The death of the husband or the wife operates, in law, as dissolution of marriage, if so desired. When Wife dies, Widower may marry immediately, but when Husband dies, the widow has to wait until Iddat is over. Iddat in the case death of Husband is 4 months, 10 days, and if she is pregnant, until she has delivered the child.
Divorce by act of parties
A. Dissolution of Marriage by Wife
The Husband in Muslim Law has power to delegate his own right of pronouncing a Divorce to some third person or to the wife herself. A stipulation that under certain specified conditions, the wife can pronounce divorce upon herself has been held valid. It is called as Talaq-e-Tafweed or the Delegated Divorce. The Husband in one case had agreed – that he would pay separate maintenance and in case of disagreement, the wife would have power to divorce herself.
It was held that such an agreement was not opposed to public policy. The wife exercising her power under agreement must establish that the conditions entitling her to exercise the power have been fulfilled, namely, in the instant case, Husband’s failure to pay the maintenance. This form of delegated divorce is perhaps the most potent weapon in the hands of Muslim wives to obtain their freedom without the intervention of any Court and is now beginning to be fairly common in India.
B. Dissolution of Marriage by Common Consent
Previous to – Islamic legislation, Wives had no right to claim dissolution of marriage on any ground whatsoever. As a general rule, neither the Hebrew nor Athenians nor Romans nor the Israelites nor pre-Islamic Arabs recognized the right of divorce for women. The Quran allowed them this privilege which had been denied to them by the primitive institutions of their country.
It is of interest to observe that Section 28 of the Special Marriage Act, 1954 provides for Divorce by common consent of the spouses. In fact, until the Amendment of 2001, Christian women did not have the right to dissolve marriage by consent.
When a wife owing to her unwillingness, is desirous of obtaining a divorce, she may obtain release from the marital contract by giving up either her settled Dower or some other property. Such a Divorce is called Khula. When a Divorce is effected by mutual consent but at the Husband’s suggestion = (accepted by wife – resulting in a common consent) – it is called mubaraa or Mubarat.
The word ‘Khul’ means to take off clothes and then to lay down one’s authority over a wife. And the word Mubarat (or Mubaraa) denotes the act of freeing one another mutually.
In both these cases, no decree of the Judge is necessary to dissolve the union. The mere act of the parties is regarded as sufficient in law provided all the condition required for affecting a valid divorce are complied with. ‘Khula’ and ‘Mubaraa’ take effect as an irrevocable Divorce with Immediate effect.
Form
According to the Shias, a Khula requires to be pronounced in sacramental terms. While among Sunnis, no particular form is needed so long as the consent is formally expressed. While in Talaq, the repudiation may be conveyed by the Husband in any terms, in Khula, the consent is required to be given in a clear and definite language: say, “Give me a Khula in exchange of my Dower”, and man were to reply “I do”, a lawful dissolution of the marriage tie would be effected and the Dower would drop. According to Hanafi Law, the husband proposes dissolution and the wife accepts it at the same meeting. The contract/agreement itself dissolves the marriage and operates as a single ‘Talaq-i-Bain’ and operates forthwith. Its operation is not postponed until the execution of the Khul-Nama (Deed of Release) or Document of Release.
Consideration
Among all schools, which recognize the power of the parties to a marriage-contract to dissolve it without the intervention of the Judge, the stipulation of compensation to dissolve it is a necessary condition to the validity of Khula. As a general rule, everything which may be given in dower may serve as a compensation for Khula. When a wife sues her husband for her dower alleging that he had given her a Talaq and the Husband in defence pleads that the wife had entered into a ‘Khula’ and had abandoned her dower, the dispute would revolve on evidence, viz., whether or not it was at their instance that the separation took place and whether or not she abandoned the dower in order to obtain the release from the marriage tie. In one case the Judicial Committee, on appeal, confirmed the recognized principle of the Muslim Law that when a Divorce is given under the name of Khula and the husband fails to prove that the wife gave her consent of her own free will or with due apprehension of its meaning to the abandonment of her Dower or property in the hands of husband, the Divorce would be effective but not her agreement abandoning her dower.
C. Dissolution of Marriage by Husband
(i) Introductory
The reforms of Prophet of Islam marked a new departure in the history of Eastern Legislation. He restrained the power of divorce possessed by husbands and he gave woman the right of obtaining a separation on reasonable grounds. The separation of parties (divorce) thus can be classified into three, namely, Dissolution by Husband, by Wife and by Common Consent.
