Divorce Under Muslim Law

By
Deepali Sahoo
Symbiosis Law School, NOIDA
• In Islam, marriage is a very simple procedure. It is nothing but the expression of two words; one
from the bride‘s side and the other from the bridegroom‘s.
• These words are generally known as Ijab and Qubool which mean offer and acceptance.
• Mehar is already included in the concept of marriage. However, divorce is a very long procedure
and this procedure is not described in any secondary book but in the divine book itself.
• Divorce is only permissible in extreme circumstances firstly, by husband, secondly, by wife and
lastly, by mutual consent of both. These three cases are popularly known as talaq, khula and
mubarat respectively in legal terminology.
• The practice of Indian Muslims has made marriage complex and talaq very simple.
• The Indian Muslim practice includes only three utterances of the word talaq (i.e., talaq, talaq,
talaq).
• The procedure is often misunderstood; the whole procedure of divorce is rarely known except to
few members of the bench and bar. Unfortunately certain decisions which throw light on the true
exposition of divorce could not find the place in any legal report.
Background
• The pagan Arab, before the time of the Prophet, was absolutely free to repudiate his wife whenever
it suited his whim, but when the Prophet came, he declared divorce to be the most disliked of
lawful things in the sight of God.
• He was indeed never tired of expressing his abhorrence of divorce.
• Once he said: "God created not anything on the face of the earth which He loveth more than the act
of manumission (of slaves) nor did He create anything on the face of the earth which he detestethm
ore than the act of divorce".
• Commentators on the Quran have rightly observed-and thistallies with the law now administered in
some Muslim countries like Iraq-that the husband must satisfy the court about the reasons for
divorce.
• However, Muslim law, as applied in India, has taken a course contrary to the spirit of what the
Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the
wife's right to divorce.
• Before the advent of Islam, neither the Jews nor the Arabs recognized the right of divorce for
women: and it was the Holy Quran that, for the first time in the history of Arabia, gave this great
privilege to women.
• Divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting
reconciliation have failed, the parties may proceed to a dissolution of the marriage by Talaq or by
Khola or Khula.
• When the proposal of divorce proceeds from the husband, it is called Talaq, and when it takes
effect at the instance of the wife it is called Khola Consistently with the secular concept of
marriage and divorce, the law insists that at the time of Talaq the husband must pay off the
settlement debt to the wife and at the time of Khola she has to surrender to the husband her dower
or abandon some of her rights, as compensation.
• Talaq is an Arabic word and its literal meaning is ―to release‖. Under Muslim law, talaq means
‗repudiation of marriage by the husband‘.
• The word talaq comes from a root (tallaqa) which means ―to release (an animal) from a tether‖;
hence, to repudiate the wife or free her from the bondage of marriage. (Asaf A.A. Fyzee- Outlines
of Muhammadan law, 4th edn. 2005, p.150, Oxford University Press, New Delhi)
• According to Hedaya, “Talaq in its primitive sense means ‘dismission’; in law, it signifies the
dissolution of marriage or the annulment of its legality by certain words.‖
• Talaq is defined as the exercise of the right of pronouncing unilateral divorce on the wife by the
husband, arbitrarily without any cause, at any time during the subsistence of a valid marriage
including the period of iddat, is known as talaq.
Conditions For a Valid Talaq
• Capacity - Every Muslim husband of sound mind, who has attained the age of puberty, is
competent to pronounce talaq. It is not necessary for him to give any reason for his
pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaaq by a
minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic then
talaaq pronounced by him during "lucid interval" is valid. The guardian cannot pronounce talaaq
on behalf of a minor husband. When insane husband has no guardian, the Qazi or a judge has the
right to dissolve the marriage in the interest of such a husband.
• Free Consent - Except under Hanafi law, the consent of the husband in pronouncing talaaq must
be a free consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion, undue
influence, fraud and voluntary intoxication etc., is valid and dissolves the marriage.

Involuntary intoxication: Talaaq pronounced under forced or involuntary intoxication is void

even under the Hanafi law.
