Dissolution of marriage:

 A marriage can be dissolved on happening on either of two things, they are:

 Act of God (death of either parties)
 Act of Parties (divorce)
 By divorce:
 Extra judicial: govern by personal laws
 By husband
o Talaq
 Talaq-ul-Sunnat (revokable)
- Ahsan (most proper)
- Hasan (proper/good)
 Talaq-ul-Biddat (irrevocable)
- Written talaq
- Triple talaq
o Ila
o Zihar
 By wife
o Delegated divorce (talaq-e-tafweez)
 By mutual consent:
o Khula
o Mubarat
 Judicial divorce: govern by DMMA, 1939.
 Lian
 Fask

Unilateral act of husband: (Talaq)

 The husband can unilaterally give divorce according to any of the forms approved by the
Muslim Law. This is known as "Talak" and is usually translated as "Divorce”.
 The pronouncement of talaq may be either revocable or irrevocable. The revocable form of
"Talaq" is considered as the approved and the irrevocable as the un-approved form.
 This type of divorce can be further classified into Talaq-ul-Sunnat and Talaaq-ul-Biddat.
 Talaq-ul-Sunnat: (revokable)
 This is in conformity with the dictates of the Prophet. It can be further sub-
divided as:
o Ahsan: most proper.
o Hassan: It is approved.
 Ahsan:
o It is known as the best form of talaq.
o He has to make a pronouncement of divorce in a single sentence,
such pronouncement must be made in a purity state (when a
woman is free from her menstrual cycle).
o A husband must not indulge in any form of sexual intercourse during
the iddat period (period of chastity a Muslim woman is bound to
observe after the dissolution of marriage, either by the death of her
husband or by divorce) and if he does so, then it will be considered
as implied revocation of talaq.
 o The advantage of this form is that divorce can be revoked at any
time before the completion of the period of iddat, thus hasty,
thoughtless divorce can be prevented.
o The revocation may be affected expressly or impliedly.
o Thus, if before the completion of iddat, the husband resumes
cohabitation with his wife or says “I have retained thee’’ the divorce
is revoked.
o Resumption of sexual intercourse before the completion of period of
iddat also results in the revocation of divorce.
o Once the iddat period has expired, the divorce becomes irrevocable.
 Hasan: approved/good.
o Divorce pronounces through Hasan mode is a good but lesser worth
than the one pronounced in Ahsan.
o Husband has to make three successive pronouncements for divorce.
o In the case of a menstruating wife, such three pronouncements
should be made in three consecutive tuhr (state of purity)
o In the case of a non-menstruating wife, pronouncement should be
made at three successive intervals of 30 days.
o No sexual intercourse should take place during these periods of
three pronouncements and if such an act takes place, then the
process of divorce will be revoked.
o the talaq becomes final after the third declaration.
o Talaq Hasan becomes irrevocable on the third pronouncement
irrespective of iddat period.
 Talaq-ul-Biddat: (Irrevocable)
 This type of Talaaq is not recognized by the Shias. This Form of divorce is
condemned. It is considered heretical, because of its irrevocability. Sunni law
recognises this mode of talaq, though recognised as sinful 
 It may consist either in three declarations (the so-called triple divorce) or
one irrevocable declaration. It has two forms:
 The triple declaration of talaaq made in a period of purity, either in one
sentence or in three. eg. “Talaq, talaq, talaq” or “I divorce thee, I divorce
thee, I divorce thee.”
 The other form constitutes a single irrevocable pronouncement of
divorce made in a period of Tuhr. “I divorce thee irrevocably”.
 Triple talaaq unconstitutional- violation of article 14- Made punishable in
India after the Shayra Bano’s case. (2017)
 The Muslim women (Protection of rights on marriage) Act, 2019.

Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and
Zihar. They are called constructive divorce:

 Illa (vow of continence):

 In ila, the husband takes an oath not to have sexual intercourse with his wile.
Followed by this oath, there is no consummation for a period of four
months. After the expiration of the fourth month, the marriage dissolves
irrevocable. But if the husband resumes cohabitation within four months, ila
 is cancelled and the marriage does not dissolve. Under ithna Ashara (Shi‘a)
School, Ila does not operate as divorce without order’ of the court of law.
 Zihar (injurious assimilation):
 In this mode the husband compares his wife with a woman within his
prohibited relationship e.g., mother or sister etc. “The husband would say
that from today the wife is like his mother or sister. After such a comparison
the husband does not cohabit with his wife for a period of four months.
Upon the expiry of the said period Zihar is complete. (No longer in use)

Divorce by mutual agreement:

 Although the practice of giving Divorce by mutual consent was not recognised in the Muslim
Law, it was only available to the Muslim women after the enactment of Dissolution of
Muslim Marriages Act, 1939.
 there are two modes: Khula and Mubarat:
 Khula:
 It is initiated by the wife and comes into existence if the husband gives
consent to the agreement and releases her from the marriage tie.
 Offer must be accepted by the husband with the consideration for it. (by
relinquishing her claim of the dower)
 Mubarat:
 It signifies mutual discharge from the marital tie. The most essential element
is that the mutual consent of both the partners is required in regards to the
dissolution of marriage.
 Offer can be made from either of the sides- Acceptance of offer makes
divorce irrevocable.

Talaq-it-Tafweed: (Divorce given by wife under the husband’s delegated power)

 Talaaq-it-tafweed or delegated divorce is recognized among both, the Shias and the Sunnis.
 Under this, the husband is free to delegate his power of pronouncing divorce to his wife or
any other person.
 He may delegate the power absolutely or conditionally, temporarily or permanently.
 A permanent delegation of power is revocable but a temporary delegation of power is not.
 This delegation must be made distinctly in favor of the person to whom the power is
delegated, and the purpose of delegation must be clearly stated.
 The power of talaaq may be delegated to his wife and form of delegated divorce is usually
stipulated in prenuptial agreements.
 Delegation of power to divorce may be made even in the post marriage agreements.
 Thus, where under an agreement it is stipulated that in the event of the husband failing to
pay her maintenance or taking a second wife, she will have a right of pronouncing divorce on
herself, such an agreement is valid, and such conditions are reasonable and not against
public policy.

Judicial divorce, i.e under DMMA, 1939:

 The two grounds on which a Muslim women could ask for divorce before the advent DMMA,
were:
 Lian (adultery)
 Faskh (annulment by maulvi)
Lian:

 If the husband levels false charges of unchastely or adultery against his wife then this
amounts to character assassination and the wife has got the right to ask for divorce on these
grounds. Such a mode of divorce is called li‘an.
 Zafar Husain v. Ummat-ur-Rahman, Allahabad High Court held that a wife under Muslim law
is entitled to file a suit against her husband for dissolution of marriage and can obtain decree
on the ground that she was falsely charged with adultery by him.
 Essentials:
 A husband must be adult and sane.
 He charges his wife of adultery.
 Such a charge must be false.
 False charges do not ipso facto dissolve the marriage, it just provides a ground to the
wife to move to the court to dissolve the marriage.
 Marriage will continue until the decree for dissolution of marriage is passed by the
court.
 Judicial separation via mode of lian is irrevocable.
 This mode is applicable only to Sahih marriages not on fasid ones.
 Retraction can be made by the husband before the end of the trial, admitting that he made
the charge of adultery against his wife and such charge was false.

Faskh: (judicial divorce)

 Faskh means annulment.

