How Does Divorce And Maintenance Work In Islamic Law

Maintenance During the Marriage's Survival

A partner is required by Islamic laws to support his spouse and his family, and the word,“maintenance” refers to the amount that he is responsible for. Under Islamic laws, maintenance is referred to as nafaqa, and it includes food, clothing, and accommodation. Despite possessing the resourcesto support herself, the wife is entitled to maintenance from her partner. Furthermore, the marriage contract may provide for the payout of special entitlements by the partner, and if this is the case, he is obligated to pay such allowances to his wife. Khurch-e-pandan, guzara, mewa khore, and other similar perksexist. This is something that can be asserted as a privilege.

These Privileges Are Derived From Three Different Sources. They Are:

• Muslim Personal Law.
• Section 125 of the Code of Criminal Procedure and,
• The Muslim Women (Protection of Rights on Divorce) Act of 1986.

Divorced Women's Maintenance In Muslim Law

Maintenance as per the Code of Criminal Procedure, before and after 1973:

At first, it was pronounced in the Code of Criminal Procedure (under Section 488) that only a wife is permitted to maintenance from her husband. The husbands asserted that when a marriage is dissolved, a woman stops being a wife and thus, is not qualified to bemaintained.

In the year 1973, an amendment was passed to close this gap in technicality, allowing a divorced woman to receive maintenance until she remarries, under Section 125 of the Code of Criminal Procedure. Since this clause is entirely secular, it pertains to all women, including Muslim women.

Disagreement Between Muslim Personal Law And Section 125 Of The Criminal Procedure Code

A wife is only qualified to receive maintenance until the close of the Iddat period as mentioned in the Muslim Personal Law. Iddat is the time frame during which the husband and wife's coexistenceends; when Iddat expires, the married coupleis considered divorced. Only the publicly appropriate sense of declaring one's willingness to marry a woman by observing Iddat is permitted in the Quran; all other straightforward propositions or hidden obligations are prohibited. Women can legally enter into a second wedding agreement after their Iddat period has expired. A marriage performed during the iddah timeframe is not recognized by Islamic law and is deemed void.An Islamic wife is not authorized to maintenance from her husband's property during the Iddat timeframe because she is an heir to it. This is because the husband bears sole responsibility for the wife's upkeep, not the other descendants. If she did not receive her alimony (Mehr) or renounced it, she would be authorized to it as the first charge from his property if she did not obtain it.Iddat lasts for three menstrual cycles or three lunar months, with the Iddat period extending up to the time of delivery in the case of an expectant mother. As a result, there is a clear confrontation, because the Code of Criminal Procedure doesn’t really acknowledge the Iddat period, and maintenance goes well past it.

The Court noted in Mohammed Haneefa v. Mariam Bi that throughout the event of a conflict among personal laws and the CrPC, the former will reign supreme. In Saira Bano v A.M Abdul Gafoor, the Supreme Court agreed with this viewpoint.

This created a great deal of consternation in the parliament. To address this issue, Section 127(3) (b) was introduced, which states that if a divorcee obtains a sum due to community customs or personal laws, the presiding judge may revoke any maintenance order in her pursuit.

Courts Judgements Analyzing The Extent of Section 127

Payout of "illusory amounts" based on Muslim personal laws should be deemed to reduce the amount of maintenance subject to payment by the partner, according to Bai Tahira vs Ali Hussain Fissalli Chothia, but this does not absolve the partner of obligation because every woman, regardless of her faith, is obligated to be maintained. Unless the accumulated payout specified by tradition is more than adequate to replace the maintenance, the divorcee has this privilege.

In Fuzlunbi v. K Khader Vali, the Supreme Court added a new necessity. To replace the maintenance, the total amount fixated on Muslim law should be remarkably similar to the monthly maintenance to the divorcee, which is needed until her next marriage or death.

In Zohara Khatoon vs Mohd. Ibrahim, the Supreme Court held that the term "wife" in Sections 125 and 127 of the CrPC includes Muslim women who are divorced through the process of Talaq or the Dissolution of Muslim Marriage Act of 1939. As a result, the disagreement between Muslim Personal Law and the CrPC persisted, and Section 127 was insufficient to appease the Islamic community, which saw Section 125 as a violation of their laws.

