Islamic Law of Divorce (484-508)

484
UNDERSTANDING THE ISLAMIC LAW OF DIVORCE
Furqan Ahmad*
I Introduction
THE PLURALITY of Indian society has had themes and institutions set
out in Indian legal history. Islamic law can well be said to be rooted in
the early regulations of seventeenth century wherein the law required
that in the matter of "marriage, inheritance and succession ..." the
personal laws of Hindus and Muslims respectively will govern the
individuals 1 . In the present context the understanding of Islamic law
particularly the law relating to divorce needs to be taken in a wider
perspective so as to understand the needs of Muslim men and women in
the context of Constitution and movement for gender equality as also of
human rights.
Indeed, Islam has always had a practical outlook on all human affairs
and hence recognizes divorce, but only as a necessary evil. As social
policy, it has recognized divorce as an exit if things are in disarray and
living together yields disharmony. Prophet denounced it as a necessary
evil by pronouncing that "of all the permitted things divorce is the
most abominable with God." 2 Modern jurists of comparative law also
justify the need for recognizing divorce to end the bitter and miserable
existence of forced partnership enabling life to be more conducive to
the welfare of the parties. Cheshire observes 3 :
[D]ivorce, since it disintegrates the family unity is, of course, a
social evil in itself, but it is a necessary evil. It is better to
wreck the unity of family than to wreck the future happiness of
the parties by binding them to a companionship that has become
odious. Membership of a family founded on antagonism can
bring little profit even to the children.
* M.A.(Socio), LL.M., Ph.D. Associate Research Professor, Indian Law Institute,

New Delhi.
1. See, Regulation XX of Nov. 23,1773.
2. Abu Dawud Sulaiman bin al-Ashath,/(/- Sunan Kanpur I: 296 as cited in K.N.
Ahmed, Muslim Law of Divorce 3(1978).
3. G.C. Cheshire, "The International Validity of Divorces" 61 LQ Rev 352
(1945).
www.ili.ac.in © The Indian Law Institute

2003 ] UNDERSTANDING THE ISLAMIC LA W OF DIVORCE 485
In Islam, matrimonial alliance is a social contract. It can be dissolved

when it ceases to serve the values and purpose of living and co-existing
together. A deeper study of the institution of marriage and divorce in
Islam shows that the marital tie is to be respected and to be continued
till the possible extent. The mutual adjustment and tolerance are
emphasized for the sake of keeping the ties intact. The parties, their
well-wishers and courts are required not to leave any stone unturned for
the subsistence of marital tie in case of dispute and disagreement between
the parties. All efforts by social groups, relatives and friends are directed
to see that disputes of marital tie between parties get attenuated. The
dissolution is thus a last resort.
To understand the nature and concept of divorce law in Islam, a
brief account of historical background of divorce is necessary. Among
all the nations of antiquity, the power p{ divorce was regarded as a
natural corollary to the marital rrgfft. Originally, this power was
exclusively vested in the husband, and the wife was under no
circumstance entitled to claim a divorce. Ameer AH says: 4
The progress of civilization and the advancement of ideas have
led to a partial amelioration in the condition of women. They
too, acquired a qualified right of divorce, which they were never
backward in exercising freely, until the facility with which
marriages were contracted and dissolved under the Roman
emperors passed into a by-word.
Under the ancient Hebraic law, a husband could divorce his wife
for any cause which made her disagreeable to him. and there were few
checks on his arbitrary and capricious use of this power. 5 Among the
early Romans, as well as the Athenians, divorce was easy and frequent.
A husband was free to divorce his wife without any reason. 6 It was only
with the advent of Christianity that marriage came to be regarded as an
indissoluble union, 7 but experience has proved that it was not a rational
and scientific attitude. 8
In pre-Islamic Arabia, divorce was used as an instrument of torture.
Men divorced their wives out of a sudden caprice or whim. 9 The power
of divorce possessed by the husbands was unlimited. They could divorce
their wives at any time even without any reason. They could also revoke
their divorces and divorce again as many times as they wished.
4. See, Ameer All, Mohammedan Law II 471 (1985).

5. Ibid.
6. Ameer All, The Spirit of Islam 242 (1922).
1. Ibid.
8. The extremely high rate of divorce and its express as well as statutory
recognition in so-called civilized countries of the world clearly proves the fact.
9. Ahmed A. Galwash, The Religion of islam 117 (1945).

486 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 45 : 3&4
Harassment of the wife would be done by falsely accusing her of adultery

and thereby getting exempted from any formal responsibility of
maintenance or legal punishment. 1 0 Such social and moral ills and
injustices engaged the attention of Prophet of Islam for removal of
prevailing evils and to ensure permanence of marriage without impairing
individual freedom. However, exceptional circumstances requiring special
treatment were not lost sight of.
II Islamic perspective of divorce
The reforms by Prophet Mohammad marked a new departure in the

history of legislation. The Islamic law of divorce is a logical sequence
of the status of marriage. It regards marriage as a civil contract, which
confers on the parties to the contract, power of dissolving their
relationship under certain specified circumstances. 11 The Islamic law-
did not take away the prevalent customary right of the husband to divorce
his wife unilaterally, but imposed numerous restrictions on his right. A
Muslim husband cannot divorce his wife and take her back as he pleases.
Similarly, the Muslim law prescribes definite procedure and proper time
for the divorce and further imposes obligations on the husband to pay
dower and maintenance to the wife in case of divorce. In practice, these
are sufficient and reasonable checks on the unilateral power of the
husband to divorce his wife.
Divorce is not favoured in Islam and is permitted only in exceptional
circumstances. Al-Ghazali remarks that divorce in Islam is permissible
when the object is not to trouble the wife but only in case of extreme
necessity and on just g r o u n d s 1 2 . The behest of Quran regarding
separation i s 1 3 :
Virtuous women are obedient and careful during husband's
absence, because God hath of them been careful. But (as to)
those for whose refractoriness you fear desertion, admonish
them, but if they are obedient, seek not a way against them,
verily God is high and exalted. And if you fear a breach between
husband and wife, refer the matter to two arbitrators one chosen
from the family of each party, if they desire, Allah will effect
harmony between them.
The Prophet also discouraged and disapproved divorce except in
extremely intolerable circumstances. He warned his followers that (i)
10. Ibrahim Abdul Hamid, "Dissolution of Marriage" 3 Islamic Quarterly 166-

75 and 215-23 (1956). Also see, 4 Islamic Quarterly 3-10, 57-65 & 97-1 13 (1957).
1 I. Supra note 4 at 472.
12. Supra note 9 at 118.
13. Quran IV: 34 & 35.

2003
1 UNDERSTANDING THE ISLAMIC LAW OF DIVORCE 487
"Curse of God rests on him who repudiates his wife capriciously," 14

and (ii) "Divorce shakes the throne of God." 15
The Muslim law relating to divorce raises two questions for
consideration; one relates to the method of divorce, i.e., triple
pronouncement of divorce, and the other to the problem of inequality of
two sexes in respect of the right to divorce. These two questions are
controversial and generally misunderstood. The concept of unilateral
divorce is also confusing. The very idea of unilateral divorce militates
against the real spirit behind Islamic law of marriage and divorce. Divorce
is permissible in Islam only in cases of extreme emergency when all the
efforts at reconciliation have failed. Anderson rightly says: 16
It is the Islamic law of divorce (commonly misunderstood) not
polygamy which is the major cause of suffering to Muslim
women ...the Muslim wife indeed has always lived, so for as
the law is concerned, under the ever present shadow of divorce
Mr. Justice Krishna Iyer pointed out: 17
[T]he view that the Muslim husband enjoys an arbitrary unilateral
power to inflict instant divorce does not accord with Islamic
injunctions... it is a popular fallacy that a Muslim male enjoys
under the Quranic law unbridled authority to liquidate the
marriage.
In his commentary on the holy Quran, Mohammed AH has said,
"Divorce is one of the institutions in Islam regarding which
misconceptions prevail so much so that even Islamic law, as administered
in the courts is not free from their misconceptions" 18 Islam emphasizes
that men and women are equal in several respects. While Islamic law
vests the right of divorce in husband and wife, it also forcefully restrains
the exercise of such right. To understand the complexities, it is necessary
to have a tangible classification of the kinds and forms of divorce.
Ill Classification of divorce
It is imperative to understand the various forms through which a

marriage can be dissolved. When dissolution proceeds from the husband,
it is called talaq and when it takes place at the instance of the wife, it is
called khula. When it is by mutual consent it is called mubaraa. Under
14. Ibrahim Halebi, Midteqa' as cited in supra note 4 at 473.

