DIVORCE UNDER MUSLIM LAW

Upar upar se introduction 😊

 According to Muslim personal laws, Muslim couples cannot seek for judicial separation
as they do not have any such provision.
 Though Muslim marriage is a contract, but the husband enjoys most of the special
privileges, such as pronouncing talaq, polygamy, inequality of the law; the only restraints
upon him are those imposed by the law relating to the dower and by his own conscience.
 Prophet’s words – “of all things permitted by the law, the worst is divorce” (bakwas)
 In 1939 judicial divorce was introduced by the Dissolution of Muslim Marriages Act,
under this act only wife could sue the husband for divorce, but unlike husband she had to
prove the ground of divorce.
 Any Muslim of sound mind and have gained the age of puberty can give talaq without
any reason; the Muslim law does not recognize the existence of any fault or matrimonial
issues.
 It may be done orally or by a written talaq nama.

Essentials of Talaq:
 No particular form of spoken words is prescribed for effecting talaq. If the words spoken
are express and are addressed. If the words are ambiguous and intention is proved talaq is
considered.
 It is not necessary that the talaq should be pronounced in the presence of wife. But the
words spoken should be addressing the wife.
 Sunnis have no talaq rituals for talaq. Shias insist divorce be announced verbally (unless
husband can't) and in front of two witnesses (only Muslim men). Shias require witnesses
for divorce but not marriage; whereas vice versa for sunnis.
 Under Sunni (Hanafi) law, a divorce pronounced under compulsion, fraud, intoxicated
situation, to satisfy or please someone, is valid. Even when a talaq si pronounced
inadvertently by a mere slip of tongue it is valid.
 However, under all Muslim school of thoughts it is necessary that the husband must be
aware (not sleep, unconscious, etc.) the consent of husband must be a free consent.
 The Shias do not recognize a divorce pronounced under compulsion or intoxication.
 A talaq by minor or insane husband is void. However, talaq pronounced during ‘lucid
interval’ is valid. Lucid interval = the period between regaining consciousness after a
short period of unconsciousness.
Modes of Talaq:
Sunnis – only recognize express, implied, contingent, constructive and delegated.
Shias – only recognize express and delegated.
1. Express Divorce
a. Talak-ul-Sunnat
b. Talak-ul-Biddat
2. Implied of contingent Divorce
3. Delegated Divorce (Talaq-i-Tafweez)
4. Constructive Divorce
5. Divorce at Wife’s instance (Khula)
6. Divorce at Mutual consent (Mubara’at)

1. Express Divorce:
Clear words are uttered. It may be of two types
a. Talak-ul-Sunnat: revocable.
b. Talak-ul-Biddat: irrevocable; no chance of reconciliation between the parties
(triple talaq)
2. Implied or contingent divorce:
Sometimes the words used in the pronouncement are not clear. In such cases divorce will be
implied if the intention to divorce is proved.
3. Delegated divorce (Talak-i-Tafweez):
Although the power to give divorce belong primarily to husband he may delegate the power
to the wife or to a third person, either absolutely or conditionally, and either for a particular
period or permanently. A permanent delegation of power is irrevocable.
4. Constructive divorce:

5. Divorce at Wife’s instance (khula):

It is laying down by a husband of his right and authority over his wife for an exchange. A
divorce by hula is a divorce with the consent, and at the instance of the wife, in which she
gives a consideration to the husband for her release from the marriage tie. The exchange or
consideration is to be paid immediately to the husband. The marriage is dissolved as soon as
the proposal is accepted even if the payment of the consideration has been postponed.
The Dissolution of Muslim Marriage Act, 1939 (Judicial Divorce at Suit of Wife):
Judicial divorce at the instance of husband is not recognized in the modern Muslim law as he
has already unilateral power. Under Muslim personal law wife has no right to obtain a
divorce. She has a right only under certain contingencies and conditions. The wife can sue
her husband under this act.
In the case of Umar Bibi – it was held that incompatibility of temperaments and hatred of the
wife for her husband are not recognized by Muslim law as ground of divorce.
And in the case of Adbul Zahl VS Marina Begum – the court added a new dimension to Sec.
2 of this act; by granting divorce to the parties by ‘mutual consent’ as the parties had arrived
at a compromise in spite of a provision for the same being not in existence in the Act.