Divorce Under Muslim Law Explained

Dissolution of Marriage 

Dissolution of Marriage means the legal ending of a marriage (nikah) so that the husband and wife are no longer bound as husband and wife under Islamic rules.

It is the lawful way in Islam to separate a husband and wife when living together is no longer possible.

There is a general perception that the dissolution of marriage in Islam is discriminatory and has given unlimited powers to Muslim husband to repudiate marriage ties.

A women can also repudiate marriage under a form of divorce known as Khula.

The ruling about divorce is found in Quran and Hadith.

It is to be noted that every divorce is dissolution of marriage but every dissolution of marriage is not divorce, because the marriage may also get dissolved by the death of any party or by apostasy. 

Purpose of dissolution of marriage 

1. To End Harmful or Unhappy Marriages 

2. Protection of Individual Rights 

3. Social and Moral Harmony 

4. Freedom to Rebuild Life

Classification of Dissolution of Marriage 

The Muslim marriage may be dissolved in any one of the following ways: 

1. By the death of the husband or wife 

In case of death of a husband or wife, the marriage between the parties gets dissolved. The husband may remarry as and when he likes, however the widow has to wait till the expiry of iddat period, i.e four months and ten days or if she is expecting a child, till delivery. 

2. Divorce by husband 

The divorce by husband, which may lead to end of marital tie between husband and wife are talq, illa and zihar which are discussed as under:

Talaq

Talaq is the main form of divorce pronounced by the husband to his wife.

It is a word exclusively used by husband for dissolving a marriage.

The literal meaning of this Arabic word talaq is ‘taking off any tie or restraint’ and in law it signifies the dissolution of marriage.

Talaq may be divided into Talaq-us-Sunnah and Talaq-ul-Biddat.

Talaq-us-Sunnah is that talaq, which is pronounced by the husband when the wife is free from menstrual courses and there is no sexual intercourse between the two and which is pronounced only once. Therefore, keeping options of repudiation or revocation open.

On the other hand, Talaq-ul-biddat is that divorce which is given in the state of impurity i.e. when a women is undergoing menstrual courses or when it is given immediately after doing intercourse or when it is pronounced three times in one go. 

Talaq-us-Sunnah is further divided into two; 

Talaq-i-Ahsan: 

It is most approved form of divorce in Islam. 

In this divorce, husband pronounces only one talaq on his wife in a period when she is free from her menstrual courses without having any intercourse with her and leaves her for the observance of iddat period. 

During this period if the husband does not make any act of rujoo, or repudiation, or does not make any sexual intercourse with her then the talaq becomes complete and final at the completion of iddat period. 

It is to be noted that the husband has the option of repudiation or revocation within the period of iddat and not after that. 

Suppose Mr. A pronounced talaq upon his wife on 1st January, when she was in the state of purity and then does not do any act of repudiation till 10th of April. The talaq becomes final and irrevocable on the 10th April. This is talaq ahsan.

Talaq-i-Hassan: 

It is also an approved form of divorce in Islam; however, it is divorce upon divorce in three successive tuhrs. 

In this form of divorce, husband pronounces talaq to his wife in the state of purity without having intercourse with her. 

Then subsequently he revokes such divorce by words or intercourse. 

Menstruation follows. Then in the next state of purity without intercourse, the husband pronounces talaq and subsequently repudiates. 

Now here it is to be noted that husband pronounced on two occasions and also repudiated the same twice. Now when in the next state of purity or even in his lifetime during the period of tuhr without having intercourse, husband pronounces talaq, this is final and irrevocable and there is no repudiation of it. 

Now there shall be iddat period, but no option of repudiation. 

Mr. A pronounced talaq on his wife on 1st January when she was in the state of purity. He again pronounced the talaq on 1st February. Now, after the wait of thirty days he again pronounced talaq on his wife say on 2nd march. This is final and irrevocable talaq in the form of talaq-i-Hassan.

