Marriage and divorce originated from both historical and ancient views, according to Islamic law. These personal regulations were inspired by the Quran, the sacred book of the Muslim religion, the Sunna, previous decisions, the Ijma, and analogous reasoning, with the Quran acting as the major source.
These principles, customs, precedents, Ijtihad (independent individual thinking based on justice, equity, and moral conscience), and laws have shaped the current Muslim law regarding marriage and divorce.
Types of Divorce under Muslim Laws
The only criterion for divorce in Islamic law is a marriage between two parties. According to Muslim law, divorce can be effected in a variety of methods, including the following:
Husband- Led Divorce in Muslim
The following are the four ways a husband might grant a divorce:
Talaq-ul-Sunnat
This sort of divorce is governed by Muslim Personal Laws. It is further divided into the following categories:
Ahsan
When the woman is not experiencing her monthly cycle, the husband must provide a single declaration announcing the divorce.
If a woman divorces her husband, she is required to observe Iddat, during which he is prohibited from engaging in sexual intercourse. If he does, the talaq is implicitly rescinded; if not, it is irrevocable.
This type of talaq is permissible even if the wife is menstruation, but the couple cannot marry as a result.
The talaq is the most frequently accepted form of Islam.
Hasan
This variant of Talaq Ahasan is unpopular.
There is a provision that permits divorce annulment.
The word “talaq” must be said three times simultaneously. If the wife has not yet reached menstruation age, three announcements must be made in the three states of purity. If the lady has reached menstruation age, the announcement must be made 30 days after the previous announcements.
The divorce will be annulled if there are any sexual interactions inside the three-announcement period.
This type of divorce becomes permanent and irreversible after the iddat period.
Talaq-ul-Biddat
There occurs this unsavory/sinful divorce.
It is also known as triple talaq since it is irreversible after being spoken three times. Only Sunni law recognises this type of divorce; Shia and Maliki law do not.
Parties may only remarry once the female spouse has done nikah halala, which mandates her to marry another man before divorcing her current husband.
● The Indian Supreme Court ruled in Shayara Bano v. Union of India and Others that this type of divorce is illegal.
Ila
With this sort of divorce, the husband might state that he will not have sexual relations with the wife.
Following this declaration, the woman must follow iddat. If the husband cohabits with the wife during this period, the Ila is cancelled.
After the iddat period expires, a divorce becomes permanent and irreversible.
This type of divorce is uncommon in India.
Zihar
Like Ila, this is a constructive divorce. In this form of divorce, the husband compares his wife to his mother or sister by comparing her to a woman with whom he has a prohibited connection, such as his mother or sister.
The husband must be at least 18 years old and of sound mind to accomplish this. The woman is permitted to pursue legal remedies such as return of marital rights, cohabitation, etc., but not a legal divorce.
The divorce can be annulled if the husband fasts for two months, feeds sixty individuals, and frees a slave.
This type of separation is no longer typical.
Divorce by Wife in Muslim
Talaq-e-Tafweez
It is also known as “delegated divorce. The spouse, who must be of sound mind and at least 18 years old, has the ability to delegate this right to the wife.
This type of talaq, which can be done before or after marriage, is often referred to as an agreement.
The lady may seek for divorce if the terms of the agreement are not satisfied.
A lady has no other choice except to obtain a divorce.
The husband’s right to divorce his wife is untouched; he retains divorce authority.
Muslim Divorce Laws Based on Mutual Consent
Khula
The technical definition of the term is “laying down,” like when a husband gives up the authority over his wife.
The husband and wife must agree to this, and in exchange for her release, the wife must give the husband compensation for her possessions.
For her husband’s advantage, the wife waives Mehr and other rights.
Hence, the wife purchases a divorce from her husband.
The proposal made by the wife is accepted by the husband.
Women must observe iddat in accordance with Khula.
Mubarat
It signifies “release” and releases the parties from their marriage obligations.
Divorce is the mutually agreed-upon legal separation of two individuals. Similar to Khula, where there is an offer from one side and an acceptance from the other, it has comparable prerequisites.
● Women must observe Iddat.
The Divorce by Muslim Marriage Dissolution Act of 1939
Lian
This type of divorce occurs when one spouse falsely accuses the other of infidelity.
She may petition the court to initiate a typical divorce proceeding pursuant to the Muslim Dissolution of Marriage Act of 1939. False claims of adultery against the wife, his spouse, must serve as the foundation for the divorce.
The husband imposing the charge must be of legal age and of sound mind. A divorce cannot be overturned after the court has accepted it and issued the necessary dissolution degrees.
Prior to the court’s ruling, the husband may recant the false adultery claim against the wife.
Faskh
A couple may file for divorce if they consider their relationship is incompatible.
Section 2 of the 1939 Dissolution of Marriage Act specifies the grounds for which a woman may seek for divorce.
The whereabouts of the husband were unclear for four years.
Over the past two years, the husband has ignored his wife. The husband was sentenced to at least seven years in jail.
Without justification, the husband has abandoned his three years of marital obligations.
The husband is sterile.
The husband has leprosy, a serious venereal disease, or has been mad for the past two years.
Having been married before the age of 15, the wife rejects the legitimacy of marriage after the age of 18 so long as it has not been consummated.
Her spouse physically assaults and oppresses her. Making false allegations that are detrimental to her reputation, etc.
Changes Brought by the Muslim Women (Protection of Rights on Marriage) Act, 2019
The Muslim Women (Protection of Rights on Marriage) Act, 2019 has resulted in the following amendments:
Section 3: It is illegal or unlawful for a husband to pronounce triple talaq on his wife, whether orally, in writing, or electronically.
Section 4 stipulates that anybody who pronounces “talaq” to his wife in the way indicated in Section 3 is subject to a fine or a 3-year jail sentence.
Section 5 permits Muslim women seeking a divorce to request financial assistance for themselves and any dependant children.
Section 6 allows Muslim women who have been divorced by their husbands to seek custody of their young children.
If the magistrate believes that there are adequate grounds for granting bail, he may do so after hearing from both parties under Section 7. In the instance of a married Muslim woman, there is also the possibility of a settlement that would result in the charges being dismissed in return for the fulfillment of certain conditions. The crime can be compounded.
Grounds of Divorce under the Dissolution of Muslim Marriage Act 1939
The husband has not provided for her maintenance for two years. The husband has been sentenced to seven years in prison. The husband has failed to perform his marital obligations for three years. The husband treats her brutally, resulting in domestic violence. The husband has become insane or suffered leprosy for two years.
Also, Read 3.Shocking Things about Divorce
Conclusion
In the Muslim world, it is considered so essential and sacred that Muslims believe it cannot be changed. Hindu law views marriage as a sacrament, but Islamic law views it as a civil transaction. It is essential for the development of the family, which is considered the basic unit of society.
According to Islamic law, only marriage is permissible for men and women to have intimate relationships and offspring. It is a social requirement that regulates how individuals interact with one another by defining rights and obligations that both parties must respect.
There are several ways to perform a marriage ceremony and apply for divorce under Muslim law. In addition to Muslim personal laws, the Government of India has introduced the Muslim Dissolution of Marriage Act, 1939, the Muslim Women (Protection of Rights on Marriage) Act, 2019, and other pieces of legislation to accommodate the demands of changing situations.
These rules govern the marriage and divorce of Muslims. In addition to these laws and personal restrictions, there is a need for the Uniform Civil Code to strengthen national unity and integrity. This will result in a single rule applicable to all citizens of the country
Written by Rushtam Amabawata intern at Fastrack Legal Solutions
