MUSLIM DIVORCE

TYPES OF DIVORCE

Divorce

Extra- Judicial
Judicial

Husban Mutual DMMA,

Wife
d Consent 1939
HUSBAND
oTalaq
o Approved forms
o Disapproved forms

oIla
oZihar
oLian
ILA
- Constructive form of divorce
- Husband takes an oath not to have intercourse with the wife for 4 months and
abstains.
- After 4 months, the marriage is dissolved.
- Husband can revoke the oath by resumption of marital life or through expiation.
- After 4 months, it becomes irrevocable.
ZIHAR
-Constructive Divorce
-Husband takes an oath that the wife is like one of his female relative who is related
to him by consanguinity, affinity or fosterage.
-If he wants to revoke such a divorce, he will have to pay money as a form of
expiation or fast for a certain period.
-Expiation done through- emancipation of a slave, fasting, sexual abstinence,
providing alms to the needy.
LIAN
oWhere both husband and wife divorce each other by mutual imprecation.
oHusband accuses wife of adultery but is unable to prove his allegation. The wife in
such cases is entitled to file for a suit for dissolution of marriage on the ground of
Lian.
oAt the time of hearing, before the Kazi/Judge, husband can retract his charge. If this
is done, the wife is not entitled to dissolution.
o If he does not retract, he has to make an oath alleging his wife to be unchaste.
o This is followed by oaths of innocence by the wife.
oAfter these mutual imprecations, the judge pronounces the marriage is dissolved.
WIFE
oDelegated Divorce
oKhula
TALAQ-I-TAFWID

•Husband can transfer his unilateral power of divorce to the wife through delegation in the marriage
contract.  
•Such a delegation does not deprive the husband of his inalienable right to pronounce talaq, but
merely gives his wife the additional right to do so.
•Wife can thereafter terminate the marriage extra-judicially and expeditiously, while retaining her
claim to the full amount of dower.
•Such a delegation is not revocable.
•Wife can choose when to exercise the delegated power. It is not necessary that she must exercise
such power as soon as the contingency arises.
•Eg- Polygamy, separate maintenance & residence (Courts have held that contracts that serve to
ensure domestic peace and harmony are not opposed to public policy).
DELEGATION V. SUSPENDED
TALAQ
Muhammad Amin v. Mst Aimna Bibi (Lahire, HC, 1931)

“I Shall not marry another woman in the presence of Mt. Aimna Bibi, and if I do, so
she is to be held to have been divorced by me, on account of the second marriage;
simultaneously with that second marriage, she will be forbidden to my person and
this very divorce by me in her favour would be valid and legal.”

Automatic divorce- takes away the power from the woman’s hand.
HOW HAVE COURTS TREATED
SUCH DELEGATIONS?
oPolygamy, separate maintenance & residence for wife
o(Courts have held that contracts that serve to ensure domestic peace and harmony are not
opposed to public policy)

oIll-will, dissension?

oResidence of husband with wife’s parents?

o(Depends on how it is framed)
oFor eg- Where the choice of residence is not completely restricted and the husband had to reside with
his wife in a dwelling approved by the wife and her parents and his choice was not limited the the
wife’s parental home, it was seen as reasonable and not opposed to public policy
REASONABLENESS
- Even where contracts are phrased one-sidedly, outlandishly, the courts will try to
interpret the provisions reasonably.
- Reasonable amounts of maintenance, not full income.
- Reasonable expectation to be treated well and not cruelly.
-
KHULA
oKhula is a divorce by consent at the instance of the wife in which she gives or
agrees to give a consideration out of her property to the husband for her release from
the marriage tie.
oWife in other words, begs to be released and the if the husband agrees, he does for
some part of her mahr as consideration

oSingle, irrevocable form of divorce.

oLike Talaq, they require the observance of iddat.

MUBARAT
oMubarat- is a divorce by mutual consent where both the husband and wife desire
dissolution.
oOffer of divorce may proceed from the husband or the wife.
oIn mubarat, there is no consideration to be paid.
oIrrevocable form of divorce.
oRequires observance of iddat.
JUDICIAL FORMS OF DIVORCE
DISSOLUTION OF MUSLIM
MARRIAGES ACT, 1939
Section 2: Grounds for Dissolution
(i) that the whereabouts of the husband have not been known for a period of four
years;
To be read with proviso- 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 satisfies the Court
that he is prepared to perform his conjugal duties, the Court shall set aside the said
decree;
Section 3
NEGLECT TO PROVIDE
MAINTENANCE
o Does the neglect have to be willful? Can it be circumstantial?
o Is the obligation to maintain the wife absolute? Or is it dependent on her conduct?
YOUSUF RAWTHER V.
SOWRAMMA, KER HC 1971
Facts: Wife and husband were living separately for over 2 years. Wife said he had
failed to maintain her and husband said that was because she was wrongfully
refusing to return to her conjugal home.