ILLA 

Divorce by illa is a species of constructive divorce, which is effected by abstinence from sexual intercourse for the period of not less than four months pursuant to a vow. 

In Illa, husband swears not to have sexual intercourse with the wife and abstains for four months or more. 

The literal meaning of Illa is taking ‘vow’. 

In the pre-Islamic Arabia husbands would take vows of not having any sexual intercourse wit their wives and this would continue for days and months together. Islam reformed it and put the limitation of four months. 

This means that if the Muslim husband swears that he will not have sexual intercourse with his wife and abstain from it for four months the divorce is affected. 

Hanafis regard it as a divorce after expiry of four months while as Shaafi and Shia consider it as the ground for a wife to seek judicial divorce.

ZIHAR 

Zihar is derived from the word zahr which means ‘back’. In law it means ‘injurious comparison’ i.e when the husband swears that to him wife is like the ‘back of his mother’ or compares his wife to his mother or his sister or any other female within the prohibited degrees. 

The uttering of Zihar does not ipso facto dissolve the marriage. However, the sexual intercourse between husband and wife becomes unlawful till husband has performed penance. If the husband does not perform penance the wife has a right to apply for a right to apply for a judicial divorce. 

Quran says that: 

Those who pronounce zihar from their wives then wish to go back on what they said; then there must be the freeing of a slave before they touch one another. And he who does not find a slave than a fast for two months consecutively and he who is unable to fast then the feeding of sixty poor persons. 

So in case of zihar, the husband needs to free a slave or fast for two months consecutively or feed sixty poor persons before making any cohabitation with the wife.

Divorce by Wife 

The divorce by wife which may lead to end of martial tie between husband and wife are Talaq-e-Tafwid and Khula. 

TALAQ-I-TAFWID 

Talaq-i-tafweez or delegated divorce is a divorce by the wife under the delegated power of husband conferred by him to her or to some third person. 

The husband has the power to delegate his own right of pronouncing divorce to some third person or to the wife herself. 

This delegation of power may be absolutely or conditionally or for a particular period or permanently.

An agreement made either before or after the marriage providing that the wife would be at liberty to divorce herself from her husband under specific condition which are reasonable and not opposed to public policy such as in case the marries a second wife or fails to maintain her for a specified period. 

There must be an agreement for exercising Talaq-i-tafweed. The wife exercising her powers under the agreement must be establish that the conditions entitling her to exercising the power have actually occurred. 

It is to be noted that even after delegating the power of divorce the husband will retains his original right of divorce i.e. Talaq.

KHULA 

Khula literally means ‘putting off the clothes’ or ‘to lay down’. 

It is a form of divorce which is initiated by the wife by relinquishing her dower or agreeing to give any consideration to husband for releasing herself from the marriage. 

It is affected by an offer from the wife to compensate the husband if he releases her from marriage. Once the offer is accepted Khula operates as single irrevocable divorce. 

The parties cannot resume cohabitation until and unless a fresh marriage is arranged between them. 

Khula is valid even if it is affected in the state of impurity of woman or in such purity when intercourse was done.

Divorce by mutual consent (Mubarat) 

Where husband and wife mutually agree to dissolve the marriage i.e. they are freeing one another with mutual consent it is called divorce by mutual consent or Mubarat. 

The offer can be from any side and there is no question of money or consideration. 

The aversion is mutual unlike Khula where aversion is from the wife. 

In mubarat both the parties desired separation and therefore the offer may proceed from the wife or it may proceed from the husband, but once it is accepted by both, the dissolution of marriage is complete and it operates as talaq-i-bain i.e. irrevocable and final divorce. 

Observation of iddat becomes necessary for the wife.

DIVORCE BY JUDICIAL PROCESS (FASKH) 

Divorce by judicial process means when the court dissolves the marriage of the parties by annulling it on the application of either of the parties. 

Mostly the judicial route for dissolving the marriage is adopted by women against the arbitrariness of their husbands. Islamic law has empowered women to file a case for dissolution of marriage against husband on several grounds. 

