Table of Contents
- Types of Divorce
- Talaq
- Period of Iddat
- Khula and Mubaarat
- Grounds for Decree for Dissolution of Marriage
Types of Divorce
In Muslim law, there are three kinds of divorce:
- Talaq- Where the marriage is terminated unilaterally by husband
- Khula- When proposal to end marriage is made by wife.
- Mubaraat- Where both the parties mutually decide to culminate the marriage.
Talaq
Sunni Law: Under Sunni Law talaq may be oral or in writing (talaqnama), in presence or absence of wife or witnesses. Words must refer to the wife and be communicated to her. Proof of talaq is essential when words are ambiguous.
Shia Law: Under Shia Law, talaq must be pronounced orally in the presence of two competent witnesses. Only Talaq-e-Sunnat is recognized under Shia law.
1. Talaq-e-Sunnat- Talaq-e- Sunnat is also known as revocable talaq. There are two forms of Talaq-e- Sunnat:
- Ahsan– It is the pronouncement of talaq during the tuhr (period of purity) followed by abstinence from sexual relations. If cohabitation resumes during iddat, talaq is revoked. Otherwise, it becomes final after iddat.
- Hasan– It is the form of talaq where husband makes three pronouncements during three successive tuhrs. The couple may reconcile during this period. After the third pronouncement, iddat begins, and talaq becomes final if cohabitation is not resumed.
2. Talaq-e-Biddat (Triple Talaq)- This talaq was also known as Talaq-e-Bain. It consists of a single or triple pronouncement of talaq in one sitting with the intent to irrevocably end the marriage.
Note: Declared void and punishable under the Muslim Women (Protection of Rights on Marriage) Act, 2019.
3. Contingent Talaq- It is a kind of talaq that becomes valid upon the occurrence of a future event. It is recognized only under Sunni law.
4. Delegated Talaq (Talaq-i-Tafweez)- It is the kind of talaq where husband may delegate the power to pronounce talaq to another person, including his wife. The delegate may then validly pronounce talaq on his behalf.
PERIOD OF IDDAT
The Iddat (or Iddah) is a prescribed waiting period a Muslim woman must observe after divorce or the death of her husband before she can remarry. This period is rooted in Islamic law and serves both spiritual and legal purposes. The primary purposes of iddat are:
- To confirm whether the woman is pregnant.
- To establish paternity and inheritance rights of a possible child.
- To ensure the woman receives her due financial and legal entitlements.
Duration of Iddat after Divorce:
- Three menstrual cycles – For a woman who menstruates regularly.
- Three lunar months – For a woman who does not menstruate due to age or medical reasons.
- Until childbirth – If the woman is pregnant at the time of divorce, iddat continues until she delivers the child, regardless of the time duration.
KHULA AND MUBAARAT
Khula
Khula is the right of wife to opt out of marriage. In khula, wife proposes the divorce and husband accepts it. Essential conditions for Khula are:
- Wife must propose divorce.
- Wife must give or agree to give consideration to husband.
- Husband must accept the proposal.
- Proposal can be revoked before acceptance.
Case: S. Basheria vs State of Tamil Nadu [(2017) 1 MLJ 518]- In this case the wife went to her parents place and in the meantime husband remarried on the basis of alleged Khulanama executed by her and by obtaining a fatwa from the chief kazi dissolving the marriage. In this case it was held that kazi can only solemnize the marriage and cannot dissolve it and if the khulanama is denied by the alleged excusants, the same is null and void.
Mubaarat
Mubaarat is the divorce by mitual consent. In this type of divorce if both the parties do not want to live with each other, they can sit together and work out the terms and conditions agreeable to both of them.
GROUNDS FOR DECREE FOR DISSOLUTION OF MARRIAGE
Under Section 2 of the Dissolution of Muslim Marriages Act, 1939, a Muslim woman can seek a decree of divorce on several specific legal grounds. These rights are exclusively granted to women for the protection of their dignity, well-being, and justice in marriage.
1. Whereabouts of Husband Unknown for 4 Years- If the husband has been missing and his whereabouts have not been known for a period of 4 years or more, the wife is entitled to seek dissolution of marriage.
2. Failure to Maintain the Wife- If the husband fails to maintain his wife for 2 years or more, she may approach the court for divorce.
3. Imprisonment of the Husband- If the husband is sentenced to imprisonment for a period of 7 years or more, the wife can seek divorce.
4. Failure to Perform Marital Obligations- If the husband fails to fulfill his marital duties such as providing conjugal company, emotional support, or maintenance, the wife can obtain a decree for dissolution.
5. Impotency of Husband- If the husband was impotent at the time of marriage and continues to be so, this is a valid ground for divorce.
6. Insanity or Venereal Disease- The wife may seek divorce if the husband is suffering from insanity or a venereal disease.
7. Option of Puberty- A girl who was married before the age of 15 can seek divorce between the ages of 15 and 18—provided that the marriage was not consummated.
8. Cruelty by Husband- Cruelty is a significant ground for divorce. It includes:
- Habitual assault or making her life miserable
- Association with women of ill-repute
- Attempt to force the wife into an immoral life
- Misuse or disposal of her property
- Obstructing her religious practices
- Unjust treatment if husband has multiple wives
9. Other Traditional Grounds under Muslim Law- Other traditional grounds available to Muslim women are:
- Ila- When a husband takes an oath to abstain from sexual relations with his wife and keeps his vow for 4 months, the wife may file for divorce.
- Lian- If a husband falsely accuses his wife of adultery, she may approach the court for a decree of divorce based on defamation.
- Zihar- When a husband compares his wife to a woman within prohibited degrees of relationship (e.g. mother or sister), it is termed as Zihar. The wife has a right to reject his authority and seek judicial separation.
