR A VALID TALAQ
- Capacity: A Muslim husband needs to be of sound mind and must have attained the age of puberty in order to pronounce talaq. No guardian can pronounce talaq on behalf of the husband or of the minor husband. In case the husband is insane, then the Judge has the right to dissolve the marriage.
- Free Consent: If talaq is pronounced under coercion, compulsion, undue influence, voluntary dissolution, fraud, etc., talaq becomes invalid. Talaq has to be always pronounced under free consent.
- Formalities:Talaq, under Sunni law, may be either in writing or spoken orally. Talaq may either be pronounced by uttering the words or he may even write it. Such pronouncement need not be made in the presence of any witnesses.
- Express Words: When the words of talaq are pronounced, the purpose of it should be distinct and clear. It shouldn’t be dubious but express, a necessary condition to dissolve the marriage.
- Divorce under Muslim law-Modes of Talaq& Legal Implications, LAWNN.COM (Apr. 01, 2017), https://www.lawnn.com/divorce-under-muslim-law/.
- Dna Correspondent, Three types of Talaq, DNA (Aug. 23, 2017), https://www.dnaindia.com/india/report-three-types-of-talaq-2538578.
- Journal of Law, Policy and Globalization, ISSN 2224-3259 (Online), Vol. 42, 2015.
- Shayara Bano v. Union of India & Ors (2017) 9 SCC 1