FAMILY LAW

BALLB (Hons.)SemesterIV

PROJECT TOPIC – DIVORCE BY WIFE UNDER MUSLIM

LAW

Submitted By: AKSHAT MALVIYA

Roll No. B066

B.A., L.L.B. (Second Year)

School of Law, NMIMS (Deemed-to-be University)

Submitted To: ADV. USHA ANDEWAR

School of Law, NMIMS (Deemed-to-be University)

 INDEX

S.No. Particulars Page No.

1 INTRODUCTION 05 - 06

2 DIVORCE BY WIFE 06 - 07

3 MUSLIM DIVORCE LAWS BY MUTUAL CONSENT 07 - 08

4 CASE LAW 08 - 09

5 JUDGMENT 09 - 10

6 MUBARAT 10

7 DIVORCE BY WIFE IN MUSLIM 11 - 12

8 DIVORCE BY MUSLIM DISSOLUTION OF 12 - 13

MARRIAGE ACT OF 1939

9 CONCLUSION 17
ABSTRACT
A happy family life depends on a husband and wife who have a healthy
marriage. Because of this, Islam demands that marriages endure and
prevents couples from violating their matrimonial vows. No marriage is
ever meant to be dissolved, but owing to dreadful things that happen, the
matrimonial contract is broken. One strategy for accomplishing this
breakdown is divorce. In accordance with Muslim law, a divorce can be
issued either by mutual consent between the spouses or by a court
decision. No divorce procedure has ever been sanctioned as a worldwide
standard. In Islam, divorce is viewed as an exception to the status of
marriage. According to the Prophet, divorce is the worst practice to have
been legalized. Divorce should be avoided at all costs due to how
horrible it is. Nonetheless, there are occasions when this evil is required
since it is preferable to let a marriage end than to make the partners
coexist in a hostile and unhappy environment. When the marriage's sides
are unable to maintain their connection through mutual love and
devotion, this happens. Islamic law based divorce on a couple's inability
to cohabitate, not on any particular cause (or party's fault) for that
inability. Either the husband's or the wife's behavior could lead to a
divorce. The paragraphs that follow will go over the numerous divorce
processes that are permitted by Muslim law.

RESEARCH METHODOLOGY
This methodology involves a comprehensive review of the legal sources
and interpretations of Muslim law that regulate divorce by a wife. The
researcher could analyze the relevant verses of the Quran and Hadith,
the different schools of fiqh, the case law, and the legislative reforms in
various Muslim countries. Comparing and contrasting the legal and
social frameworks for divorce by wife under Muslim law in different
countries and regions. The researcher could use a qualitative or
quantitative approach to identify the similarities and differences among
them, as well as the factors that contribute to the variation in legal
outcomes and social attitudes.

RESEARCH OBJECTIVES
 To investigate the different grounds on which a Muslim wife can
seek divorce, including but not limited to, cruelty, desertion,
impotence, apostasy, and irreconcilable differences.
 To explore the consequences of divorce under Muslim law,
including the financial, custody, inheritance, and social
implications for the parties involved, as well as the stigma and
discrimination that divorced Muslim women may face in their
communities.
 To analyze the cultural and societal factors that influence the
exercise of the right to divorce by Muslim women, such as the
patriarchal norms, the family and kinship structures, the religious
and ethnic identities, and the legal and institutional frameworks.
INTRODUCTION
To have a successful family, a husband and wife must have a solid
relationship. Marriage in Islam is viewed as a legal transaction between
two consenting adults. While marriage is meant to be a lifelong
commitment, it can be difficult to uphold in particular situations.
Divorce is forbidden in Islam because it is viewed as a bad thing.
Nonetheless, there are circumstances in which this evil is deemed
necessary; for example, if a married couple cannot continue to love and
care for one another, Islam allows them to divorce and live separately. A
divorce can be initiated by either spouse. The divorce grounds in Islamic
law are the incompatibility of both spouses. If a married couple is
unhappy together, rather than forcing them to stay together in an
unhappy environment, the couple would be better off living apart.
Millions of individuals worldwide are impacted by the legal and social
phenomena of divorce, and Muslim societies are not an exception.
According to Islamic law, marriage is seen as a sacred commitment
between a man and a woman, and divorce is only permitted in extreme
cases. Nonetheless, Muslim law acknowledges that if certain
circumstances are met and certain processes are followed, both the
husband and the wife may file for divorce. While Muslim men's rights
and responsibilities regarding divorce have received a lot of attention,
Muslim women's right to divorce—particularly as it relates to the idea of
Khula—has frequently gone unnoticed or is incorrectly understood. This
study focuses on Muslim women's legal ability to get a divorce,
especially through the Khula procedure. The goal of this study is to
examine and analyze the legal provisions and practices surrounding a
wife's right to divorce under Muslim law, including the justifications and
requirements for this right, the divorce process, the rights and
obligations of the parties following the divorce, and the social and
cultural factors that may affect the exercise of this right. The study will
also look at the difficulties and restrictions that women encounter when
trying to obtain and use their legal right to divorce, as well as the
possible effects that changes to the modernization of Muslim family law
may have on women's rights and empowerment. This study intends to
further knowledge of Muslim women's legal and social position in
regard to divorce and to provide information for continuing discussions
and changes in Muslim family law through a thorough evaluation of
legal sources, case studies, empirical data, and comparative analysis.
This study aims to raise the voices of Muslim women seeking divorce
and advance gender justice in Muslim communities by providing light
on their experiences, viewpoints, and attitudes.