Shia law
• Under the Shia law (and also under other schools of Sunnis) a talaq pronounced under compulsion,
coercion, undue influence, fraud, or voluntary intoxication is void and ineffective.
• Formalities - According to Sunni law, a talaaq, may be oral or in writing. It may be simply uttered
by the husband or he may write a Talaaqnama. No specific formula or use of any particular word is
required to constitute a valid talaaq. Any expression which clearly indicates the husband's desire to
break the marriage is sufficient. It need not be made in the presence of the witnesses.
• According to Shias, talaaq, must be pronounced orally, except where the husband is unable to
speak. If the husband can speak but gives it in writing, the talaaq, is void under Shia law. Here
talaaq must be pronounced in the presence of two witnesses.
• Express words - The words of talaaq must clearly indicate the husband's intention to dissolve the
marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to
prove that the husband clearly intends to dissolve the marriage.
Express Talaaq (by husband)
• When clear and unequivocal words, such as "I have divorced thee" are uttered, the divorce is
express. The express talaaq, falls into two categories:
❖ Talaaq-i-sunnat,
❖ Talaaq-i-biddat.

Talaaq-i-sunnat has two forms:

➢ Talaaq-i-ahasan (Most approved)
➢ Talaaq-i-hasan (Less approved)

Talaaq-i-sunnat is considered to be in accordance with the dictats of Prophet Mohammad.

Ahasan talaaq
• Consists of a single pronouncement of divorce made in the period of tuhr (purity, between two
menstruations), or at any time, if the wife is free from menstruation, followed by abstinence from
sexual intercourse during the period if iddat.
• The requirement that the pronouncement be made during a period of tuhr applies only to oral
divorce and does not apply to talaaq in writing. Similarly, this requirement is not applicable when
the wife has passed the age of menstruation or the parties have been away from each other for a
long time, or when the marriage has not been consummated.
• The advantage of this form is that divorce can revoked at any time before the completion of the
period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may effected
expressly or impliedly.
• Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says I
have retained thee" the divorce is revoked. Resumption of sexual intercourse before the completion
of period of iddat also results in the revocation of divorce.
• The Raad-ul-Muhtar puts it thus: "It is proper and right to observe this form, for human nature
is apt to be mislead and to lead astray the mind far to perceive faults which may not exist and
to commit mistakes of which one is certain to feel ashamed afterwards.‖
• This type of talaq is less injurious to wife and remarriage between the parties is possible
Hasan Talaaq
• In this the husband is required to pronounce the formula of talaaq three time during three
successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be
made after the interval of a month or thirty days between the successive pronouncements.
• When the last pronouncement is made, the talaaq, becomes final and irrevocable. It is necessary
that each of the three pronouncements should be made at a time when no intercourse has taken
place during the period of tuhr.
• Example: A wife, W, is having her period of purity and no sexual intercourse has taken place. At
this time, her husband, H, pronounces talaaq, on her. This is the first pronouncement by express
words. Then again, when she enters the next period of purity, and before he indulges in sexual
intercourse, he makes the second pronouncement. He again revokes it. Again when the wife enters
her third period of purity and before any intercourse takes place H pronounces the third
pronouncement. The moment H makes this third pronouncement, the marriage stands dissolved
irrevocably, irrespective of iddat.
• In Yusuf v. Sowramma, [AIR 1971 Ker 261] the Kerala High Court observed that, ―it is popular
fallacy that a Muslim male enjoys, under Quranic law, unbridled authority to liquidate the
marriage. The holy Quran expressly forbids a man to seek pretext for divorcing his wife so long as
she remains faithful and obedient. He further observed about the state of affairs in India, that
Muslim law as applied in India has taken a course contrary to the spirit of what the holy Prophet
(PBUH) or the holy Quran laid down and the same misconception vitiates the law dealing with the
wife‘s right to divorce‖.
