Modern Education Society’s

NEW LAW COLLEGE

Subject : Family law 1

Topic : TALAQ UNDER MUSLIM LAW

Name : Vishal Deorao More

Class : F.Y.LL.B

Roll no : 36 Div : A

Respective Teacher,

Please allow me to choose the above mentioned topic for my assignment.

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 TALAQ UNDER MUSLIM LAW

Introduction

For understanding the methods of dissolution of marriage, what is marriage under

Muslim law because the only essential for divorce under Muslim law is marriage. The
dissolution of marriage is known as divorce.

Religion define marriage, such as:-

1. Under Muslim Law, Marriage is a contractual relationship between two parties.

All the essentials that are required for a contract are present under Muslim
Marriage. There is an offer, acceptance, consent, consideration, the capacity of
parties, etc.

In the case of Shoharat Singh v Jafri Begum, the privy council held that marriage under
Muslim law is a religious ceremony. Under Islam, marriage is recognised as a basis of
society. Marriage is an institution which leads to upliftment of man and is also a means
for the continuance of the human race.

Divorce is the end of such a marital relationship, as under Muslim law there are two
modes given for the dissolution of marriage-

1) Divorce 2 ) Talaq

In daily life, these two terms are alternatively used, but under Muslim law, if a person
seeks “divorce”, he will be governed by the provisions of Dissolution of Muslim
Marriage Act, 1939. Whereas, “Talaq” proceedings are governed by Muslim Personal
Laws.

Classification of Dissolution of Marriage

1.BY HUSBAND

There are four modes available before a husband for dissolving the tie of marriage:
 Talaq- ul- sunnat

This form of talaq is effective in accordance with the traditions established by

the Prophet. It is further divided into two parts:-

 Ahsan

It is known as the best form of talaq as the name clarifies the same. The procedure
followed by the husband is as follows –

 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).

 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. It is pertinent
to note that once the iddat period has expired, the divorce becomes irrevocable.

 When the partners have not consummated, talaq-e-Ahsan can be pronounced even

if the wife is in her menstruation.

 Hasan

The Arabic meaning of Hasan is good, therefore divorce pronounces through Hasan
mode is a good but lesser worth than the one pronounced in Ahsan. Husband has to make
three successive pronouncements for divorce.

 In the case of a menstruating wife, such three pronouncements should be made in

three consecutive tuhr(state of purity).

 In the case of a non-menstruating wife, pronouncement should be made at three

successive intervals of 30 days.
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.

Talaq Hasan becomes irrevocable on the third pronouncement irrespective of iddat

period.

Talaq-ul- biddat

This form of talaq is introduced by “Umayyads” in order to escape from the strictness of
Law. This is a sinful form of talaq, as it is recognised among the Hanafis. Sunni law
recognises this mode of talaq, though recognised as sinful by that too. Whereas Shias and
Malikis do not recognise this mode.

 Three pronouncements made in a single tuhr either in a single sentence or in

separate sentences eg. “Talaq, talaq, talaq” or “I divorce thee, I divorce thee, I
divorce thee.”

 Single pronouncement clearly indicates an intention to dissolve a marriage and

makes it irrevocable. It is usually pronounced as – “I divorce thee irrevocably”.

Partners separated through triple talaq can’t remarry without the formality of the woman
marrying another man and getting divorced from him, this process is called Nikah Halala.

In the recent judgement of Shayara Bano vs Union Of India And Ors., Supreme Court of
India declared that the practice of triple talaq is unconstitutional, as this form of Talaq is
violative of the fundamental right provided under Article 14 of the Constitution of India.

 Ila (Vow of Continence)

The situation wherein a husband who is of sound mind and has attained the age of
majority swears in the name of God that he will not have sexual intercourse with his wife
and leaves her to observe iddat, he is said to make Ila.

If the husband resumes sexual intercourse within the iddat period being observed by wife,
it will lead to cancellation of Ila It is pertinent to note that Ila is not practised in India.
  Zihar (injurious Assimilation)

A husband must be of sound mind and above the age of 18 years to be eligible to use this
mode dissolution of marriage. If he compares his wife to his mother or any of the female
within prohibited degrees, the wife has a right to refuse to have sexual intercourse with
him. Such refusal can be accepted until he has expiated himself from penance prescribed
by law. Muta marriage(practised among Shias) which admits no other sort of divorce may
be dissolved by zihar.

Such form of divorce is no longer in use anymore.

2. TALAQ BY THE WIFE

Divorce given by wife under the husband’s delegated power.