DIVORCE BY WIFE
“If a women is prejudiced by a marriage, let it be broken off,” the
Prophet Mohammad (S.A.W) said I Islamic law places a premium on
giving women the right to divorce their husbands if they are unable to
uphold their marital connections. There are typically two methods for a
woman to leave her marriage. First, with mutual consent between Khula
and Mubarat, the couple’s husband and wife. Secondly, by obtaining a
court order by bringing a lawsuit against the husband, i.e., in accordance
with the Dissolution of Muslim Marriage Act, 1939.

1. The wife has the legal right to seek a divorce in Islam on the
grounds that are recognized by Sharia law (or Shariya law).
Husbands are no longer the exclusive custodians of the power to
end a marriage through the proclamation of Talaq.

2. Even though she does not have the authority to pronounce

Talaq unless that authority is granted to her by her husband at the
time of entering into marriage, the wife is given the right to seek
 a divorce through the intervention of the Qazi (court) on the
grounds that she pleads, or by mutual consent under the terms
agreed upon by the parties.

3. The wife using the authority granted to her by her husband,

who was of legal age at the time of the marriage or even after, to
exercise her right to a divorce by talaq.

4. Either conditionally or unconditionally, the husband may grant

the wife the right to divorce. Yet, it cannot be revoked.

5. It has also been ruled that the husband’s ability to pronounce

Talaq is unaffected by the simple fact that the wife has been given
the authority to do so.

MUSLIM DIVORCE LAWS BY MUTUAL

CONSENT

Khula:
Khula meaning “Lay down” it is said that the husband lays down his
right over his wife.
Valid conditions of khula:
1. Both husband and wife must agree and give their consent.
2. A wife must give her husband a portion of her Iwad.
Khula can only take place if the wife shows her husband some Iwad
(return regard). A marriage can be ended by agreement between the
husband and wife and payment of a certain amount to the husband or to
be paid by the wife, according to Khula. This arrangement is known as
Khula when the wife is the only one who want it and Mubarat when both
the husband and wife desire it. When the husband and wife are unable to
coexist peacefully and are concerned that they will not be able to keep
the requirements set by the divine norms, the wife is given the right to
demand her freedom from the marriage ties. The idea of introspection is
a basic requirement for Khula to be authentic. The wife must give her
husband anything in return for ending their marriage and separating
from him, and she may even forgive all or part of her dower money. The
husband can ask for the restoration of his conjugal rights if the
consideration is not given to him by his wife, but he cannot be made to
follow the provisions of the Khula. A conditional divorce known as a
khula gives the wife the opportunity to purchase her freedom from the
husband if she determines they cannot live as husband and wife. In the
role of a wife, Khula consents to make a payment in exchange for her
husband freeing her from the restrictions of their union.