The power of judge to pronounce a divorce is founded on the express word of the prophet; ‘if a woman be prejudiced by a marriage, let it be broken off’. 

The Shaih Bihar-ul-Anwar also lays down that in case of refusal to fulfill conjugal duties or violence, cruelty, disagreement, arbitrators may be appointed to settle disputes, or the judges may intervene; and if no settlement can be effected, the marriage ought to be dissolved.

DIVORCE BY MUTUAL IMPRECATION (LIAAN) 

Divorce by mutual imprecation is mentioned in the Quran and is supported by the Traditions of the prophet. 

It is also a judicial process of dissolution of marriage. 

If husband makes a charge of adultery against his wife, it is to be established by the direct testimony of four witnesses. If such charge proved to be true, decree for the dissolution of marriage in favour of wife would not be granted. 

However, if such charge is false, but the husband who is the accuser is adamant on his charge and insists upon the charge being proved then alone them should administer to them the sacramental oath prescribed, ‘invoking the curse of God’ upon each other. 

Such false does not ipso facto dissolve the marriage, but gives the wife a right to file a regular suit for divorce on the ground that her husband has falsely charged her with adultery. 

At the hearing if husband withdraw the charges then wife in such case could not get divorce. 

However, if the husband remains adamant on his accusations, then he will be required to accuse his wife on oath.

DIVORCE BY APOSTASY 

When a muslim renounces or leaves Islam it is called apostasy. 

As per general law of Islam apostasy of either party to a marriage operates as absolute and immediate dissolution of marriage. 

According to Hanafi if either husband or wife leaves Islam before or after the consummation of marriage it ipso facto dissolves the marriage. 

The shaafis agree with Shias that when either of the spouses renounces Islam after consummation the status of marriage remains in suspense until the wife has completed her iddat period. This means if the man returns to islam before the expiration of iddat period. 

However, when a Muslim husband abandons islam, his connection with his wife becomes an illegal and invalid and the woman accordingly on the expiration of her iddat period can marry someone else and such marriage would be valid.

Instant Triple Talaq

Instant Triple Talaq (also known as Talaq-e-Biddat) means when a Muslim husband instantly divorces his wife by saying the word “Talaq” three times in one sitting, either verbally, in writing. 

There is a clear cut difference between triple talaq and instant triple talaq. In common parlance instead of instant triple talaq, triple talaq is used in the meaning of former sense, which does not give a correct picture of Talaq to the common masses. Therefore, the word instant is necessarily to be prefixed for triple talaq which is meant instantly. 

Otherwise, it may be confused with talaq hasan. 

Three pronouncements of divorce made in a single Tuhr (state of purity) either in one sentence, e.g, I divorce thee thrice or in three sentences, e.g. I divorce thee, I divorce thee, I divorce thee is termed as talaq-ul-biddat or talaq-ulbian which means final irrevocable talaq. 

It is also called as talaq Mugalazah which means very hard or absolute divorce. 

According to Imam Abu Hanifa, three pronouncements shall amount to three separate talaqs and shall result in a Mughallazah or final talaq irrespective of the intention on the part of the husband. Therefore, there is no room for reconciliation in such situations.

According to Imam Malik if the husband while pronouncing talaq uses the word ‘and’ and says, I divorce you and divorce you and divorce you the pronouncements shall amount to three talaqs or to a Mughllazah Talaq. 

According to Imam Hanabal if the husband does not use the word ‘and’ while repeating divorces as when he says, you are divorced, divorced, divorced or I divorce you divorce you divorce you and the second and third pronouncement then only one divorce shall be effected in case marriage has not been consummated. In case of consummation explanation will not be accepted and three divorces shall effected. If the husband does not use the pronouncement to emphasize the first, then three divorce shall be effected. 

According to Imam Shafi intention is more important than conjunctive word like ‘and’. If a marriage is consummated and the husband repeats three pronouncements of divorce without intending three divorces but simply emphasizing first pronouncement, then only one divorce shall be effected, whether using or without using a conjunctive word ‘and’. If he pronounces the three pronouncements intending or without any definite intention, three divorces shall be effected. If the marriage has not yes been consummated then only one divorce shall be effected under such circumstances.