The Dissolution of Muslim Marriage can be classified into three categories viz.,
(1) Divorce
(2) Ila and
(3) Zihar. ‘Divorce’ is the Talaq:
(ii) Ila – Repudiation of Marriage by Husband
Prior to Islamic Legislation, a vow of abstinence by husband was in vogue. The husband would take vow that he would not have sexual intercourse with his wife for a certain length of time and that used to take effect as absolute repudiation of marriage. The Prophet of Islam stigmatized this custom as a gross outrage on Wife. The term of Ila is four months. A vow for less than this space of time is of no effect in the eyes of law.
After the lapse of period, husband loses all conjugal rights over the wife, who on her side becomes entitled to claim dissolution of her marriage by an order of the court. Under the Hanafi Law, presumption goes that (A) husband has no intention of resuming cohabitation and attaches to the vow the effect of definitive and complete separation and (B) – marriage is dissolved without legal proceedings whereas under the Ithna Ashari and Shafi Law, legal proceeding are necessary. As a matter of fact, it is safe to obtain a decree of the Court so that in future there is no dispute over the vow by the Husband.
(iii) Zihar – Repudiation of Marriage by Husband
In early times, and before the promulgation of the Islamic Law and faith in the Peninsula of Arabia, it was as customary among Arab Husbands to repudiate their wives by calling them as mother or sister. The Prophet of Islam expressly forbade the same calling it, ‘injurious assimilation.’ In Zihar, the husband swears that to him the wife is like his mother or sister or any other female relation within the prohibited degrees. If the husband intends to revoke his declaration, he has to pay money by way of expiation, or fast for certain period. After the Oath is taken, the wife has the right to go to the Court and obtain a Divorce of Restitution of Conjugal Rights on expiation.
(iv) Talaq-Repudiation of Marriage by Husband
I. Introductory
The word Talaq comes from the root, ‘Tallaqa’ which means to release (an animal) from the ‘tether’. In law, it signifies the absolute power of the Husband to release his wife from the bondage of marriage. The law gives the man primary power of dissolving the marriage, if the wife by her indocility or her bad character renders the married life unhappy. Therefore, in the absence of serious reasons, no Muslim can justify a divorce either in the eyes of religion or in the eyes of law.
If the husband abandons his wife or puts her away from simple caprice, he draws, upon himself the divine anger because, the Prophet of Islam said, the divine anger rests on him who repudiates his wife capriciously. If there is no legal cause for Talaq, as a matter of law, it must be considered unlawful; because God, in Quran, says that if your women are obedient to you, you must not seek separation from them.
i. Before going further, it would be more appropriate to consider Quranic Injunctions on the issue of Divorce under Muslim Law.
ii. And if you fear a breach between the two (Husband and Wife), then appoint an arbitrator from his people and from her people.
Prophet, when you people intend to divorce your women then divorce them at the time of their prescribed periods and count the prescribed period, and fear Allah, your Lord. Turn them not out of their houses during prescribed period, nor should they themselves go out, unless they become openly guilty of immoral conduct.
iii. For those who swear for abstinence from their wives, (there) is a waiting four months. Then if they return, indeed, .Allah is forgiving and merciful. 2:227 – And if they resolve on divorce then indeed Allah is hearing and knowing.
iv. And divorced women shall wait concerning themselves [for] three menstrual periods. And it is not lawful to them to conceal as what is created [by] Allah in their wombs, if they believe in Allah and the Last Day. And their husbands have better right to take them back in that period if they intended reconciliation. And for them [wives] is the similar [right of maintenance] that which is on them [husbands, for respect, reverence, obedience etc.] to what is reasonable. But for them [men] have a degree [of responsibility] over them.
v. The divorce is twice. Then retain them reasonably or release them with kindness. And it is not lawful for you that you take back anything of what you had given to them except that both fear that they will not be able to keep limits of Allah and she returns what she was given.
vi. So if he divorces her then she is no lawful for him thereafter until she marries a husband other than him. Then if he divorces her, (on his own and thereafter the first husband marries her then) there is no sin on both of them that they return to one another, if both of them think that they would be able to keep limits of Allah.
vii. And when you divorce women and they are about to reach their prescribed term then retain them in a fair manner or let them (go) in a fair manner. But do not retain them to hurt so that you may transgress [the limits of Allah],
viii. And when you have divorced women and they have fulfilled the term of their prescribed period, do not prevent them from marrying their (former) husband if they mutually agree on reasonable basis.
