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Divorce under Muslim Law in India


Divorce
Divorce

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Divorce


Under Muslim law, there is no provision for a decree of judicial separation. However, certain agreements can be made at the time of marriage or thereafter, stipulating for 'separation' or 'divorce' upon the occurrence of a specified contingency (e.g., the wife having the right to pronounce divorce if the husband marries a second wife or treats her with cruelty).



In Muslim law, although matrimony is a civil contract, the husband typically enjoys special privileges, while the wife suffers corresponding disabilities. No Muslim marriage (either among Sunnis or Shias) is 'permanent' in the same sense as a Christian or Parsi marriage, as the husband may divorce the wife at any time.



The wife remains at her husband’s mercy due to polygamy and the inequality in the law of divorce. He may divorce her even if he promised not to exercise the power of divorce.



The husband is given almost-unfettered power of divorce, the only restraints being those imposed by the law relating to dower and by his own conscience, remembering the Prophet’s words: “Of all things permitted by the law, the worst is divorce.”



Another remarkable feature of Muslim law of divorce is that, in most cases, no judicial or non-judicial authority is needed to effect dissolution of marriage. Judicial divorce was introduced in 1939 by the Dissolution of Muslim Marriages Act, under which only the wife can sue for divorce.



However, unlike the husband, she must prove the grounds for obtaining the divorce. Islamic law has never conferred the same power to pronounce talak on the woman as it has on the man, though it recognizes that a Muslim wife has the right to seek divorce with the husband’s consent (Khula or Mubara’at).



Even in such cases, the husband can avoid the liability of paying dower and may gain more property if the wife is very keen to obtain a divorce.



However, there are certain safeguards against the husband’s power of talak, such as restraints on remarrying a divorced wife, payment of dower to the divorced wife, and delegated divorce which allows the wife to secure the right of divorce from her husband. The judiciary in India has also disapproved of the arbitrary use of talak.



In Imvari v Asghari, the court observed that the husband's second marriage raises a presumption of cruelty to the first wife.

 
 

Essentials of Talak/Case laws


RASHID AHMED v ANISA KHATOON (AR 1932 APC 25)

SHAMIM ARA v STATE OF U.P. [(2002) 7 SCC 518]

MASROOR AHMED v STATE (NCT OF DELHI) [2008 (103) PRJ 137 (Del.1)]


The word "talak" (repudiation) means "to release (an animal) from a tether" or, in context, to release a wife from the bondage of marriage. Talak is an Arabic term. Any Muslim of sound mind who has attained puberty may divorce his wife whenever he desires without assigning any cause.



Thus, Muslim law does not recognize the existence of any fault or matrimonial offence as a precondition for Talaq. A talak may be effected orally or by a written talak nama. The other conditions or requirements of a talak are as follows: 



No particular form of spoken words is prescribed for effecting a talak. If the words are "express" or well understood as implying divorce, no proof of intention is required (e.g., "I have divorced thee," "Thou art divorced").



If the words are ambiguous, the intention must be proved (e.g., "I give up all relations and would have no connection of any sort with you," "Thou art my cousin, my uncle’s daughter, if thou goest"). 



It is not necessary that the talak be pronounced in the presence of the wife or even addressed to her. However, the wife must be named, i.e., the words should refer to the wife. Pronouncement of the word "talak" in the presence of the wife or when the knowledge of such pronouncement comes to her results in divorce. This intention of the husband is inconsequential.



Since, on divorce, dower becomes payable and the wife has to undergo Iddat, the communication of talak is necessary. A Sunni husband may make two written acknowledgments of divorce, in which case the divorce is operative from the date of acknowledgment.



Sunnis do not prescribe any formalities for talak. On the other hand, Shias insist that divorce must be pronounced orally (unless the husband is incapable of pronouncing it orally) and in the presence of two competent witnesses (Muslim men).



It is interesting to note that the Shias do not require the presence of witnesses for marriage but insist on witnesses for divorce, while vice versa for Sunnis.



Under Hanafi (Sunni) law, a divorce pronounced under compulsion, fraud, or in a state of voluntary intoxication, or to satisfy or please one’s father or some other person, or in jest, is valid. Even when a talak is pronounced inadvertently by a mere slip of the tongue, it is valid.



Under all schools of Muslim law, it is necessary that at the time of pronouncement of talak, the husband be awake, i.e., not asleep, unconscious, delirious, or in a faint. In other words, the consent of the husband must be free. A dumb person may pronounce divorce by signs. The Shias do not recognize a divorce pronounced under compulsion or intoxication (voluntary or otherwise).



A talak by a minor or insane husband is void and ineffective. However, a talak pronounced during a lucid interval by a lunatic husband is valid.



Although a guardian cannot pronounce talak on behalf of a minor husband, according to Tyabji, the guardian of a husband of unsound mind may pronounce talak on behalf of such husband if it is in the interest of the husband. Where there is no guardian, the Kazi or a Judge has the right to dissolve the marriage in the interest of such a husband.

  • RASHID AHMED v ANISA KHATOON (AIR 1932 PC 25)

A talak actually pronounced under compulsion or in jest is valid and effective. After pronouncement of triple talak, the husband again lived together with the divorced wife without observing the proper procedure of remarriage; the legitimacy of children of such a marriage also arose in the case (discussed later).



