Dissolution Of Marriage Under Muslim Law

KEY TAKEAWAYS 

• Marriage under Muslim Law
• Dissolution through various means
• Grounds available to wife for seeking divorce
• Effect of Conversion on Muslim Marriage

INTRODUCTION

In Muslim law, marriage is seen as a contractual agreement between two individuals, containing all the essential elements required for a valid contract, such as offer, acceptance, consent, consideration, and the capacity of parties. The primary purposes of Muslim marriage are to legalize sexual relations and facilitate the procreation of children within the boundaries set by Islam. It’s recognized as a cornerstone of society, promoting the well-being of individuals and the continuation of the human race.

When it comes to ending a Muslim marriage, there are two main methods: divorce and talaq. While these terms are often used interchangeably in daily conversation, legally they have distinct implications. If someone seeks a ‘divorce’, they are subject to the provisions outlined in the Dissolution of Muslim Marriage Act, 1939, which provides a legal framework for the dissolution of marriages in accordance with Muslim personal law. On the other hand, ‘talaq’ proceedings are governed by traditional Muslim personal laws, which outline the procedures and conditions for divorce within Islamic jurisprudence.

KINDS OF MARRIAGE UNDER MUSLIM LAW

Under Muslim Law, the prerogative to initiate divorce lies solely with the husband. He retains the exclusive right to dissolve the marriage without the need for justification, simply by indicating his intent through specific pronouncements or actions. Conversely, a Muslim wife’s ability to seek a divorce is contingent upon the husband’s delegation of this right or through mutual agreement, such as Khula or Mubarat.

Before 1939, the options available to a Muslim wife seeking divorce were notably limited. Grounds for divorce were primarily restricted to cases involving false allegations of adultery, the husband’s mental incapacity, or impotence. Divorce under Muslim Law could be classified under the following categories:

1.    By Husband

• Talaaq:

Talaaq, originally meaning repudiation or rejection, signifies a release from the marital bond under Muslim law, either immediately or eventually. It is a broad term encompassing all forms of divorce, specifically initiated by or on behalf of the husband. Under Shia law, talaaq must be orally pronounced, with no specific wording requirements, but in the presence of two witnesses. Sunni law permits any mentally sound adult male to pronounce talaaq.

• Talaq –ul-Sunnat

This type of talaaq adheres to the traditions of the Prophet and is further subdivided into:

a)    Talaaq-i-ahsan: After pronouncing talaaq, a three-month iddat period follows, accommodating three menstrual cycles of the wife. During this time, if the husband resumes cohabitation, the divorce is annulled.

b)    Talaaq-i-hasan: The husband must utter talaaq thrice in successive periods following menstrual cycles. He can revoke the first two pronouncements by express statement or resuming conjugal relations. Failure to revoke leads to the third pronouncement, resulting in marriage dissolution.

• Talaq–al Biddat (Triple Talaq)

This includes irrevocable forms of divorce and is frowned upon as an improper method. It takes immediate effect upon pronouncement, precluding any chance of reconciliation. This controversial practice allowed a Muslim man to divorce his wife by pronouncing talaq three times, without specifying a reason or requiring the wife’s presence.

• Ila:

In Ila, the husband pledges to abstain from sexual relations with his wife for four months. After this period, the marriage dissolves irrevocably. Resumption of cohabitation within four months nullifies Ila and preserves the marriage.

• Zihar:

Zihar represents an incipient form of divorce, where the husband compares his wife unfavorably to a female relative within prohibited degrees of relation, rendering their marriage unlawful. The wife can withdraw from the husband until he expiates. Failure to do so empowers the wife to seek judicial divorce.

2.    By Wife

• Talaaq-i-tafweez:

Talaaq-i-tafweez or delegated divorce, is recognized by both Shia and Sunni schools of thought. It is the only mechanism through which a woman can initiate divorce, but this authority must be delegated by her husband. This agreement empowers the wife to dissolve the marital bond through divorce.

• Lian:

Lian refers to falsely accusing one’s wife of adultery. In such cases, the wife retains the right to take legal action against her husband and seek a divorce decree on these grounds.

3.    By Mutual Consent

• Khula:-

Khula is a divorce by mutual consent initiated by the wife, whereby she agrees to forfeit her mahr (dowry) or provide some form of compensation to her husband. This option enables a woman to initiate divorce proceedings.

• Mubarat:

Mubarat signifies mutual agreement between both spouses to end their marriage. Among Sunnis, upon entering mubarat, all mutual rights and obligations cease. Among Shias, the term mubarat must be followed by the Arabic word for divorce (talaaq) for the divorce to be valid, unless the parties are incapable of uttering Arabic words. Regardless of the sect, mubarat results in an irrevocable divorce.

