Introduction
Dissolution of marriage has always been a common practice among ancient Arabs. It was easy and frequent but later, Prophet Mohammed made reforms in Islamic marriages in order to restore conjugal happiness and proper bringing up of children. We get to study about these reforms from various sources of Muslim Law, namely, Quran, Sunnat, Ijma, Quiyas. Further, many changes were made with the help of judicial cases and acts made.
Classification of Dissolution of Marriage
Under Muslim Law, a marriage is dissovled either by the death of either spouse, ie, husband or wife; or by divorce. When marriage is dissolved by death, the parties can marry immediately but if wife is pregnant she has to wait until child is born but under divorce, the wife has to wait until four months and ten days. This waiting period is called iddat.
Dissolution of marriage by divorce can be done in several ways. Generally, the husband has more options to opt for divorce than wife. A wife can purchase her divorce from husband and can also dissolve it by delegation. A wife also has given grounds for divorce under Dissolution of Muslim Marriages Act, 1939.
Talaq
Talaq means release from the marriage tie and is applied to repudiation done by or on behalf of husband. It can be affected in many modes.
1. Talaq -ul- Sunnat: This kind of talaq is effected in accordance to traditions of Prophet. It has been further sub- divided into Ahsan and Hasan. Ahsan is an Arabic word which means best. This is very best and significant kind of talaq. Here, a husband pronounces the formula of divorce in a single sentence in a state of purity called tuhr. Tuhr us a period when a woman is free from her menstrual course. It is said that during this period he must abstain from intercourse for the period of iddat. After iddat period ends divorce becomes irrevocable.
Second comes Hasan. Hasan is an Arabic word which means good. Here, there must be three successive pronouncements of the formula of divorce. In case of menstruating wife, the first pronouncement should be made during a period of tuhr, second during next tuhr and third during successive tuhr. Husband should abstain from sexual intercourse during these three periods of tuhr. After the third pronouncement divorce because irrevocable.
2. Talaq -ul- biddat: It is A dissaproved and sinful form of talaq but recognized among Hanafis. Shias and Malikis do not recognise this form of talaq. It was introduced by Omeyyads. Here, three pronouncements are made during single tuhr either in one sentence or seperate. Such divorces are irrevocable. It is also known as triple talaq for the way it is pronounced.
In the case of Shayara Bano v. Union of India(2017) the Apex Court by the Constitutional bench held that triple talaq is void and illegal as it is arbitrary and against Right to equality (Article 14) of the Indian Constitution. The Apex Court also directed to pass legislation in this regard which led to Muslim Women (Protection of rights on Marriage) Act, 2019.
3.Ila: The word ila means vow of self control or continence. When a husband who is of sound mind and attained the age of majority swears by God or takes a vow that he will not have sexual intercourse with his wife and follows his vows for four months and more then, it is said that he divorved his wife by ila. If he wants to cancel what is vowed he has to resume intercourse within the period of four months or verbally retract from what he previously said.
4. Zihar: If a husband who has attained majority and has sound mind, compares his wife to any female within prohibited degree like mother, the wife can refuse herself to him until he has atone to what he said. In default by husband the wife has right to apply for judicial divorce. The declaration of zihar makes sexual intercourse unlawful and the wife can claim for judicial separation if the husband persists to do so.
Talaq-e-tafweez
The word tafweez means delegation of power. A husband can either himself repudiate his wife or can give this power of repudiation to third party or his wife. Here the wife divorces herself on the behalf of her husband under this power delegated to her by him. Such delegation can be exercised either absolutely or conditionally. An agreement, in this regard, can be made either before or after the marriage. In spite of delegation, the husband can also exercise his right to pronounce talaq at his will.
Mutual Consent
Khula and Mubarat are the divorces where mutual consent is considered.
1.Khula: Khula means to lay down. Here, the husband lays down his rights and authority over his wife. There must be an offer of divorce from wife which must be accepted which must be accepted with consideration by husband. These formalities shall be completed in one sitting but if the consideration is unpaid, the divorce is still vaild. It is so, because as soon as the acceptance is made the divorce becomes irrevocable and the wife is bound to observe iddat.
2.Mubarat: In Mubarat, both the parties mutually come to an agreement that the want a divorce. Hence, the offer can be made either by wife or by husband. No consideration is required in Mubarat. Once the offer of Mubarat is accepted, the divorce becomes irrevocable.
By judicial decree
1. Lian: Lian means false charge of adultery. When a husband, who has attained the age of majority and is sane, charges his wife of adultery and that charge is false then the wife is entitled to sue for and obtain divorce. She can file a regular suit for dissolution of her marriage and the husband must admit that he has made charge of adultery. This judicial separation is irrevocable.
2. Faskh: Quran says that husband has A duty to look after her wife and the wife has duty to obey her husband. If they believe that the cannot continue the marriage, they can approach to the Qazi for dissolving their marriage if,
- The marriage is irregular
- Marriage was within prohibited degree or fosterage
- The person who had option to avoid marriage opted that option
- The marriage was between non- muslim parties but someone among them adopted Islam.
3. Under Act: Section 2 of the Dissolution of Muslim Marriages Act, 1939 lays down nine grounds under which a wide can obtain a degree for dissolution of her marriage. The grounds are:
- If the husband is absent from the wife’s life for four years or more
- If the husband has failed to maintain her wide for a period of two years
- If the husband has sentenced to imprisonment for seven years or more
- It the husband is impotent at the time of marriage and continues to be so
- If the husband has been insane for a period of two year or is suffering from a virulent venereal disease
- If she was married by her guardian before the age of 15 years, and she chooses the option to repudiate her marriage
- If husband treats wife with cruelty
- On the grounds recognized under Muslim law like; ila, zihar, khula etc.
Conclusion
Conclusively, one can say that the Muslim Law in respect of marriage and divorce has seen reforms over centuries. Once there was a time when Arabs used to marry and divorce the marriage at their will. Then for the upliftment of society, Prophet made reforms in the institution of marriage for a happy married life. Then, as time changed, the legislation stepped in, both in the colonial and post- independence era. These reforms make the Muslim Law an evolving and dynamic law.