15. Supra note 9.
16. J.N. Anderson, Islamic Law in the Modern World 51-52 (London, 1959).
17. Yousufv. Swaramma AIR 1971 Ker 261at 264.
18. Mohammad Ali, Commentary on the Holy Quran 96 (1917).

certain circumstances the wife may move to qadi or court to get herself
released from the marital tie, which is called faskh. Divorce may be
conveniently discussed under the following classification:
1. By the husband:
(i) Talaq (Repudiation)
(ii) Ila (Vow of continence)
(iii) Zihar (Injurious assimilation)
2. By the wife:
(i) Talaq-e-Tafwid (Delegated divorce)
(ii) Khula (Redemption)
3. By common consent:
(i) Khula (Redemption
(ii) Mubaraa (Mutual freeing)
4. By judicial process:
(i) Lian (Mutual imprecation)
(ii) Faskh (Judicial rescission)
Descriptions of the modes of divorces are to follow though some of
them are not prevalent now but were common among pre Islamic Arabs.
Divorce particularly from the side of husband is dependent upon the
modes of pronouncement. A divorce by the husband is known as talaq
and is discussed below:
Talaq (repudiation)
The word "talaq" is an Arabic word which means 'undoing of or

release from a knot'. It is used by Muslim jurists to denote the release
of woman from marital tie. 19 The word talaq is usually rendered as
repudiation; .it comes from a root tallaqa which means 'to release (an
animal) from tether'; whence, to repudiate the wife, or free her from the
bondage of marriage. The divorce operates from the time of the
pronouncement of talaq. The presence of wife is noKnecessary. in Hanafi
law, no special form is necessary, whereas Ithna Ashari law insists on a
strict formula being used. The words used must indicate a clear and
unambiguous intention to dissolve the marriage. They may be express
(sarih), e.g., 'Thou art divorced 1 , or T have divorced thee 1 , or T divorce
X for ever and render her haram for me'. If the words arc ambiguous
19. Ibn Qudamah, al-Mughni 96 (Cairo 1376 A.M.)

2003 | I UNDERSTANDING THE ISLAMIC LA W OF DIVORCE 489
(kinaya), the intention must be proved. For instance, 'Thou art my cousin,
the daughter of my uncle, if thou goest' or T give up all relations and
would have no connexion of any sort with you'. 2 0
In Ithana Ashari law, a strict adherence to certain forms is
essential. The pronouncement of talaq, in the Arabic tongue, must be
uttered orally in the presence and hearing of two male witnesses who
are Muslims of approved probity. In estimation of jurists of Ithna Ashari
school, marriage is an approved and divorce is a hated practice, therefore,
they insist upon strict adherence to forms as evidence of clear
intention. 21 The pronouncement of talaq may become revocable or
irrevocable, the revocable forms of talaq are considered as 'approved',
and the irrevocable as 'unapproved' form. A revocable pronouncement
of divorce gives a locus poenitentiae to the man, but an irrevocable
pronouncement leads to an undesirable result without a chance to
reconsider the question. If this principle is kept in mind the terminology
is easily understood. Besides this the law recognizes talaq al-sunna
(i.e., in conformity with dictates of the Prophet) & talaq al-bida (i.e., of
innovation; therefore not in conformity with the dictates of the Prophet).
Talaq al-sunna may be further divided in the ahsan (the most approved)
and hasan (approved) forms of talaq. Talaq al-bida may also be divided
in the form of three declarations at one time (the so-called 'triple
divorce') or one irrevocable declaration (generally in writing). Brief
discussion of various forms of talaq22 is given below:
Ahsan
This talaq consists of one single pronouncement in one sentence

made during the wife's tulv\ (that is, the period of purity, the period
between two menstruations) when there is no bar to connubial intercourse
followed by abstinence from sexual intercourse or the exercise of
conjugal rights for space of three tuhrs or the period of idda. On lapse
of the term of three tuhrs the talaq becomes irreversible. Where parties
have been away from each other for a long time or where the wife is old
and beyond the age of menstruation, the condition of tuhr is
unnecessary. 23 A pronouncement made in the ahsan form is revocable
during idda. This period is three months from the date of the declaration
or if the woman is pregnant, until delivery. The husband may revoke the
divorce at any time during the idda. Such revocation may be in express
words or by conduct. Resumption of conjugal intercourse is a clear case
20. See,Faiz Badruddin Tayabji, Muslim Law Ss.l26&127 at 146-147(1968).

21. Sec, Asaf.A.A. Fai/ee, Compendium of Fatimid Law S. 201 at 43 (1969).
22. See, for detail, K. N. Ahmed, supra note 2.
23. Chand Bibi Badesha v. Badesha Balwant (1969) 62 Bom LR 866.

490 JOURNAL OF THE INDIAN LAW INSTITUTE |Vol. 45 : 3&4
of revocation. For instance, if a person pronounces a single revocable

talaq against his wife and then says, T have retained thee 1 , or cohabits
with her, the divorce is revoked under Hanafi as well as under Ithana
Asluiri law. 24 After expiration of idda the divorce becomes irrevocable.25
Hasan
The hasan is also an approved form that consists of three

pronouncements made during three successive tuhrs, namely three
consecutive periods of purity of the wife. Each of these pronouncements
should have been made at a time when no intercourse has taken place
during that particular period of purity. When the last pronouncement is
made, talaq becomes irreversible. Illustratively, the husBand pronounces
talaq on his wife for the first time during a period when his wife is free
from her menstrual course and the husband and wife have not come
together during the period of purity. This is the first talaq. Now the
husband resumes cohabitation or revokes this first talaq in this period
of purity. Thereafter, in the following period of purity, at a time when
no intercourse has taken place, the husband pronounces the second talaq.
This talaq is again revoked by express words or by conduct, and the
third period of purity is entered into. In this period, no intercourse
haviftg taken place, the 'husband' for the third time pronounces the
formula of divorce that operates in law as final and irrevocable dissolution
of marital tie. The marriage is dissolved; sexual intercourse becomes
unlawful; idda becomes incumbent; remarriage between parties also
becomes impossible unless wife lawfully marries another husband and
the other husband lawfully divorces her after marriage has been actually
consummated. 26
It is necessary to mention here that this form of talaq is commonly
misunderstood. It is believed that the three talaqs must be given in three
successive or consecutive tuhrs. It is submitted that the view is incorrect.
The correct legal position is found in the views of a great Indian Muslim
jurist, Moulana Ashraf Ali Thanavi who has clearly explained as under 27 :
A person pronounces a revocable (raji) talaq. He then reconciles
and resumes cohabitation. Two or four years later, under
provocation he once again pronounces a revocable talaq. On
recovering from provocation, he again resumes cohabitation. Now
two talaqs are over. Hereafter, whenever he pronounces a talaq,
it will be counted as the third talaq, which will dissolve the
24. Tayabji, S. 156 supra note 20.

25. Asaf A.A. Fayzee, Outlines of Mohammedan Law 152(1974).
26. See for explanation, Tyabju S.I44, supra note 20 at 159.
27 Ashraf Ali Thanavi, Baiushii Zewar IV Rule 33 (1987).

