DISSOLUTION OF MUSLIM MARRIAGE

 

DISSOLUTION OF MUSLIM MARRIAGE:

Dissolution of marriage is the legal process that terminates a marriage. Broadly speaking, a Muslim marriage can be dissolved by: 1) Act Of God, 2) Act Of Parties.

1):ACT OF GOD (Death of Husband or Wife)>> with the death of husband or wife, a Muslim marriage dissolves automatically .

2):ACT OF PARTIES(Divorce)>> It is further divided into: a): Extra- Judicial Divorce, b): Judicial Divorce.

Now we will discuss them one by one.

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a):Extra-Judicial Divorce: Divorce which takes place outside the court is called extra- judicial divorce. Non judicial divorce can take place by three ways –

I)By Husband in the form of Ila, zihar and Talaq (sunnah &

biddah).

II)By wife in the form of delegated divorce (Talaq-e-Tafweez) and Khayar-Al-Baloogh (option of puberty)

III)By the mutual consent of husband and wife in the form of Khula and mubarat. I):DISSOLUTION OF MARRIAGE BY HUSBAND:

Extra-judicial Divorce by husband may be in the form of Talaq, Ila and Zihar.

TALAQ:

Talaq:(literal meaning: setting free, letting loose etc).

Talaq means repudiation of marriage. It is the unilateral right/power of the husband to divorce his wife without giving any reason/justification. Muslim law does not require the existence of any fault or matrimonial offence as an excuse for divorce.

It is exercised when it is impossible for the spouses to live peacefully.

However, there is an indirect check upon this right of the husband, that is the obligation to pay dower upon the dissolution of marriage.

The Prophet declared that among the things which have been permitted by law, divorce is the most detestable.

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Conditions For A Valid Talaq:

1)Capacity:

Every Muslim husband of sound mind, who has attained the age of puberty, is competent to pronounce talaq. A husband who is a minor or of unsound mind cannot pronounce it. Talaq by a minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic then talaq pronounced by him during "lucid interval" is valid. The guardian cannot pronounce talaq on behalf of a minor husband.

2) Free Consent:

• Except under Hanafi law, the consent of the husband in  pronouncing Talaq must be free. Under Hanafi law, a Talaq pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc. is valid and dissolved the marriage. However, even under Hanafi law Talaq pronounced under forced or involuntary intoxication is also void.

3) Formalities:

Sunni Law:

• Talaq may be in oral or in writing.

• No particular word is required to constitute Talaq but the

expression should clearly indicate the husband's desire to

dissolve the marriage. So the pronouncement must be express.

• It needs not to be made in presence of witnesses.

Shia Law:

• Talaq must be pronounced orally except where husband is

unable to speak.

• It must be pronounced in the presence of two competent

witnesses

• It requires the use of specific Arabic words in the specific

formulae in the pronouncement of Talaq.

4) Presence Of Wife:

The presence of wife at the time of pronouncement of Talaq is necessary in Shia law. However, in Sunni law presence of wife is not necessary.

5): Notice of Talaq:

It is not necessary for husband to communicate the pronouncement of Talaq to wife. Talaq becomes effective from the moment of pronouncement and not from the time when the wife comes to know.

6): Contingent Talaq:

A Contingent Talaq ,which is dependent on the happening of an uncertain future event, is recognized by Sunni law, however such condition must not be Un-Islamic.

Under Shia law, a Contingent Talaq is void and ineffective.

………………………………………………………………………………... TYPES OF TALAQ:

Talaq is of two types I.e Talaq-e-Sunnat and Talaq-e-Biddat, discussed as under:

A):Talaq-UL-Sunnat (Revocable):

Talaq-ul-Sunnat is also called as Talaq-ul-raj'e. It’s a revocable form of talaq because in this form, the consequences of Talaq do not become final at once.

There is possibility of compromise and reconciliation between husband and wife. Talaq-ul-Sunnat is regarded to be the approved form of Talaq. This mode of is recognised both by Sunnis as well as by Shias. Talaq-ul-Sunnat may be pronounced either in Ahsan or in the Hasan form.

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I):TALAQ-E-AHSAN:

This is the most proper form of repudiation of marriage. The reason is twofold: First, there is possibility of revoking the pronouncement before expiry of the lddat period. Secondly, the evil words of Talaq are to be uttered only once.

Procedure to be followed in Ahsan Talaq:

 The husband has to make a single pronouncement of Talaq during the Tuhr(period of purity between two menstruations) of the wife. 

As such, the period of Tuhr is the period during which cohabitation is possible. But if a woman is not subjected to menstruation, either because of old age or due to pregnancy, a Talaq against her may be pronounced any time. 

