INTRODUCTION
The termination of the marital relationship under Islamic jurisprudence is known as the dissolution of marriage under Muslim law. While the term “Talaq” is commonly used, it is vital to recognize the various methods and legal aspects involved in this process.
RELIGIOUS PERSPECTIVES ON MARRIAGE
Different religions hold distinct views on marriage. Under the Hindu Marriage Act, marriage is considered a religious sacrament. In contrast, according to Muslim Law, marriage is viewed as a contractual relationship encompassing essential contract elements such as offer, acceptance, consent, and consideration. The primary purposes of Muslim marriages include legalizing sexual intercourse and procreation of children.
METHODS OF DISSOLUTION
Marriages can be dissolved through three methods:
- by the death of parties,
- by the act of parties, and
- by judicial procedure.
I.BY THE DEATH OF PARTIES TO THE MARRIAGE
When the husband of a Muslim wife passes away, the widow must undergo the process of iddat. Iddat is a mandated waiting period during which a woman, whether widowed or divorced, abstains from entering into a second marriage. According to Justice Mahmood, iddat lasting three months renders a new marriage valid.
II.DISSOLUTION OF MARRIAGE BY THE ACT OF PARTIES
This method is subdivided into three categories:
- by the act of the husband,
- by the act of the wife, and
- by the act of both parties.
1.BY THE ACT OF HUSBAND
Talaq – The Art of Dissolution\
Talaq, meaning cancellation or liberation, can be given verbally or in written form. In written form, it is referred to as Talaqnama. Adult, sound-minded individuals are eligible to initiate Talaq.The two modes of Talaq are-
- Talaq-ul-sunnat and
- Talaq-ul-biddat / Triple talaq
- Talaq-ul-sunnat
– Ahasan:The best form of Talaq, involving a single pronouncement of divorce, the wife’s pure state at the time of pronouncement, and the requirement for her to undergo iddat
–Hasan: Involves three pronouncements of divorce, with specific conditions related to the wife’s menstruation cycle or non-menstruating status. Revocation is possible before iddat completion.
- Talaq-ul-biddat/Triple Talaq
– A sinful form involving three pronouncements during a single tuhr (period of purity). Irrevocable upon pronouncement.
In the case of Shayara Bano vs. Union of India [(2017) 9 SCC 1], better known as the ‘Triple Talaq Case’, gave India a historical judgment that declared the practice of Triple Talaq to be unconstitutional.
OTHER METHODS
- Ila (Vow)
Ila, based on Quranic injunction, occurs when an adult of sound mind abstains from sexual intercourse for four months in fulfillment of a vow. This results in a single irrevocable Talaq, allowing the wife the right to divorce.
- Zihar (Injurious Assimilation) and Lien (Imprecation)
– Zihar:Occurs when a husband compares his wife with prohibited relations, providing grounds for the wife to seek divorce.
–Lien: Arises when a husband falsely accuses his wife of adultery, providing another valid ground for the wife to dissolve the marriage.
2.BY THE ACT OF WIFE
Generally, Muslim wives do not have the right to Talaq. However, Talaq-E-Tafuis, a delegation of the right to Talaq by the husband, is an exception. This delegation is often in written form and may have conditions.
3.BY THE ACT OF BOTH PARTIES TO MARRIAGE
Khula (Redemption):Initiated by the wife, involving a proposal for dissolution and consideration for the husband.
– Recent legal developments, such as the Rasidan vs Bakridan case, emphasize the need for Khula to be without pressure.
Mubarat (Mutual Separation):Involves a proposal by either party, written or oral, with or without conditions.
III.DISSOLUTION OF MARRIAGE BY JUDICIAL PROCEDURE
Established in 1939, Muslim females have the right to seek dissolution on specific grounds. Nine grounds, including absence of husband, maintenance, cruelty, and imprisonment, are available under Section 2. Cases are typically filed in family or district courts.
LEGAL EFFECTS OF DIVORCE
Several legal implications follow the dissolution of a Muslim marriage, such as the cessation of mutual rights of inheritance, illegitimacy of children born after divorce, immediate payment of dower, the option for parties to contract another marriage, and entitlement to maintenance for the wife during the iddat period.
CHANGES BROUGHT BY MUSLIM WOMEN PROTECTION ACT, 2019
The Muslim Women Protection Act, 2019, introduced significant changes to address issues in the practice of Talaq.
– Section 3: Declares triple Talaq invalid and unlawful, whether pronounced electronically, orally, or in writing.
–Section 4:Imposes imprisonment for three years and a fine on anyone pronouncing Talaq in violation of Section 3.
–Section 5:Grants Muslim women the right to seek maintenance from their spouses post-divorce for their support and that of their children.
–Section 6: Allows both parents equal rights over minor children post-divorce, opening the possibility for custody disputes in court.
CONCLUSION
Understanding the dissolution of marriage under Muslim law involves navigating the diverse methods and legal nuances that characterize this process. From traditional practices like Talaq to contemporary legal interventions like the Muslim Women Protection Act, the landscape of marital dissolution in Islamic jurisprudence continues to evolve, addressing both religious principles and contemporary societal needs.
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