DISSOLUTION OF MUSLIM

MARRIAGE
FAMILY LAW - I
 TABLE OF CONTENTS
 INTRODUCTION

 DISSOLUTION OF MUSLIM MARRIAGE BY DEATH OF

EITHER OF SPOUSES

 DISSOLUTION OF MUSLIM MARRIAGE BY ACT OF

PARTIES (DIVORCE)-

1. At the Instance of Husband

2. At the Instance of Wife
3. Divorce by Mutual Consent
4. Divorce by Judicial Process
 INTRODUCTION

Islam insists upon the subsistence of a marriage and

prescribes that breach of marriage contract should be
avoided. Initially no marriage is contracted to be
dissolved but in unfortunate circumstances the
matrimonial contract is broken. One of the ways of such
dissolution is by way of divorce.

Under Muslim law the divorce may take place by the act
of the parties themselves or by a decree of the court of
law. However in whatever manner the divorce is
effected it has not been regarded as a rule of life. In
Islam, divorce is considered as an exception to the status
of marriage.
Modes of Divorce:

 A husband may divorce his wife by repudiating the marriage

without giving any reason. Pronouncement of such words
which signify his intention to disown the wife is sufficient.
Generally this done by talaaq. But he may also divorce by Ila,
and Zihar which differ from talaaq only in form, not in
substance. A wife cannot divorce her husband of her own
accord. She can divorce the husband only when the husband has
delegated such a right to her or under an agreement. Under an
agreement the wife may divorce her husband either by Khula or
Mubarat.

 Before 1939, a Muslim wife had no right to seek divorce except

on the ground of false charges of adultery, insanity or
impotency of the husband. But the Dissolution of Muslim
Marriages Act 1939 lays down several other grounds on the
basis of which a Muslim wife may get her divorce decree
passed by the order of the court.
 DISSOLUTION OF MUSLIM MARRIAGE BY DEATH OF EITHER OF SPOUSES

Dissolution of Muslim marriage by Death of party to Marriage:

 Marriage stands dissolve or terminated immediately on death of the

husband or wife under Muslim personal law systems. The very fact of the
death of any party to the marriage is sufficient to terminate the marriage.

 However, in this case, the wife has to follow the Iddat period for four
months and ten days from the date of husband’s death.

 If she is pregnant at the time of husbands death, it continues till the

delivery of the child, or four months ten days whichever is longer.

 Unless the completion of Iddat period ,wife has restrained to remarry

 However, in case of widow husband, he is free to marry of his own will
to another women. Unlike widow wife husband not required to follow the
Iddat period.
DISSOLUTION OF MUSLIM MARRIAGE BY ACT OF PARTIES (DIVORCE)
 Dissolution of Muslim Marriage at
instance of Husband
Talaaq is repudiation of marriage by the husband in accordance with the
procedure laid down by the law.When the husband exercises his right to
pronounce divorce, technically this is known as talaaq.

Conditions for a valid talaaq:

1) Capacity: Every Muslim husband of sound mind, who has attained the
age of puberty, is competent to pronounce talaaq. It is not necessary for
him to give any reason for his pronouncement. A husband who is minor
or of unsound mind cannot pronounce it. Talaaq by a minor or of a person
of unsound mind is void and ineffective. However, if a husband is lunatic
then talaaq pronounced by him during "lucid interval" is valid. The
guardian cannot pronounce talaaq on behalf of a minor husband. When
insane husband has no guardian, the Qazi or a judge has the right to
dissolve the marriage in the interest of such a husband.
2) Free Consent: Except under Hanafi law, the consent of the husband in
pronouncing talaaq must be a free consent. Under Hanafi law, a talaaq,
pronounced under compulsion, coercion, undue influence, fraud and
voluntary intoxication etc., is valid and dissolves the marriage.
Involuntary intoxication: Talaaq pronounced under forced or
involuntary intoxication is void even under the Hanafi law.
Shia law: Under the Shia law (and also under other schools of Sunnis) a
talaaq pronounced under compulsion, coercion, undue influence,
fraud, or voluntary intoxication is void and ineffective.