Talaaq-i-Biddat
• Triple talaq is a recognized; but it is a disapproved form of divorce and is considered by the Islamic
jurists as an innovation within the fold of Shariat. It commands neither the sanction of Holy Quran
nor the approval of the holy Prophet (PBUH). It was also not in practice during the life time of first
Caliph Abu Bakar and also for more than two years during the second Caliph Omar‘s time. Later
on, Hazrat Omar permitted it on account of certain peculiar situation.
• It has two forms: (i) the triple declaration of talaaq made in a period of purity, either in one
sentence or in three, (ii) the other form constitutes a single irrevocable pronouncement of divorce
made in a period of tuhr or even otherwise.
• This type of talaaq is not recognized by the Shias. This form of divorce is condemned. It is
considered heretical, because of its irrevocability.
• In Shamim Ara v. State of UP [(2002) 7 SCC 518] which is affirmed in Iqbal Bano v State of UP [AIR 2007
SC 2215], the SC of India rendered yeoman‘s service to stop this inhuman and clearly unislamic practice by
ruling that the man‘s claim can be accepted only if he can prove to the satisfaction of the court that he had
divorced the woman following step by step the procedure for divorce as laid down in the Quran.
• The court further said that a mere plea of talaq in response to the proceedings filed by the woman for
maintenance cannot be treated as pronouncement of talaq. To be valid, talaq has to be pronounced as per the
Koranic injunction
• Most Islamic countries, including Egypt, the United Arab Emirates, Pakistan and Bangladesh, have banned
triple talaq.
• Legislation passed the Muslim Women (Protection of Rights on Marriage) Act, 2019 which clearly banned
Triple Talaq
Shayara Bano and others v. Union of India
and others, Writ Petition (C) No. 118 of
2016
• Shayara Bano was married to Rizwan Ahmed. In 2016, he divorced her through instantaneous triple talaq (talaq -e biddat). She filed a Writ
Petition in the Supreme Court asking it to hold three practices – talaq-e-biddat, polygamy, nikah-halala – unconstitutional as they violate
Articles 14, 15, 21, 25 of the Constitution.
• On 22nd August 2017, the 5 Judge Bench of the Supreme Court pronounced its decision in the Triple Talaq Case, declaring that the practise
was unconstitutional by a 3:2 majority. Judges involved and pronounced the judgement in this case were:
• Majority: Rohinton Nariman J. and U.U. Lalit J.
• Concurring: Kurian Joseph J.
• Dissenting: CJI J.S. Khehar and Abdul Nazeer J.
• The majority judgment held triple talaq to be unconstitutional under Article 14 read with Article 13(1). In this regard, the Court held that the
practice had been sanctioned as a matter of personal law by the Muslim Personal Law (Shariat) Application Act, 1937.
• The Court clarified that ―…an action that is arbitrary, must necessarily involve negation of equality‖ and determined, as triple talaq provides
that ―…the marital tie can be broken capriciously without any attempt at reconciliation so as to save it‖, this arbitrariness violates Article 14.
• The Court concluded that the 1937 Act is void to the extent that it recognizes and enforces triple talaq, on the basis that as per Article 13(1)
all laws in force immediately before the commencement of the present Constitution (which includes the 1937 Act) shall be void in so far as
they are inconsistent with the fundamental rights set out in the Constitution.
• The Court also considered whether triple talaq is protected under Article 25 but, following a review of relevant precedents and Islamic
scholarship, concluded that it is not essential to the practice of Islam.
Revocation of Express Talaq
• A revocable talaq is called Talaq-i-Razai and an irrevocable talaq is called Talaq-i-Bian.
• A Talaq-i-Razai becomes Talaq-i-Bain as soon as it becomes irrevocable.
• In the case of unconsummated marriage talaq becomes irrevocable immediately on its
pronouncement. No change of making it revocable is left.
• But in case of consummated marriage, a change of revoking the talaq is left in the following cases:
➢ In the case of Talaq Ahsan, if the husband expresses to his wife before expiry of the period of
iddat, that he wants to retain her, then revocation of Talaq Ahsan comes into effect. This is
express form of revocation.
➢ In the case of Talaq Ahsan, revocation can be made impliedly also (under Hanafi and Shia law,
not under Shafii law), e.g., if the husband resumes cohabitation before expiry of the period of
Iddat, talaq is revoked.
