Divorce is the last resort
Muslim personal law recognises divorce as a lawful way to end a marriage. But it should be the last resort to be taken up only after making earnest attempts for reconciliation.
Marriage is a civil contract
A marriage under Muslim law is considered a civil contract. It, therefore, requires an offer (Ijab) from one side and its acceptance (Qubul) from the other side, out of free will, and without any coercion, undue influence and fraudulent action by the parties.
Mehr is the consideration payable to the wife, as a mark of respect to her from her husband.
Husband or wife can initiate divorce
Divorce can be initiated by either the husband or the wife. But there are specific rules and procedures that need to be followed in divorce, depending on the circumstances, such as the type of divorce being sought, the waiting period (iddah) for the wife, and the division of property and assets.
A marriage may be dissolved in three ways:
- firstly, by the act of husband or wife such as Talaq for men & Khula for women,
- secondly by mutual agreement in the form of Mubarat, and
- thirdly by a judicial decree.
Talaq: exclusively available to men
Talaq, which means terminating a bond created in marriage contract, is the form of divorce in which the husband exercises his right of pronouncing divorce.
There are three types of Talaq: Talaq ahsan, Talaq hasan and Talaq ul bidaat. The first two forms of Talaq are valid and the third one is illegal as per the Supreme Court (SC) judgement in Shayara Bano and Others v Union of India [ AIR 2017 SC 4609] and subsequent legislation by the Union government.
Talaq ahsan is a single revocable pronouncement of divorce, where the husband pronounces talaq once during the wife’s period of purity (tuhr), followed by abstinence from sexual relations during the iddah period. If there is no revocation during this period, the divorce becomes irrevocable.
Talaq hasan: In this form of Talaq, the husband must pronounce the words, “I divorce thee” three times in three successive periods of menstruation, with three days in between each pronouncement.
Talaq ul bidaat is the third type which is now declared illegal. In this form three pronouncements made in a single tuhr either in a single sentence or in separate sentences eg. “Talaq, talaq, talaq” or “I divorce thee, I divorce thee, I divorce thee.”
After the husband declares divorce in islam, the wife will have to wait three months or three menstrual cycles (iddat). It is permissible for the wife to reside in the same home during this time, but the husband is responsible for her needs and maintenance.
There is a procedure known as Ruju in which he may make up the marital relation with her during the Iddat. It can be by express means or implied means by leading a normal marital life. If the husband does not reconcile with his wife in the marital relation after the waiting period, the divorce will come into force.
Delegated divorce: Talaq by the wife
Divorce given by wife under the husband’s delegated power is called Talaq-e-tafweez. It is a delegated, extra judicial divorce. Such delegation of power needs to be done by the husband in the form of an agreement made either before or after marriage.
Delegation of power can be done by the Muslim husband to his wife or any other person or even through a messenger, to divorce him ex parte and at her will. Delegation can be restricted to a specified time period or it can be an unrestricted one.
The agreement empowers the wife to get divorced from her husband in the event of agreed conditions such as the husband marries a second wife, his inability to maintain her for a specified period or on any other condition that must not be opposed to public policy.
The husband who delegates the power to the wife does not dispossess him of his right to pronounce Talaq by him.
Mubarat: Divorce by mutual consent
Divorce by mutual consent. It is like mutual consent divorce under Section 13 B of the Hindu Marriage Act or Section 10A of the Indian Divorce Act.
The term Mubarat means mutual freeing. Here both sides desire separation. In Mubaraat the proposal for divorce may emanate from either party. Mubarat is an irreversible form of marriage. Mubarat is the divorce based on by mutual consent. It operates as a release and mutual discharge from the marital ties for both the parties. Its formalities are the same as Khula, where there is an offer from one party and acceptance from another.
On the basis of Mubaraat, the Family Court can endorse and declare the extrajudicial divorce based on a petition and Mubaarat deed.
Khula: A counterpart of Talaq for men
Khula means extracting out one from another. It is the divorce in which the wife initiates divorce proceedings.