In this case, it was held by the Privy Council that the validity and effectiveness of an irrevocable divorce in the biddat form would not be affected by the husband’s mental intention that it should not be a genuine divorce. Thus, it is immaterial that the talak was given in a fit of anger. A talak actually pronounced under compulsion or in jest is valid and effective.



The High Court came to a contrary conclusion on the ground that the divorce was fictitious and inoperative because it was a mock ceremony performed by Ghiyas Uddin to satisfy his father, but without any intention on his part that it should be real or effective.



The Privy Council observed: The divorce called “talak” may be either irrevocable (bain) or revocable (raja). A talak bain, while it always operates as an immediate and complete dissolution of the marriage bond, differs as to one of its ulterior effects according to the form in which it is pronounced. A talak bain may be effected by words addressed to the wife clearly indicating an intention to dissolve the marriage either: 


(a) once, followed by abstinence from sexual intercourse for the period called the iddat; 


(b) three times during successive intervals of purity, i.e., between successive menstruations, no intercourse taking place during any of the three intervals; 


(c) three times at shorter intervals, or even in immediate succession; or 


(d) once, by words showing a clear intention that the divorce shall immediately become irrevocable. 



The first method is called ahsan (best), the second hasan (good), and the third and fourth are said to be bidaat (sinful), but are, nevertheless, regarded by Sunni lawyers as legally valid.



In the present case, the words of divorce addressed to the wife, though she was not present, were repeated three times by Ghiyas Uddin as follows: "I divorce Anisa Khatun forever and render her haram for me," which clearly showed an intention to dissolve the marriage.



There can be no doubt that the method adopted was the fourth described above, and this is confirmed by the deed of divorce, which states that the three divorces were given “in the abominable form,” i.e., bidaat. The learned Judges of the High Court erred in treating the divorce as in the ahsan form, instead of the bidaat form.



The talak was addressed to the wife by name, and the case is not affected by the decision of the High Court of Calcutta in Fargund Hossein v Janu Bibee [(1878) 4 Cal. 588], where the words of divorce were alone pronounced.



In the bidaat form, the divorce at once becomes irrevocable, irrespective of the iddat (Baillie’s Digest, 2nd Edn., p. 206). It is not necessary that the wife should be present when the talak is pronounced, though her right to alimony may continue until she is informed of the divorce.



All that is necessary is that the husband should pronounce talak; how he does it, why he does it, when he does it, or in what manner he does it, is not very material. Thus, in Muslim law, men must face the consequences of their rash and hasty acts.



In a proceeding initiated by the wife for maintenance (or for restitution of conjugal rights), the husband raised a plea of divorce. It was held that the plea by itself was sufficient to terminate the marriage. A plea of divorce in written pleadings amounts to a valid divorce from the date of the statement [(1975) 1 A.P. LJ 20].

 
 
  • SHAMIM ARA v STATE OF U.P. [(2002) 7 SCC 518]

In this case, the jurisprudence of Talak has undergone significant improvement, particularly regarding the communication of the pronouncement of talak to the wife and the attempt at reconciliation before finalising the dissolution of marriage.



The central issue was whether the appellant wife had been effectively divorced and if the divorce was communicated to her to be effective from 5.12.1990, the date when the respondent No. 2 (husband) filed the written statement.



It was held that for talaq to be effective, it must be pronounced, meaning it must be formally and clearly articulated. A mere claim in a written statement about a past divorce cannot be treated as effectuating talak on the date the written statement is delivered to the wife.



In this case, there was no evidence of talak occurring on a specific date. The husband's plea in the written statement of having pronounced divorce sometime in the past was insufficient to effectuate talak. The court held that the marriage between the parties was not dissolved, and the husband's obligation to pay maintenance continued.



The court observed that no text provides that a statement in a document, whether a pleading or an affidavit, would become an effective divorce on the date the wife learns of such a statement.



Referencing A. Yousuf Rawther v Sowramma (AIR 1971 Ker. 261), it was noted that Islamic law does not accord arbitrary, unilateral power to men for instant divorce. The Quran forbids a man from seeking pretexts to divorce a faithful and obedient wife. 



Rukia Khatun v Abdul Laskar (1981) 1 GLR 275 (D.B.) also emphasized that marriage in Islam, although a civil contract, is sacred. Divorce must be for a reasonable cause and preceded by attempts at reconciliation by arbiters from both families. The Supreme Court noted that the husband's vague accusations and lack of detailed evidence did not constitute a valid talaq.



The Bombay High Court has held that Muslim divorces must be convincingly proven in court under the Civil Procedure Code and the Indian Evidence Act. A verbal or written statement alone is insufficient.



The process must include attempts at reconciliation, and the wife should be present during the procedure. A marriage performed under different provisions, such as the Special Marriage Act, cannot be dissolved by talak unless it follows Islamic law procedures.



The Shamim Ara case clarified that for talak to be valid, it must be formally pronounced, communicated to the wife, and preceded by reconciliation attempts. Mere claims in legal documents are insufficient. Islamic law does not permit arbitrary, unilateral divorce, and all divorces must be convincingly proven in court.

 
 

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