➢ In the case of Talaq Hasan, revocation of it can be made by not making the third
pronouncement of talaq, because on the third pronouncement only, talaq becomes irrevocable.
Irrevocable talaq
• Talaq becomes irrevocable (Talaq-i-Bain) in the following manner:
➢ In the case of an unconsummated marriage, talaq becomes irrevocable immediately on its
pronouncement.
➢ In the case of consummated marriage, Talaq Ahsan becomes irrevocable on the expiry of the
period of iddat.
➢ Talaq-ul-Biddat is irrevocable immediately and cannot be revoked under any circumstances.
➢ In the case of a consummated marriage, Talaq Hasan becomes irrevocable immediately as
soon as the third pronouncement of talaq is made.
➢ A talaq in writing operates as an irrevocable divorce from the time of its execution unless there
are words showing an intention to the contrary.
Ila
• Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and
Zihar. They are called constructive divorce.
• In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this
oath, there is no consummation for a period of four months.
• After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband
resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve.
• Under Ithna Ashari (Shia) School, Ila, does not operate as divorce without order of the court of law.
After the expiry of the fourth month, the wife is simply entitled for a judicial divorce.
• If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution
of conjugal rights against the husband.
• The shortest period of vow of abstinence must be four months. If the husband swears to abstain for a period of three months, no ila shall
take effect. But to say “By God, I will not approach you for two months, and two months after these two months” is ila, because of the
definiteness of the period of four months. (Durr-ul-Mukhtar (Dayal’s English ed.,) 236)
Zihar
• The term ―zihar‖ is derived from ‗zuhar‘, the back. When the husband compares his wife with the
back of his female relations within the degrees of prohibited relationship. He may say ‗the back of
my wife is as my mother‘s back. The woman so addressed was thereby promoted from the
subordinate status of a wife to the highly honourable position of an adoptive mother. During the
time of ignorance (i.e., before the establishment of the Muslim faith), zihar stood as a divorce; and
the law afterwards preserved its nature, but altered its effect to a temporary prohibition, which hold
until performance of expiation but dissolving the marriage.
• In this mode the husband compares his wife with a woman within his prohibited relationship e.g.,
mother or sister etc. The husband would say that ―from today the wife is like his mother or sister.‖
After such a comparison the husband does not cohabit with his wife for a period of four months.
Upon the expiry of the said period Zihar is complete.
• According to Shia law Zihar must be performed in the presence of two witnesses.
• Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife
cannot seek judicial divorce. It can be revoked if:
(i) The husband observes fast for a period of two months, or,
(ii) He provides food at least sixty people, or,
(iii) He frees a slave.
Divorce by wife
• The divorce by wife can be categorized under three categories:
(i) Khula
(ii) Talaaq-i-tafweez
(iii) By Dissolution of Muslim Marriages Act, 1939.
Khula

• A verse in the Holy Quran says "And it not lawful for you that ye take from women out of that which ye have given them:
except (in the case) when both fear that they may not be able to keep within the limits (imposed by Allah), in that case it is
no sin for either of them if the woman ransom herself."
• ―If a wife fears cruelty or desertion on her husband‘s part, there is no blame on them if they arrange an amicable settlement between
themselves; and such settlement is best; even though men‘s souls are swayed by greed. But if you do good and practice self-restraint, Allah is
well-acquainted with all that you do‖
• The word khula, in its original sense means "to draw" or "dig up" or "to take off" such as taking off one's clothes or
garments. It is said that the spouses are like clothes to each other and when they take khula each takes off his or her clothes,
i.e., they get rid of each other.
• In law it is said is to signify an agreement between the spouses for dissolving a connubial union in lieu of compensation
paid by the wife to her husband out of her property. Although consideration for Khula is essential, the actual release of the
dower or delivery of property constituting the consideration is not a condition precedent for the validity of the khula. Once
the husband gives his consent, it results in an irrevocable divorce.