2003] UNDERSTANDING THE ISLAMIC LAW OF DIVORCE 491
marriage forthwith, and should a remarriage be desired by the

parties necessitate halala (inter-mediatory marriage).
It is clear that in these two forms there is a chance for parties to be
reconciled by intervention of friends or otherwise. These are, therefore,
approved forms and are recognized by all schools of Islamic
jurisprudence. The first or ahsan form is 'most approved' because the
husband behaves in a gentlemanly manner with the wife. The second is
a form in which the Prophet tried to put an end to a barbarous pre-
Islamic practice. This practice was to divorce wife and take her back
several times in order to ill-treat her. The Prophet by the rule of
irrevocability of the third pronouncement indicated clearly that such a
practice could not be continued indefinitely. Thus, if the husband really
wished to take the wife back, he should do so; if not, the third
pronouncement after two reconciliations would operate as a final bar 2 8 .
These rules of law follow the spirit of the Quranic injunction: 'Then,
when they have reached their term, take them back in kindness or part
them in kindness. 29 "
Talaq al-bida
It came into being during the second century of Islam when Omayyad
monarchs finding that the check imposed by the Prophet on the facility
of repudiation interfered with indulgence of their caprice and
endeavoured to find an escape from strictness of law. It must be noted
that it was not Islam but Omayyad practices that gave validity to these
divorces. Talaq al-bidda should, therefore, be not given effect to. Fyzee
denounces such talaq as 'absurd and unjust1 and suggests that proper
remedy should be to do away with them by a statute. 30 Abdur Raheem
is more pungent when he says: T may remark that interpretation of the
law of divorce by jurists specially of the Hanafi schools is one flagrant
instance where because of literal adherence to mere words and a certain
tendency towards subtleties they have reached a result in direct
antagonism to the admitted policy of the law on the subject.' 131 Two
disapproved forms are noted as under.
(i) The triple talaq
In this form, three pronouncements are made in a single tuhr either

in one sentence, e.g., T divorce thee thrice', or in three sentences, e.g.,

29. Quran LXV: 2.
31. Abdul Rahim, Muhammadan Jurisprudence 337-38 (1958).

T divorce thee, I divorcee thee, I divorcee thee' Such a talaq is lawful,

although sinful in Hanafi law but in Ithna Ashari and Fatimid laws it is
not permissible. 32 This is also called 'al talaq al-bain' (irrevocable
divorce). The same rule will apply to the case of 'triple divorce' on a
'single occasion'. Muslim men in India intending to dissolve their
marriages often jump at the third talaq in a single pronouncement in
sheer ignorance, believing that without this action talaq will have no
effect at all. And our maulvis and civil courts give it the effect of
irrevocable talaq. Unfortunately, this form of talaq has gained prevalence
among Sunni Muslims, as Sunni school of jurisprudence recognizes it.
However, it must be admitted that there exists a controversy among
Sunni Muslim jurists and the ulema, over the effectiveness of 'triple
talaq" as an irrevocable talaq. To know the flimsy and undesired form
of triple talaq an account of its historical background is briefly given
below: 33
Pre-Islamic Arabs used to divorce frequently and revoked the same
time and again. That is why the Quran ordains that a husband can
divorce only twice in his life. Whenever a husband pronounces a divorce
for the third time, the marriage is instantly dissolved perpetually, leaving
no room either for the revocation of divorce or for a fresh marriage. It is
a pro-women provision, which provides a remedy to the wife from a
man who cannot make up his mind about her. This is the real law of
Islam on talaq given by the Prophet more than fourteen hundred years
ago. This may lead us to consider firstly, whether the notion of treating
three divorces as one has been coming down from the days of the
Prophet and hadith (traditions) in this regard is available? Secondly,
whether three divorces given at a time is commendable? Thirdly, is
there any room in Hanafi jurisprudence to lay aside the saying of Abu
Hanifa, and to follow the creed of any other Imam or mujtahidl
The notion of counting three divorces as one is not baseless, but
there is a ground for it, which has been always accepted by a group of
Sunni ulema. Imam Malik has gone so far as to call even two divorces
at a time an innovation 34 . Ancient Hanafi jurists too considered earlier
that three divorces were collectively treated as one. 35 As to whether the
giving of three divorces at a time is praise-worthy and desirable - the
reply is in the negative. The study of the Quranic injunctions; traditions,
and views of Able -Sunnat Wal Jamat (the followers of the traditions of
the Prophet and the decisions of the collective body of Muslims) and
32. Cadi Numan, Daaim II S. 978, as cited in supra note 25 at 155.

33. For detail account of triple talaq from various angles see, Furqan Ahmad,
Triple Talaq: An analytical study (Delhi, 1994)
34. Al- Marghinani Ali bin Bakr, aTHidayah II 334 (Delhi, n.d.)
35. Ahmad Tahtavi, al- Durra Mukhtar II 105 (Cairo 1318 A.H.) as cited in
Meerathi Muhammad Sulaiman (ed.) Ek -■ Majlis ki Teen Talaq 85(1986).

2003 ] UNDERSTANDING THE ISLAMIC LA W OF DIVORCE 493
even the views of jurists and ulema of the Hanafi school where
effectiveness of this divorce as three distinct divorces is strongly
advocated reveal that this action is undesirable and is a great sin.
Thirdly, in case a new situation arises, people become lax or go
astray if the original ruling is allowed to continue. It may cause great
harm and may involve a contradiction of those basic principles of Islamic
law that emphasize on the better administration of human society by
preventing such an evil. This is the basic approach adopted by Hanafi
jurists. In many cases, the followers of Imam Abu Hanifa have given
different judgements laying aside his verdict and preferring the saying
of other Imams. For example, in our country, to enforce the woman's
right to judicial separation in the early 20 th century, a fatwa was given
according to Maliki law following the doctrine of takhyar (an eclectic
choice between the parallel rule of various schools of Islamic law).
Maulana Thanavi, who was the main advocate, held that the fatwa was
being issued in case of acute necessity.
One major problem of enforcing three divorces as an irrevocable
divorce is that a Hanafi husband usually adopts the form of an interim
dissolution of marriage to obtain his divorced wife. He gives her in
marriage to another person on condition that he will divorce her the
next day. He is thus held a sinner and this shoddy process is not
permissible in the sharia. Exactly as in muta, (a temporary marriage), a
conditional marriage is performed and the next day a divorce is obtained
from the husband. In this connection some very shameful events occurred.
The result has been that sharia does not recognize it. For this reason
Umar, the second caliph of Islam, had said, "I will stone to death such
persons". 36 Sometimes it happens that the second husband refuses to
give a divorce and thus a fresh dispute arises.
(ii) A single irrevocable declaration
Another form of disapproved divorce is a single, irrevocable

pronouncement made either during the period of tuhr or even otherwise. 37
This form is also called talaq al-bain and may be given in writing. Such
a 'bill of divorcement' comes into operation immediately and severs the
marital tie. 38 Ithna Ashari or the Fatimid school does not recognize this
form. 39 Tyabji rightly points out that by a deplorable development of
the Hanafi law the sinful or abominable forms {talaq al-bida, mentioned
above) have become the most common, for 'men have always moulded
36. Zemakhshari, Mahmood bin Umar, AT Kashafl 210 (Cairo 1343 A.H.).
37. Sheikh Fazlur Rahmen v. Mst. Aisha (1929) 8 Pat 690.
38. See, Mohammed AH v. Fraeedunnise Begum AIR 1970 AP 298.
39. Supra note 32.

the law of marriage so as to be most agreeable to themselves'. 40 It may

be mentioned that talaq pronounced during the menstrual period is also
a form of bida, recognized in certain cases by the Hanafi law, but not in
Fatimid or Ithna Ashari law. 41
Thus, we see that in ahsan form, divorce is effective on expiration
of the idda. In the hasan form the divorce is effective on the third
pronouncement. In the talaq al-bida, the divorce is effective from the
moment of pronouncement or execution of the writing of divorce.
(talaq nam a).42
Some non prevalent forms of divorce
In pre Islamic Arab, various absurd forms of divorce were prevalent.