Issue: Is the obligation to maintain dependent on the conduct of the wife? Is she
eligible for divorce only if she has not violated her conjugal duties? Or can she ask
for divorce on mere failure of the husband to provide maintenance for her for two
years, the wife's delinquency being irrelevant?
oClause 2(ii) compared to clause 2(iv)- use of the word ‘reasonable cause’
o Flexibility in divorce provisions
“In the Muslim law of dissolutions, the failure to maintain when it has continued for
a prolonged period in such circumstances, is regarded as an instance where a
cessation or suspension of the marriage had occurred. It will be seen therefore that
the wife's disobedience or refusal to live with her husband does not affect the
principle on which the dissolution is allowed.
[…]

The law has to provide for possibilities; social opinion regulates the probabilities.
For all these reasons, I hold that a muslim woman, under Section 2 (ii) of the Act, can
sue for dissolution on the score that she has not as a fact been maintained even if
there is good cause for it--the voice of the law echoing public policy is often that of
the realist, not of the moralist.”
CRUELTY
(viii) that the husband treats her with cruelty, that is to say,—
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if
such conduct does not amount to physical ill-treatment, or
(b) associates with women of evil repute or leads an infamous life,
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her exercising her legal rights over it,
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one, does not treat her equitably in accordance with the
injunctions of the Quran;
IS BIGAMY AN ACT OF
CRUELTY TO WIVES?
ITWARI V. ASGHARI, ALL HC
1959
Facts: Husband (Itwari) and Asghari (Wife) were married for sometime. However
after a while, husband began to treat wife cruelly (beatings, not given her her
ornaments, non-payment of prompt dower) and wife left to go live with her parents.
Husband made no attempt to bring her back. Instead married another woman. Wife
filed for maintenance. Husband filed for RCR.

Issue:
Is taking a second wife reason enough to refuse an RCR petition? Can it be
construed as an act of cruelty?
Husband’s argument:

It is the right of a Muslim man to take on multiple wives. If the wives are allowed to
say that this gives her legitimate reason to leave the house and it is an act of cruelty,
it would end up exhausting the husband’s right. It would be a virtual denial of his
right under religion
HOW DOES THE COURT
RESPOND?
oAlthough the Quran gives a man the right to have 4 wives it is not an approved
practice. All 4 wives have to be treated fairly and justly and if they cannot be so treated,
husband should marry only one.
oMoreover, Islamic law and practice recognizes the right of a Muslim woman to give
herself a talaq (under delegated powers of divorce) in case husband takes on a second
wife.
oIn earlier decisions courts have interpreted the taking of a second wife as a continuing
wrong to the first wife.

So a muslim man can take a second wife while the first marriage subsists. But can he
use the law to compel the first wife to stay with him?
WILL IT CONSTITUTE
CRUELTY?

What constitutes cruelty will have to depend on physical and mental condition of the
parties, social status and prevailing social conditions.
“Today Muslim woman move in society, and it is impossible for any Indian husband with several
wives to cart all of them around. He must select one among them to share his social life, thus
making, impartial treatment in polygamy virtually impossible-under modern conditions. Formerly, a
Muslim husband could bring a second wife into the household without necessarily meaning any
insult or cruelty to the wife. Occasionally, a second marriage took place with the consent or even at
the suggestion of the first wife.”
[…]
“The onus today would be on the husband who takes a second wife to explain his action and prove
that his taking a second wife involved no insult or cruelty to the first. For example, he may rebut the
presumption of cruelty by proving that his second marriage took place at the suggestion of the first
wife or reveal some other relevant circumstances which will disprove cruelty. But in the absence of a
cogent explanation the Court will presume, under modern conditions, that the action of the husband
in taking a second wife involved cruelty to the first and that it would be inequitable for the Court to
compel her against her wishes to live with such a husband.”
TREATING ALL WIVES
EQUITABLY
Section 2(viii)(f)- if he has more wives than one, does not treat her equitably in
accordance with the injunctions of Quran.