• Fatwai-i-Alamgiri lays down that ―when married parties disagree and are apprehensive that they cannot observe the bounds
prescribed by the divine laws, that is, can not perform the duties imposed on them by the conjugal relationship, the woman
can release herself from the tie by giving up some property in return in consideration of which, the husband is to give her, a
khula; and when they have done this, a talaq-ul-bian would take place.
• The husband has no power of cancelling the 'khula' on the ground that the consideration has not been paid. The
consideration can be anything, usually it is mahr, the whole or part of it. But it may be any property though not illusory.
• No particular form is required. Proposal may be made either by the use of the use of the word ―khula‖ or by the expressions
conveying the sense of sale and purchase. Acceptance must be made at the same meting. If a wife says, ―Give me a khul in
exchange of my dower‖ and the husband replies, ―I do‖, a valid dissolution of marriage comes into effect.
• Supreme Court held in Khurshid Bibi v Muhammad Amin [PLD 1967 SC 97] that the Qur‘an and Sunnah supported equal
rights between the spouses concerning divorce rights in Islam.
• Justice S.A. Rehman drew support from the Qur‘an and various ahadith to declare that khula would be valid even in cases
where the wife has an incurable aversion to her husband, and in such cases the court was empowered to grant her khula
without the husband‘s consent.
• In doing so, the court distinguished the exercise of khula from faskh
Talaaq-i-Tafweez or Delegated
Divorce
• Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the
Sunnis.
• The Muslim husband is free to delegate his power of pronouncing divorce to his wife or
any other person.
• He may delegate the power absolutely or conditionally, temporarily or permanently .
• A permanent delegation of power is revocable but a temporary delegation of power is not.
• This delegation must be made distinctly in favour of the person to whom the power is
delegated, and the purpose of delegation must be clearly stated.
• The power of talaaq may be delegated to his wife and as Faizee observes, "this form of
delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to
obtain freedom without the intervention of any court and is now beginning to be fairly
common in India".
• In Mohd. Khan v. Mst. Shahmali (AIR 1972 J&K 8), a husband who was a Khana Damad, under a
pre-marriage agreement, undertook to pay certain amount of marriage expenses incurred by his
father-in-law, if he leaves the house. The husband left the house without paying the amount of
marriage expenses. Then the wife exercised the right and divorced herself. A valid divorce came
into effect.
• In Sainuddin v. Latifunnessa (1918)46 Cal 141 ), there was an agreement between husband and
wife under which, the husband delegated to the wife, his own power of giving three talaqs in the
event of his marrying a second wife without the permission of the first. The husband took second
wife without the permission of the first. Accordingly, the first wife gave herself three talaqs under
the authority of the tafweez. The court held that as the event upon the happening of which, the wife
was given the authority to divorce herself was valid under Muslim law, and since that event has
happened, the divorce by the wife was effective and the marriage must dissolve.
1939 Act
• After a great deal of public agitation, Qazi Muhammad Ahmad Kazmi introduced a bill in the
central legislature on 17th April 1936.
• Ultimately, the bill was passed by the Assembly with suitable modifications and became law on
17th March 1939, and ever since, it has been hailed as one of the most progressive enactments
passed by the legislature within recent yeas.
• It achieved two objects: it restored to Muslim wives, an important right accorded to them by the
Shariat, and it treated all Muslims alike.
• Under the act, 9 grounds have been provided under which a Muslim wife may obtain a decree for
dissolution of her marriage.
Grounds of divorce
• A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her
marriage on any one or more of the following grounds, namely—
➢ that the whereabouts of the husband have not been known for a period of four years;
➢ that the husband has neglected or has failed to provide for her maintenance for a period of two
years;
➢ that the husband has been sentenced to imprisonment for a period of seven years or upwards;
➢ that the husband has failed to perform, without reasonable cause, his marital obligations for a
period of three years;
➢ that the husband was impotent at the time of the marriage and continues to be so;
➢ that the husband has been insane for a period of two years or , is suffering from leprosy or a
virulent venereal disease;
➢ 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;
➢ that the husband treats her with cruelty, that is to say,-
❖ habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct
does not amount to physical ill-treatment, or
❖ associates with women of evil repute or leads an infamous life, or
❖ attempts to force her to lead an immoral life, or
❖ disposes of her property or prevents her in exercising her legal rights over it, or
❖ obstructs her in the observance of her religious profession or practice, or
❖ if he has more wives than one, does not treat her equitably in accordance with the injunctions
of the Quran;
➢ on any other ground which is recognized as valid for the dissolution of marriages under Muslim
law.
