Family Law I: Dissolution of Muslim Marriage

Dissolution of Muslim Marriage:

By Death

By act of parties

Under the Law

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 Family Law I: Dissolution of Muslim Marriage

Talak: Exclusive Right of Husband recognised under Muslim Law without approaching
court
Talak ul Ahsan (Most Proper Method)
1) Opportunity to reconsider/revoke decision
2) Talak pronounced during Tuhr (Interval b/w 02 menstruations)
3) Intention to give Talak
4) No need of presence of wife
5) Husband must refer name of wife
6) Oral/written declaration
7) Presence of 02 competent witnesses
8) Becomes complete on expiry of Iddat
Talak e Hasan (Proper Method)
➢ Opportunity to reconsider still not most proper
I Talak pronounced during I Tuhr
II Talak pronounced during II Tuhr
III Talak pronounced during III Tuhr
1) No physical relationship during Tuhr
2) After III Tuhr becomes irrevocable
3) No need to wait till completion of Iddat
Talak e Biddat (Triple Talak)
➢ Biddat – Innovation
➢ Most heterodox
➢ Stringent
➢ No time for reconsideration
➢ Not recognized u/Shia Law
➢ Pronouncing at a once
➢ Made without intention to revoke
➢ As soon as pronounced becomes irrevocable
➢ Remarriage not possible except Halala

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 Family Law I: Dissolution of Muslim Marriage

Triple Talak Judgment

Shayara Bano v. Union of India (2017) 9 SCC 1
➢ Issue involved relating to Muslim Personal Law (Shariat) Application Act, 1937
➢ This form of Talaq must, therefore, be held to be violative of the fundamental right
contained under Article 14 of the Constitution of India.
➢ In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce
Triple Talaq, is within the meaning of the expression “laws in force” in Article 13
(1) and must be struck down as being void to the extent that it recognizes and enforces
Triple Talaq.
➢ Since we have declared section 2 of the 1937 Act to be void to the extent
indicated above
Post- Shayara Bano Developments
Parliament passed new Act

The Muslim Women (Protection of Rights on Marriage) Act, 2019

Object:
▪ An Act to protect the rights of married Muslim women and
▪ to prohibit divorce by pronouncing talaq by their husbands and
▪ to provide for matters connected therewith or incidental thereto.
Section 3 Triple Talaq to be void and illegal
Section 4 Punishment for pronouncing talaq. (03 Years + Fine)

Grounds available for Muslim Wife

Kinds of dissolution of Muslim Marriage- Rights of Muslim wife
Khula Divorce
➢ Sought out of court
➢ Khula means to lay down
➢ "In law, it is the laying down by a husband of his right and authority over his wife,"
➢ virtually a divorce purchased by the wife from the husband for a price
➢ A divorce with the consent, and at the instance, of the wife,
➢ She gives/agrees to give a consideration to the husband for the release from the
marriage tie
➢ The terms of the bargain are matter of arrangement b/w them the
➢ wife may release her dower and other rights, or

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 Family Law I: Dissolution of Muslim Marriage

➢ Make any other agreement for the benefit of the husband

➢ Becomes complete and irrevocable once husband repudiates wife

Talak e Tafwiz: Talak by Delegated Authority

➢ An agreement entered into before marriage
➢ Agreement provides that the wife should be at liberty to divorce
herself from her husband under certain specified conditions, is valid,
➢ Conditions are of a reasonable nature, & are not opposed to the policy of the
Mahomedan Law.
➢ Wife may, on the happening of the contingences, repudiate herself in the exercise of
the power
➢ Divorce will then take effect to the same extent as if pronounced by the husband

Wife can seek divorce under Dissolution of Muslim Marriage Act, 1939

- With the intervention of court

a)Section 2 (i) Husband’s Disappearance (Unheard)
- 04 or more years
b)Section 2 (ii) Want of Maintenance (Neglect)
- of wife for 02 or more years
c)Section 2 (iii) Imprisonment
- for 07 or more years
d) Section 2 (iv) Non-performance of Marital Obligations
- Failed to perform marital obligations
- without reasonable cause
- For 03 or more years
e)Section 2 (v) Impotency
- @ the time of marriage
- Continues to be so
f) Section 2 (vi) Other Diseases: Insanity
- Insane for 02 Years or
- Leprosy
- Virulent venereal disease

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 Family Law I: Dissolution of Muslim Marriage

g)Section 2 (vii) Option of Puberty

- Married (before attaining puberty) during minority
- Can repudiate on 18 Years
- Provided marriage not consummated
h) Section 2 (viii) Cruelty
- Habitual assault
- Associates with women of evil repute/Tawayafs
- Attempt to force her to lead immoral life
- Dispossess her from property rights
- Obstruction in observance profession/practice of religion
- More wives, does not treat them equally
- False acquisition of adultery Kallu v. Imaman AIR 1949 All 445

Concept of Iddat
➢ An interval under which
➢ woman is bound to observe
➢ Period of seclusion
➢ b/w termination of marriage
➢ by death or divorce of one matrimonial alliance &
➢ Commencement of another
➢ No luxury/simple life
Object
➢ To solve the puzzle of paternity
➢ Doubt about paternity if child conceived through earlier husband
➢ To avoid confusion about paternity

Computation of Iddat Period

1) In case of Death of Husband/Widowhood:
A) Pregnancy + Death of Husband:
04 Months 10 Days or until delivery (Whichever longer)
B) Non- Pregnancy: 04 Months 10 Days (130 Days)

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 Family Law I: Dissolution of Muslim Marriage

2) In case of Divorce:
i. 03 lunar months- if not subjected to menstruation
ii. If menstruation: 03 courses of
iii. Pregnancy + Divorce: Till delivery of child
Commencement
1) On Death:
i. From the date of death
ii. Consummation-immaterial
2) On Divorce:
i. From date of divorce
ii. If marriage not consummated- Iddat not compulsory

Effect of Iddat
➢ If Marriage during Iddat- it amounts to be irregular
➢ Wife entitled for maintenance
➢ No right of maintenance for wife after termination of iddat
Rights & Duties during Iddat
➢ Husband bound to maintain wife
➢ Wife cannot marry
➢ If husband has 04 wives, divorces 4th
Husband cannot marry 5th wife till completion of Iddat of 4th

➢ Wife entitled to deferred dower

➢ If party dies before expiration of Iddat other entitled to inherit from him/her in capacity as
husband or wife