For example, to compare wife as mother and accusing wife of adultery
without any proof. The Prophet made reforms in these notorious forms
of divorce in order to stop exploitation of women folk. Some important
forms are briefly described below:
Ila (vow of continence)
Though this form of divorce is mentioned in section 2 of the Shariat

Act, 1937, it is very rare in India and hence of no practical importance.
In ila, the husband swears not to have intercourse with the wife and
abstains for four months or more. The husband may revoke the oath by
resumption of marital life. After expiry of the period of four months, in
Hanafi law the marriage is dissolved without legal process; but aliter in
Ithna Ashari and Shafii laws, where legal proceedings are necessary.
This form is obsolete in India. 43
Zihar (injurious assimilation)
The Shariat Act, 1937 also recognizes the right of wife to obtain
divorce on the ground of zihar. Zihar is a form of inchoate divorce.
Here the husband swears that to him the wife is like the 'back of his
mother'. If he intends to revoke this declaration he has to pay money by
way of expiation or fast for a certain period. After the oath has been
taken, the wife has the right to go to court and obtain divorce or
restitution of conjugal rights on expiation. This is an archaic form and
40. Tayabji S. 148 with explanation supra note 20 at 163.

41. Supra note 21, Ss 202, 203, 205(i), 206 (i) at 43-45.
43. A case of ila was unsuccessfully raised in Bibi Rehana v. Iqtidaruddin
(1943) All 295; see for details, K.N Ahmed supra note 2 at 105-1 15.

2003 | UNDERSTANDING THE ISLAMIC LA W OF DIVORCE 495
dates back to pre-lslamic Arabia 4 4 . Zihar has hardly any significance so

far as law courts in India are concerned.
IV Divorce at wife's instance
Not only the husband can part with his wife if he feels that
matrimonial alliance has broken dowrn, the wife is also entitled to get
rid of her undesirable husband subject to certain conditions. The forms
of divorce at the instance of wife are briefly mentioned below:4**
Talaq-e-tafwid (delegated divorce)
It is a form of divorce at the instance of a wife. Every Muslim wife
can at the time of her marriage reserve in the marriage deed a right for
herself to dissolve the marriage under specific circumstances. This is
called talaq-e-tafwid (delegation of divorce). 46 Tafwid is of three kinds
namely (i) ikhtiyar, (giving her the authority to talaq herself) (ii) amr
bi-yad, (leaving the matter in her own hand), and (iii) mashia, (giving
her option to do what she likes). All these when analyzed, resolve into
one, viz., leaving in her or in somebody else the option to do what she
or he likes. 47 A stipulation that under certain specified conditions the
wife can pronounce divorce upon herself has been held to be void
provided that the option is not absolute and unconditional and secondly,
the conditions are reasonable and not opposed to public policy. E. Tyan
mentions an interesting case of Salma bint Amir al-Najjari, who refused
to marry unless the husband promised her the right to divorce herself. 48
The stipulations must be valid and not opposed to public policy.
Agreement stipulating that a wife is entitled to pronounce talaq if the
husband marries another wife, goes from his place of residence without
her permission, strikes her without any legal cause or leads a disreputable
life are valid stipulations, not opposed to public policy. In such cases,
the mere happening of contingency is not sufficient, there shall be a
formal pronouncement of divorce and it should be made either to the
husband or in presence of the witnesses. The wife must clearly establish
the events entitling her to exercise her option and also that she has
actually exercised her option. 49
44. K.N. Ahmed, id. at 116-24

45. See, for detail, Furqan Ahmad, "Muslim Womens' Right to Divorce - An
Apparently Misunderstood Aspect of Law in India" 12 DL Rev 85 (1991).
46. See, for details, Ashraf Ali Thanavi, Al Hilat al-Naijzah Lil Hilat al- Ajizah
304(1351 A.H.).
47. See K.N.Ahmed, supra note 2 at 190.
48. Tyan Emile, Institutions du Droit Public Musulman Tome I at 18 (Le
Califat,Paris, 1954) as cited in supra note 25 at 159.
49. Mirjan Ali v. (Mst.) Maimuna BibT AIR 1949 Ass 14.

An ante nuptial agreement by a Muslim husband in a kabinnama

(divorce deed) that he would pay separate maintenance to his wife in
case of disagreement and that the wife should have the power to divorce
herself in case of failure to pay maintenance for a certain period is not
opposed to public policy and is enforceable under the Muslim law. The
wife exercising her power under the agreement must establish that the
conditions to use the power are fulfilled,50 This form of delegated divorce
is perhaps the most potent weapon in the hands of a Muslim wife to
obtain her freedom without intervention of any court and is fairly common
in India.51
Khula (redemption)
Irrespective of incorporation of a clause in the marriage deed, every

Muslim wife has the right of khula - the attributes of which are mutatis
mutandis the same as of man's right of talaq. The right of divorce,
which Islam confers on women, if understood in its true perspective, is
indeed remarkable. A wife having subjective satisfaction that it is no
more possible for her to live with her husband has simply to tell him
that she wants a divorce. He can, thereupon, attempt persuasion and
reconciliation but cannot force the wife to cohabit. The only thing that
he can demand of his wife is that she should forgive her dower, which
in case of a divorce by talaq, the husband has to pay. If the wife agrees
to it and the husband peacefully relents, there follows a khula which
means a divorce at the instance of the wife. A woman who is forced to
go to the court for a decree of khula where the man is trying to maintain
the marital bond against the wife's wishes need not even give the court
the reasons why she wants it unlike the man pronouncing talaq. Moulana
Moududi writes:52
In the matter of khula if it is taken to the court, it is not for the
court to determine whether she wants separation of a genuine
ground or just for the sake of marrying another man. Wife 's
right to Khula is parallel to the man 's right to talaq. Like the
latter, former too, is unconditional.
Unfortunately, the courts in India have ignored the extremely liberal
and pro-women law of khula in Islam as if it were totally non-existent.
In an old famous case of Moonshee Buzlur Rahim v. Latifatunnisat5}
50. Buffatan Bibi v. Sk Abdul Salim, AIR 1950 Cal 304.

51. See, for further detail and references, Asaf A.A. Fyzee, " The Muslim Wife's
Right of Dissolving her Marriage" 38 Bom Law Rep I 13, 120-1(1936).
52. A.A. Moududi, ihtquq al-Zaujayn 78(4th Ed. 1964).
53. (1861) 8 MIA 379.

2003 J UNDERSTANDING THE ISLAMIC LA W OF DIVORCE 497
the Privy Council very erroneously referred to khula as a bargain for the
benefit of the husband, and Sir D.F. Mulla recorded that erroneous
ruling. 54 Ever since then, this form of divorce at the instance of wife
has been eclipsed by the judicial ignorance of Islamic law of divorce. In
Pakistan and Bangladesh, the true law of khula has now been restored
and enforced by the Supreme Court of Pakistan in the famous case of
Khurshid Bibi v. MoluL Aminss. But in India, unfortunately for Muslim
women, it is still lying in a dormant state. The courts can dissolve a
marriage for reasons for which it could have been dissolved under Muslim
law regardless of the fact whether these reasons have been recognized
by certain courts or not. This view finds full support from clause (IX) of
section 2 of the Dissolution of Muslim Marriages Act, 1939 that allows
the courts to dissolve marriage on any other ground that is recognized
as valid for the dissolution of marriage under Muslim law. 56
It is necessary to mention here that in addition to talaq-e-tafwid and
khula, a Muslim wife can get her marriage dissolved on many specific
grounds, given in Dissolution of Muslim Marriages Act, 1939, which
will be dealt with under a separate heading faskh (judicial divorce).
Mubaraa (mutual freeing)
Not only husband and wife at their satisfaction can part from the
matrimonial alliance on their subjective satisfaction after exhausting the
resources of arbitration and conciliation, they may also mutually arrive
at a conclusion that they cannot live together and hence can part with
mutual consent. This form of separation is known as mubaraa and is
briefly discussed below:
Mubaraa is dissolution of marriage by mutual consent of husband
and wife. Literally it means 'release'. In this process a couple can jointly
dissolve the marriage extrajudicially on terms that may be mutually
agreed upon. This concept, of which the sharia is undoubtedly the parent
law, has been introduced into the Special Marriage Act of India in 1954
and into the Hindu Marriage Act ml976. 5 7 The lawmen in India have
failed to grasp the clear distinction between khula and mubaraa. They
have been totally ignoring the Islamic law of divorce by mutual consent,
which is much more progressive and liberal than its parallels under the
modern Indian statutes. Here it takes place in the form of a bilateral
agreement between the husband and wife without the intervention of the
court. Unlike khula, which does not depend on husband's will and talaq
54. D.F. Mulla, Principles of Mohammedan Law, S. 319 (2) at 265 (1990).
55. PLD 1967 SC 97.
56. As suggested in supra note 45.
57. See, s. 28 and s. 13-B respectively