What does it mean? Whose standards are to apply and prevail? Third party or the
view of the wife? Husband?
ABDURAHUMAN V.
KHAIRUNNESSA, KER HC 2010
Facts: Wife and husband married. 4 children. Wife had to move with husband abroad for his
employment. She had some savings from her time as a teacher. Husband was terminated from job, so
he had to come back to India. They came back and set up joint residence in a flat. Wife believed that
the property was purchased in her name using her earnings. However, she later realized that her
husband had taken her for a ride. he had also taken away her gold ornaments and wedding gifts.
Husband began treating her with cruelty. Thereafter, he contracted another marriage and started
residing with his 2nd wife.

Issue: Did the husband treat her equitably as per the injunctions of the Quran as he is required to under
DMMA? What is the meaning of Section 2(viii)(f) of the DMMA? Whose standards are to apply and
prevail?
Husband’s arguments?

- Denied all allegations

- Also argued in court that he got married a second time with the consent of the first
wife.
COURT LOOKED AT:

Concept of marriage in Islam

Concept of marriage in modern times
Impact of constitutional socialism and the fundamental right to life
- Marriage is not an indissoluble tie in Islam. Unhappy party can walk out.
- Historical context of polygamy
- Story of Jameela
- Ayat 3 of Sura IV v. Ayat 129
Ayat 3
"If ye fear that ye shall not Be able to deal justly With the orphans, Marry women of your
choice, Two, or three, or four; But if ye fear that ye shall not Be able to deal justly (with
them), Then only one, or (a captive) That your right hands possess. That will be more
suitable, To prevent you From doing injustice."
Ayat 129
"Ye are never able To be fair and just As between wives, even if it is your ardent desire

How to reconcile both?

- Law and religious injunctions have to be interpreted in light of the
prevailing social conditions. Having multiple wives made sense in a war
ravaged country.

The condition precedent for a polygamous marriage is the ability of the

husband to deal justly with all his wives…If he is unable to do the same, the
very foundation of such polygamous marriage would vanish affecting its
legitimacy and continued validity.

To us it appears that Ayat 129 must give us the real clue to interpret
Sec.2(viii)(f) of the Act. It is the declaration of God Almighty relayed to us by
the Holy Prophet that no man shall ever be able to be fair and just when he
has plurality of wives even if that be his ardent desire.
“Matrimony as an institution in the modern era must be reckoned as a serious dimension of the pursuit
of the mission of life by equal adult partners seeking perfection, completeness, harmony, happiness and
contentment in life. The pursuit has physical, mental, intellectual and spiritual dimensions. Marriage in
the modern era can only be reckoned conceptually as an arrangement of lasting friendship,
partnership, mutual complementarity, affection, love, support, caring and sharing between two adult
equal partners of different sex."

Right to life under Article 21 of the Constitution must definitely include the right to a healthy and
harmonious matrimonial life. Marriage as an institution becomes meaningless if it were to be endured
and not enjoyed. The right to opt out of an emotionally dead marriage will have to, subject to the
concerns of public order and morality, be essentially accepted - tomorrow, if not today, as an incident
of the right to life. It will of course have to be secured that the economically fragile divorced spouse is
adequately protected. “
WIFE HAS THE RIGHT TO
DECIDE WHETHER SHE HAS
BEEN TREATED EQUITABLY
22. Sec.2(viii) (f) of the Act provides an escape route for a married woman who finds a third person
intruding into the space of matrimony which has place only for two. Marriage, according to the well
accepted modern concept, is a space which can accommodate only two and not three or more.
We note specifically the language employed by the legislature. We note that the section insists on
equitable and not equal treatment of the wives in a polygamous marriage. Equal treatment of all wives
- but not equitably, is no defence in a claim for divorce under Sec.2(viii)(f). We must dispel the
impression at the earliest that the mandate is only for "equal treatment" of all wives. Equitability is the
crux of the matter.
According to us, this and this alone can be the true interpretation of the words "treat her equitably in
accordance with the injunctions of the Quran". It is her assessment that matters. It is not the
assessment of the partisan husband who notwithstanding the declaration of Ayat 129 may feel that he is
ardently attempting to do the same and is actually treating his wives equitably. His standards are not to
be applied at all. His egoistic assessment and evaluation about himself is irrelevant and unconvincing.