Case law :
ShamimAra v. State of U.P., 2002 was a landmark case in India that
dealt with the issue of obtaining a divorce by mutual consent in the
Muslim community.
facts of the case:
1. ShamimAra, a Muslim woman, filed a petition before the
Allahabad High Court seeking a divorce from her husband, without
citing any specific grounds for divorce.
2. ShamimAra’s husband did not contest the petition and gave his
consent for the divorce.
3. However, the High Court dismissed the petition, stating that the
Muslim woman had failed to establish any grounds for divorce
under Islamic law.
 4. ShamimAra then approached the Supreme Court of India,
challenging the High Court’s decision.
5. The Supreme Court held that the procedure for obtaining a divorce
by mutual consent in the Muslim community was not well-defined
and required clarification.
6. The court clarified that under Islamic law, a divorce by mutual
consent could be obtained without providing any grounds for
divorce and that the husband’s presence was not necessary during
the proceedings.
7. The court further directed the government to frame rules and
regulations for obtaining a divorce by mutual consent in the
Muslim community.

JUDGMENT
The Supreme Court of India explained the process for getting a divorce
by mutual consent in the Muslim community in its 2002 ruling in
ShamimAra v. State of U.P. The husband's presence was not required
throughout the proceedings1, the court said, and a divorce by mutual
consent could be obtained without stating any specific grounds for
divorce. The court additionally ordered the government to establish
guidelines for Muslim community members seeking divorces with
mutual consent. The court noted that there was a lack of clarity in the
Muslim community on the process for seeking a divorce by mutual
consent and that it was necessary to establish guidelines in order to
avoid any confusion or uncertainty. The court also took note of the
Muslim Personal Law Board's proposal for a set of rules for getting a
divorce by mutual consent, which called for both parties to be present
throughout the procedures and to specify the grounds for divorce. The

1
ShamimAra v. State of U.P., 2002 https://indiankanoon.org/doc/1435108/
process for seeking a divorce by mutual consent would depend on the
facts and circumstances of each case, the court decided, and these
principles were not mandatory. The court also stated that seeking a
divorce by mutual consent required the consent of both spouses, and that
the court could not award a divorce if either party did not consent.
Finally, the ruling in ShamimAra v. State of U.P., 2002 established the
process for getting a divorce in the Muslim community by mutual
consent and made sure Muslim women had access to a fair and
reasonable divorce system. An important step in bringing uniformity and
clarity to the process was the court's directive to the government to
create rules and regulations for obtaining a divorce by mutual consent.

Mubarat
When both couples want the divorce, there is another mutually agreed-
upon divorce in Islam. Both spouses are equally willing2 to end their
relationship, and either one could make the suggestion. It mostly refers
to the mutual severing of marriage relations. In this kind of divorce,
either party may make an offer, or if it is accepted, the divorce will be
permanent and irrevocable. Iddat, like every other mode, is a crucial
component. Sunni Muslims do not insist on a specific format, while Shia
Muslims insist that the phrases mubarat and talaq must come after one
another before the divorce can occur. Shia Muslims expressly demand
that the declaration be delivered in Arabic, with the exception of
situations when the parties are unable to speak Arabic. Intention to
dissolve the marriage should be clearly expressed. Among both
Shias and Sunnis, mubarat is irrevocable.

2
Ahmed, S. (1992). Women and Gender in Islam: Historical Roots of a Modern Debate. New Haven: Yale University
Press.
DIVORCE BY WIFE IN MUSLIM
Talaq-i-tafweez
Another name for it is a delegated divorce. the delegation of authority to
dissolve is known as tafweez. Making someone the owner of an act that
applies to the person making the tafweez is known as tafweez. One of
the most significant types of divorce under Islamic law is the talaq-e-
tafweez, which grants Muslim women the ability to end their marriages
amicably without having to appear in court. With this type of divorce, a
Muslim man may also give his wife the authority to repudiate the
marriage. He may authorize his wife to file for divorce on his behalf. It
is a transfer of authority from the husband to the wife, with the intention
that she will deliver the final judgment.
Tafweez is of 3 kinds:
1. Ikhtiyar (choice):
It means giving her the authority to talaq herself.
2. Amr-bi-ya:
It means leaving the matter in her own hands.
3. Mashiyat (pleasure):
It means giving her the option to do what she likes.
Muslim law states that a husband and woman may agree at the time of
marriage that the husband is to provide for his wife and that if he is
unable to do so; the wife may choose to divorce the husband. In certain
conditions, a wife may declare her own divorce, provided the option is
not absolute and the conditions are both necessary and do not go against
public policy.
A delegated divorce may be granted by a person who has reached the
age of majority and is of sound mind. Instead of Section 3 of The
Majority Act, Muslim law establishes the age of majority for authorized
divorce. The husband may grant anyone, including the wife, the right to
divorce in a delegated divorce. The husband is free to select a different
person to be his Vakil. A third party may be chosen by him to file for his
divorce from his wife. So the husband still retains the right to divorce his
wife even after giving that authority to someone else.