 After this single pronouncement, the wife is to observe an lddat of three monthly cycles. If she is pregnant at the time of pronouncement then the lddat is till the delivery of the child.

 When the period of iddat expires and the husband does not revoke the Talaq either expressly or through  consummation(impliedly), the Talaq becomes Irrevocable and final. 

 However during the period of iddat the husband can revo the talaq. Revocation may be express or implied.  

Cohabitation with the wife is an implied revocation of Talaq. If the cohabitation takes place even once during this period, the Talaq is revoked and it is presumed that the husband has reconciled with the wife.

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TALAQ-E-HASAN:

This Talaq is also regarded to be the proper and approved form of Talaq. In this form too, there is a provision for revocation. But it is not the best mode because evil words of Talaq are to be pronounced three times in the successive Tuhrs.

Procedure to be followed in :Hasan Talaq:

• The husband has to make a single declaration of Talaq in a

period of 'Tuhr.

• In the next Tuhr, there is another single pronouncement for the

second time.

• As soon as third pronouncement is made in the third period of

purity, the Talaq become irrevocable and the marriage dissolves

and the wife has to observe the required lddat.

• Revocation in Hasan Talaq can be made only made during tuhr

firstly between 1st and 2nd pronouncement and secondly

between 2nd and 3rd pronouncement.

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B):TALAQ-UL-BIDDAT:

Talaq-ul-Biddat is also known as Talaq-ul-Bain. It is a disapproved mode of divorce. A peculiar feature of this Talaq is that it becomes effective as soon as the words are pronounced and there remains no possibility of reconciliation between the parties thereby making it irrevocable. This form of talaq is mainly recognized and practiced by the Sunni Muslims and is not recognised by the Shia Muslims. Talaq-ul- Biddat maybe pronounced in single declaration or by triple declaration.

Single Declaration:

Procedure:

The husband may make only one declaration in a period of purity expressing his intention to divorce the wife irrevocably saying: "I divorce thee irrevocably" or "I divorce thee in Bain". After the pronouncement is made the talaq becomes irrevocable and permanent. It is after this period the wife observes the iddat period.

Triple Declaration

Procedure:

The husband may make three pronouncements in a period of purity (Tuhr) saying: "I divorce thee, I divorce thee, and I divorce thee". He may declare his triple Talaq even in one sentence saying: "I divorce thee thrice", or "I pronounce my first, second and third Talaq." It becomes irrevocable immediately when it is pronounced and subsequently the wife observes the iddat period.

 Divorce during pregnancy and menstrual cycle are also the

examples of Talaq-e-Biddat.

(It must be noted that in case of Talaq-e-Ahsan and Talaq-e- Biddat, they can remarry only after Halala. However, in case of Talaq-e-Ahsan, they can remarry and Halala is not necessary).

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ILA:

In lla, 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 and automatically.

But if the husband want to resume cohabitation within four months, he had to : Observe fast for three days, or, feed ten(10) poor people, or, give clothing to ten (10) poor people as kaffara. In such a case, Ila is cancelled and the marriage does not dissolve.

According to Sunnis , Ila by husband will amount to single irrevocable divorce and the marriage will dissolve automatically at the expiry of 4 months.

In case of Shias, the marriage do not dissolve automatically rather it gives the wife the right of judicial divorce u/s 2(ix) of the Dissolution of Muslim Marriages Act 1939.

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ZIHAR:

In this mode, the husband compares his wife to 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. After the expiry of the fourth month the wife has following rights:

 She may go to the court to get a decree of judicial divorce.

 She may ask the court to grant the decree of restitution of

conjugal rights.

Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek a judicial divorce. It can be revoked if:

 The husband observes fast for a period of two months, or,

 He provides food to sixty poor people, or

 He frees a slave. ………………………………………………….,………………………………

II) DISSOLUTION OF MARRIAGE BY WIFE:

DELEGATED DIVORCE: (TALAQ-E-TAFWEEZ)

In Talaq-e-Tafweez a husband can delegate the right of divorce to his wife or any third person. This delegation can be made at the time of marriage, before marriage or even after marriage by way of an agreement or Nikahnama, unconditionally conditionally, temporarily or permanently. A permanent delegation of power is revocable but temporary delegation is not. In case of conditional delegation, the conditions must be reasonable and must not opposed to public policy. It is recognized among both, the Shias and the Sunnis.

By the delegated divorce it does not mean that the woman will give divorce to her husband. Instead it means that she has the delegated right of pronouncing Talaq upon herself. For example, if a woman who has been delegated the power of divorce says, “I am divorced” or “I divorced myself”, this divorce will take effect, contrary to the effect of her saying “I divorced you” (whereby it will not take effect) because it is a wife that can be divorced and not a husband.

