Divorce in Islam: Lal Mohd

Many people of other religions believe that a married Muslim man can dissolve his marriage at any time by saying to his wife: "Talaq, talaq, talaq" at one occasion of his own free will and desire. ("Talaq" means "I divorce you.") This motivated me to study the the actual existence of this method of dissolution of a marriage in Islam.

After solemnization of marriage between parties, if some problems arise, the husband may divorce his wife. The question is how he divorces his wife, and whether pronouncement of divorce three times at one occasion is valid.

Zeenat Shaukat Ali, Professor of Islamic Studies St. Xavier's College, Mumbai published an article in the Indian Express with title: "Divorce, Divorce, Divorce." He attempted to clear up misconceptions by Muslims and others about the triple pronouncement of Talaq.

The main points in his article were:

Talaq and divorce are strongly condemned within Islam.

In case of difficulties within a marriage that the husband and wife cannot solve by themselves, each shall appoint an arbitrator or conciliator to resolve the matter.

( 4:35): "If the fear Shiqaq (breach) between the Twain, appoint (two) arbiters, one from his family and other from hers, if they wish for peace, ALLAH will cause their reconciliation."

TALAQ-UL-BIDDAT or triple TALAQ: It is important to understand that the word "biddat" itself means disapproval or something the prophet never did or recommended.

Caliph Umer legitimized this form of divorce as an emergency measure.

Most Muslims believe that there shall be a interval of of one month between each "taliq" pronouncement. If the during these pronouncements, the wife disobeys the lawful order of her husband, he may divorce her. During this time of breach they should take measures to reconcile by themselves or with the help of their relatives etc. All efforts as provided in the Qur'an and Sunna should be made to avoid a breach of the marriage.

The triple pronouncement of TALAQ has been "...banned by law in many nations, including Turkey, Tunisia, Algeria, Iraq, Iran, Indonesia, and Bangladesh. India still permits it." 1 In all such countries arbitration councils and judicial interventions have been introduced to promote reconciliation.

Offices staffed by female police are being established in Punjab state, India to redress grievances, particularly by married women. These facilities promote arbitration to help reconcile the couple. When all efforts fail, the matter is referred for investigation and later to the court for a trial.

I hope that people of the Islamic faith will learn from the above discussion on divorce and become aware of the controversial practice within Muslim marriages of the triple pronouncement of Talaq at one occasion which I believe is Un-Islamic and Un-Qur'anic. Avoiding that practice will create proper respect, honor and adoption of the Holy Qur'an  and Sunna (Observing the path) of Prophet Mohammad.

May peace be upon Him and on us of Almighty ALLAH ! Ameen.
 

Concept of Marriage and Divorce under Muslim Law

Marriage or "Nikah" in Islamic law is a contract pure and simple needing no writing and no scared rites. All that is necessary is offer and acceptance made in the presence and hearing of two male or female witnesses and recording the factum of marriage in the "Nikah" Register maintained in every mosque signed by the parties and attested by witnesses. It is payable to the wife on the dissolution of marriage or death or divorce. In India, there is no need to register the Muslim marriage, as there is no law requiring registration.

There are six forms of divorce recognized under Islamic Law. They are Talaq, Talaq bu Tafweez, Kula and Mubaraat, Illah, Zibar and Lian. Talaq confers on Muslim husband the privilege of being able to discard his wife whenever he chooses to do so for reasons good, bad or indifferent indeed for no reason at all. Talaq-i-Tufeez is the exercise of the right of divorce by the wife by virtue of the power delegated to her husband at the time of marriage or even thereafter, Kula and Maturate are two forms of dissolution of marriage by consent. It is thus a kind of divorce by mutual consent. Illah is a constructive divorce in which the husband swears not to have sexual intercourse with his wife for 4 months and abstains from doing so. Zihar is a mode of divorce in which the husband compares his wife with his mother or any other female within prohibited degree. Lian is a divorce in which there is imputation of adultery to the wife by the husband and the wife is entitled to file a suit for dissolution of marriage on the false charge of adultery.

The Dissolution of Muslim Marriage Act, 1939 enables a Muslim wife to seek divorce through court on the ground of, whereabouts of the husband are unknowns for 4 years, failure of husband to provide for the maintenance of the wife for 2 years, sentence of imprisonment of the husband for 7 years, failure to perform martial obligations, impotency of the husband, or insanity of the husband, Repudiation of marriage by the wife before attaining the of 18 years cruelty of the husband and any other ground relevant at that point of time.

 

Muslim Marriage Laws

Under Muslim personal law a suit has to be filed either by husband or wife on withdrawal from the society of other without lawful ground.

No provision so far enabling parties to the marriage parties to the marriage to seek the remedy of judicial separation.

No provision in Mohammedan Law for declaration of marriage as nullity for it can be annulled, though it may be repudiated by a Muslim wife and husband.

Muslim Law recognizes two forms of divorce by mutual consent khul or khula (divorce at the request of wife) and Mubaraa or mubaraat (dissolution of marriage by agreement).