1. Divorce must be given during Tuhur Period or during the period when woman is free from her menstrual period.
2. It is mandatory to go for reconciliation before Divorce by appointing one person from Husband and one person from Wife – to what we call in modern world as arbitration or conciliation or Court Proceeding – it also means that women too has a right to go for conciliation/arbitration and if husband refuses to co-operate, woman has a right to go to Court, that explains the enactment of Dissolution of Muslim Marriages Act. Reverting back to reconciliation/arbitration, it may be noted that arbitration must proceed before divorce whether it is in Talaq-us-Sunna form or in Talaq-ul-Bida form.
3. After Divorce, Iddat Period can be identified as the ‘Judicial Separation’ and after Iddat Period Divorce can be identified as the “Decree of Divorce’.
4. Intervening Marriage (called ‘Halala’ in colloquial language) is not necessary if Husband takes her back after divorce decree but before completion of Iddat Period.
5. After divorce, wife is free to contract another marriage with whosoever she likes but only after the period of divorce [Iddat]
6. If Husband takes oath of abstinence, the period of Oath must last for four months and if Husbands goes back to his Oath, no divorce takes place but after that period, it operates as divorce.
II. Talaq-us-Simna (Approved Form of Divorce)
Talaq-us-Sunna is the divorce which is affected in accordance with the rules laid down in tradition (Sunnat) handed down from the Prophet of Islam. It is in fact, the mode or procedure which seems to have been approved by him at the beginning of his ministry and is consequently, regarded as the regular or proper and orthodox form of Divorce.
Talaq-us-Sunnat is either Talaq-e-Ahsan or Talaq-e-Hasan. It may clearly be noted that in these two forms – there is a chance of conciliation either by the intervention of friends or by afflux of time. These two forms of divorce follow the spirit of Quranic injunction (Ch. Lxv-C2) which reads – ‘Then when they have reached their term, take them back in kindness or part from them in kindness.’
(a) Talaq-e-Ahsan – Most Approved form of Talaq
First of all the term Ahsan must be understood. Ahsan is a comparative degree of the term Hasan. Hasan means good. Placing the letter ‘a’ before the word Hasan, Ahsan term is obtained to mean better.
The Ahsan or most approved form consists of one single pronouncement of divorce in a period of Tuhur (purity i.e., when woman is free from her menstrual courses. The Talaq given during the period Tuhur is followed by abstaining from sexual intercourse during the period of Iddat which is three months or if the woman is pregnant, until delivery. Within three months (i.e., during Iddat period) Husband can revoke or cancel the Divorce.
Such revocation may be expressed or implied by conduct. Resumption of conjugal intercourse is a clear use of revocation. For instance, H pronounces a single irrevocable Talaq against his wife and then says ‘I have retained thee’ or cohabits with her, the divorce is revoked. After the expiration of the Iddat period (i.e., three months or three periods of menstrual courses), divorce becomes final and irrevocable. However, it may be useful to note the
The Ahsan form is ‘most approved’ because the husband behaves in a gentlemanly manner an does not treat the wife as a chattel. Unlike Hasan Form, it is not necessary to pronounce Talaq every time during the free period or Tuhur.
(b) Talaq-e-Hasan (Approved form of Talaq)
The Hasan form is also an approved form but less approved than the Ahsan because, in order to ill-treat wife, in pre-Islamic time, Husband used to divorce his wife and take her back several times. The Prophet by the rule of irrevocability of third pronouncement clearly indicated that such a practice could not be continued indefinitely. Thus, if a husband really wished to take the wife back, he should do so, if not, at the third pronouncement would operate as a final bar to revoke the Talaq.
The Hasan form of Talaq consists of three successive pronouncements of Talaq during three consecutive periods of purity (Tuhur – i.e., when the woman is free from her menstrual courses). Each of these pronouncements should have been made at a time when no intercourse had taken place during that period of purity. For example, Husband pronounces Talaq when his Wife is free from her menstruation or what is called as Tuhur. During this time, husband does not keep sexual relation and also by express words, gives Talaq. Wife then has the menstruation period.