The parents of a woman can secure this right for their daughter at the time of drawing up her marriage contract, if they fear their daughter would not be safe or mistreated in her in-laws’ house in future. KHAYAR-AL-BULOOGH:

A woman can also dissolve her marriage if it was arranged before she reached the age of puberty, whether with consent or without her consent, solely by declaring that she has now become an adult and does not recognize the marriage.

• In Sharia, when the consent is given by Father or Father of

Father, then the option/right of puberty cannot be exercised, and

when it’s given by other relatives, then the option of puberty can

be exercised.

• However, according to Section 2(7) of theDissolution of Muslim

Marriage Act, 1939:a female can dissolve marriage even if the

consent was given by father, or father of father (Grandfather).

Case law: 2000 MLD 1886: (option of puberty can be exercised without the intervention of the court).

• If the marriage was carried before 16 years.

• If the marriage was not consummated or consummated through

coercion.

• Before the completion of 18 years, a female can exercise her

option of puberty to invalidate/dissolve the marriage, without even

the decree/intervention of the court.

……………………,……………………………………………………………. III) DISSOLUTION OF MARRIAGE BY MUTUAL CONSENT:

Dissolution of Marriage by mutual consent is of two types namely Khula and Mubarrat.

KHULA:

Khula is a form of divorce with the consent of wife and at her own instance in which she gives or agrees to give certain consideration to the husband for her release from the marital tie.

Following conditions are necessary for a valid Khula:

1.There must be an offer from the wife.

2.She gives or agrees to give consideration to the husband for her release

3.Acceptance of the offer by the husband.

Such proposal may be retracted by the wife at any time before the acceptance is made by the husband. The moment offer is accepted by the husband it stands as single irrevocable divorce i.e. the marital relationship ends the moment the husband accepts the offer.

 The husband can demand consideration even more than the

    amount of dower, from wife in case of Khula.  

 After Khula is granted, if the wife fails/refuses to pay the

    consideration to the husband, still the Khula is valid .  

 A wife can remarry her husband after Khula is obtained,

without undergoing Halala.

PLD 1967 SC 97 (Khursheed Bibi Vs Muhammad Amin):

If the husband refuses to divorce his wife, the wife has the right to obtain Khula through court. So the court can grant a decree of Khula, if it considers that the circumstances are such that the marriage should have been dissolved.

MUBARRAT:

The literal meaning of the word mubarat is ‘obtaining release from each other.’ When the husband and wife, with mutual consent, seek release from married state. It can be initiated either from the wife or from the husband. As soon as it is accepted, dissolution is complete. It is equivalent to one irrevocable divorce without the aid of the court.

In case of marriage dissolution by Mubarrat, the wife has to observe iddat. They can remarry without undergoing Halala.

……………………,……………………………………………………………. b):JUDICIAL DIVORCE:(by wife through a decree of court under the dissolution of Muslim marriage Act , 1939). It may be in the form of Li’an and Faskh.

LI’AN: (dissolution of marriage after charges of adultery)

When a husband accuses his wife, he is required to prove his claim. The wife can accept the charge and the ensuing punishment, or deny it. If the man cannot prove it, he is required to take an oath in front of the judge that he believes his wife has committed adultery and the wife has to swear that she is not guilty as charged. After oaths of husband and wife, court can pass order for dissolution of marriage.

FASKH:

“Faskh” is an Arabic word, means, cancellation. Under Section 2 of the Dissolution of Muslim Marriage Act 1939, a judge can terminate a marriage even without the consent of a husband in the instances: when a husband: is missing, has failed to provide maintenance, is sentenced to imprisonment for seven years, has failed to perform marital obligations, is impotent, is insane, is suffering from leprosy or venereal disease, is cruel, is associated with women of evil repute, attempts to force her to lead an immoral life, dispossesses her of her property, or obstructs her from practicing religion etc.

Grounds for Faskh:

 Absence Of Husband>>previously 4 years but nowadays it’s

    1 year. (Court gives 6 months time to husband and  

issue/affix notice on the place where he was seen for the

    last time, if still the husband neither returns nor his  

whereabouts are known, the court dissolves marriage).  Failure to give maintenance>>2 years  Additional wife against FLORD

     Imprisonment previously 7 years nowadays 3 years  

     Failure to perform marital obligation>> 1 year  

     Impotency(court grant one year time to husband for  

    treatment, if not cured within the given time, the court  

dissolves marriage)  Insanity>>2 years  Option of puberty  Cruelty(assault and battery)  Association with women of evil character  Forces wife to immoral life  Obstruction in religious affairs  Inequality(unequal treatment with wife).

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