Talaq under Dissolution of Muslim Marriages Act, 1939

Talaq under the Muslim Law is dealt under the Dissolution of Muslim Marriage Act, 1939, in this article we have discussed all forms of talaq and differences Talaq Under Dissolution of Muslim Marriages Act, 1939

TALAQ: Various types and their differences under Dissolution of Muslim Marriages Act, 1939

Islam is one of the first religions in the world which has acknowledged the termination of a marriage by the way of divorce. The Prophet disliked the concept as this prevented conjugal happiness and interfered with the proper bringing up of the children and at the end of his life, he forbade this concept of divorce by men without any intervention of an arbiter or a Judge. He curtailed the scope of divorce and gave it up to the woman to decide the right of obtaining separation on reasonable grounds.

The classification of Dissolution of Marriage can be as follows:

1. Extra Judicial divorce

2. Judicial divorce 

The extra-judicial divorce can be further divided into:

• If by husband – Talaq, Ila, And Zihar.
• If by wife – Talaaq-I-Tafweez and Lian.
• If by mutual agreement – Khula and Mubarat.

The other category is the right of the wife to initiate divorce proceedings under the Dissolution of Muslim Marriages Act 1939.

Difference Between The Types Of Divorces 

Ahasantalaq Dissolution of Muslim Marriages Act, 1939

It consists of a single pronouncement of divorce made in the period of tuhr, that is the period before menstruation, or when the wife is free from menstruation, and is followed by abstinence from sexual intercourse during the period of iddat. The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce and does not apply to talaq in writing.  Similarly, this requirement is not applicable when the wife has passed the age of menstruation or the parties have been away from each other for a long time, or when the marriage has not been consummated. The advantage of this form is that divorce can revoked at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may be expressly or impliedly

Hasan talaq under Dissolution of Muslim Marriages Act, 1939

In this the husband is required to pronounce the formula of talaq three times during three successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be made after the interval of a month or thirty days between the successive pronouncements. When the last pronouncement is made, the talaq, becomes final and irrevocable. It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during the period of tuhr.

Talaq-ul-Biddat Under Dissolution of Muslim Marriages Act, 1939

It came into vogue during the second century of Islam.

• The triple declaration of talaq made in a period of purity, either in one sentence or in three;
• The other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise. This type of talaq is not recognized by the Shias. This form of divorce is condemned. It is considered heretical, because of its irrevocability. In India, this type of Talaq is prohibited in India due to various judicial pronouncements.

Ila Under Dissolution of Muslim Marriages Act, 1939

In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. Under IthnaAsharia (Shia) School, Ila, does not operate as divorce without order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband.

In the case of Bibi Rehana vs. Iqtidar-uddin, AIR All 295, after the marriage ceremony was over, the parents of the boy pushed him into a room where his wife was waiting for him. It appeared from the facts of the case that he was not interested in the marriage. Immediately, after entering into the room he took a vow in the presence of his wife that he would never have sexual intercourse with her. Soon after giving this vow, he came out of his room and repeated the same in front of his mother and sister. His father then came out and he repeated the same to him too. The court refused to accept the version of the husband and held that the husband has failed to establish that there had been a divorce in the Ila form.

Zihar under Dissolution of Muslim Marriages Act, 1939

In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the given period Zihar is complete. According to Shia law Zihar must be performed in the presence of two witnesses.

After the expiry of fourth month the wife has following rights:

(i) She may go to the court to get a decree of judicial divorce;

(ii) She may ask the court to grant the decree of restitution of conjugal rights.

Where the husband wants to revoke Zihar by resuming cohabitation within the mentioned period, the wife cannot seek judicial divorce.

It can be revoked if:

(i) The husband observes fast for a period of two months, or;

(ii) He provides food at least sixty people, or;

(iii) He frees a slave.

Divorce by mutual agreement under Dissolution of Muslim Marriages Act, 1939

1. Khula and Mubarat: They are two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or a part of some other property. The word khula, in its original sense, means “to draw” such as taking off one’s clothes or garments. Although consideration for Khula is essential, the actual release of the dower or delivery of property constituting the consideration is not a condition precedent for the validity of the khula. Once the husband gives his consent, it results in an irrevocable divorce. The husband has no power of canceling the ‘khula’ on the ground that the consideration has not been paid. The consideration can be anything; usually, it is mahr, the whole, or part of it. But it may be any property though not illusory. In Mubarat, the outstanding feature is that both the parties desire a divorce. Thus, the proposal may emanate from either side. In Mubarat both, the husband and the wife, are happy to get rid of each other. Among the Sunnis when the parties to marriage enter into a Mubarat all mutual rights and obligations come to an end. The Shias insist that the word mubarat should be followed by the word talaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words. Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required.