for which wife's consent is not required, mubaraa is a divorce by mutual

consent. 58 To equate it with khula is incorrect. Even learned Indian
treatises have failed to differentiate between khula and mubaraa where
both have been described as dissolution of marriage by agreement. 59 In
fact, khula is a transaction in which the wife may divorce her husband
whether he agrees to it or not. It is analogous to the man's right of
talaq.
Faskh (judicial rescission)
Besides the above forms of divorce provided to husband and wife in

certain situations the court may intervene and order for dissolution of
marriage. Though Islam does not appreciate courts interference in holy
alliance of husband and wife but in certain miserable conditions qadi or
court can lawfully dissolve the marriage. The word 'faskh9 means
annulment or abrogation. It comes from a root, which means 'to annul
(a deed) 1 or 'to rescind (a bargain)' 6 0 . Hence it refers to the power of
the Muslim qadi to annul a marriage on the application of wife. It may
be defined as 'the dissolution or rescission of the contract of marriage
by judicial decree' 6 1 . This is known as tahkim in Fatimid law 6 2 . It is
laid down in the Quran that men are in charge of the affairs of women
and should deal fairly with them. Likewise, women are asked to be
obedient to men but if they do not behave themselves, men may admonish
them, banish them to beds apart, and scourge them. The law of faskh is
founded upon this Quranic injunctions and traditions of the Prophet.
The Quran ordains that "And if ye fear a breach between them twain
(the man and wife) appoint an arbiter from his folk and an arbiter from
her fold. If they desire amendment Allah will make them of one mind". 63
It is also mentioned in a Prophet's traditions: "If a women be prejudiced
by a marriage, let it be broken off'. 64
The classical jurists differed in their opinions and in the course of
time the schools of Islamic law held widely divergent views
regarding interpretation of the basic texts. In this respect the Maliki
school is most favourable to women, but the Hanafi and Ithna Ashari
schools, which are prevalent among Indian Muslims are the least
58. Tahir Mehmood, Personal Laws in Crisis 79 (1986)

59. See, for example, s. 319 (I) supra note 54.
61. See, Vesey Fitzgerald, Seymour, Mohammadan Law - An Abridgement 79
(London 1931).
62. Supra note 21 S. 218 at 50-51.
63. Supra note 13.
64. Mahammad bin Ismail Bukhari, al- Sahih as cited in supra note 4 at 519.

2003] UNDERSTANDING THE ISLAMIC LAW OF DIVORCE 499
favourable to them. 65 Following the doctrine of eclectic choice (takhyur),

Moulana Thanavi got enacted a uniform law for all Indian Muslim women
who were leading a miserable conjugal life and had no way of getting
rid of their undesirable husbands. Given below is the background of
Dissolution of Muslim Marriages Act, 1939 that amply shows Moulana
Thanavi's efforts in the development and reforms of divorce law in this
sub-continent. Prior to passing of this Act, the courts followed the Hanafi
interpretation of law and denied to Muslim women the rights of
dissolution as available to them under the sharia.
Dissolution of Muslim Marriages Act, 1939
The Dissolution of Muslim Marriage Act, 1939 constitutes an

important enactment among various legislative measures dealing with
Muslim personal law in India. Initially passed by the central legislature
of British India, the Act is now applicable in various parts of all the
three countries constituting Indian sub-continent (with certain changes
in Pakistan and Bangladesh). The legislative method known as takhyur
(eclectic choice) by means of which this law was originally proposed to
be enacted was the same as adopted for the reform of Muslim family
laws in a large number of West Asian countries afterwards. 66
The Hanafi law was followed rigidly in India, which had the effect
of considerably restricting women's right to seek dissolution of marriage,
by the qadi, particularly a non-Muslim judge. After marriage, a woman
facing situations like disappearance of her husband, his lunacy, his
impotence, his refusal to provide maintenance to her inspite of his ability
to do so, etc., was left with virtually no remedy for the dissolution of
her marriage. Many women, therefore, sought refuge in conversion to
other faith. During the first half of the 20 th century there were numerous
cases in British India of Muslim women, desirous of getting rid of their
marriages, changing their faith. This grave situation attracted attention
of some Muslim organizations and scholars in India and they began
thinking of ways and means to arrest a tendency among the Muslim
women to renounce Islam just because the religious law did not allow
them to get rid of their husbands. The Jamiat al-UIema found that there
was no way out but to secure legislation empowering courts to dissolve
Muslim women's marriages in specified circumstances. It was at this
juncture that Moulana Thanavi wrote his monumental book, Al-Hilat al~
65. These matters are only of academic interest now as Dissolution of Muslim
Marriages Act, 1939 is applicable to all Muslims in India regardless of the school or
sub-school to which they belong.
66. See generally, Tahi Mahmood, Statues of Personal Laws in Islamic Countries
(II Ed., Delhi 1995).

Njizah lil-Halilat al-Ajizah, (a lawful device for a disabled women) on

which several draft bills in 1935 made by prominent leaders of Jamiat
al-Ulema were based. Maulana Thanavi began writing the book in 1926
with the assistance of Mufti Kifayatullah and Ahmad Madani. He arrived
at a conclusion that adoption of the Maliki law on the subject in
suppression of the correspondence provision of the Hanafi law was the
only solution to the problem. He engaged in a prolonged correspondence
with leading ulema of Hijaz over a period of several years and even had
personal meetings with some of them for purposes of ensuring that the
proposals to be affected in India did not contravene any religious principle
of Islam. Because Maulana Thanavi and all his associates belonged to
the Deoband school of theology, they considered it advisable to get
their proposal endorsed by ulema of other theological schools in the
country. After six years of hard labour and extensive research Maulana
Thanavi succeeded in getting his book published in 1932 in Arabic and
Urdu. It enumerated in detail the principles of the Maliki law by applying
which a court could dissolve a Muslim women's marriage in the
circumstance specified therein. The appendices of the book consisted of
the opinion on the contents of the book obtained form the ulema of
India and Hijaz. Moulana Thanavi in this book enjoined upon the Muslim
members of central legislative council to introduce a bill based on the
recommendations made in it. He had sufficient copies of the book
published and distributed among members of the legislative assembly so
that a draft bill could be prepared in accordance with contents of the
book and be presented to the assembly for approval. The members of
Jamiat-al-Ulema and some assembly members started a campaign to
have the law enacted accordingly.
The leaders of the Jamiat prepared a new bill based on suggestions
and recommendations of Maulana Thanavi which was eventually
introduced in the central legislature by Mohammad Ahmad Kazmi in
1936 and the same was enacted in 1939 as Dissolution of Muslim
Marriages Act, 1939.67 Section 2 of the Act lays down that a woman
67. This Act came into force in 17th March 1939. The object of the Act is to
consolidate and clarify the provisions of Muslim law relating to suits for dissolution
of marriage by women and to remove doubts as the effect of the denunciation of
Islam by a married woman on her marriage tie. The Act is, however, not a codification
of the Muslim law relating to dissolution of marriages by act of parties, namely
talaq, khula and mubaraa. It enumerates the grounds on which the wife can obtain
judicial divorce. See, "Statement of Objects and Reasons of the Act" (VIM of 1939)
in Gazette of India Part V, 1938 at 36. For detail, see, Furqan Ahmad "Contribution
of Maulana Ashraf Ali Thanavi: Juristic Thoughts and Contribution to the
Development of Muslim Law in the Indian Sub-Continent" VI Islamic CLO 71
(1986) and "Role of some notable Indian Muslim jurists in development and reform
of Muslim personal law in India" 34 JILI 579 (1992).