Mohammed Ahmad Khan v. Shah Bano Begum or the Shah Bano Case

In this case, a 62-year-old lady was divorced and was rejected maintenance as a result. She hadn't wedded again. She was granted Rs 25 per month in maintenance from the partner after filing a complaint with the Judicial Magistrate in Indore under section 125 of the CrPC, asserting maintenance of Rs 500 per month. She submitted a review plea with the Madhya Pradesh High Court, claiming that the small quantity was unfair and that she was allowed to Rs 179.20 per month in maintenance. The partner filed an appeal with the Supreme Court, claiming that since the dissolution, she had completely stopped being his wife and that he was no longer obligated to pay her maintenance under Muslim law.The wife was also not authorized to do any maintenance because he had compensated the dower sum during the Iddat period.

The Supreme Court denied the plea and affirmed the High Court's decision. Even though there is a disagreement, the Supreme Court clarified that Section 125 of the CrPC is a secular law and thus relates to all women, irrespective of their faith. In the event of a class, the CrPC will take precedence over Muslim Personal Law.

After the Shah Bano Case, What Has Happened?

Under stress from Islamic extremists, the Rajeev Gandhi government chose to overturn the judgment and to do just that, the Muslim Women (Protection Of Rights On Divorce) Act, 1986 was passed. This act was one of the most divisive legislative proposals ever passed. Sections 3(1)(a) and 4(1) of the act state that the ex-husband has to provide "reasonable and fair provision" and maintenance during the Iddat period, and that if she is unable to sustain herself after the Iddat period, she can ask for maintenance from her family members, and if they are unable to pay, she can assert the same from the Wakf Board as per S.4(2), respectively.

Daniel Latifi V. Union Of India, Post-Enactment OfThe Muslim Women (Protection Of Rights On Divorce) Act, 1986

In this case, a writ under Article 32 was filed to challenge the Act's constitutionality.

The Act's constitutionality was affirmed in this case, and an explanation of the Act's clauses was presented. The court concluded that the Act does not infringe Articles 14, 15, or 21, and thus is not void and unenforceable.

The following are the court's understandings. To begin, the court determined that the maintenance, being reasonable and rational, must surpass the Iddat period but must be made within the Iddat period by construing the phrase "within" as used in section 3(1)(a) of the Act and the conditions reasonable and sensible. Such maintenance performed during the Iddat period must be continued indefinitely, including after the Iddat period has ended. As a result, the partner's responsibility is not restricted to the Iddat period. As a result, this Act does not violate section 125 of the CrPC.

The Consequences of the Daniel Latifi Decision

The Daniel Latifi decision essentially reaffirmed the guidelines outlined in the Shah Bano case, namely that the partner's obligation to support his wife does not stop with the Iddat period. Nevertheless, it clarified this concept as a discourse on the Shah Bano Act, rather than as a violation of it.

Furthermore, the Act is coherent with Section 125 of the Criminal Procedure Code, so there is no possibility of conflict. As a result, the legal opinion is that the Act's clauses are based on the principles outlined in the Shah Bano case. The law has not transformed since then, and it still governs issues relating to the maintenance of Muslim women after their marriages have ended.

The Current Situation –

In Iqbal Bano vs. State of Uttar Pradesh, the Supreme Court reiterated the concept. The court reaffirmed that divorced women have a right to maintenance further than the Iddat period and that the Act's clauses do not violate Articles 14, 15, and 21 of the Indian Constitution.

The court went on to say that a woman's "right under Section 125 of the Cr. P.C." ceases to exist only when she obtains a "fair or balanced" payout under Section 3 of the Muslim Women Act. Until the partner meets his responsibility under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the wife will be authorized to maintenance under Section 125 of the Cr.P.C.

This was reaffirmed in the previous Shabana Bano v. Imran Khan decision, which stated that after Iddat has expired, a divorced Muslim woman can pursue maintenance under Section 125CrPc as long as she does not remarry. As a result, the stance established in the Daniel Latifi case is the established stance and has not changed.

Methods of Divorce

Divorce in India can be acquired by insinuating the other party's mistake or by common agreement.

Fault. Under all Indian personal laws, divorce is premised on a guilt or mistake theory of divorce (even though some personal laws allow for divorce by mutual consent).