DIVORCE BY MUSLIM DISSOLUTION OF

MARRIAGE ACT OF 1939
LIAN:
Muslim law states that if a man falsely and unjustifiably accuses a
woman of adultery, she is entitled to a divorce. This philosophy is
known as Lian. According to both the Quran and Hadith, a Muslim3 wife
has the right to divorce her husband if he is impugning her with fake
unchastity. When a husband accuses his wife of being unfaithful, he is
required to back up his assertions with proof; if he fails to do so, the
wife may apply for divorce under the Lian doctrine. This concept tries to
penalise the husband for falsely accusing his wife of adultery. In India, a
Muslim wife who receives a false accusation of infidelity may choose to
sue her husband for defamation. A Muslim wife has the right to apply
for divorce from her husband and may be awarded a decree on the
grounds that her husband falsely accused her of adultery, according to
the decision in Z Hussain v. Ummat Ur Rahman. A Muslim wife may
seek a divorce from her husband on the grounds that he falsely accused
her of infidelity, according to the Rahima Bibi Case judgement.
3
https://www.unwomen.org/
 According to the Lian doctrine, a simple charge by the husband will not
end the marriage; a court-issued dissolution judgement is necessary. The
direct testimony of four witnesses who were there during the alleged act
is the only way for a husband to substantiate his wife's charge of
infidelity. Nonetheless, it is exceedingly rare for there to be blatantly
evident proof.

Faskh
This is a straightforward divorce where both the husband and wife must
respect one another and carry out their respective legal instructions.
These are stated4 in the Quran, and in this situation, if the husband and
wife believe they cannot coexist for an extended period of time, they
may end their marriage following a Qasi examination.

The Dissolution of Muslim Marriage Act, 1939 also lists nine grounds
for divorce for Muslim wives in Section 2..

i. If the husband fails to maintain his wife for two years

ii. If the husband has been imprisoned for more than seven years
iii. If the husband is Impotent
iv. If the husband fails to carry away his marital duties
v. If the husband is suffering from any kind of communicable
venereal disease
vi. If the husband is not of sound mind and is suffering from Insanity
vii. Cruelty by the husband
viii. Repudiation of her marriage after the wife has attained 18 years
ix. A muslim is also recognized by Mohameddan law on the grounds
mentioned under the act

4
Noorjehan Safia Niaz, Zakia Soman, & Niaz M. Hazratji. (2016). The quest for justice: A report on the
implementation of Muslim family laws in India. Retrieved from https://www.bmms.org.in/wp-
content/uploads/2017/09/Quest-for-Justice-Report-Final.pdf
DISSOLUTION OF MUSLIM MARRIAGE ACT,
1939
In 1939, a law was passed to safeguard the rights of Muslim women. A
variety of grounds for a Muslim wife to request her husband’s divorce
were established by the Dissolution of Muslim Marriage Act, 1939,
which was passed. In general, women encountered a wide range5 of
unresolvable issues in their marriages. To resolve these concerns, the
Act of 1939 provided Muslim wives the option of divorcing their
husbands. In accordance with Section 2 (ix)[vii] of the aforementioned
act, any woman who has been married in accordance with Islamic law
has the right to ask for a judgment that will dissolve her union on one
or more of the grounds indicated there. A Muslim wife may formally
dissolve her marriage for any of the authorised causes in accordance
with this act. The wife must first obtain a court order in order to
dissolve the marriage; she cannot do so on her own. The marriage can
only be dissolved after the court has issued the dissolution decree.

