10 July 2018 03:09PM
Divorce under Muslim Law
Under the Muslim Law, a marriage is broken up or dissolved either by the death of the spouse or wife or by separation through divorce. After the death of a spouse, the husband may remarry immediately after the death of the wife. Be that as it may, the widow can't remarry before a specific determined period called Iddat, expires.
Generally, both the parties involved in the marriage contract have an opinion for divorce, but the husband is privileged much greater than that of the wife in this respect.
The spouse can dissolve the marriage tie whenever at his free and through a will. A divorce can likewise occur through mutual understanding/consent.
In any case, the spouse can't separate herself from her former husband without his consent. She can obviously acquire her separation from her husband and can have the marriage dissolved by the method of Talaq-e-Tafweez (delegation).
A man should:
(a) Divorce only once,
(b) Only during the state of purity of the wife (time when his wife is not on her menstrual period), also known as ‘tuhar’ and
(c) There has been no sexual contact with her since the time of her last tuhar.
After a divorce is pronounced by the husband, his wife must sit tight for a given period ('iddat'). During this period, the wife is permitted to remain in the same house as that of the husband, however, they can't have sexual intercourse among them. The man is permitted to take her back either verbally saying "I TAKE YOU BACK", or physically, by having sexual intercourse with her. If, after this holding up period, the spouse neglects to take his wife back, at that point the wife is completely divorced and should leave the marital home immediately.
It is additionally recommended to have two witnesses present for the situation, where the spouse chooses to reclaim ('ruju') his wife, before the end of the Iddat.
Where a man has pronounced three divorces, on three different occasions keeping in mind the time of ‘tuhar’, he can neither take back his former wife nor remarry her.
The Council issues a divorce declaration based on "talaq nama", marked by the applicant within the sight of two witnesses. The man is required to pay the required dower amount in full to the woman.
However, the Dissolution of Muslim Marriages Act, 1939, now sets out a few different grounds (including lian) based on any of which a Muslim wife may get her marriage dissolved by an order of the court.
A divorce (or dissolution of marriage by demonstration of parties) might be either by demonstration of the husband or by demonstration of the wife. A spouse may separate from his wife by renouncing the marriage without giving any reason. Proclamation of such words which signifies his intention to abandon the wife is adequate. For the most part, this is finished by Talaq. In any case, he may separate from the spouse likewise by Ila and Zihar which differ from a Talaq just in a form not in substance.
Divorce by husband/wife
A Husband may divorce in the following manner-
1. Talaq: This is a release from the marriage tie quickly or in the long run.
2. Ila: where a spouse (husband) of sound mind takes a pledge that he will keep away from all relationship from his wife.
3. Zihar: where spouse (husband) sound mind and adult (grown-up) compares his wife to his mom or some other female within the restricted degrees of relationship.
A wife may divorce in the following manner-
1. Talaq-e-tafweez: Talaq by the wife under the husband’s delegated power, which further means that the husband delegates his authority to divorce to his wife.
2. Divorce by judicial decree under Dissolution of The Muslim Marriage Act, 1939:
Following are the grounds on which a marriage may be dissolved under the Marriage Act.
· Lian: Where the wife is charged with adultery and the charge is false. She can file a regular suit for dissolution of marriage as a mere application to the court is not the proper procedure.
· Fask: The cancellation, abolition, revocation, annulment. Prior to the passing of the dissolution of Marriage Act, Muslim ladies could only apply for the dissolution of their marriage under the doctrine of Fask.
Woman’s right to divorce under the Dissolution of Muslim Marriage Act, 1939
A Muslim woman may file for divorce on the following grounds-
1. That the location of the husband has not been known for a period of 4 years.
2. That the husband has dismissed or has neglected to accommodate her with the maintenance for a time of two years.
3. That the husband has been sentenced to imprisonment for a period of seven years or upwards.
4. That the husband has failed to fulfill his marital obligation for a period of three years.
5. That the spouse has been insane for a long time or is experiencing infection, leprosy or a virulent type of venereal sickness/disease.
6. That the husband was impotent at the time of marriage and continues to be so.
The woman, having being given in marriage by her father or other guardians before she accomplished the age of 15 years, revoked the marriage before achieving the age of 18.
· It is also known as talaq-e-biddat which is an instant divorce.
· It is considered the worst mode of divorce.