Tested on the constitutional mandate of equality also we find this construction has to be
followed. The husband has a right to unilaterally walk out of marriage - even a monogamous
marriage. At least when faced with the ignominy of polygamy, the wife must on her assertion
be able to secure an order through court to quit such marriage. Her assertion need not be
tested on any other touch stone. It is, of course, true that Sec.2 (viii)(f) of the Act does not
recognize a polygamous marriage by itself as a ground for divorce; but read reasonably, the
provision concedes to the wife a right to walk out of marriage if she is satisfied that she has
not been treated equitably in such marriage.
2(IX)- ON ANY OTHER
GROUND
- Khula, Lian or Mubarat
- Incompatibility, ill will or dislike are usually not grounds for divorce under Muslim
Law. However, courts have used this ground to grant divorce where the marriage has
irretrievably broken down
OTHER GROUNDS
- Imprisonment for a period of 7 years or upwards (not until final decree is awarded)
- Impotency (at the time of marriage and upon the filing of the decree)
- Insanity, Venereal disease (for two years)
- Option of puberty
- Failure to perform matrimonial obligations (for three years)-
 Desertion
 Sexual Intercourse
CONVERSION BY WIFE (SEC 4)
-Conversion by wife to another faith shall not ipso facto dissolve her marriage.
-Even if she converts she can file for divorce on any of the grounds mentioned in
Section 2.
-This provision does not apply to a woman who had converted to Islam from some
other faith.
TALAQ
TYPOLOGY
oApproved Forms (Talaq- e- Sunnat)- Revocable forms

oTalaq- e – Ahsan (Most approved)

oTalaq- e- Hasan (Approved)

oDisapproved Forms
oTalaq-ul-Biddat
oTalaq-ul-bain
TALAQ - E - AHSAN
o The ahsan form consists of one single pronouncement of Talaq in a period of
Tuhr.
o Tuhr is the period of time when the woman is free from her mensural courses
o After Talaq is pronounced, the wife must observe iddat.
o Talaq is revocable during iddat. After iddat, it becomes irrevocable.
o Divorce is effective after the expiry of the iddat period.
o To remarry same spouse, nikah must be performed.
oNo halala required for remarriage to former spouse.
TALAQ - E - HASAN
o Three successive pronouncements during 3 tuhrs.
o There should be no sexual intercourse during these 3 tuhrs.
o The first two pronouncements are revocable.
o After the third pronouncement, talaq becomes irrevocable.
o Divorce is effective on the third pronouncement.
o After the third pronouncement, remarriage to former spouse is void unless Nikah
Halala is performed.
TALAQ- UL- BIDDAT
o Three pronouncements of divorce in immediate succession in a single tuhr or even
otherwise.
o Irrevocable divorce effective on the third pronouncement.
oThe triple repetition is not necessary as long as the intention to render talaq
irrevocable can be expressed through a single declaration also (talaq-ul-bain)
o This form of divorce is not recognized by Shias.
o For remarriage to former spouse, Halala needs to be observed.
FORM OF TALAQ
- May be oral or in writing in the form of a talaqnama
- Under Sunni law, it may be made without witnesses. Under Shia law, 2 witnesses
are required.
- Wife’s presence is not necessary. However, wife ought to be named especially if
she is not around when divorce is being pronounced.
- The divorce must be communicated to the wife in order to be effective.
- Words have to signal clear and express intention to divorce.
- Where the words are ambiguous, intention has to be ascertained
QUESTIONS BEFORE THE
COURT

- How should talaq be communicated to the wife in order to be effective?

- Is the power to unilaterally divorce wife by three pronouncements legally valid?
SHAMIM ARA V. STATE OF UP,
SC 2002
Facts: Husband wife married since 1968. Had 4 children. In 1979, wife filed an application
u/s 125 CrPC complaining of desertion and cruelty. In 1993 the Family Court refused to
grant an order of maintenance because the husband had already divorced her by the time of
the order, allegedly in 1987 in the presence of some Mehboob and 4-5 persons in the
neighbourhood. The wife denied having been divorced at any time. The husband said he had
given her a triple talaq. The communication of the divorce was allegedly completed in 1990
with the filing of the written statement by Husband.

Issue: Was there a valid divorce? And could it be said to have been validly communicated
from 1990 through the filing of the written statement?
1987– husband said he had divorced his wife by ITT. Made certain vague,
generalized accusations against her saying that he found her sharp, shrewd and
mischievous. Said this in from of 4-5 persons from the neighborhood.