 It refers to the power of kazi (law courts) to annul a marriage on the application of the wife.
 In India, such judicial annulments are governed by Section 2 of Dissolution of Muslim
Marriage Act, 1939 which states nine grounds on which a Muslim wife can obtain a decree of
divorce:
 Whereabouts of Husband not Known for 4 years:
 Where the husband has disappeared and his whereabouts are not known for
a period of four years or more, the wife can apply for faskh. A wife whose
husband has been missing for a long-time, is deprived of protection,
companionship, pleasure of her life and financial support. She is naturally
put to great hardship on that account. It becomes necessary in such
situation to seek for faskh. Practically every religion and society provide
relief for a wife under such circumstances.
 When a decree for faskh is passed by the Court of Law, it shall remain in
abeyance for six months. If during this period, husband comes back and the
court is satisfied of his willingness to perform his conjugal duties, the decree
shall be set aside
 Failure to provide maintenance to wife for a period of 2 years:
 Under the Muslim Law on marriage certain obligations are imposed on the
parties and certain rights are vested in them. The rights and obligations
arising out of marriage are reciprocal so that if either of the party fails to
perform his/her duties, the spouse at fault shall no longer be entitled to the
enjoyment of the rights vested in him/her. One of the rights of the wife is
that she is entitled to maintenance from her husband while she is under
obligation to look after the domestic comforts of the husband to make
 herself available to him. This obligation of the wife makes it necessary that
she should live with the husband.
 Imprisonment of husband:
 If the husband has been sentenced for a period of seven years or upwards,
the wife can apply for the dissolution of the marriage.
 In this context it is pertinent to point out, that under the Special Marriage
Act, a petition for divorce may be presented to the District Court either by
the husband or the wife on the ground that the respondent is undergoing a
sentence of imprisonment for seven years or more for an offence as defined
under the Indian Penal Code. Under the Dissolution of Muslim Marriages
Act, it is provided that imprisonment for seven years can be availed by the
petitioner for seeking faskh only when the sentence becomes final.
 Non-performance of marital obligation:
 The Muslim marriage is a civil contract and from it emerges rights and duties
to both husband and wife. If the husband has failed to perform, without
reasonable cause, his marital obligations for a period of three years, it gives
a cause of action for faskh to the wife
 Impotency:
 The wife 2 can sue for the faskh on the ground of her husband's impotency,
if she can prove:
ᴏ Her husband was impotent at the time of marriage; and
ᴏ He continues to be impotent even upto the time of filing the suit
 Insanity and venereal diseases:
 the husband has been insane for a period of two years or is suffering from
leprosy or a venereal disease;
 The Dissolution of Milslim Marriages Act does not define insanity. The
Muslim jurists have not differentiated the types of mental disorder and have
used the words in an exhaustive sense to include a lunatic, an idiot or a
person of unsound mind. An insane person is one who is not of sound mind
and who suffers from a disordered condition of the mind so that he cannot
regulate his actions and conduct. This condition may develop at any time
due to disease, accident, shock, etc. Under the different laws in India
venereal disease is a ground for judicial separation and faskh.
 Option of puberty:
 A Muslim marriage is normally governed by the same principle of law as
applied to contracts entered into on behalf of minors. Thus, when a marriage
is contracted for a minor by a guardian, he or she on attaining majority has a
right under conditions to choose whether he or she is interested to continue
such contract or dissolve it altogether. – before attaining the age of 18 years.
 Cruelty:
 Cruelty is also a ground for faskh under the Dissolution of Muslim Marriages
Act 1939. The concept of cruelty depends on the standard of society and
changes with the changing norms. It has been rightly pointed out that the
concept of cruelty has been undergoing a change with the socio-economic
conditions of our society. Cruelty can be:
ᴏ Habitual Assaults
ᴏ Association with women of ill repute or leading an infamous life
 ᴏ Attempting to force to lead an immoral life;
ᴏ To dispose off the property of the wife or preventing her from
exercising legal right over it
ᴏ Obstruction in the observance of religious profession or practice;
and
ᴏ Unequal treatment of the wives, if he has more than one.

Apostacy:

 Apostasy is the abandonment of belief or faithlessness.

 Apostasy is a term used by society for disaffiliation from religion by a person.
 Apostasy is an important factor for personal laws in India.
 Apostasy is called ridda in Islamic literature. An apostate is called murtad, which means ‘one
who turns back’ from Islam. A person born to a Muslim parent who later rejects Islam is
called a murtad fitri, and a person who converted to Islam and later rejects the religion is
called a murtad milli.

Apostate in Islam:

 An individual becomes apostate by conversion from Islam to another religion. An apostate

can be implied if one does not formally renounce to Islam. 
 However, if any Islam believer was forced or in fear of war had to denounce from Islam is not
considered as an apostate. 
 Before the Dissolution of Muslim Marriage Act, 1939, apostasy from Islam by one of the
married pair would have been treated as dissolution of marriage with effect immediately,
without:
 the decree from the court; or
 being a repudiation of marriage, whether the conversion was before or after
consummation. 
 After passing the Act in 1939, it resulted in section 4 of the Act.

Apostate by Husband:

 Apostasy from Islam from Muslim husband will have immediate effects of dissolution of
marriage. Section 4 of the Dissolution of Marriage Act, 1939 does not apply to apostasy by
the husband.
 The result is that apostasy of the husband is still governed by old law under which the
renunciation from Islam by a husband will result in complete and immediate dissolution of
marriage. 
 Where a Muslim husband converts to another religion (say Christianity), his marriage is
immediately dissolved and the wife ceases to be a Muslim wife of that husband.
 As such, the wife is not governed by Muslim law and is free to marry another person
(immediately) without waiting for the Iddat period.

