Divorce under Muslim law

Divorce under Muslim law has two categories

  • Judicial divorce
  • Extra- judicial divorce.

Judicial Divorce

Section 2 of the dissolution of Muslim marriage act, 1939 specifies the grounds on which a Muslim can obtain a divorce, these are-

  • The husband remains unheard of for four years;
  • The husband failed to maintain his wife for 2 or more years;
  • The husband has been jailed for a period of 7 years or more;
  • The husband failed to perform his duties towards the wife for more than 3 years without any reasonable cause;
  • The husband was of was impotent at the time of marriage and continues to remain so;
  • The husband suffers from leprosy, venereal disease or remains insane for 2 years;
  • That the marriage was solemnized before she attained 15 years of age and later repudiated it before she turning;
  • Treats wife with cruelty;
  • any other ground recognized under Muslim law

Extra- judicial divorce

Talak-ul-badai or Talak-ul-biddat or Talaq-al-bida (Unapproved). This form of divorce has been declared illegal by the supreme court in Shayra Bano vs. Union of India.

It has two forms– i) The triple declaration of divorce by husband during the time of purity either in one sentence or in three sentences. In the present case 3 sentences have been used. On pronouncement of such divorce by the husband, the marriage breaks down irrevocably.

  1. ii) The other form is the single pronouncement of divorce by the husband during a period of purity or any another time. The triple pronouncement is not necessary if the intention is clear, divorce takes place. The Shia do not recognize it in any of its forms.

The Khul or Khula– The term literally means ‘to put off’. Under the law, it is defined as laying down the right of a husband to his wife for some exchange. In this form of divorce, the wife agrees to pay or give something to the husband in exchange for a khula. In other words, the wife can untie herself by giving something in consideration to the husband. A talaq-al-Bain takes place in such a case. Therefore, when a wife wants divorce for any reason, she may obtain a release from the husband by giving something, which is her mehr (whole or part) in most cases. A minor or a person of unsound mind cannot enter into a khula. While consideration is necessary, actual release or delivery of property is not a condition. Once the consent is given by the husband, it results in an irrevocable divorce and he cannot withdraw his consent on the ground that consideration has not been paid. His remedy is to sue the wife for the same. A proposal for khul can be revoked by the wife any time before it has been accepted by the Husband.

Zihar– Zihar is a form of Constructive divorce. It is an inchoate divorce. The husband tells the wife she is like her sister, mother or any other woman in the prohibited degree and thereby expresses his dissatisfaction with her. In such a case, the wife can demand a penance from the husband and if he refuses to perform it then the wife is entitled to a judicial divorce.

Talaq-i-tafweez or Delegated Divorce– The Muslim husband has been vested with the power to delegate his right of divorce to any person by giving the reason for doing so. It can be delegated permanently or temporarily, absolutely or unconditionally. A permanent delegation can be revoked but a temporary delegation cannot be revoked. The power can be delegated to the wife, and once the power has been given to her it is upon the wife to exercise or not to exercise it. Delegation power can be exercised in post marriage agreements also.

The Lian– Where the husband accuses the wife of adultery and such a charge turns out to be false, the wife is entitled to sue and obtain a divorce. A regular application for the dissolution needs to be filed by the wife and a mere application would not qualify for the purpose.

Mubarat– Both the parties wish to end the marriage. One of the parties puts forth the proposal and the other party accepts it. The divorce becomes irrevocable.

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