· It is necessary in triple talaq that the man should pronounce talaq thrice in continuation.
· Such a pronouncement could be verbal or written.
· This mode of talaq is irrevocable.
· It is specially done by the adherents of Hanafi Sunni Islamic Schools of Jurisdiction.
· Triple talaq is a recognized talaq but also disapproved type of talaq and is considered by the Islamic jurists as advancement within the loop of Sharia.
· A man can divorce his wife in this mode even when he is not in his senses, like say, he is drunk or he sentenced divorce thrice out of anger.
· It summons neither the sanction of Holy Quran nor the endorsement of the Holy Prophet.
Procedure for Talaq under which law??
1. The clients must download the Talaq Form, fill it in and post or E-Mail to the Islamic Sharia's Council, detailing the fundamental explanations behind their (the applicant) seeking for a talaq.
2. After getting a completely finished application form with the pertinent points of interest from the applicant – amongst which is incorporated a contact address for the wife, and a duplicate of the client's passport ID, nikkah nama/civil marriage certificates, decree nisi/supreme – the Council will register the application. The application won't be enrolled if any points of interest or documents asked for, on the application form is excluded or with a submitted application form.
3. The Council will then send a talaq nama to the spouse. He should sign this before the two witnesses and return it to the particular Council.
4. The Council keeps the wife off the procedures by letter. The letter advises the wife that she has a time of thirty days in which she has to revert. If the Council gets no reply from the wife within the above mentioned period, the Council will then ask the husband to –
a. Check the address of his wife, and
b. Guarantee that everything of dower concurred at time of marriage has been paid up all required funds: the Council will just consider everything of dower to have been paid by the husband, where this sum is identical to the full dower sum, as initially specified at the time of marriage.
5. After the majority of the above stages have been accomplished, the Council will issue two extraordinary copies of Islamic divorce; one will be sent, with the dower whole sum, by post to the woman, and one copy will be sent to the applicant.
THE MUSLIM WOMEN (Protection of rights on marriage) BILL, 2017:
The Modi Government formulated a bill called The Muslim Women Act (Protection on Rights on Marriage) Bill, 2017 and introduced it in the Parliament which was passed on 28 December 2017 by the lok sabha. The bill makes instant triple talaq (talaq-e-biddah) in any form — spoken, in writing or by electronic means such as email, SMS and WhatsApp illegal and void, with up to three years in jail for the husband. MPs from RJD, AIMIM, BJD, AIADMK and AIML opposed the bill, calling it arbitrary in nature and a faulty proposal, while Congress supported the Bill tabled in Lok Sabha by law minister Ravi Shankar Prasad.
A five-judge Constitution bench of the Supreme Court ruled that the practice of instant triple talaq is unconstitutional and against the teachings of Islam. The bench headed by Chief Justice of India, Justice J S Khehar ruled against the practise by a majority of 3:2. The bench began hearing a clutch of petitions challenging the constitutional validity of the practice of 'instant triple talaq' or talaq-e-bidat among Muslims in May 2017. It had said it would first determine if the practice is fundamental to Islam. Besides seeking a ban on instant triple talaq, the seven petitioners that comprise five Muslim women had also moved the apex court over the practice of nikah halala and polygamy in the community. Many Islamic nations, including Pakistan, Afghanistan, Egypt and Iran, do not recognise the husband's right to unilaterally divorce through triple talaq.
The case was called Shayara Bano v. Union of India & Others. The bench that heard the controversial Triple talaq case in 2017 was made up of multifaith members. The five judges from five different communities are Chief Justice JS Khehar, Justices Kurian Joseph, RF Nariman, UU Lalit and Abdul Nazeer.
The Supreme Court has to examine whether Triple talaq has the protection of the constitution—if this practice is safeguarded by Article 25(1) in the constitution that guarantees all the fundamental right to “profess, practice and propagate religion”. The Court wants to establish whether or not Triple talaq is an essential feature of Islamic belief and practice.
In a 397-page ruling, though two judges upheld the validity of Instant triple talaq (talaq-e-biddat), the three other judges held that it was unconstitutional, thus barring the practice by 3–2 majority. One judge argued that instant triple talaq violated Islamic law. The bench asked the central government to promulgate legislation within six months to govern marriage and divorce in the Muslim community. The court said that until the government formulates a law regarding instant triple talaq, there would be an injunction against husbands pronouncing Instant triple talaq on their wives.