Section 13 of the Hindu Marriage Act 1955 recognizes nine fault grounds for divorce, with a further four fault grounds accessible to the wife alone under section 13(2) of the Hindu Marriage Act 1955.

The wife alone can file a lawsuit under Section 2 of the Dissolution of Muslim Marriages Act 1939 on nine fault grounds.

Subsection 10 of the Indian Divorce Act 1869 contains grounds for divorce for Christians.

The Parsi Marriage and Divorce Act of 1936 specifies ten grounds for divorce, each of which can be utilized by either partner.

The Special Marriage Act of 1954, Section 27(1), lists ten fault grounds for divorce, each of which can be used by either partner. Section 27(1A) contains two grounds for nullity of marriage that can be used by the wife alone.A partner can divorce his wife without providing a reason by disavowing the marital relationship. It is adequate for him to say certain phrases that indicate his desire to divorce his wife. This is usually done by talaq. He could, however, divorce by Ila and Zihar, which vary only in appearance and not in material from talaaq. A bride cannot divorce her partner on her own. She can only divorce her husband if he has assigned this privilege to her or if they have reached a deal. The wife may divorce her husband by Khula or Mubarat if they have reached an agreement. Before 1939, a Muslim wife had no right to divorce unless the husband was falsely accused of infidelity, lunacy, or infertility.

Talaaq implies dismission in its most general sense. It translates "to set free," "to let go," or to be independent of any "connections or restraints." In Muslim law, it refers to freedom from the shackles of marital relationships, not from any other kind of shackles. In a legal context, it refers to the husband's use of correct terms to dissolve the marriage. In other words, talaaq is the husband's formal rejection of the marriage following the legal process.

Under Muslim law, there are two types of divorce:

There are two types of divorce:

1. Extrajudicial Divorce
2. Judicial Divorce

Extralegal Divorce Can Be Further Categorized Into Three Groups, notably,

• By the husband- talaaq, ila and zihar.
• By the wife- talaaq-i-tafweez and lian.
• By mutual agreement- khula and mubarat.

Marriage is a civil and social agreement under Muslim law, unlike in other faiths where it is usually regarded as a religious ceremony.

The Prophet's divorce decree, Talaq-ul-Sunnat, is divided into three parts: I Talaq-e-Ahsan (ii) Talaq Hasan (iii) Talaq-e-Biddat.

1. Talaq-e-Ahsan: Once the husband utters talaq, there has to be a three-month Iddat period to account for the woman's three menstrual cycles. This period is set aside for resolving conflicts and settling disputes. If there is any kind of sexual intimacy throughout this time, the talaq is regarded rescinded.
2. Talaq –e-Hasan (Proper): There is a stipulation for abolishment in this type as well. The phrases of Talaq must be proclaimed three times in the period following menstruation. The husband must make a single Talaq proclamation and then wait until the next menstrual cycle to make another statement. The husband has the power to rescind the first and second proclamations. If he does so, whether explicitly or by restarting consensual sexual intercourse, the Talaq's phrases are rendered ineffective as if no Talaq was ever created. However, if the Talaq is not revoked after the first or second declarations, the husband must make the third proclamation in the third period, after which the Talaq becomes irreversible and the marriage disperses.
3. Talaq-e-Biddat: Permits men to say talaq three times in one sitting, occasionally scribbled in a documented talaqnama, or even over the phone or via text message. Following that, even if the man believes his choice was quick in hindsight, the divorce is irreversible. It is a form of divorce that is frowned upon. The Talaq-ul-Biddat goes back to the Muslim age's second century. As per Islamic scholar and law professor Ameer Ali (1849–1928), the Omayad Kings instituted this method of Talaq because the checks in the Prophet's Talaq equation were bothersome to them.

The privilege of the woman to divorce under the Dissolution of Muslim Marriages Act 1939 is the second category.

Khalid, J., described it as a "monstrosity" in Hannefa v. Pathummal. Talaaq can be expressed, inferred, conditional, productive, or even assigned among Sunnis. Only the express and delegated types of talaaq are recognized by Shia Muslims.