1990- Written statement filed by husband in response to wife’s S. 125 petition where
he said he had divorced her.
HELD:
oHigh court said the divorce was effective from 1990 because the earlier divorce was
not said in the presence of the wife nor was it communicated to her.
o SC rejected this holding and said that for talaq to be effective it has to be
pronounced which means “a formal declaration”. Plea in written statement cannot
amount to proclamation or communication to the wife about divorce. Hence there
was no valid divorce.
o- Quoting earlier judgments it held that talaq in order to be effective has to be for a
reasonable cause and should only proceed after an attempt at reconciliation has been
made. Two arbiters can be appointed. One from husband’s side and one from the
wives’.
WHY WAS THE DIVORCE NOT
VALID?
- No proof of talaq having taken place in 1987.
- No communication to the wife. A mere plea taken in the written statement of a
divorce having been pronounced sometime in the past cannot by itself be treated as
effective communication of divorce.
- Finally, no attempt at reconciliation.
MASOOR AHMAD V. NCT DEL
HC 2007
Facts: Husband and wife married in 2004. She alleged that the petitioner and his family
members threw her out of the house on account of non-fulfilment of dowry demands. Husband
filed RCR against her in 2006. Upon return she got to know that her husband had already
divorced her. A second nikah had been performed but while the husband said it was valid, the
wife said she had been duped into it. Shortly after her return, matrimonial discord between
husband and wife started again. She left the house again in 2008 and was residing at her
parent’s ever since. Wife filed criminal rape charges against her husband.

Issue: Was there a valid talaq given by the husband? What is the legality and effect of TT?
Does talaq given in anger result in the dissolution of marriage? What is the effect of non-
communication of the talaq to the wife?
Wife’s argument:
- Yes, it was a valid talaq. Talaq-ul-biddat.
- Remarriage could not happen without the observance of nikah halala
- Therefore second marriage was void.
- Consent given to sexual relations between 13/4-19/4/2006 was tainted consent
Husband’s argument:

- ITT was not valid. Relied on Shamim Ara

- No question of rape therefore.
- Triple talaq given in a single setting could at best be treated as one talaq and
therefore second nikah performed was valid.
HOLDING
- TT is sinful and thus, even for sunni muslims should be treated as one revocable
talaq. This would give the husband the time to think through his decision and revoke
the divorce if he wanted to during iddat.

- Relied on Shamim Ara. Pronouncement of talaq has to be proved. Reasonable

cause must be shown along with evidence for the attempts at reconciliation.

- Attempt at reconciliation may take place after the pronouncement of talaq but
before the iddat period.
- Talaq must be communicated to the wife.
- Communication is an essential part of the pronouncement. Otherwise she would be deprived of her rights post
talaq and pre-dissolution.
- What is the earliest will depend on the facts and circumstances of each case
- Without communication talaq would not be effective.

For these reasons, talaq given by husband was not valid. (since it was given in anger, there was no attempt at
reconciliation, the talaq itself was not communicated to the wife and if at all, it would be treated as a single
revocable form of talaq. Thus, when the wife returned home, marriage was subsisting)
IN SUMMARY…
- Reasonable cause
- Need for reconciliation.
- Needs to be communicated to the wife, where she is not present.
- Delivery of written statement cannot be treated as pronouncement of talaq.
SHAYARA BANO V. UOI, SC
2017
-Constitutionality of ITT
AIMPLB:
 A) Court cannot review uncodified Muslim personal law
 B) ITT was essential to Islam and therefore protected under Art 25

 5 judges (3:2)
 Nariman, Lalit and Joseph agreed that the practice was part of codified muslim personal law,
therefore subject to Part III. They found ITT to be manifestly arbitrary, and against the dictates
of MPL itself (Joseph). Why? Because it offered no opportunity to reconcile.

 Khehar and Nazeer dissented by saying that it was part of an uncodified personal law and
therefore not subject to constitutional scrutiny under Part III. Rather, it was protected under the
right to religion. Only parliament could revoke such a practice.
- The ghost of Narasu Appa Mali
- No finding on unconstitutionality on grounds of it being against gender or religious
equality.
 Muslim Women (Protection of Rights on Marriage) 2019 has criminalized
the practice.

 The act provides a 3 year punishment. The offence is non-bailable,

cognizable.

 Is it excessive? Are you using a gun to kill a mosquito?