Apostacy by wife:

 The conversion of a married Muslim woman to a faith other than Islam does not by itself
operate to dissolve her marriage. Moreover, even after renouncing Islam, if the wife wants,
she may obtain a decree for the dissolution of her marriage on any of the grounds specified
in Section 2 of the Act. 
  Section 4 does not apply to a woman who converts to Islam from other faith and take back
her former faith. Thus, if a Hindu woman converts into Islam and marries under Muslim law,
the marriage would be ipso facto dissolved, on her renouncing Islam and re-embracing
Hinduism. However, if she does not re-embrace Hinduism, but becomes Christianity, the
marriage would not dissolve.
 In the case of Munavvar-ul-Islam v. Rishu Arora, (AIR 2014 Del 130) a Hindu wife converted
to Islam at the time of marriage. On her re-conversion back to her original faith viz Hinduism,
her marriage stood dissolved. Her case falls under the second proviso to Sec 4 of the Act, and
the pre-existing Muslim Personal Law under which apostasy of either party to marriage ipso
facto dissolves the marriage would apply.
 If a husband renounces Islam, the marriage stands automatically dissolved. Thus, if his wife
remarries even before the expiry of iddat, she will not be guilty of bigamy under Sec 494 of
the Indian Penal Code, 1860.
 In Abdul Ghani v/s Azizul Huq [(1912) ILR 39 Cal 409], a Muslim man and woman got
married. After some time, the husband embraced Christianity but reverted to Islam during
the wife’s iddat. Before the expiry of the iddat period, however, the wife got married to
another man. The first husband thereupon filed a complaint against the wife, her father and
her second husband under Sec 494. It was held that no offence had been made. 

Legitimacy and parentage:

 In Islamic law parentage or ‘nasab’ means lineage. It refers to the ability of a child to be
considered a part of a family group within a tribe.
 ‘Nasab’ relates to referring to the father’s name so that the lineage of the child can be
identified.
 Nasab is an important right of a child as other rights such as inheritance, maintenance and
guardianship depend on his nasab.
 Legitimacy is established for a child if he/she is born during a valid or irregular marriage (but
not in a void marriage), or by acknowledgement by the father.
 Parentage gives rise to two rights, paternity and maternity
 The relation between a father and his child is called ‘paternity’.
 The relation between mother and child is called ‘maternity’.
 Maternity is fact whereas paternity is a presumption.
 The rules regarding maternity are same irrespective of the child’s status of legitimacy
whereas paternity is only established for a legitimate child.
 Maternity is established via the biological mother of the child, whether the child was born in
or out of wedlock

Presumption of legitimacy:

 Initially the Presumption of Legitimacy under Islamic Law was based on:
 A child born within six month of the marriage is illegitimate unless the father
acknowledges it.
 A child born after six month of the marriage is presumed to be legitimate, unless the
father disclaims it by lian.
 A child born after the dissolution of marriage is legitimate if born–
 (a) Under Shia law, within 10 months.
 (b) Under Hanafi Law, within 2 years.
 (c) Under Shafie Maliki Law, within 4 years.
  The divergent period is not a result of indifference of laws of nature but a result of
considerations based on sentiments of humanity.
 Sadiq Hussain v. Hashim Ali, 1916: ‘No statement made by one man that another (proved to
be illegitimate) as his son can make the other legitimate, but where no proof of that kind has
been given, such a statement or acknowledgement is substantive evidence that the person
so acknowledged is the legitimate son of the person who makes the statement, provided his
legitimacy is possible.’
 Habibur Rehman Chowdhury v. Altaf Ali Chowdhury, 1921: ‘the Court has said that there is
no process recognized under Muslim law by which a status of legitimacy may be conferred
on an illegitimate child. But, it seems that one of the reasons for permitting polygamy and
temporary forms of marriages under Muslim law is that under no circumstances the child
born to them shall be illegitimate.
 In India, the conclusive proof of the legitimacy of a child whether Muslim or Non-Muslim is
determined under the provisions of the Indian Evidence Act, 1872– Section 112
 (i) that any person born during the continuance of a valid marriage between his
mother and any man;
 (ii) the person born within 280 days after the dissolution of marriage, the mother
remaining unmarried.
 Unless it can be shown (in both the cases) that the parties to the marriage had no
access to each other at any time when the person could have been begotten.