3) Formalities: According to Sunni law, a talaaq, may be oral or in

writing. It may be simply uttered by the husband or he may write a
Talaaqnama. No specific formula or use of any particular word is
required to constitute a valid talaaq. Any expression which clearly
indicates the husband's desire to break the marriage is sufficient. It
need not be made in the presence of the witnesses.
According to Shias, talaaq, must be pronounced orally, except where
the husband is unable to speak. If the husband can speak but gives it in
writing, the talaaq, is void under Shia law. Here talaaq must be
pronounced in the presence of two witnesses.
4) Express words: The words of talaaq must clearly indicate the
husband's intention to dissolve the marriage. If the pronouncement is
not express and is ambiguous then it is absolutely necessary to prove
that the husband clearly intends to dissolve the marriage.
 Express Talaaq (by husband):

When clear and unequivocal words, such as "I have

divorced thee" are uttered, the divorce is express.
The express talaaq, falls into two categories:
1. Talaaq-ul-sunnat,
2. Talaaq-ul-biddat.

1. Talaaq-ul-sunnat has two forms:

a. Talaaq-i-ahasan (Most approved)
b. Talaaq-i-hasan (Less approved).
1. Talaq-Ul-Sunnat       
Talaq-ul-Sunnat is also called as Talaq-ul-raje. It is a revocable
form of talaq because in this form, the consequences of Talaq do
not become final at once. There is possibility of compromise and
reconciliation between husband and wife. Talaq-ul-Sunnat is
regarded to be the approved form of Talaq. This mode of Talaq is
recognised both by Sunnis as well as by the Shias. Talaq-ul-
Sunnat may be pronounced either in Ahasan or in the Hasan
form.

a)Ahasan   
This is the most proper form of repudiation of marriage. The
reason is twofold: First, there is possibility of revoking the
pronouncement before expiry of the Iddat period. Secondly, the
evil words of Talaq are to be uttered only once. Being an evil, it
is preferred that these words are not repeated.
Procedure to be followed in Ahasan Talaq

1. The husband has to make a single pronouncement of Talaq during the

Tuhr of the wife. Tuhr is the period of wife’s parity i.e. a period between two
menstruations. As such, the period of Tuhr is the period during which
cohabitation is possible. But if a woman is not subjected to menstruation,
either because of old age or due to pregnancy, a Talaq against her may be
pronounced any time.

2. After this single pronouncement, the wife is to observe an Iddat of three

monthly courses. If she is pregnant at the time of pronouncement then the
Iddat is till the delivery of the child. During the period of Iddat there should
be no revocation of Talaq by the husband to make the talaq final.

When the period of Iddat expires and the husband does not revoke the Talaq
either expressly or through consummation, the Talaq becomes Irrevocable
and final.
However during the period of iddat the husband can revoke the talaq.
Revocation may be express or implied. Cohabitation with the wife is an
implied revocation of Talaq. If the cohabitation takes place even once during
this period, the Talaq is revoked and it is presumed that the husband has
reconciled with the wife.
b)Hasan 
   This Talaq is also regarded to be the proper and approved form of Talaq. In
this form too, there is a provision for revocation. But it is not the best mode
because evil words of Talaq are to be pronounced three times in the successive
Tuhrs.

Procedure to be followed in Hasan Talaq

  
1. The husband has to make a single declaration of Talaq in a period of ‘Tuhr.

2. In the next Tuhr, there is another single pronouncement for the second time.

3. If no revocation is made after the first or second declaration then lastly the
husband is to make the third pronouncement in the third period of purity
(Tuhr). As soon as this third declaration is made, the Talaq becomes
irrevocable and the marriage dissolves and the wife has to observe the
required Iddat.

It is only after the third pronouncement that the wife observes the iddat
period and no revocation can be made post 3rd pronouncement. Revocation in
Hasan Talaq can be made only made during tuhr firstly between 1 st and
2nd pronouncement and secondly between 2nd and 3rd pronouncement.
2)Talaq-ul-Biddat        
Talaq-ul-Biddat is also known as Talaq-ul-Bain. It is a disapproved mode of
divorce. A peculiar feature of this Talaq is that it becomes effective as soon as
the words are pronounced and there remains no possibility of reconciliation
between the parties thereby making it irrevocable. This form of talaq is mainly
recognized and practiced by the Sunni Muslims and is not recogised by the
Shia Muslims. Talaq-ul-Biddat maybe pronounced in single declaration or by
triple declaration.

Single Declaration Procedure:

The husband may make only one declaration in a period of purity expressing his
intention to divorce the wife irrevocably saying: “I divorce thee irrevocably” or
“I divorce thee in Bain”. After the pronouncement is made the talaq becomes
irrevocable and permanent. It is after this period the wife observes the iddat
period.