This is the First Talaq. After the menstruation period, wife has the period of purity (Tuhur). If husband either resumes sexual intercourse or revokes his first Talaq in express terms in this period of purity (Tuhur), the first Talaq is driven to cold storage and does not take effect. But if neither does he keep sexual relation nor does he revoke the Talaq by express words, on the contrary, gives the Talaq in this period of purity (Tuhur), it is the Second Talaq. Once again menstruation period starts and once again the third period of purity (Tuhur) starts. During this period of purity (Tuhur), if husband gives Talaq, it is the Third Talaq. The Third pronouncement of Talaq operates in law as the final, conclusive and irrevocable dissolution of marriage.
III. Talaq-ul-Bida (not approved form)
(a) Introductory
The Talaq-ul-Bida (Bidat) as its name signifies is the irregular mode of divorce which was introduced in the second century of the Mohammedan era. It was then the Ommeyyad monarchs, finding the checks and prevents imposed by Prophet of Islam on the facility of repudiation, interfered with the indulgence of their caprice. They then accordingly endeavoured to find out an escape and ultimately found out this escape. The Shias and Malikis do not recognize the validity of Talaqul Biddat while the Hanafis and the Shafis agree that a Divorce is effective, if pronounced in the biddat form. Talaq-ul-Bidat is either Triple – or One Single Irrevocable Declaration.
(b) Triple Talaq
The Prophet of Islam pronounced Talaq to be the most detestable before God of all the permitted things. It (Divorce) is treated as Mubah (permitted) though the exercise of the power (without any cause) is morally and religiously ignoble. Therefore, the kind of Talaq recognized by all schools is the Talaq-us-Sunnat. However, the Ommeyyad monarchs found out an escape from the strictness of the law and reintroduced the custom of divorce of pre-Islamic Era. Thus, when Talaq itself is most detestable of all permitted things, Talaq-ul-Bidat, under no circumstances can be justified or approved. But the deplorable development is that the Talaq-ul-Bidat has become the most common for men and men have always moulded the law of marriage most agreeable to them.
In Talaq-ul-Bidat, the husband pronounces Talaq three times in one single period of Tuhur (when woman is not undergoing the menstruation). The declaration of Talaq may be in one sentence e.g., ‘I have divorce thee triply’ or ‘I divorce, thee’. As a matter of fact, such a Talaq is to be given in Tuhur but, in certain cases, Talaq pronounced during the menstrual period is also recognized by the Hanafi School as is laid down. However, the Full Bench of Bombay High Court ] has held that Muslims – must follow the norms laid down in the Quran. The apex Court too has held that merely taking a plea in the Written Statements that Talaq was given that would not have the effect of Talaq. Talaq to be effective, it is necessary to have ‘pronounced’ in the manner lay down under the Personal Law. ‘Pronounced’ means to ‘proclaim’ or to ‘utter formally.’ The plea in the Written Statement or some affidavit filed in some civil Court does not amount to pronouncing the Talaq.
(c) Single Irrevocable Talaq
Another form of disapproved divorce is single irrevocable pronouncement either during the period of Tuhur or otherwise. It is generally given in writing. Such writing is called Bill of Divorcement. It comes into effect immediately and severs the marital tie forthwith. The Full Bench of the Bombay High Court has held that if husband in the Court claims that he had given Talaq under Talaq-ul-bidat from and if that is disputed then he must prove that he had complied with the pre-conditions stipulated in Quran, viz., (i) before exercising the right of Talaq, there was arbitration [one person from wife and one person from husband] (ii) the declaration of Talaq was in Tuhur [time of purity]
(iii) the Talaq was given in presence of sufficient number of Muslim witnesses and not before non-Muslim witnesses (iv) During three menstruation periods or if wife is not menstruating then three lunar months, no sex indulgence had taken place. If Husband is not able to prove these pre-conditions then Talaq is invalid and it does not come into force.
(d) Critical Appreciation
As already aforesaid that Talaq-ul-Bida is not approved form of divorce and further the Full-Bench of Bombay High Court in the case of Dagdu Chotu, Dagdu Chotu vs. Rahim Bi, 2000 (3) Mah. L.J. 602, that Talaq must precede arbitration in consonance of Quranic Injunction then a Muslim may choose the quick divorce by Talaq but then only after arbitration in consonance of Quranic injunction time. This will achieve quick divorce in contrast to spending long ion court litigation.