According to The Economist "Constitutional experts said [the judges] legal reasoning fell short of upholding personal rights over religious laws", whilst noting "The judgment did not ban other forms of Muslim divorce that favour men, only the instant kind."
Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844),
Commonly referred to as the Shah Bano case, was a controversial maintenance lawsuit in India in which the Supreme Court delivered a judgment favouring maintenance given to an aggrieved divorced Muslim woman. Then the Congress government, panicky in an election year, gave into the pressure of Muslim orthodoxy and enacted a law with its most controversial aspect being the right to maintenance for the period of iddat after the divorce, and shifting the onus of maintaining her to her relatives or the Wakf Board. It was seen as discriminatory as it denied the right to basic maintenance available to non-Muslim women under the secular law.
Shah Bano, a 62-year-old Muslim mother of five from Indore, Madhya Pradesh was divorced by her husband in 1978. She filed a criminal suit in the Supreme Court of India, in which she won the right to alimony from her husband. However, the Muslim politicians mounted a campaign for the verdict's nullification. The Indian Parliament reversed the judgment under pressure from Islamic orthodoxy. The judgment in favour of the woman, in this case, evoked criticisms among Muslims some of whom cited Qur'an to show that the judgment was in conflict with Islamic law. It triggered controversy about the extent of having different civil codes for different religions, especially for Muslims in India. This case caused the Congress Government, with its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986 which diluted the judgment of the Supreme Court and restricted the right of Muslim divorcées to alimony from their former husbands for only 90 days after the divorce (the period of Iddat (in Islamic Law). However, in the later judgements including Daniel Latifi case and Shamima Farooqui versus Shahid Khan case, the Supreme Court of India interpreted the act in a manner reassuring the validity of the case and consequently upheld the Shah Bano judgement and The Muslim Women (Protection of Rights on Divorce) Act 1986 was nullified. Many Muslims including All India Shia Personal Law Board supported the Supreme Court's order to make the right to maintenance of a divorced Muslim wife absolute.
Mrs Sabah Adnan Sami khan vs. Adnan Sami khan on 23rd March 2010
The Delhi High Court in Masroor Ahmed's case, after considering different forms of Talak, so also the provisions of Sections 311 and 312 in Mulla's Mohamedan Law, in paragraphs 26 and 27 of the judgment held thus:
There are views even amongst the Sunni schools that the triple talaq pronounced in one go would not be regarded as three talaqs but only as one. Judicial notice can be taken of the fact that the harsh abruptness of triple talaq has brought about extreme misery to the divorced women and even to the men who are left with no chance to undo the wrong or any scope to bring about the reconciliation.
Muzaffar Ahmed Thoker vs. Shaheena Akhter and Another on 6th March 2018
The respondent-wife has resisted the petition of the petitioner, inter alia, on the grounds that since the petitioner failed to pay the amount of maintenance, directed to be paid to her under the compromise and refused to execute afresh Nikah Nama under the plea that she is already divorced and a triple talaq has been pronounced on her, therefore, it was incumbent on her part to perform "Halala", i.e. to marry some other person before she could remarry him. The omissions and commissions on the part of the petitioner after the execution of the compromise explain that the petitioner never intended to act upon the terms and conditions incorporated in the compromise but to stall the payment of maintenance.
"Per Hon'ble Mr Justice Kurian Joseph (Majority view):
To freely profess, practice and propagate the religion of one's choice is a Fundamental Right guaranteed under the Indian Constitution. That is subject only to the following- (1) public order, (2) Health, (3) morality and (4) other provisions of Part III dealing with Fundamental Rights. Under Article 25(2) of the Constitution of India, the State is also granted power to make law in two contingencies notwithstanding the freedom granted under Article 25(1). Article 25(2) states that "nothing in this Article shall affect the operation of any existing law or prevent the State from making any law-
(a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus." Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the learned Chief Justice. However, on the statement that triple talaq is an integral part of the religious practice, I respectfully disagree. Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible. Hence, there cannot be any Constitutional protection to such a practice and thus, my disagreement with the learned Chief Justice for the constitutional protection given to triple talaq. I also have serious doubts as to whether even under Article 142 the exercise of a Fundamental Right can be injuncted.”
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