Introduction
A marriage is the combination of understanding and close-grained union between the husband and wife that sustains a matrimonial relation between the two. During the time of stepping into the relationship of marriage both the persons desire to have extreme pureness in the bond with a will not to breach the agreement and contract of marriage by any wrongful act that may dissolve the marriage. In several ways of dissolution of marriage, the most prominent and most practiced is divorce.
Muslim law is the law that embodies the culture of the community of Muslims. It is not only considered as the most complex law but also the most widely practiced law. Under the Muslim law the divorce can be made by any act done by the parties on there own or by the decree of the court in certain circumstances. Divorce is not considered a part of marriage under the Muslim law but as an exception. As per the teachings of the prophet, divorce is considered as one of the worst instances which has been provisioned in the Muslim law. But as per the changing conditions of the society it has been felt that due to extra trouble incurred by the parties through themselves, they choose the path of divorce. That makes it the necessity to conserve the future life.
Under the Muslim Law, Marriage is a contractual relationship between two parties. All the required essentials that are important for a contract are present under Muslim Marriage. There is an offer, acceptance, consent, consideration, the capacity of parties, etc. The purpose of such a form of marriage is to legalise the sexual intercourse and procreation of children.
Holding the hands together with love, care and affection is meant the best feeling of togetherness but in case when the circumstances changes and it becomes difficult to hold the firmness and all the essentials of successful matrimonial relationship gets disappearing then it is held reasonable to let the couple be separated than to let the both starving for love that turns into hatred and compel them to live together. Going precise through the Islamic law the divorce is considered as the inability or incompetency of the spouses rather than any other specific cause on the account of which both of the parties to the contract cannot reside together. Bothe of the parties can lead to divorce that is any act of husband or wife can lead to it.
Elucidation of Divorces under Muslim law
In order too disown the wife under the Muslim law the husband has to merely do the same by repudiating the marriage by the act that is considered wrongful. Thus, it can be done by merely pronouncing such words that are considered sufficient to dissolve a marriage and let the wife know about the same. This type of form in Muslim Law is known as talaaq. This can be also held by the husband by not giving any valid reason for the same. It was later condemned in the 21st century that Muslim women’s also have basic rights and not the men can exploit them by practicing such provision. Hence, the triple talaq judgment was passed by the hon’ble apex court of India that is Supreme Court. Under such a provision the wife cannot divorce his husband and if she can do it is when the husband has given her the right to divorce him under the agreement of marriage. Wife can do this by the method of Khula or Mubarat. Before 1939, the Muslim women had no right to seek divorce rather than on the grounds of false infidelity, impotency of the husband and insanity of the husband. After the passing of the Dissolution of Marriages act 1939 it paved out other grounds on which Muslim wife can get divorce decree passed by the court order. The two categories of Mohammadi divorce are;[1]
1. Judicial divorce
2. Extra judicial divorce
[ It includes talaq by wife as- talaq-i-hafeez, talaq by husband and by mutual agreement by the method of Khula]
In Haneefa V. Pathummal , the judge termed the talaq as monstrosity. It is laid down among the Sunnis. Talaq can be expressed, implied, contingent, constructive or even delegated and the Shias only recognize the expressed and the delegated forms of talaq.[2]
ESSENTIALS OF VALID TALAQ;
1. Free Consent
The consent of the husband should be free except that in Hanafi law as under Hanafi law talaq pronounced under any compulsion, fraud, undue influence or any other invalid way dissolves the marriage.
2. Capacity
Any Muslim husband that has attained the age of puberty and is of the sound mind is competent to pronounce talaaq. It is not necessary for him to give any valid reason for the same. By any minor husband pronunciation of talaq is invalid and considered as void.
3. Formalities
According to the Sunni law, a talaq may be written or oral. It may be simply written by the husband by writing a talaqnama or by merely uttering the word talaq. Intention of the husband to break the marriage is required.
4. Express words
The words talaaq should be pronounced loudly and clearly so as the other party could hear it properly and with intention to dissolve the marriage.
Dissolution of Marriage Act of 1939
The bill of this Muslim law was introduced in the legislature by Qazi Mohammad Ahmad Kazmi on 17th April 1936.
Section 2 of the Act states that a woman married under the Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one and on more of the following grounds-
● That the whereabouts of the person married by the woman, that is the husband is unknown for the period of four years. It could be done by when the wife will file a petition in the court for the same under the Muslim law for dissolution of her marriage and it is found by the court that her husband has been deemed to be missing.
● That the husband has been sentenced to imprisonment for a period of seven years or more. This provision clearly establishes that the right of the woman arises from the time when her husband has been sentenced becomes absolute. Hence the decree can be passed by the court after verification of the same.
● In case if the husband has neglected or has omitted to perform for maintenance of his wife for a period of two years. According to the general law it is the legal obligation of every husband to maintain his wife and in case of omission of the same then the wife can seek divorce.
● In case of failure of performance by the husband by unreasonable cause for performing his marital obligations for a period of three years. This hereby means that failure of the husband to perform conjugal obligations may form a provision to seek divorce from the wife.
● In case of cruelty faced by the wife by the actsof the husband. It includes all sorts of cruelty done to a married woman whether it is mental or physical that distorts the mental and nervous performance of the wife. It may include domestic violence, attempt to compel her to lead an immoral life, disposing of her property by force, obstruction on her to perform her religious profession or practice, etc.
LIST OF IMPORTANT CASE LAWS
1. ABOOBACKER V. MAMU KOYA [3]
In this case the husband used to do cruelty on the wife to wear a saree and visit a cinema hall with him to watch movies. The wife resisted following such instruction because of her religious prospects. And she filed a case to seek divorce but the Hon’ble Kerala High Court held that it cannot be regarded as mental cruelty.
2. SYED ZIAUDDIN V. PARVEZ SULTANA [4]
Parvez was a science student and married a man called Syed because he promised her to pay her the fees for her admission in the medical college and later omitted to pay the same and hence the court held after proceedings of the case that Parvez can seek divorce and it amounted to mental cruelty.
PRESENT SCENARIO
The Muslim Women (Protection of Rights on Marriage) Act, 2019, was passed by both Houses of the Parliament. This Act, in substance, declared the triple talaq, ie talaq-e-bidat or any other similar form of talaq, illegal. Any Muslim husband who pronounces such talaq to his wife can suffer imprisonment for a term of three years and also be liable for fine.
The offence under this law is cognisable only if the information given to the police is either by the married Muslim woman to whom the talaq is pronounced or by any person related to her by blood or marriage. This is designed to prevent misuse by outsiders. Under the Act, bail can be granted only after hearing the victim woman and on reasonable grounds.
There is provision for subsistence allowance for the wife and her dependent children as determined by the magistrate, including the right of the wife for the custody of her minor children. Significantly, the offence punishable under the Act has also been made compoundable but only at the insistence of the Muslim woman and with the permission of the magistrate on appropriate terms, which the court may determine.
It is indeed a sad commentary that in spite of more than 20 Islamic countries having regulated triple talaq in one form or the other, it took us more than 70 years since Independence to pass such a law in Parliament, after so much opposition and campaign by vested interests. I had repeatedly argued in Parliament that this legislation is only designed for gender justice, equity and empowerment and has no religious overtones at all.
Protection of Rights on Marriage Bill, 2019After getting passed in both houses of Parliament, President has given assent to the triple talaq bill passed by Parliament, turning it into a law which makes the practice of instant divorce among Muslims a punishable offense. The Act will replace an ordinance promulgated on February 21 2021.
This article is written by Yuv Sharma of Hamdard Institute of Legal Studies and Research , Jamia Hamdard.
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