Right to property of illegitimate child:

 A legitimate child has these rights upon both parents whereas illegitimate child has these
rights upon her mother only. Such a child cannot claim inheritance or maintenance from the
father. He/she will inherit from the mother and the maternal relatives only.
 Under the Shia law, the illegitimate child does not inherit even from the mother. Under t-
he Hanafi law, the mother and her illegitimate children have mutual rights to inherit
property. The illegitimate child inherits not only the property of his mother but also the
property of all other relations with whom he is related through their mother.
 Under Sunni laws an illegitimate child only inherits from the mother
 Muslim laws does not confer any kind obligation of maintenance of illegitimate children on
either parent.
 The Hanafis recognize the obligation to nurture a child till the age of seven; the Shias do not
even recognize this obligation.
 The father is not bound to maintain his illegitimate child, but Section 125 of the Criminal
Procedure Code, 1973, (which ensures that all such unfortunate children are maintained by
their fathers except a married daughter) however binds the father to pay for the
maintenance of the child.
 The father would be held liable to pay a certain amount even if the mother refuses to give up
the illegitimate child to him.
 There are two known methods of filiation:
 Child born to a father
 Child adopted by a father
 Adoption is not recognized by Islam as it is rejected by Koran.
 As the Koran says, calling adopted children by the names of their adoptive fathers is contrary
to “the truth,” and therefore, they must be called by the name of their real fathers.
 However, the adoptive parents can always use their discretion to write up to one-third of
their estate for their adopted child.
Acknowledgement:

 Acknowledgement of Paternity (Iqrar-e-Nasab)

 Where the paternity of a child, i.e. its legitimate descent from its father, cannot be proved by
establishing a marriage between its parents at the time of its conception or birth, such
marriage and legitimate descent may be established by acknowledgement.
 It may be express or implied.
 An express acknowledgement entails formal declaration while in implied acknowledgement,
it is presumed from the fact that a person has openly and habitually treated another as his
legitimate child.
 Takes place in Islam only when:
 Paternity is not known or established beyond reasonable doubt. ‘Not proved’ neither
disproved.
 Not proved that child is an offspring of Zina.
 Circumstances are such that it does not rebut presumption of paternity.
 Conditions of a valid acknowledgement:
 1. Unknown paternity: fact or exact time of marriage not certain. (Since Muslim
marriage may be constituted without any ceremony, direct proof of marriage is not
always possible. Where direct prove is not available, indirect proof is by way of an
acknowledgment of legitimacy in favor of a child) and paternity is neither proved nor
disproved.
 2. Intention to Confer status of legitimacy: The acknowledgement must not be
merely of sonship, but of a legitimate sonship. Mere casual acknowledgement, not
intended to confer the status of legitimacy, will not be a legal acknowledgement.
 3. Age of the Acknowledger: The age of the parties must be such that they may be
father and son, i.e. the acknowledger must be at least twelve and a half years older
than the person acknowledged.
 4. Legal marriage must be possible between the parents of the person
acknowledged- not within prohibited relationship.
 5. Person acknowledge must not be the offspring of Zina. An offspring of Zina is one
who is born either:
 Without marriage.
 Of a mother who was the married wife of another.
 Of a void marriage.
 6. Person acknowledged must not be known to be the child of another.
 7. Person acknowledged must not repudiate the acknowledgement. (If the child is
too young, such verification is not essential)
 Muhammad Allahdad Khan v Muhammad Ismail, 1LR (1987) :
 The father of Allahdad Khan, a Sunni, died leaving behind two sons and three
daughters.
 Allahadad filed a suit to be the eldest son of the deceased and was therefore entitled
to a 2/7 of the share in the estate.
 The defense was that the plaintiff was only step-son of father having been born of
their mother before she married their father, the deceased.
 The plaintiff contended that even if he failed to prove to be the son of the deceased,
he had been acknowledged as the son of deceased on several occasions.
 Justice Mahmood, held that the plaintiff had established himself as the legitimate
son of the deceased and was, therefore entitled to succeed to him.
 An illegitimate child cannot be made legitimate, there is no such thing as legitimation in
Islam.