4.    Divorce by Legal Means:

Under the Dissolution of Muslim Marriage Act, 1939, a Muslim woman holds the right to seek divorce based on specific grounds:-

• Long Absence of Husband: The whereabouts of the husband have not been known for a period of four years.
• Failure to Maintain Wife: If a husband fails to provide maintenance to his wife for a period of two years, without protection available for the husband based on poverty, failing health, or unemployment.
• Imprisonment of Husband: If the husband is detained for seven years or more.
• Failure to Perform Marital Obligation: If the spouse cannot perform marital obligations for three years without reasonable cause.
• Impotence of Husband: If the husband was impotent at the time of marriage and continues to be so.
• Insanity, Leprosy, or Venereal Disease: If the spouse is insane, suffering from illness, or has a venereal disease for a period of two years, the wife can seek legal separation on the same grounds.
• Option of Puberty: If a girl is married before the age of 15 years by her father or guardian, she has the right to repudiate such marriage after reaching the age of majority (18 years), provided the marriage is not consummated. She is entitled to legal separation for the same.
• Cruelty: If the husband treats his wife with cruelty, she can approach the court for a declaration of divorce on this ground.
• Other Grounds of Dissolution in Muslim Law: The wife is also entitled to obtain a divorce on other grounds recognized as valid under the law.

POINTS TO BE CONSIDERED FOR A VALID TALAQ

1. Talaq pronounced under intoxication is not recognized as valid under Muslim law.
2. Intention is not an essential element for a valid talaq.
3. A husband may give talaq by mere words without any talaqnama or deed.

TALAQ DURING TERMINAL ILLNESS

An ailing Muslim, usually a man, can pronounce talaq to prevent his wife from inheriting his property after his death. If the husband pronounces irrevocable talaq during terminal illness and dies before the expiry of the iddat period, the wife is entitled to claim her share of the inheritance. However, if the husband dies after the iddat period, the wife has no right of inheritance.

LEGAL EFFECTS OF DIVORCE

1. Mutual rights of inheritance cease.
2. Cohabitation becomes illegal, and children born after such intercourse are considered illegitimate.
3. Dower becomes immediately payable.
4. Parties can contract another marriage.
5. The wife is entitled to maintenance during the iddat period.

CHANGES BROUGHT BY PROTECTION OF MUSLIM WOMEN PROTECTION ACT, 2019

• Section 3:

Pronouncing triple talaq to a wife, whether electronically, orally or in writing, is declared invalid and unlawful.

• Section 4: 

Anyone pronouncing talaq in the manner described in Section 3 is subject to imprisonment for three years along with a fine.

• Section 5:

Muslim women can demand maintenance and financial support from their spouses after divorce to sustain themselves and their children.

• Section 6:

Both parents, including women, have equal rights over the custody of minor children after divorce. Both parties can contest for custody in court.

EFFECT OF CONVERSION ON MUSLIM MARRIAGE

Before the passing of the Dissolution of Muslim Marriage Act, of 1939, apostasy from Islam by either party to a marriage automatically dissolved the marriage, resulting in immediate termination. Conversion from one sect of Islam to another does not amount to apostasy and the individual remains a Muslim. The sincerity of belief in the new faith is irrelevant, as even if the convert does not practice the new faith, they still remain Muslim. However, the conversion must be genuine and not fraudulent. In cases where conversion to Islam is not bona fide and is undertaken to circumvent personal laws, such conversions are deemed null and void. 

1.    Apostasy by Husband

If a Muslim husband renounces Islam, the marriage is immediately dissolved. Section 4 of the 1939 Act does not apply to apostasy by a husband, meaning that the old law still governs in this regard. Therefore, renunciation of Islam by the husband leads to the immediate dissolution of the marriage. When a Muslim husband converts to another religion, his marriage is immediately dissolved and the wife ceases to be his Muslim wife. Consequently, the wife is no longer bound by Muslim law and is free to marry another person without waiting for the iddat period.

1.    Apostasy by Wife

If a Muslim wife renounces Islam, the marriage does not dissolve immediately. Apostasy by a Muslim wife does not result in the immediate dissolution of the marriage. Moreover, even after renouncing Islam, the wife can seek a decree for the dissolution of her marriage on any of the grounds specified in Section 2 of the 1939 Act. However, this provision does not apply if the wife was not a Muslim by birth. In other words, if the wife was a converted Muslim at the time of her marriage and renounced Islam to embrace her original religion again, the marriage dissolves immediately. An apostate wife is entitled to recover her dower.

RELEVANT CASE LAWS

1.    Skinner v. Orde

In this case, a Christian woman and a married Christian man underwent a ceremony of conversion to Islam to legalize their relationship. However, the Privy Council held the marriage null and void, ruling that the conversion was not genuine and was done to evade personal laws, thus constituting fraud.

2.    Sarla Mudgal v. Union of India

The Supreme Court of India interpreted Section 494 of the Indian Penal Code, stating that the second marriage of a Hindu husband after converting to Islam without legally dissolving his first marriage is invalid. Such an act constitutes bigamy under the law and the apostate husband is guilty of an offense under Section 494 of the Indian Penal Code.

3.    Shayara Bano v. Union of India

Shayara Bano challenged the practice of triple talaq before the Supreme Court, arguing that it violated women’s rights and dignity. In its landmark judgment, the Supreme Court declared triple talaq unconstitutional, stating that it was discriminatory and against the principles of gender equality. The judgment vindicated the position that triple talaq is against the constitutional morality and dignity of women, leading to significant legal reform in Muslim personal law.

CONCLUSION

The Dissolution of Muslim Marriage Act, of 1939, stands as a progressive legislation significantly improving the position of Muslim women. Recognizing various grounds for divorce and empowering women to seek relief through judicial channels, marks a positive step toward gender equality and justice within the Muslim community. These changes are essential and commendable, fostering the autonomy and well-being of Muslim women in contemporary society.