In the case of Moonshee-Buzlu-ul-Raheem vs. Lateefutoonissa, 8 MIA, 395, 399; A divorce by khula is a divorce with the consent and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. It signifies an arrangement entered into for the purpose of dissolving a connubial connection in lieu of compensation paid by the wife to her husband out of her property.

Divorce by wife:

(i) Talaaq-i-tafweez

(ii) Lian

(iii) By Dissolution of Muslim Marriages Act 1939.

• Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim 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. Talaq Under Dissolution of Muslim Marriages Act, 1939
• Lian: If the husband levels false charges of adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on this grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behavior and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behavior of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian.

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• Dissolution of Muslim Marriages Act 1939

Section 2 of the Act facilitates divorce:

A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one or more of the following grounds, as analyzed: –

That the whereabouts of the husband have not been known for a period of four years: If the husband is missing for a period of four years the wife may file a petition for the dissolution of her marriage. The husband is deemed to be missing if the wife or any such person, who is expected to have knowledge of the husband, is unable to locate the husband. Section 3 provides that where a wife files a petition for divorce under this ground, she is required to give the names and addresses of all such persons who would have been the legal heirs of the husband upon his death. The court issue notices to all such persons appear before it and to state if they have any knowledge about the missing husband. If nobody knows then the court passes a decree to this effect which becomes effective only after the expiry of six months. If before the expiry, the husband reappears, the court shall set aside the decree, and the marriage is not dissolved. That the husband has neglected or has failed to provide for her maintenance for a period of two years: It is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife may seek divorce on this ground. A husband may not maintain his wife either because he neglects her or because he has no means to provide her maintenance. In both cases, the result would be the same. The husband’s obligation to maintain his wife is subject to the wife’s own performance of matrimonial obligations. Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to get a judicial divorce on the ground of husband’s failure to maintain her because her own conduct disentitles her from maintenance under Muslim law. That the husband has been sentenced to imprisonment for a period of seven years or upwards: The wife’s right of judicial divorce on this ground begins from the date on which the sentence becomes final. Therefore, the decree can be passed in her favor only after the expiry of the date for appeal by the husband or after the appeal by the husband has been dismissed by the final court. That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years: The Act does define ‘marital obligations of the husband’.

There are several marital obligations of the husband under Muslim law. But for the purpose of this clause husband’s failure to perform only those conjugal obligations may be taken into account which is not included in any of the clauses of Section 2 of this Act. That the husband was impotent at the time of the marriage and continues to be so: For obtaining a decree of divorce on this ground, the wife has to prove that the husband was impotent at the time of the marriage and continues to be impotent till the filing of the suit.

Before passing a decree of divorce on this ground, the court is bound to give to the husband one year to improve his potency provided he makes an application for it. If the husband does not give such an application, the court shall pass the decree without delay. If the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease: The husband’s insanity must be for two or more years immediately preceding the presentation of the suit. But this act does not specify that the unsoundness of mind must be curable or incurable.

The Act provides that this disease must be of incurable nature. It may be of any duration. Moreover, even if this disease has been infected to the husband by the wife herself, she is entitled to get a divorce on this ground. That she, having been given in marriage by her father or other guardians before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated; Talaq Under Dissolution of Muslim Marriages Act, 1939

Or, if the husband treats the wife with cruelty –

(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) Associates with women of ill-repute or lead an infamous life, or

(c) Attempts to force her to lead an immoral life, or

(d) Disposes of her property or prevents her from exercising her legal rights over it, or

(e) Obstructs her in the observance of her religious profession or practice, or

(f) If he has more than one wife, he does not treat her equitably in accordance with the injunctions of the Holy Quran.

Irretrievable Breakdown:

Divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim Law through the judicial interpretation of certain provisions of Muslim law. In 1945 in

In the case of Umar Bibi vs. Muhammad Din; ILR (1994) 25 Lah; It was argued that the wife hated her husband so much that she could not possibly live with him and there was the total incompatibility of temperaments. On these grounds, the court refused to grant a decree of divorce. However in Neorbibi vs. Pir Bux ILR (1994) 25 Lah, the court granted the divorce.

Section 125 of the Code of Criminal Procedure 1973 makes it mandatory for the husband to pay the Maintenance amount irrespective of the religion he belongs to.

With recent development in the Muslim Divorce Law, Talaq-ul-Bidaati.e Triple Talaaq has become unconstitutional after the grant of plea in the case Shah Bano case.

Author: This article was written by Richaa Mukhopadhyay, B.A. LLB(Hons), CS(executive), ALSK, ICSI, student of Amity Law School, Amity University, Kolkata.

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