20(13 | UNDERSTANDING THE ISLAMIC LA W OF DIVORCE 501
married under Muslim law shall be entitled to obtain decree for

dissolution of her marriage on any one or more of the following grounds,
namely: (i) that the whereabouts of the husband have not been known
for a period of four years, provided that a decree passed on this ground
shall not take effect for a period of six months from the date of such
decree, and if the husband appears either in person or through an
authorised agent within that period and satisfies his conjugal'duties, the
court shall set aside the decree, (ii) that the husband has neglected or
has failed to provide her maintenance for a period of two years.(iii) that
the husband has been sentenced to imprisonment for a period of seven
years or upwards, provided that no decree shall, however, be passed on
this ground until the sentence has become final, (iv) that the husband
has failed to perform, without reasonable cause, his marital obligations
for a period of three years, (v) that the husband was impotent at the time
of marriage and continues to be so, provided that before passing a
decree on this ground, the court shall, on application by the husband,
make an order requiring the husband to satisfy the court within a period
of one year from the date of such order that he ceased to be impotent,
and if the husband so satisfies the court within such period, no decree
shall be passed on this ground, (vi) that the husband has been insane for
a period of two years or is suffering from leprosy or a virulent venereal
disease, (vii) that she, having been given in marriage by her father or
other guardian 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 (option of puberty), (viii) that
the husband treats her with cruelty, (ix) any other ground which is
recognized as valid for dissolution of marriages in Muslim law. Legal
treaties are replete with judicial interpretations and scope of these grounds
laid down in the provisions of Dissolution of Muslim Marriages Act. 68
Lian (mutual imprecation)
The doctrine of lian has also not become obsolete under the Muslim
law and, therefore, a Mohammedan wife can bring a suit for divorce
against her husband on the ground that her husband has charged her
with adultery falsely by virtue of section 2 (IX) of the Act. 69 In Muslim
law the right of the wife to get a divorce on the husband imputing
adultery to her fell under a doctrine known as lian. The Quran10 and
68. For full text of the Act with commentary along with decided cases sec AIR
Manual Vol. 20, 5th Ed. 904-912(1979-1984). See also, Furqan Ahmad, "Indian
Judicial Rulings of 1983" IV Islamic CLQ 83(1985)
69. Tufa it Ahmed v. Jamila Khatoon AIR 1962 All 570.
70. Quran X X I V : 6-9

Hadith11 both guarantee dissolution of marriage by way of lian. One of

the important ingredients of Islam is that it looks adultery (zina) with
great disfavour and husband may be punished for making false charge
of adultery against his wife. If a husband accuses his wife of infidelity
but is unable to prove the allegation, he is liable to punish for defaming
his wife (qadhf). In the absence of proof the procedure of lian is to be
adopted. 72 The wife in such cases is entitled to file a suit for dissolution
of marriage. It is to be observed that mere allegation on oath, on its own
does not dissolve the marriage. A qadi must intervene. In Indian law, a
regular suit has to be filed, thereafter, the husband has two alternatives,
viz., (i) he may formally retract the charge; (ii) he may, however, not
retract and persist in his attitude. In the latter case he is called upon to
make allegation on oath. Similar oaths of innocence can be made by the
wife. The four oaths are tantamount to the evidence of four eye witnesses
required for the proof of adultery in Islam for pronouncing judgement
to dissolve the marriage 73 . The High Court of Bombay 74 has laid down
that three conditions are necessary for valid retraction namely, (i) the
husband must admit that the he has made a charge of adultery against
wife; (ii) he must admit that it was false, and (iii) he must make the
retraction before the end of the trial. Even after passing of the Dissolution
of Muslim Marriages Act, 1939, the husbands' retraction non-suits the
aggrieved wife. 75
V Judicial understanding of divorce law in India
A survey of law relating to Islamic law of divorce shows that the

judiciary has always been indifferent in understanding and applying the
71. It is reported that a man from Ansar accused his wife of adultery. The
Prophet thereupon asked them both to take an oath, then he ordered them to be
separated from each other. (See Mohammed Ali, Manual 290 No. 1 1 (Bukhari) as
cited in supra note 25 at 166; sec also, Ghulam Bhek v. Hussain Begum, PLD 1957
(W.P.) Lah 998.
72 For an adequate account of lian see supra note 61 at 82-83.
73. S- vra note 21, ss. 235, 237 at 1 56. The ancient oaths are picturesque may be
of interest both to students and lawyers. According to the Fat aw a Alamgiri (Baillie.
I, 318), the judge begins with the husband who swears four times as follows:
A attest, by God, that I was a speaker of truth when I cast at her the charge of
adultery', and the fifth time he says: 'The curse of God be upon him (i.e. refers to
himself) if he was a liar when he cast at her charge of adultery'. Then follows the
wife and she swears four times: bI attest, by God, that he is a liar in the charge of
adultery that he cast upon me', and says on the fifth occasion: 'The wrath of God be
upon me if he be a true speaker in the charge of adultery which he has cast upon
me* (see supra note 25 f.n. (b) at 167).
74. Mahomedali Mahomed v. Hazrabai, (1955), ILR Bom 464.
75. TufaiI Ahmad v. Jamila Khatun, AIR 1962 All 570.

2003'| UNDERSTANDING THE ISLAMIC LA W OF DIVORCE 503
true law of Islam. Whether it is a case of unilateral talaq or wife's right

to divorce, judicial ignorance and irreverence are generally found in
case law books. English judges, particularly in British India including
Privy Council, decreed every Muslim husband's birthright to divorce
his wife at whim. On the contrary, they are reluctant to pass a decree of
divorce at the instance of wife. To illustrate, following are the few
decisions of British Indian courts which are totally inconsistent with
true Islamic law of divorce:
(i) .In Ahmed Kasim v. Khatoon Bibi,16 it was held that: 'Any
Mohammedan may divorce his wife at his mere whim or
caprice. 1
(ii) In Sarabai v. Rabiabai,11 it was observed that arbitrary divorce
by a Muslim husband was 'good in law though bad in theology/
(iii) In Aisha Bibi v. Kadir Ibrahim,1** it was said: 'the impropriety
of the husband's conduct would in no way affect the legal
validity of a divorce duly effected by the husband'.
(iv) In Rashid Ahmad v. Anisa Khatoon,19 (as mentioned earlier) it
was held: "According to that law (Muslim law), a husband can
effect a divorce whenever he desires".
Some writers also could not present the true picture of Islamic law
of divorce, for example, McNaghten declared that "there is no occasion
for any particular cause for divorce; mere whim is sufficient/' 80 Similarly
Mulla pronounces that 'any Mohammedan of sound mind, who has
attained puberty, may divorce his wife whenever he so desires without
assigning any cause.' 81
Thus we see that since long the Indian courts have faithfully enforced
the traditional Hanafi law on unintended divorces. There is an 1869
decision on record confirming effectiveness of divorces under
compulsion, duress and intoxication. 82 All through the British regime
the courts followed this policy. The courts in post-independent India, in
76. (1931) ILR 59 Cal 833.

77. (1906) ILR 30 Bom 537.
78. (1910) ILR 33 Mad 22, However, Sir Adhur Rahim, a brother judge added
the following words: "No doubt an arbitrary and unreasonable exercise of the right
to dissolve the marriage is strongly condemned in the Quran and in the reported
sayings of he Prophet (but)...' 1 .
' 79. 36 CWN 305.
80. W.H. McNaughtcn, Principles and Precedents of Mohammedan Law 59
(1985).
SI. Supra note 54, s. 308 at 258; see also, s. 3I9(l)at 265 where he defines
'talaq' as an arbitrary act of husband.
82. Ibrahim Molla v. Envavatur-Rahman riRfiO^ 4 Beng LR 13.