Judicial approach 

The judiciary in India has largely been consistent in determining the scope of divorce cases in general and triple talaq cases in particular. 

In Amir-ud-din v. Khatoon Bibi, 

the Allahabad High court while adopting the Hanafi view observed that the Talaq-ulbiddat or irregular divorce, which is effected be three repudiations at the same times appeals from the authorities to be sinful but valid and is perfectly legal from and is irrevocable. 

In Fazlur Rehman v. Mt. Aisha, 

the Patna High Court, followed the Allahabad view, and held that the talaq-ul-biddat or irregular divorce where a husband repudiates his wife by three pronouncements at once is a valid and binding form of divorce according to the law of Hanafis and when pronounced thrice, it becomes irrevocable.

A. Yusuf v. Sowramma (1971 KLT 264), 

The Kerala High Court gave a very important decision about the concept of talaq (divorce) under Muslim law. The court, through Justice V.R. Krishna Iyer, explained that a Muslim husband does not have an unlimited or absolute right to divorce his wife whenever he wants. Divorce, according to Islamic principles, must be based on a reasonable cause and must be carried out only after attempts at reconciliation between the husband and wife have failed. 

The court made it clear that the idea of a husband pronouncing triple talaq instantly, without giving any opportunity for discussion or reconciliation, is not in accordance with the true teachings of Islam. Justice Krishna Iyer emphasized that Islam treats marriage as a sacred contract and divorce as a last resort. Therefore, a husband must not misuse the right of talaq out of anger, pride, or personal convenience. 

The judgment also highlighted that Islam promotes justice, fairness, and equality between husband and wife. The practice of instant triple talaq was described as unjust and un-Islamic, since it goes against the Prophet’s teachings that encourage patience and mediation before ending a marriage.

Mohammad Naseem Bhat v. Bilkees Akhtar (2012) 

The Jammu and Kashmir High Court made very important observations about Triple Talaq (Talaq-e-Biddat). The court clearly stated that triple talaq is not valid unless it is given for a reasonable cause and after proper reconciliation efforts have been made between the husband and wife. 

It also pointed out that triple talaq pronounced in one sitting, without giving time for reflection or mediation, goes against the true spirit of the Quran. The Quran requires that before talaq becomes final, there must be efforts by two arbiters — one from the husband’s side and one from the wife’s side — to reconcile the couple. Only when these efforts fail, and there are genuine reasons, can the talaq take effect. 

In Shayara Bano vs. Union of India and others

Supreme court of India by 3:2 Majority judgment declared the practice of instant Triple Talaq as ‘unconstitutional’, ‘arbitrary’ and not part of Islam. The court said, what is bad in theology is bad in law as well. The court said, Triple talaq was against the basic tenets of Quran.

Triple Talaq Act, 2019 

The Muslim Women (Protection of Rights on Marriage) Act, 2019, commonly known as the Triple Talaq Act, is a landmark law passed by the Indian Parliament to criminalize the practice of instant triple talaq.

The law laid down three years imprisonment for husband for pronouncing triple talaq and also maintenance for women. 

The act sought to abolish triple talaq. Section 2(c) of the act, defines talaq means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband. 

Section 7 of the Act makes pronouncement of triple talaq as a cognizable and non bailable offense. 

One fails to understand how a husband can be prosecuted prima facie on such act which will not end marriage at all. If the instant triple talaq cannot dissolve marriage as per the act, then how can these words constitute a crime. 

The scope of reconciliation ends immediately if husband is prosecuted on the complaint of the wife.

There are inherent contradictions in the act. On one side, the act states that triple talaq is not talaq, but on the other hand the act via section 4 and 5 presumes that on pronouncing instant triple talaq marriage is dissolved as these two provisions provide maintenance in the name of subsistence allowance and give custody of children to wife.