Section 2 of the Dissolution of Muslim Marriage Act, 1939
  Grounds for Muslim Woman.

  1. Not heard for 4 years.
  2. Failure to provide maintenance for two years.
  3. Husband sentenced for 7 years imprisonment or upwards.
  4. Failure to platform martial obligations for three years.
  5. Impotency at the time of marriage and continuation.
  6. Insanity for two years or suffering from leprosy or a virulent venereal disease.
  7.  Marriage before attaining age of 15 years and repudiation before attaining the age of 18 years.
  8. Cruelty in the form of habitually assaulting, associating with women of evil repute, force to lead an immoral life, interfering into the wife’s property, obstruction to observe her religious practice, not equally treating with other wives etc.,

 

Dissolution of Muslim Marriages Act, 1939

 

An Act to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie.

Whereas it is expedient to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by woman married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by married Muslim woman on her marriage tie; it is hereby enacted as follows:

  1. Short title and extent:
    1. This Act may be called the Dissolution of Muslim Marriages Act, 1939.
    2. It extends to the whole of India except the State of Jammu and Kashmir.
  2. Grounds for decree for dissolution of marriage - A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:
  • that the whereabouts of the husband have not been known for a period of four years;
  • that the husband has neglected or has failed to provide for her maintenance for a period of two years;
  • that the husband has been sentenced to imprisonment for a period of seven years or upwards;
  • that the husband has failed to perform , without reasonable cause , his marital obligations for a period of three years;
  • that the husband has impotent at the time of the marriage and continues to be so;
  • that the husband has been insane for a period of two years or is suffering from leprosy or a virulent veneral disease;
  • that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years., repudiated the marriage before attaining the age of eighteen years;

Provide that the marriage has not been consumated;

  • that the husband treas her with cruelty, that is to say.—
      1. habitually assaults her or makes her life miserable by cruelty of conduct does not amount to physical ill-treatment, or
      2. associates with women of evil repute or leads an infamous life, or
      3. attempts to force her to lead an immoral life, or
      4. disposes of her property or prevents her exercising her legal rights over it, or
      5. obstructs her in the observance of her religious profession or practice, or
      6. if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran;

on any other ground which is recognised as valid for the dissolution of marriages under Muslim law;

Provide that—

      1. no decree shall be passed on the ground (iii) until the sentence has become final;
      2. a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfied the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and
      3. before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.

 

3. Notice to be served on heirs of the husband, when the husband’s whereabouts are not known - In a suit to which clause (i) of Section 2 applies--

the names and addresses of the persons who would have been the heirs of the husband under Muslim law if he had died on the date of the filing of the plaint shall be stated in the plaint.

a.                Notice of the suit shall be served on such persons, and

b.                Such persons shall have the right to be heard in the suit;

Provide that paternal uncle and the broker of the husband, if any, shall be cited as party even if he or they are not heirs.

  1. Effect of conversion to another faith - The renunciation of Islam by a married muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage :

Provide that after such renunciation, or conversion, the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in Section 2

Provided further that the provisions of this Section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.

  1. Right to dower not to be affected - Nothing contained in this Act shall affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage.
  2. Repeal of Section 5 of Act 26 of 1937 - Repealed by the Repealing and Amending Act, 1942 (25 of 1942) Sec. 2 and Sch. i.
Divorce Under Muslim Marriage Act India
 
Divorce By Husband / Wife
 
A Husband may divorce in the following manner-
  • Talaq: which is release from the marriage tie immediately or eventually.
  • Ila: where a husband of sound mind takes a vow that he will abstain from all relationship from his wife.
  • Zihar: where husband sane and adult compares his wife to his mother or any other female within the prohibited degrees.
A wife may divorce in the following manner:
  • Talaqetafwiz: talaq by the wife under the husbands delegated power.
  • Divorce By Judicial Decree Under Dissolution Of Muslim Marriage Act 1939.

Following are the grounds on which a marriage maybe dissolved under the Marriage Act.

  • Lian: Where the wife is charged with adultery and the charge is false.She can file a regular suit for dissolution of marriage as a mere application to the court is not the proper procedure.
  • Fask: The cancellation, abolition, revocation, annulment. Before the passing of the dissolution of Marriage Act, Muslim women could only apply for the dissolution of their marriage under the doctrine of Fask.

Womans Right To Divorce Under The Dissolution Of Muslim Marriage Act. 1939

A Muslim woman may file for divorce on the following grounds:

  • That the whereabouts of the husband have not been known for a period of 4 years
  • That the husband has neglected or has failed to provide for her maintenance for a period of two years.
  • That the husband has been sentenced to imprisonment for a period of seven years or upwards.
  • That the husband has failed to fulfill his marital obligation for a period of three years.
  • That the husband has been insane for two years or is suffering from leprosy or a virulent form of venereal disease.
  • That the husband was impotent at the time of marriage and continues to be so.

The women, having been given in marriage by her father or other guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18.

 

 



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