 Talaq-e-tafweez

This is the only way through which a woman can give divorce to his husband, however,
such power to give divorce needs to be delegated by the husband only. It is a form of
an agreement made either before or after marriage providing that wife will be privileged
to get separated from her husband via divorce under the specified condition as:-

1. In case the husband marries a second wife

2. The husband is unable to maintain her for a specified period of time any other
condition that must not be opposed to public policy.

If the conditions agreed in the agreement by the husband are well practised by him then,
the wife without any prejudice to Law can dissolve her marital ties.

The fact that husband delegates the power to the wife does not dispossess him of his right
pronounce talaq.

3.Divorce by Mutual Consent  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.
 1. Khula

The literal meaning of khula is “to lay down” before the law. The husband lays down his
right over his wife. It signifies an arrangement entered into to dissolve a connubial
connection in lieu of compensation paid by the wife to her husband out of her property,
everything that can be given as dower.

Khula is a divorce with mutual consent and at the instance of a wife in which she agrees
to give some consideration to her husband. It is basically a “redemption” of the contract
of marriage.

Essentials

 There must be an offer from the wife’s side

 Offer must be accepted by the husband with the consideration for it.

 Observance of the iddat period is necessary.

Under Shia law, husband can’t revoke divorce once accepted whereas the wife has been
given the power to reclaim the consideration during the iddat period.

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.

In this mode of divorce-

 Offer can be made from either of the sides.

 Acceptance of offer makes divorce irrevocable.

 Iddat is necessary

Under Shia law, parties can dissolve their marriage, if it is not possible for them to
continue their marriage by way of mubarat.
The last mode mentioned in the above table for dissolution of marriage is, by way of
judicial separation.

4.DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939.

There are two ways-

 Lian

Lian can simply be described as the wrong charge of adultery on wife by her husband.
Whenever a husband imposes false adultery charges on his wife, then a wife can sue him
and can also obtain a divorce on the same ground under the Act, by filing a regular suit
for dissolution of marriage. In case of 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 (by that fact itself) 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 seperation 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 her wife and such charge was false.
  Faskh

Quran says that husband and wife are duty bound to respect each other and treat each
other respectfully and obey all lawful orders of each other.

If both of them find that they can’t live as husband and wife further, they can approach
qazi who after careful examination may terminate their marriage.

Section 2 of Dissolution of Muslim Marriage Act, 1939 states nine grounds on which a
Muslim wife can obtain a decree of divorce:-

Absence of Husband– whereabouts of the husband are not known from the past four
years. Dissolution of marriage decree on this ground will take effect after six months
from the date of such decree is passed, and during that period if the husband appears in
person or through an authorizes agent. Court if satisfied from same may set aside the said
decree. 

Failure to maintain- If a husband fails to provide maintenance to his wife for two years.
There is no defence available before husband on the ground of poverty, failing health or
unemployment. 

Imprisonment of a husband- If the husband is imprisoned for seven years or more.

Failure to perform marital duties- If, without any reasonable cause, the husband is
unable to perform his marital obligations for three years.

Impotency of husband- husband was impotent at the time of marriage and continues to

be so. If the husband within one year from the date of the order obtained by wife for
dissolution of marriage on the grounds of impotency on application satisfies the Court
that he ceased to be impotent. If the husband satisfies the court, then no decree shall be
passed on this ground.

Insanity, leprosy or venereal disease- If the husband is insane or suffering from

leprosy, or any venereal disease from a period of two years, judicial divorce by wife can
be claimed on the same ground. 
Repudiation of marriage by wife- If a girl is married before the age of 15 years by her
father or guardian, then under Muslim law she has been provided with a right to repudiate
such marriage after attaining the age of 18 years provided that marriage is not
consummated. She is entitled to a decree of divorce for same. 

Grounds of dissolution recognised by Mohammedan Law- Wife is also entitled to

obtain a divorce on the ground recognised valid under the law.

Cruelty by husband- if the husband treats his wife with cruelty, then she can approach
the Court and claim for a decree of judicial separation on the same ground.

Some of the ways through which grounds for cruelty could be claimed as follows.

1)Physical assault.2) Making defamatory statements affecting her reputation.3) Forces

her to lead an immoral life.4) Obstructing her from practising her religion. 5)Husband
having more than one wife and does not treat them equally.

Talaqnama

Talaqnama is talaq given in the written form. Talaq via talaqnama can be provided in the
absence of wife and also there is no necessity to be signed in the presence of Qazi or
wife’s father.

 Husband has to execute a proper deed.

 A deed must contain the name of the women whom he has divorced and his name.

Conclusion

When two people enter into a marital relationship, they might not know each other so
well, as they got to know each other after living together. And after that, if there is no
compatibility between the two, living apart is the best choice to be made. Bad relations
may spoil the life of both the individuals and under Muslim law, talaq is an ancient
practice and is not recognised as a sinful act.