Dissolution through conversion :(
Apostasy)
➢ Apostasy means renouncing or giving up one‘s religion.
➢ Renunciation of Islam or conversion of a Muslim to some other religion is called apostasy (Ridda)
from Islam.
➢ Under Muslim law, when a non-Muslim accepts Islam, i.e., when he believes that there is only one
God and Prophet Mohammad was his messenger, it is said that he has concerted himself into Islam.
➢ On the other hand, when a Muslim abandons his faith in Islam, his act is known as an act of
apostasy. Before passing of the Dissolution of Muslim Marriage Act, 1939, apostasy of either party
to a marriage ipso facto dissolves marriage and an immediate dissolution of the marriage comes
into existence.
➢ The date on which the wife renounces Islam, she ceases to be the wife and if ay person takes her
away even during the period of iddat period, the offence of adultery u/S. 498 of the Indian Penal
Code would not be committed.
➢ During iddat, if the woman marries another man after apostasy, she would not be guilty of bigamy
u/S. 494 of the Indian Penal Code.
➢ But under Shia law, in the case of an unconsummated marriage only, apostasy results into
• After passing of the dissolution of Muslim Marriage Act, 1939, the position has got a little change.
• According to Section 4 of the Act, ―The renunciation of Islam by a married Muslim woman or her
conversion to a faith other than Islam shall not by itself operate to dissolve her marriage.‖
• Provided that after such renunciation or conversion, the woman shall be entitled to obtain a decree
for he dissolution of her marriage on any of the grounds mentioned in Section 2 of the Act.
• Provided further that the provisions of this Section shall not apply to a woman converted to Islam
from some other faith who re-embraces her former faith.
Apostasy by Husband
• If a Muslim husband renounces Islam, the marriage dissolves immediately. Section 4 of the Act of
1939 does not apply to apostasy by a husband. The result is that, apostasy by the husband is still
governed by the old law under which, renunciation of Islam by the husband operates as immediate
dissolution of the marriage.
• Where a Muslim, husband converts to another religion, his marriage is immediately dissolved and
the wife ceases to be a Muslim wife of that husband. As such, the wife is not governed by Muslim
law and is free to marry another person without waiting for the iddat period.
Apostasy by wife
• If a Muslim wife renounces Islam, the marriage is not dissolved.
• In other words, the apostasy by a Muslim wife does not operate as immediate
dissolution of the marriage.
• Moreover, even after renouncing Islam, if the wife wants, she may obtain a decree
for the dissolution of her marriage on any of the grounds specified in Section 2 of
the Act of 1939.
• Exception: the provision does not apply if the wife was not a Muslim by birth.
• That is to say, where the wife was a converted Muslim at the time of her marriage,
and such converted Muslim wife renounces Islam and again embraces her original
religion, then the marriage dissolves immediately.
• Thus, an apostasy by a converted Muslim wife results in the immediate dissolution
of her marriage. But an apostate wife is entitled to recover her dower
• A convert of Islam is ordinarily governed by Muslim law. Till 1937, it was possible for a convert to
be continued to be governed by his personal law, including customary law However, in 1937, the
Shariat Act 1937 abolished all the customs (except those which related to agricultural land or other
matters not included in the act) among Khoja and the Cutchi Memon Muslim.
• After coming into force of the Shariat Act, 1937, it was laid down that: “Notwithstanding any
custom or usage to the contrary, in all questions (save questions relating to agricultural land)
regarding intestate succession, special property of females, including personal property inherited
or obtained under contract or gift or ay other provision of personal law, marriage, dissolution of
marriage including talak, ila, Zihar, lian, Khula and mubaraat, maintenance, dower, guardianship,
gifts, trusts and trust properties and wakfs (other than charities and charitable institutions and
charitable and religious endowments) the rule of decision in cases where the parties are Muslims,
shall be the Muslim Personal Law (Shariat).