In Khula, wife initiates the process and husband agrees to release her on return the Mahr. Khula takes place when the husband consents to his wife’s request for a divorce. There must be genuine reason for the wife to seek Khula and it granted under extreme necessity only.
After pronouncing Khula , Muslim wife has option to file an Original Petition before family court to declare it as a judicially valid divorce, if she wants to.
Difference between Khula and Mubarat
Khula is different from Mubaraat. The basic difference is that under Khula, a marriage can be dissolved by an agreement between husband and wife for a consideration paid or to be paid by wife to her husband.
If the wife alone is desirous of such an agreement it is called Khula whereas if both husband and wife are desirous of such an agreement it is called Mubaraat.
Faskh : an extra judicial divorce for women
Faskh is annulment of a marriage with the intervention of a Khazi and this form of divorce is available to women only
Dissolution of marriage by a court
The wife may obtain a decree of divorce on any one of the grounds specified in Section 2 of the Dissolution of Muslim Marriage Act, 1939, through the intervention of the court. The act provides for nine grounds for divorce and they are: four years absence of the husband, two years failure to provide maintenance, seven years imprisonment of the husband, failure to perform mental obligations, impotence of the husband, insanity, leprosy and venereal disease, repudiation of marriage by the wife, cruelty and any other ground recognised by Muslim law.
But other forms of extra judicial divorce based on Muslim personal law, as laid down in Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, are also available to a Muslim woman.
Family court can declare status of marriage
A Family Court, under Section 7(1) explanation d of the Family Court Act, can declare the matrimonial status of any person, endorse extra judicial divorce and issue its decree.
If a declaration of joint divorce is passed invoking Mubarat is produced before the Family Court it is bound to pass a decree declaring the matrimonial status of the person by the Family Court.
The High Court of Kerala in X x Y No 89/2020 [2021(2) KLT 967] states that Mubaraat is a form of an extra-judicial divorce based on mutual consent under Islamic law and same is valid as it remains untouched by the Dissolution of Muslim Marriages Act. The Family Court in such circumstances is neither called upon to adjudicate nor called upon to dissolve the marriage by decree of divorce. On the other hand, the Family Court only has to declare the marital status by endorsing the mubaraat invoking jurisdiction under Explanation (b) of Section 7(1) of the Family Courts Act.
Muslim woman has four modes of divorce
With the passing of recent judgement in X x Y No 89/2020 [2021(2) KLT 967], the Kerala High Court states that a woman could seek extra judicial remedies under Muslim personal law but not the remedies under the Dissolution of Muslim Marriage Act, 1939 alone.
A Muslim woman has four ways to dissolve marriage
Therefore, a Muslim woman can now dissolve or end her marriage via four modes, that are: Talaq-e-tafwiz, Khula, Mubarat, and Faskh (by a decree from the court named Qazi).
Divorce and Khula are essentially different
Divorce and khula are two terms that refer to the dissolution of a Muslim marriage. Although they have similar outcomes, they differ in terms of the way they are initiated and the procedures involved.
There are some differences between divorce and khula. The divorce and khula are two different procedures that result in the dissolution of a Muslim marriage.
Divorce is initiated by the husband, while khula is initiated by the wife. Divorce requires the husband to pronounce talaq, while khula requires the wife to seek a court order and return the mahr.
Both procedures have their own specific rules and requirements, and it is important to seek legal advice before initiating either process.
Criminalisation of Triple Talaq
The Muslim Woman (Protection of Rights on Marriage) Act 2019 criminalises the pronouncement of Triple Talaq (Talaq e bidat) in all its forms, including electronic forms, and prescribes punishment for those who perform it.
Further reading
- Kahkashan Y Danyal: Musllim Law of Marriage, Dower, Divorce and Maintenance. New delhi, Regal Publications, 2015.
- Rakesh Kumar Singh: Text book on Muslim Law. New Delhi, Universal, 2011.