A legitimate talaaq must meet certain criteria:

1. Ability: Each Muslim partner of stable mind who has hit puberty is capable of pronouncing talaaq. He is not required to provide any justification for his statement. It is unpronounceable by a husband who is minor or mentally ill. Talaaq by a minor or someone who is mentally ill is invalid. If a partner is insane, nevertheless, talaaq uttered during the "lucid period" is legitimate. On the behest of a minor husband, the custodian cannot enunciate talaaq. When a husband is insane and has no custodian, the Qazi or a judge has the authority to dissolve the marital relationship in the partner's best interests.
2. Free Consent: Unless Hanafi law applies, the husband's permission in declaring talaaq should be given freely. A talaaq declared under duress, persuasion, outsized influence, deception, or voluntary inebriation, for example, is legitimate and disintegrates the marriage under Hanafi law.

Inadvertent inebriation: Talaaq declared under the influence of alcohol or drugs is invalid under Hanafi law.

Divorce By Mutual Agreement

Khula and Mubarat are two types of common consent divorces, but in both, the wife must give up her dower or a portion of her other estate. In its traditional meaning, the term “khula” implies "to draw," "dredge up," or "to take off," as in removing one's clothes or garments.

The partners are said to be like garments to one another, and when they take khula, each of them removes his or her clothes, i.e., theylet go of one another.

It is said to denote a contract between the partners for the dissolution of a connubial alliance in exchange for compensation compensated by the wife from her estate to her partner. Even though the real discharge of the dower or distribution of the estate comprising the consideration is required for the khula to be legitimate, it is not a precondition. When the partner agrees to the divorce, it is final. The partner does not have the option to refuse the 'khul' because the consideration has not been reimbursed. The subject of consideration could be anything, but most often it is mahr, in its entirety or a piece. However, it could be an asset that isn't illusory.

The most significant aspect of mubarat is that both sides want to divorce. As a result, the proposition could come from either side. Both the husband and the wife are glad to be rid of one another in mubarat. When the sides to marriage enter into a mubarat, all consensual rights and responsibilities are terminated.

The Shia law, on the other hand, is very strict. It necessitates that both sides genuinely find the marital relationship vexing and inconvenient. The Sunnis do not have a specific guideline, whereas the Shias assert on one. The Shias fixate that the term mubarat be accompanied by the term talaaq; otherwise, there will be no divorce. They also stipulate that the proclamation should be made in Arabic unless the sides are unable to do so. The purpose to end the marriage must be indicated. Mubarat is unavoidable among both Shias and Sunnis.

Dissolution of Muslim Marriages Act 1939

On April 17, 1936, Qazi Mohammad Ahmad Kazmi proposed a bill in the Legislature to handle the problem. The Dissolution of Muslim Marriages Act 1939, on the other hand, became legislation on March 17, 1939.

A woman married under Muslim law has the right to seek a decree of divorce for the dissolving of her marriage on any one or more of the following grounds, according to Section 2 of the Act:

• That the husband's details have all been unknown for four years: If the husband has been lost for four years, the wife may register a plea for dissolving of her marriage. If the wife or any other individual who should know about the husband is unable to track down him, the husband is considered to be missing. Section 3 requires a wife who files a divorce petition on this ground to provide the names and addresses of all individuals who would have been the husband's lawful descendants upon his passing.The court issues summonses to all such individuals, requesting that they appear before it and state whether or not they have any information about the missing husband. If no one knows, the court will issue a declaration to that impact, which will only take full effect after six months. If the husband resurfaces before the expiration date, the court will cast aside the declaration and the marriage will not be disintegrated.
• That the husband has ignored or failed to provide for her maintenance for a period of two years: every partner has a lawful responsibility to support his wife, and if he does not, the wife may pursue divorce on this basis. A partner may be unable to maintain his wife either because he ignores her or because he lacks the financial ability to do so. The outcome would be the same in both instances. The husband's responsibility to support his wife is contingent on the wife's fulfillment of nuptial commitments.
• That the husband has been convicted to seven years or more in a jail cell: the wife's privilege to judicial divorce on this basis starts on the date that the punishment becomes absolute. As a result, the declaration can only be issued in her furtherance after the husband's petition deadline has passed or after the husband's plea has been rejected by the final court.
• That the husband has failed to execute his responsibilities for a period of three years without due reason: the Act does describe "marital obligations of the husband." Under Muslim law, the husband has many spousal responsibilities. However, only those procreative commitments that are not included in any of the clauses of Section 2 of this Act may be factored into the equation for this clause.
• That the husband is violent to her, in the sense that he