• Conversion of a Muslim from one Sect to another does not amount to apostasy, and a person
changing from one Sect to another continues to be a Muslim. The genuineness of belief in the new
faith is immaterial and even when a convert does not practice the new faith, he will continue to be
a Muslim.
• It is necessary that the conversion should be bona fide, honest, and should not be pretended
• In Skinner v. Orde, ((1871) 14 MIA 309) a Christian woman was cohabiting with a married
Christian man. With a view to legalizing their living together as husband and wife, both of them
underwent a ceremony of conversion to Islam. After conversion, they married. Later on, when the
question of validity of this marriage arose, the Privy Council held that the marriage was null and
void on the ground that conversion was not bona fide. Moreover, it was a fraud upon the law, since
the parties underwent the ceremony of conversion with a view to eluding their personal law.
• In Sarla Mudgal v. Union of India,(AIR 1995 SC 1531) the Supreme Court of India, while
interpreting the scope and extent of Section 494 of the Indian Penal Code, made the following
observations: ‗…..that the second marriage of a Hindu husband after conversion to Islam, without
having his first marriage dissolved under law, would be invalid. The second marriage would be
void in terms of the provisions of Section 494 I.P.C. and the apostate husband would be guilty of
the offence under Section 494 I.P.C.‖
Divorce by mutual agreement
• Mubarat -
• In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the proposal may emanate from either side.
• In mubarat both, the husband and the wife, are happy to get rid of each other . Among the Sunnis when the parties to marriage enter
into a mubarat all mutual rights and obligations come to an end.

• Shia law is stringent though. It requires that both the parties must bona fide find the marital relationship to be irksome and
cumbersome.
• Among the Sunnis no specific form is laid down, but the Shias insist on a proper form.
• The Shias insist that the word mubarat should be followed by the word talaaq, otherwise no divorce would result. They also insist
that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words.
• Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other
requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of
the parties, and no intervention by the court is required.
Legal effects of Khula and
Mubarat
• Under Hanafi and Ismaili School, the dissolution of marriage on a Khul or Mubaraat has the same
effect as a single divorce after it has become irrevocable. The parties cannot resume sexual
intercourse until and unless a fresh marriage was arranged between them.
• Under Shia law, when the Khula is effected, the husband has no power of revocation. However, the
wife is at liberty to re-claim the consideration during the iddat period. Under such circumstances,
the husband can revoke the Khul at his option.
• The wife is required to observe iddat and is also entitled to be maintained by the husband during
the period of iddat.
• After completion of Khula or Mubaraat, the marriage dissolves and cohabitation between the
parties becomes unlawful. If the consideration in Khula is not the release of wife‘s dower, the wife
is entitled to get her dower.
Lian
• The word lian literally means ―imprecation‖. Muslim law provides very severe punishments for
adultery and slander.
• Under pure Islamic law, where a husband made an accusation of adultery against his wife, he was
required to prove his charge by the testimony of four law worthy witnesses, failing which, he was
to receive a punishment of 80 stripes for slander.167 This is so because Islamic law provides very
severe punishment to adulterers, sentencing through stoning to death. Therefore, safeguards for
such false charges should be provided. Quran condemns a false charge against chaste woman in
general and against wife in particular.
• If the husband levels false charges of unchastity or adultery against his wife then this amounts to
character assassination and the wife has got the right to ask for divorce on these grounds. Such a
mode of divorce is called Lian.
• However, it is only a voluntary and aggressive charge of adultery made by the husband which, if
false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian.
• Where a wife hurts the feelings of her husband with her behavior and the husband hits back an
allegation of infidelity against her, then what the husband says in response to the bad behavior of
the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted
under Lian.