504 JOURNAL OF THE INDIAN LAW INSTITUTE jVol. 45 : 3&4
its early days also followed the British Indian judges. 83 However, three
decades back, V. Khalid, J., of the Kerala High Court had to pronounce
on the effectiveness of unintended divorces. 84 He had to accede to the
legal effect of such divorces and could only express his feeling in an
obiter describing the traditional law on the subject as "monstrous" 85 He
did say that the said law disturbed his judicial conscience, but expressed
his helplessness in the matter by invoking "conscience of the leaders of
public opinion". 86
The trend to upgrade the status of Muslim women gathered
momentum. The long-standing controversy of triple talaq was in focus
at a time when the fatwa%1 for its effectiveness as revocable was given
by miiftees of Ahle-Hadith. The Indian courts which were showing
strictness on this issue are now deviating from their earlier views
regarding the effect of triple talaq as irrevocable and thereby the courts
are inclining towards the views in comformity with the spirit of sharia.
This view is that triple pronouncement in a single breath amounts to one
divorce and therefore revocable. Immediately after the publication of
the fdtwa of the Ahle-Hadith mentioned earlier, the Guwahati High
Court set aside the divorce of Zeenat given in the form of triple
pronouncement at one go. The court ruled that a Muslim husband cannot
divorce his wife at his whim or caprice, and that the divorce must be for
a reasonable cause and must be preceded by counseling to arrive at
settlement. 88 As far as the observation of the court pertaining to talaq is
concerned, it is in conformity with the procedure given in the holy
Quran on divorce though against the traditional law enforced on Sunni
Muslims of our country.
Similarly, another judgement of a division bench of Guwahati High
Court 89 (delivered by Justice Baharul Islam, the then Chief Justice of
the High Court and Justice D. Pathak) is replete with the exposition of
law of divorce and it describes at length the true nature of talaq based
on Islamic legal sources. The portion of the judgement pertaining to
divorce in which pros and cons of the law of talaq is discussed is worth
mentioning. In the court's opinion the correct law of talaq, as ordained
83. In the case of Patbai v. Moyidin, 1968 KLT 763, the Kerala High Court's
division bench confirmed the divorce given under compulsion or in jest or in anger
would be perfectly valid.
84. Mohd. ftanifa v. Pathimal, 1972 K L T 512.
85. ibid.
86. Ibid.
87. For text, sec, Jaridah Tarjuman (weekly) 21 May 1993: sec also, Furqan
Ahmad's comment in Indian Express (Mag.) 1 Aug 1993.
88. Sec, Indian Express for this unreported judgement 31 July 1993.
89. Msi Rukia K ha tun v. Abdul\Khaliq Lasker (unreported) sec for full text II
Islamic CLO 213 (1983).

2003 j UNDERSTANDING THE ISLAMIC LA W OF DIVORCE 505
by the holy Quran, is: (i) that talaq must be for a reasonable cause; and
(ii) that it must be preceded by an attempt at reconciliation between the
husband and wife by two arbitrators, one chosen by the wife from her
family and the other by the husband from his. If their attempts fail,
talaq may be effected.
The judgement says that the fact that husband has effected a divorce
must be duly proved. Even after its proof the court shall not recognize
the same if it is not valid divorce under sharia. Under Islamic law a
divorce is valid only if there is a reasonable cause for it and it had been
preceded by an attempt at reconciliation by two arbitrators representing
the husband and the wife as required by the Quran.90 The stand taken
by the learned judge in Ziauddin Ahmad's91 case a^d in this case is in
conformity to the true Islamic law of divorce in letter and spirit. Speaking
from the bench of Gauhati High Court, Justice Bahrul Islam, in the
above-mentioned judgements made a very brilliant and refreshing analysis
of the true Islamic law of divorce as laid down in the holy Quran and
the Sunnah, read through authentic commentaries and legal treatises.
The learned judge forcefully exposed the errors committed by the British-
Indian authors and judges in respect of the divorce law of Islam. 92
The intensity of debate on the issue reached its peak when Justice
Hari Nath Tilhari of the Lucknow Bench of Allahabad High Court on
15 April 1994 pronounced that practice of uttering the word talaq at
one go effectuating irrevocable divorce was both unconstitutional and
illegal under article 372 of the Constitution and section 2 of the Shariat
Act, 1937. 93 Justice Tilhari upheld the effectiveness of 'triple talaq' in a
land-ceiling case, where talaq was not involved either in fact or in law.
This judgement has created some controversy including the
90. Supra note 13.

91. Ziauddin Ahmad v. Anwar Begum, (Cri. Rev. No. 199 of 1977 at 31.3.78
(unreported) For text of judgment see, II Islamic CLQ 38 (1982).
92. Unfortunately, neither of his judger.ier.ts was even reported in any national
law report and the bench and the bar simply ignored them. Justice Krishna Iyer in
the concluding para of his judgement in Fuzlunbi v. K. Kader Vali (AIR 1980 SC
1730) applauded the views of Justice Bahrul Islam. It runs thus:
Before we bid farewell to fuzlunbi it is necessary to mention that C.J. Bahrul
Islam in an elaborate judgement replete with quotes from Holy Quran, has exposed
the error of many English authors and judges who dealt with talaq in Muslim law as
good even if pronounced at whim or in tantrum, and argued against the diehard view
of Batcheior, J. [(I960), ILR 30 Bom. 537 (539)] that this view is good in law,
though bad in theology. May be when the point directly arises the question will
have to be considered by this court, but enough up to the day the evil thereof and we
do not express our opinion on this question as it does not call for a decision in the
present case (Ibid 1737).
93. Rahmatullah v. State of LLP., (W. P. No. 43 of 1993) and Khatoon Nisa v.
State of (LP., (W.P. No\ 57 of 1993) (unreported)

50(1 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 45 : 3&4
constitutionality of personal laws. 9 4 The case was referred to the

constitutional bench which has been decided that in a writ petition filed
by the tenure holder and his wife, it was not necessary for the court to
examine a larger issue on the question of constitutionality and validity
of divorce by a Muslim man by uttering talaq thrice in one sitting.
Therefore, the court refused to delve into the question of triple talaq
and observed that high court was not required to go into this case as far
as the issue of triple talaq was concerned since this was not the question
before the court. According to the constitutional bench of the Supreme
Court, the conclusion would not operate as law of the land until and
unless the same arises in an appropriate case and decided accordingly. 9?
However, since this article relates to that part of the judgement of
high court, which pertains to the issue of triple talaq, it is submitted
that the observations of Justice Tilhari pertaining to the nature of talaq
in Islam are not untenable. The true nature of Islamic law of divorce is
that neither a husband nor a wife has an unbridled right to do away with
an existing marriage unilaterally and arbitrarily. But if either has a
reasonably tenable ground to seek separation there is no compulsion on
him or her to remain united and in that case the alliance can be dissolved
in a just and equitable manner. In future the Supreme Court of India
might have to consider the fallacy of old judicial opinion regarding true
nature of the Islamic law of divorce and thus the task is to reconcile and
unify the view points of various schools of Islamic law of divorce and
to translate the same into action.
VI Conclusion & Suggestions
To conclude, Islam does not allow the husband or wife to use divorce
as mockery and takes extra precaution for the welfare of wives. A former
Supreme Court judge, Justice Krishna Iyer remarked that "a deeper
study of the subject discloses a surprisingly rational, realistic and modern
law of divorce/ 9 6 A few distortions seem to have crept in dispensing
justice in British India and even in the decisions of Privy Council,
which decreed Muslim husband's right to divorce his wife at whim.
Such misguided views have had sustenance in the opinions of ill-educated
moulvis who had already been serving their clientele with their faulty
understanding of the Quranic law of divorce.
The true Islamic law of divorce is in conformity with the breakdown
theory of divorce. The Quran did not specify any matrimonial offences.
The Prophet of Islam laid down no bars to matrimonial relief. The
94. The case in appeal was posted before a bench of Supreme Court on 4.8.1994
(civil appeal No. 4789/1994). Later it was referred to constitutional bench.
95. Khatoon Nisa v. State ofU.P. & Ors. 2002(6) SCALE 165.
96. Supra note 17.