(a) regularly abuses her or makes her life a living hell through harsh behavior, even if such behavior does not constitute physiological ill-treatment, or

(b) affiliates with women of ill-repute or lead an egregious existence, or

(c) attempts to push her to lead a morally wrong living, or

(d) disposes of her estate or precludes her from practicing her constitutional rights over it, or

(e) Interferes with her religious profession or practice; or

(f) If he has more than one wife, does not regard her equally in conformance with the Holy Quran's edicts.

Conclusion

Why does Triple-Talaq damage Islamic relationships, and how can restricting or announcing Triple-Talaq unlawful and invalid safeguard women's rights? This is the most crucial question.

Under the "Muslim Women (Protection of Rights on Marriage)" Act, triple talaq is considered a crime, and men will be convicted to up to three years in a jail cell, after which the wellbeing of Muslim women will be left to the judgment of the courts. If the couple is sentenced to jail, there will be no time for a negotiated settlement, and who will reimburse them for their losses?

The Supreme Court's five-judge bench issued its judgement in the Triple Talaq issue on August 22, 2017, ruling the process unlawful by a 3:2 vote.

Triple Talaq, also known as Talaq-e-Biddat, is an Islamic ritual that allows a Muslim person to leave his wife instantly and irreversibly by repeating the phrase 'talaq' three times in succession. Ms Shayara Bano has petitioned the Supreme Court to stop the practise. She claimed that it infringed on Islamic women's principle of equality, as well as other constitutional protections. Many people who participated in the lawsuit agreed with this point of view. From May 11th, 2017, the Supreme Court's Constitution Bench of five judges reviewed the case. It deferred the matter for ruling after six days of arguments on both sides.

The Supreme Court ordered the Parliament to pass legislation prohibiting the practise of Triple Talaq.

The Muslim Personal Law (Shariat) Application Act, 1937, according to Justices Rohinton Nariman and U.U. Lalit, controls Talaq-e-Biddat. They claimed that the approach is illegal since it is obviously capricious. In his signing statement, Justice Kurian Joseph stated that Triple Talaq is forbidden by the Quran and hence has no legal validity. "What is deemed wrong in the Holy Quran cannot be considered ideal in Shariat, and what is wrong in theology is wrong in law," he stated.

Chief Justice Khehar and Justice Abdul Nazeer's opposing minority viewpoint connected the upgrading of Personal Law to the level of fundamental rights in the Constituent Assembly Debates on Articles 25 and 44. They contended that the Shariat Act of 1937 does not control Triple Talaq, but that it is an inherent aspect of personal law. As a result, Article 25 protects it. Furthermore, legislative change, not a question to the legitimacy of Talaq-e-Biddat, is the remedy to the gendered biased system of Talaq-e-Biddat. According to the minority position, Triple Talaq should be rendered ineffective for six months following the decision. At this moment, the Parliament should enact legislation to regulate triple talaq.Nevertheless, since Triple Talaq is clearly prohibited by the majority ruling, this order is null and void.

If polygamy, Nikah Halala, and other kinds of Talaq (Talaq-ul-Hasan and Talaq-ul-Ahsan) are still in practice, how can Triple Talaq legislation guarantee that Muslim women have liberty and equality?

The judgmentwas significant in terms of regional female empowerment since it grants Muslim women equality. The court has provided all communities with a once-in-a-lifetime chance to advocate for all liberal changes in personal laws affecting all ladies, men, and young kids, as well as other policy changes such as the universal civil code (UCC). Nevertheless, as to if asserting Triple Talaq unlawful will aid Muslim women's rights more than nullification is still to be seen.

Moreover, such a measure will pit an Islamic woman's rights against her culture, as her husband will face three years in prison if he practices Triple Talaq under the new regulation. A criminal complaint with the police by the wife or a blood relative will also be acknowledged, but considering the state of women, it is highly improbable that her blood relative will aid her in filing complaints or something comparable. These are the few weaknesses in the new provision, which brings up the issue of Islamic women's equality once more. Gender Equality Must Be a Chief Concern.