• Once a charge has been made by the husband, the wife may ask him either to retract the
charge or confirm the separation through a divorce of lian. She is entitled to enforce this
demand through a court. What so ever remedies are open to wife on the retraction of
husband, she would not get a decree of divorce after such retraction. She would not get a
decree of divorce after such retraction. It was held, though, that rule of retraction is not
applicable after passing of the Dissolution of Muslim Marriage, 1939 because Section 2
(ix) covers all such cases and there is no provision of retraction in the Section.
• Section 2 (ix) is a residuary clause under which, a wife may seek dissolution of her
marriage on any ground which could not be included in this Section, but is recognized
under the Muslim personal law. Before 1939, a false charge of adultery by the husband
against his wife (wife) was a sufficient ground for judicial divorce under Muslim law.
Judicial separation
• The remedy of judicial separation may be used by the parties who still hope for an
ultimate reconciliation.
• The relief of judicial separation is not much significant under Muslim law. The reason is
that Muslim law permitted unfettered powers of terminating the marriage to the Muslim
husbands.
• The wife cannot separate herself from him except under the agreement known as khula.
• The right of Muslim wives to live separately carries no force.
• However, the law has recognized some grounds where a Muslim wife will refuse to live
with the husband and will be entitled for judicial separation.
• Husband‘s impotency: Where the husband is impotent, the kazi should permit him to prove his
potency within a period of one year from the date of litigation. If he has sexual relation with the
wife, then there will be no divorce. However if he has no sexual relation, the kazi must pronounce
a separation.
• Cruelty: If there was cruelty rendering it unsafe for the wife to return to his dominion, she could
refuse to give company to her husband.
• A Muslim wife can claim separation if her marriage was irregular.
• If there was gross failure on the husband‘s part to perform the obligation imposed on him by the
marriage contract, then also she was permitted to live separately.
• A Muslim wife may enter into an agreement at the time of marriage. Such a contract will be
enforced by the courts if it is lawful and not opposed to the principles of Islam.
• If her husband has been made an outcast by his community, then also, she can claim separation.
• A Muslim wife can claim separation if the marriage was arranged by her guardian other than the
father
Judicial divorce: (Faskh)
• Apart from the divorce which may emanate from the husband or the wife without the intervention
of the court or any other authority, the Muslim law givers also provided for the dissolution of
marriage by a decree of the court. It is called ―Furkat‖ which literally means separation.
• Faskh means annulment. It refers to the power of Kazi (in India, law court) to annul a marriage on
the application of the wife.
• In India, such judicial annulments are governed by Section 2 of the Dissolution of Muslim
Marriages Act, 1939. According to Abdul Rahim: ―If a decree of separation be for a cause
imputable to the husband, it has generally speaking, the effect of a talak, if the decree for
separation be for a cause imputable to the wife, then it will have the effect of annulment of
marriage.‖
Case of Lily Thomas v. Union of India,(AIR 2000
SC 1650.)
• G.C.Ghosh and Smt. Sushmita Ghosh were married according to Hindu rites on 10th May 1984.
Both were living happily at Delhi. In June 1992, the husband married a second wife. For legalizing
the second marriage, he embraced Islam. He, in fact married one divorcee named Ms. Vanita Gupta
having two children.
• The husband told his first wife that she should agree to her divorce; otherwise, she will have to put
up with the second wife. He insisted his wife on several occasions to get a divorce by mutual
agreement; otherwise, she (Sushmita Ghosh) would be compelled to live with his second wife
(Vanita Gupta).
• The husband converted to Islam solely for the purpose of re-marrying and was having no real faith
in Islam. He changed his name as Mohd. Karim Ghazi. He does not practice the Muslim rites as
prescribed nor has he changed his name or religion and other official documents.
• Smt. Sushmita Ghosh approached a Woman Organization Kalyani, which came to her rescue and
filed petition in the Supreme Court on behalf of Smt. Sushmita Ghosh.
• The question before the Supreme Court was where a non Muslim gets converted to the Muslim
faith without any real change or belief and merely with a view to avoid an earlier marriage or to
enter into a second marriage, whether the marriage entered into by him after conversion would be
void.