Triple Declaration Procedure:

The husband may make three pronouncements in a period of purity (Tuhr)
saying: “I divorce thee, I divorce thee, and I divorce thee”. He may declare his
triple Talaq even in one sentence saying: “I divorce thee thrice”, or “I
pronounce my first, second and third Talaq.” It becomes irrevocable
immediately when it is pronounced and subsequently the wife observes the
iddat period.
 However it is to be noted that talaq-ul-biddat has been declared
unconstitutional by the Hon’ble Supreme Court in Shayara Banu
vs union of India (2017) 9 SCC 1 in which the court held that “that
this form of Talaq is manifestly arbitrary in the sense that the
marital tie can be broken capriciously and whimsically by a Muslim
man without any attempt at reconciliation so as to save it. This form
of Talaq must, therefore, be held to be violative of the fundamental
right contained under Article 14 of the Constitution of India. In our
opinion, therefore, the 1937 Act, insofar as it seeks to recognize and
enforce Triple Talaq, is within the meaning of the expression “laws
in force” in Article 13(1) and must be struck down as being void to
the extent that it recognizes and enforces Triple Talaq”

 Following the judgment, and on its own initiative, the government

introduced a bill criminalizing triple talaq.

 The Muslim Women (Protection of Rights on Marriage) Act, 2019

is an Act of the Parliament of India criminalising triple talaq. The
acts stands to be retrospectively effective from 19 September 2018.
 Ila - (Vow of continence) - Where the husband is of sound mind
and of the age of majority, swears by God that he will not have
sexual intercourse with his wife and leaves the wife to observe
iddat, he is said to make ila. If the husband after having
pronounced ila abstains from having sexual intercourse with wife
for four months, the marriage is dissolved with the same result as if
there had been an irrevocable divorce pronounced by the husband.

This requires following conditions -

1. Husband must be of sound mind and above the age of majority.
2. must swear by God or must take a vow.
3. vow must be that he will not have sexual intercourse with his
wife.
4. must abstain from sexual intercourse with his wife for four
months or more after taking the vow.
It can be cancelled by - resuming sexual intercourse within the
period of four months or by a verbal retraction. It is not in practice
in India.
 
 - Zihar - Injurious Assimilation - If a husband compares the wife
with his mother or any other female relative within prohibited
degree, the wife has a right to refuse herself to him until he has
perfomed a penance such as freeing a slave or fasting for a month.
In default of expiation by penance, the wife has the right to apply
for judicial divorce.

Ingredients -
1. husband must be sane and adult
2. husband compares wife to his mother or any other female relative
within prohibited degrees.
3. then the wife has a right - a) to refuse to have sexual intercourse
with him till he has expiated himself by penance, b) to apply in court
for an order directing him for a penance or to decree her a regular
divorce.

Shia Marriage -
 Comparison must have been done in presence of two witnesses.
 Muta marriage may be dissolved by Zihar.

Sunni Marriage - No such Requirement.

Legal Effects - Zihar by itself does not terminate the marriage nor
does it cause the wife to lose her right to maintenance even in case
of default of penance.

It causes the following -

1. sexual intercourse becomes unlawful
2. husband is liable for penance
3. wife can claim judicial separation if the husband persists in wrong
doing.

The comparison must be done intentionally and with disrespect. If

the husband makes a comparison to show respect to his wife, an
expiation is not necessary.
This form has become obsolete.
 Dissolution of Muslim Marriage at
instance of Wife
Talaq e tafweez - A husband may delegate his power to give
Talaq to any third party or even to his wife. This delegation is
called tafweez. An agreement made either before or after the
marriage providing that the wife is at liberty to divorce herself
from her husband under certain specified conditions (e.g.
husband taking a second wife), is valid, provided that such
power is not absolute and unconditional and that the conditions
are reasonable and are not opposed to public policy.

 In Mohd Khan vs Mst Shahmali AIR 1972, there was a pre-

nuptial agreement in which the defendant agreed to live in
plaintiff's parental house after marriage and if he left the house,
he would pay a certain sum to the plaintiff, the default of which
the condition would act as divorce. It was held that the
condition was not unconscionable or opposed to public policy.
 Divorce by Agreement
1) Khula - Divorce at the request of wife - A wife has a right to buy her release
from marriage from her husband. It must satisfy the following conditions - 
 there must be an offer from the wife.
 the offer must be accepted with consideration (evaz) for the release.
 the offer must be accepted by the husband.

 Itbecomes effective as well as irrevocable (Talaq ul bain) as soon as it is

accepted by the husband and the wife is bound to observe iddat.