5
The Muslim Women (Protection of Rights on Divorce) Act, 1986:
http://www.ncw.nic.in/pdfReports/TheMuslimWomenProtectionofRightsonDivorceAct1986.pdf
Various grounds on which a Muslim wife can claim
dissolution of her marriage are:
1. Whereabouts of husband not known:
A Muslim woman who has been married has the right to request a
judgment of divorce if her husband has been missing for four years or
longer. Nonetheless, the lady must wait six months following the
decree’s passage before getting married. The reason for this is that the
decree may be revoked by the court if her spouse shows up within six
months and is prepared to fulfill his marital obligations and the court is
satisfied.
2. Failure to maintain wife or negligence on part of husband:
If her husband has neglected her or failed to pay for her support for a
period of two years, a woman married under Muslim Law is entitled to
request a judgment for the dissolution of her marriage. According to
Islamic law, the husband has a legal obligation to support his wife, and if
he doesn't, she can file for divorce.
3. Imprisonment of husband:
If her husband has been given a prison term of at least seven years, a
woman who was married under Islamic law is allowed to request a
ruling for the dissolution of her marriage.

4. Failure to perform marital obligations:

A Muslim woman who has been married has the right to request a
declaration of dissolution of her marriage if her husband has neglected
their relationship for three years. Nonetheless, it is crucial to note that he
might have neglected his marital duties without a good explanation.
 5. Impotency:
If a man was impotent at the time of the marriage and is still impotent, a
woman who was married under Muslim law is allowed to get a judgment
for the dissolution of her union. In this instance, the husband has the
responsibility of establishing that he is not impotent. During a year, the
spouse can prove to the court that he is no longer impotent. The
dissolution decree may be annulled if the court is pleased.

6. Insanity, Leprosy and Venereal Disease:

If a spouse has a leprosy that may or may not be curable, or if he has a
venereal illness that may or may not be curable and may be of any
duration, a woman married under Muslim Law is entitled to get a decree
for the dissolution of her marriage.

7. Option of puberty:
If a woman was married under Muslim Law before turning 15 by her
father or another legal guardian, she is entitled to request a decision for
the dissolution of her marriage.

8. Cruelty:
If her husband abuses her cruelly, a Muslim woman who has been
married has the right to get a divorce judgement. Before this act, cruelty
was a reason for divorce. If a Muslim woman has experienced
mistreatment from her spouse, she will always have the right to divorce
him.
CONCLUSION
In this patriarchal society, where men are invariably regarded as having
greater value than women. A man has every right and remedy when a
woman really has nothing to cherish for herself. Women are denied their
basic right to live their lives without restriction. A talaq is the term used
to describe a husband’s unilateral choice to divorce his wife in India.
Men can easily get divorced from their partners; however women face
several patriarchal, economical, and legal barriers before they can leave
their husbands. Women face a lot of criticism in this patriarchal society
if they decide to offer their husbands a divorce. Now that women may
divorce their husbands on an equal basis with men, a shift in the norm
has occurred. Islam gives her the right to divorce her marriage if he is
unable to support her. According to Islamic law, a wife has several
options for divorcing her husband, including the Talaq-e-Tafweez, the
Khula, and the Muslim Marriage Dissolution Act of 1939. A woman
may also apply for divorce if she is certain that she and her husband are
incompatible and that she cannot maintain their marital relationship.
Nowadays, society treats women and men equally.
REFERENCES
 The Muslim Women (Protection of Rights on Divorce) Act, 1986:
http://www.ncw.nic.in/pdfReports/TheMuslimWomenProtectionof
RightsonDivorceAct1986.pdf
 Noorjehan Safia Niaz, Zakia Soman, & Niaz M. Hazratji. (2016). The
quest for justice: A report on the implementation of Muslim
family laws in India. Retrieved from
https://www.bmms.org.in/wp-content/uploads/2017/09/Quest-
for-Justice-Report-Final.pdf
 Ahmed, S. (1992). Women and Gender in Islam: Historical Roots of
a Modern Debate. New Haven: Yale University Press.
 Mahmood, T. (2016). Triple Talaq: Muslim Women’s Rights and
Indian Law. Economic and Political Weekly, 51(47), 49-54.
 https://indiankanoon.org/doc/1435108/
 Islamic Law and the Challenges of Modernity Network:
https://www.i-lawnetwork.com/