divorce

Divorce: Modes of dissolution of marriage

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The strong union of husband and wife is an essential condition for happy family life. Islam, therefore, insists upon the subsistence of a marriage and authorizes that breach of marriage agreement should be avoided. Initially, no marriage is contracted to be dissolved but in unfortunate conditions, the marriage contract is broken. One of the ways of such dissolution is divorce. Under Islamic Law, the divorce may take place by the act of the parties themselves or by the decree of the court of law. However, in whatever manner the divorce is affected, is has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of the marriage.

Meaning of divorce

Its literal meaning is “setting free”, “let her loose”, or “taking off any ties” or “restraint”.

In Muslim Law, it means freedom from the bondage of marriage and not from any other bondage.

In a legal sense, it means the dissolution of marriage.

Divorce under Muslim Law

As per Muslim Law, Muslims follow the no-fault theory of divorce or a well theory of divorce. In which a divorce can be claimed by the parties without necessarily showing any ground for divorce. So, the mere fact that they are not happy into a relationship is a ground enough for divorce as per Muslim Law.

A husband may divorce his wife by repudiating the marriage without giving any specific cause. Declaration of such words which signify his motive to disown the wife is enough ground.

Under Muslim Law, the understanding of divorce is very advanced. There are different ways through which the dissolution of marriage can happen.

Modes of Dissolution of marriage under Muslim Law

The “dissolution of marriage” may be either by the act of God or by the act of the parties (husband or wife).

There are several “modes of dissolution of marriage” under Muslim Law. These modes can be classified into the following;

Extra-judicial divorce

By Husband;

  1. Talaq

The husband has the unilateral power of pronouncing divorce on his wife without assigning any reason, without any cause and any recourse to the court or any other judicial authority, by just uttering the word Talaq.

Talaq falls into two categories;

  1. Talaq-e-Sunnat (approved & revocable)
  2. Talaq-e-Biddat (unapproved & irrevocable)

Talaq-e-Sunnat

Talaq-e-Sunnat is the approved form of talaq. It is based on the customs and traditions of Prophet (P.B.U.H). Only this kind of talaq was in practice during the life of Prophet (P.B.U.H). Talaq-e-Sunnat is recognized by both Sunnis and Shias.

It has two forms;

  1. Talaq-e-Ahsan

Talaq-e-Ahsan is the most proper way of repudiation of marriage.

It is the single pronouncement of divorce made in a period of tuhr (purity). It can be revoked before the completion of iddat.

      2. Talaq-e-Hasan

It is a proper way of repudiation of marriage.

The husband pronounces the talaq three times during three successive tuhr (purity). When the third pronouncement is made, talaq becomes final and irrevocable.

Talaq-e-Biddat

It is also known as “talaq-e-bain”. It is a disapproved form of talaq.

Triple pronouncement of talaq made in a single period of tuhr at the same time. After pronouncing the talaq, there is no possibility of reconciliation between the parties.

Constructive Divorce by the husband;

Besides Talaq, a Muslim husband can repudiate his marriage in two other ways, that are Ila and Zihar.

i. Ila

The husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of 4 months. After the expiry of 4 months, the marriage dissolves irrevocably.

But if the husband resumes cohabitation with wife within 4 months, ila is invalid and the marriage does not dissolve.

After the expiry of 4 months, the wife is simply entitled to a judicial divorce. If there is no cohabitation, even after the expiry of 4 months, the wife may file a suit for restitution of conjugal rights against the husband.

In Shia School, sub-school Athna Ashri, ila is not recognized as divorce without the decree of the court of law.

 ii.  Zihar

In this mode, the husband relates his wife with a woman within his prohibited relationship e.g., mother or sister, etc. Like if the husband says that from today the wife is his mother or sister. After such a comparison, the husband does not cohabit with his wife for a period of 4 months. Upon the expiry of the said period, the Zihar is completed and the wife has the right of judicial divorce or she may file a suit for restitution of conjugal rights.

Divorce by wife

i.  Talaq-e-Tafweez

Talaq-e-Tafweeez means Delegated divorce.

Muslim husband has the right to delegate his power of divorce to his wife. It merely gives the wife an option to pronounce talaq on herself on the happening of the stipulated event.

Such as if the husband took a second wife or treated her with cruelty etc.

The husband may delegate the power absolutely, conditionally, temporarily, or permanently.

This power may be delegated to the wife under a pre-marriage or post-marriage agreement.

Such delegation is normally at the time of the marriage and it is written down in the “Nikahnama” or the marriage contract of the parties.

Talaq-e-Tafweez is recognized by both, the Sunnis and Shias. It is not revocable.

ii.  Lian

In Lian, the husband alleges or levels false charges of adultery or unchastely against his wife. He is then unable to prove it. All this causes character assassination. Hence, the wife has the right to ask for divorce on these grounds. She may file a suit for the dissolution of marriage in the court of law.

If Lian revocable?

If a man retracts his charge, but it should be;

  1. Bonafide
  2. Unconditional
  3. Made before the commencement of hearing in the court

It may be concluded that lian may lead to Faskh and ultimately turn into annulment of marriage.

iii. Faskh

Faskh means cancellation, abolishment, or revocation, etc.

When the husband refuses to give talaq, then, the wife can ask the Qazi or Judge for the dissolution of the marriage.

In short, the Faskh is the dissolution of marriage pronounced by a third party upon application by the wife. Furthermore, the effect of a pronouncement of Faskh is the same as a Talaq-e-Bain and the marriage is terminated irrevocably.

A woman may seek dissolution of marriage by way of Faskh on the ground when the husband refuses to give Talaq and is thereby not fulfilling the rights of the wife.

Divorce by mutual agreement

A Muslim wife has the right to seek divorce with the consent of the husband.

  1. Khula

It literally means “redemption” from the marital ties.

Khula is the woman’s option to take a divorce. It is initiated by wife and husband consents to it. A wife gives some consideration for obtaining the consent of her husband.e.g., a part of the dower must be repaid by her to her husband. Khula is thus a form of divorce by purchase.

Even if it is no-fault on the part of the husband. The wife can initiate Khula and can claim divorce on the mere fact that she is not happy into the relationship.

A leading case in the time of Prophet (P.B.U.H) is that a woman asked for the divorce on the physical appearance of the husband. The Prophet (P.B.U.U) granted her the divorce acknowledging the fact that the woman is not happy into a relationship.

  1. Mubarat

When both the husband and wife desire separation and mutually consent to the divorce. Then, this transaction is called Mubarat. Divorce may be initiated from either side. Once, it is accepted, the dissolution of marriage is completed. The wife has to give up her dower or part of it to her husband.

Judicial form of divorce

Judicial divorce is a formal separation between husband and wife where there is no direct role of husband or wife but separates them according to the established custom or law.

Under Dissolution of Muslim Marriage Act 1939, the legislation has made provisions for the divorce on the application of wife or husband.

There are several grounds in which judicial divorce can be pronounced.

Section 2 of the Act runs as follows;

A woman married under Muslim Law shall be entitled to obtain a decree for divorce for dissolution of her marriage on any one or more of the following grounds, namely;

i. Whereabouts of husband are not known for a period of 4 years.

ii. Failure to maintain for a period of two years.

iii. When the husband sentenced to imprisonment for a term of 7 years or more.

iv. Failure to perform marital obligations for three years.

v. Impotency.

vi. Insanity, Leprosy, or virulent or venereal diseases.

vii. Repudiation of marriage after obtaining puberty.

viii. Cruelty.

ix. False accusation of adultery.

x. Conversion of the spouse to another religion.

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