As a consideration for release by the husband, everything that can be given in

dower can be given. If the wife fails to give the consideration that was agreed
upon at the time of Khula, divorce does not become invalid but the husband
has the right to claim the consideration.
 In Moonshee Buzloor Rahim vs Lateefutoon Nissa, Khula was defined
as a divorce by consent in which the wife gives or agrees to give a
consideration to the husband for her release from the marriage tie. Khula
is thus the right of divorce purchased by the wife from her husband.

Khula under Shia law

 Husband must be adult, sane, free agent (mukhtar), and must have
intention to divorce her.

Husband has no power of revocation but wife can reclaim the

consideration during iddat. In this case, the husband can revoke Khula.

Khula under Sunni law

 Only two conditions - Husband must be adult and sane.


It is irrevocable and partners cannot resume sexual intercourse until a

fresh marriage is arranged.
2) Mubarat - Divorce by mutual agreement - It is a form of
dissolution of marriage contract, where husband and wife both are
averse to the marriage and want to separate. It requires following
conditions - 
 Either of husband or wife can make the offer.
 The other one must accept it.

As soon as it is accepted, it become irrevocable and iddat is

necessary. Since it is a mutual agreement, there is no question of
consideration.
 Divorce by Judicial Process
Ila and Zihar also comes under purview of Divorce by judicial process
and it has been discussed above under the head of Divorce by Husband.

 Lian - False charge of adultery - When the husband charges the wife
with adultery and the charge is false, the wife is entitled to sue for and
obtain divorce.  

In Zafar Hussain vs Ummat ur Rahman 1919, the Allahabad HC

accepted the doctrine of Lian.

The following conditions must be satisfied - 

◦ Husband, who is adult and sane, charges his wife with adultery or
denies the paternity of her child.
◦ Such charge is false.
◦ The marriage is a Sahih marriage.
Features of Lian – 
 Such false charge does not dissolve the marriage
automatically but only gives a right to the wife to sue for
divorce. The marriage continues till the decree is passed.
 Wife must file a regular suit and just an application will
not suffice.
 Judicial separation due to Lian is irrevocable.
 Lian is applicable only to Sahih marriage and not to
Fasid ones.
 
Retraction - A husband may retract the charge. However,
the retraction must be bona fide and unconditional. It
must be made before the closing of evidence.
 Fask - Cancellation - Muslim law allows a lady to
approach a qazi for dissolving the marriage under the
following conditions - 
◦ if the marriage is irregular.
◦ if the person having an option to avoid a marriage has
exercised his options.
◦ if the marriage was within prohibited degrees or
fosterage.
◦ if the marriage has been contracted by non-Muslims
and the parties have adopted Islam.

Before the enactment of Muslim Marriage Dissolution

act, this was the only way for a muslim woman to
repudiate a marriage.
 Dissolution of Muslim Marriage Act, 1939

Judicial Divorce - Section 2 of Muslim Marriage Dissolution

Act, 1939 gives the following grounds to wife belonging to Shia as
well as Sunni sects, upon which she can ask for divorce –

 Absence of husband - 4 yrs. Decree passed on this ground will take

affect only after 6 months of passing and if the husband shows up
during the 6 months he can request the court to set the decree aside.

 Failure to maintain - for 2 yrs. Cause is immaterial. Poverty,

incapacity is no excuse. There is no agreement among HCs regarding
the conduct of wife. In one case it was held that if a wife is not
faithful or obedient, the husband is under no obligation to maintain
her and her suit for divorce was dismissed. However, in another case
it was held that a wife is entitled to divorce if the husband has failed
to maintain her for two years preceding the suit even though she may
not be entitled to maintenance owing to her bad conduct.
Imprisonment of husband - for 7 yrs or more.

Failure to perform marital obligations - for 3 yrs

Impotency of husband - If the husband was impotent at the time of marriage and
continues to be so.

Insanity,leprosy, or venereal disease - For insanity, 2 yrs are required. For disease, no
time period is required.

Leprosy is no longer a ground for divorce as per The Personal laws (Amendment) Bill,
2018 which was passed by Rajya Sabha in the year Feb, 2019.

Repudiation of marriage - If the wife was married before she was 15, she can repudiate
the marriage before she turns 18.

Cruelty of husband - cruelty involves -  habitual assault, associates with women of bad
repute, attempts to force her to lead immoral life, disposes off her property, obstructs her
practice of religion, does not treat all his wives equally.

Groundsallowed by muslim law - This covers all the grounds such as Ila, Zihar, Khula,
and Mubarat, which are provided by muslim law.

Section 4 of this act removes apostasy as a ground for granting divorce automatically.
However, if a woman reconverts back to her original faith, the marriage will stand
dissolved.
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