2003f UNDERSTANDING THE ISLAMIC LAW OF DIVORCE 507
lawgiver of Islam did not want the matter to be taken to court at all
unless it became unavoidable for a wife due to age-old predominance of
men. Unequivocally declaring divorce to be abghad al mu bah at91 the
Prophet warned his people to keep away from it. "Enter into marriage
and do not dissolve it. God hates those men and women who change
their bed-partners for the sake of pleasure." 98 To set up a personal
example, Prophet never divorced any of his wives despite occasional
provocation. The law of divorce drawn from the teachings of such a
Prophet cannot thus equip either the man or the woman with arbitrariness
in the dissolution of marital ties.
The schools of Muslim law, which recognize the validity of talaq
without intervention of court have prescribed certain conditions imposed
on the exercise of power by the husband. These conditions have been
prescribed in the interest of Muslim women. The proper law is, therefore,
that intention is the necessary ingredient for the validity of a talaq. In
the absence of intention, talaq cannot be held valid even though it was
pronounced expressly. As decided by courts, talaq pronounced under
mistaken belief is held valid and also a divorce pronounced under
compulsion, in jest or inadvertence or by mere slip of tongue is held
valid, which is inconsistent with Islamic law of divorce.
The test for soundness of law is that it should guarantee maximum
welfare and prosperity to the society which it governs. In India, Muslim
scholars and jurists of early twentieth century namely Alama Shibli
Numani, Mufti Kifayatullah, Maulana Ashraf Ali Thanavi, Maulana
Hussain, Ahmad Madani and Maulana Abdul Hai were profound thinkers
and fully conversant with the true law of Islam. They did a lot for the
development of Muslim law in the country. Their dedicated works would
serve as a guiding light for setting the present controversy relating to
status of Muslim personal law in India. 99 Following their juristic thoughts
and line of action a verdict in favour of treating three divorces as a
single revocable divorce should be issued by the majority of our ulema.
This task of reconciliation and unification of the view points of various
schools of Islamic law may be done along the line of women's right to
judicial separation. A code of Muslim law has now been published by
Muslim Personal Board covering the issue of divorce for assistance of
courts. 100 It may be submitted that the guidelines, if incorporated on the
97. It means most detestable of all legally permissible things.

98. Ali al-Muttaqee, Kanz al -Ummal 159 (1313 A.H.)
99. See, Furqan Ahmad "Role of some notable Indian Muslim jurists towards
the Development and Reform of Muslim Personal Law in India" 34 .///,/ 563(1992).
100. Justice Ahmad-i former Chief Justice of India has released it. The publication
is available in English and Urdu. See, All India Muslim Personal Law Board,
Compendium of Islamic Laws (2nd Ed., July 2002).For law of divorce see, Part II
Chapter l-XIV with Preliminary, at 87-136.

508 JOURNAL OF THE INDIAN LA W INSTITUTE | Vol. 45 : ;&4
lines of Muslim countries following doctrine of takhyur (eclectic choice),

would unify all the schools together to yield better result. Therefore,
following the law of Shia schools in case of a triple divorce and other
flimsy divorces (e.g., divorce under intoxication, gest or anger etc.) for
Sunni Muslims is not contrary to sharia.I()l By way of analogy, the
Sunni law (Maliki school of jurisprudence) is applicable to Shia Muslims
in the form of the Dissolution of Muslim Marriages Act, 1939. Besides,
Ahl-e-Hadith, which also belongs to Sunni sect, does not give recognition
to flimsy and unintentional divorce. Recently our hon'ble Supreme Court
in one of its judgement reiterated its advice for a common civil code.' 0 2
The unification of Muslim law in India on the above lines will also be a
stepping stone to follow the directives of the Constitution 103 as suggested
by the apex court.
In sum, the status of women in India is pitiable irrespective of the
religious denominations. Unlike Muslim woman in other Muslim
countries, 1 0 4 the divorcee in India has been facing many problems
notwithstanding the rights endowed upon her. These realities must be
taken note of while deciding effectiveness of an unintentional divorces.
Accordingly, the ulema should perform their duty to present Islamic law
in its true perspective failing which the judiciary will have to step in. A
famous poet and philosopher Dr. (Sir) Mohammad Iqbal, who himself
was a great jurist and contributed a treatise on Islamic jurisprudence, 105
has rightly observed in the following couplet:
Aain-e Nou se Darnaa.Torze Kuhan pe Arnaa
Manzil Yahee Kathin hae.Qaumon ki Zindagi Mein
(The most difficult thing in the life of a nation/community is to
know where the balance lies between the traditions and the new values.)
101. It may be to noted that the seven schools of Islamic jurisprudence - four
Sunni {Shafti, MalikT Hambali and tlanfi) and the three Shia [Ithna Ashari, Ismaili
and Zuidi) are on equal footing from the viewpoint of legal sanction. The Shia and
Sunni division of sects are based on political grounds.
102. John Vallamattom and another v. Union of India, 2003(5) SCALE 384.
103. Constitution of India: Article 44 Directive for Uniform Civil Code.
104. For detail see, supra note 66.
I 05. Mohammed Iqbal, The Reconstruction of Religious Thoughts in Islam (I960).

Islamic Law of Divorce (484-508)

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484

UNDERSTANDING THE ISLAMIC LAW OF DIVORCE

* M.A.(Socio), LL.M., Ph.D. Associate Research Professor, Indian Law Institute,

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In Islam, matrimonial alliance is a social contract. It can be dissolved

4. See, Ameer All, Mohammedan Law II 471 (1985).

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Harassment of the wife would be done by falsely accusing her of adultery

II Islamic perspective of divorce

The reforms by Prophet Mohammad marked a new departure in the

10. Ibrahim Abdul Hamid, "Dissolution of Marriage" 3 Islamic Quarterly 166-

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"Curse of God rests on him who repudiates his wife capriciously," 14

Ill Classification of divorce

It is imperative to understand the various forms through which a

14. Ibrahim Halebi, Midteqa' as cited in supra note 4 at 473.

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The word "talaq" is an Arabic word which means 'undoing of or

19. Ibn Qudamah, al-Mughni 96 (Cairo 1376 A.M.)

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This talaq consists of one single pronouncement in one sentence

20. See,Faiz Badruddin Tayabji, Muslim Law Ss.l26&127 at 146-147(1968).

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of revocation. For instance, if a person pronounces a single revocable

The hasan is also an approved form that consists of three

24. Tayabji, S. 156 supra note 20.

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marriage forthwith, and should a remarriage be desired by the

(i) The triple talaq

In this form, three pronouncements are made in a single tuhr either

28. Supra note 25 at 154.

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T divorce thee, I divorcee thee, I divorcee thee' Such a talaq is lawful,

32. Cadi Numan, Daaim II S. 978, as cited in supra note 25 at 155.

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(ii) A single irrevocable declaration

Another form of disapproved divorce is a single, irrevocable

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the law of marriage so as to be most agreeable to themselves'. 40 It may

Some non prevalent forms of divorce

In pre Islamic Arab, various absurd forms of divorce were prevalent.

Ila (vow of continence)

Though this form of divorce is mentioned in section 2 of the Shariat

Zihar (injurious assimilation)

40. Tayabji S. 148 with explanation supra note 20 at 163.

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dates back to pre-lslamic Arabia 4 4 . Zihar has hardly any significance so

IV Divorce at wife's instance

44. K.N. Ahmed, id. at 116-24

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An ante nuptial agreement by a Muslim husband in a kabinnama

Irrespective of incorporation of a clause in the marriage deed, every

50. Buffatan Bibi v. Sk Abdul Salim, AIR 1950 Cal 304.

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Mubaraa (mutual freeing)

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for which wife's consent is not required, mubaraa is a divorce by mutual

Faskh (judicial rescission)

Besides the above forms of divorce provided to husband and wife in

58. Tahir Mehmood, Personal Laws in Crisis 79 (1986)

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favourable to them. 65 Following the doctrine of eclectic choice (takhyur),

Dissolution of Muslim Marriages Act, 1939