Divorce under Muslim law

Kinds of Divorce:

A Muslim marriage can be dissolved in the following manners:

(1)    By husband

(A)   Talaq

(i)                  Talaq-us-sunnat

(a)    Ahsan- husband pronounces talaq in one pronouncement, during wife’s period of tuhr and abstains from intercourse during the period of iddat. Cohabitation revokes talaq. It becomes irrevocable on the expiry of iddat period.

(b)   Hasan- three successive pronouncements during wife’s period of tuhr or at gap of 30 days each and no sexual intercourse during these three periods of tuhr. It becomes irrevocable on third pronouncement.

(ii)                Talaq-ul-biddat- irregular mode of talaq. Shias and malikis do not recognize it. In this, the husband pronounces talaq in one sentence only. It is also known as ‘triple talaq’.

(B)   Ila- husband of sound mind swears by God that he will abstain from sex and abstains for four months or more. Ila is cancelled by having intercourse during four months or a verbal restriction thereof. Ila is not practiced in India.

(C)   Zihar- a sane and adult husband compares his wife to his mother or other females within prohibited degree. Wife has right to refuse sexual intercourse till he frees a slave, fasts for two months or feeds sixty poor people or she can apply to the court requiring him to perform penace or for regular divorce.

(2)    By wife- talaq-e-tafwiz- wife pronounces divorce to herself under husband’s delegated power. Wife does not divorce her husband but divorces herself on behalf of the husband.

(3)    By mutual consent

(A)   Khula- there is an offer by the wife accepted with the consideration (evaz) for release and the offer is accepted by the husband.

(B)   Mubarat – the offer may be from either side, it becomes irrevocable once it is accepted.

(4)    Lian (false charge of adultery)- where a husband charges his wife of adultery and the charge is false, the wife can sue for and obtain divorce.

(5)    Faskh- a muslim woman can approach qazi for the dissolution of her marriage.

(6)    By judicial decree under Dissolution of Muslim Marriage Act, 1939- under section 2 of the Act, a muslim woman can obtain a decree for the dissolution of her marriage on the following grounds:-

(i)                  Absence of husband

(ii)                Failure to maintain

(iii)               Imprisonment of husband

(iv)              Failure to perform marital obligations

(v)                Impotency of husband

(vi)              Insanity, leprosy or venereal disease

(vii)             Repudiation of marriage by wife

(viii)           Cruelty of husband

(ix)              Grounds of divorce recognized by muslim law- includes ila, zihar, khula, mubarat and tafweez.

Difference between shia and sunni school of law

(1)    Under Sunni law talaq may be orally or in writing but shia school does not recognize talaq in writing unless husband is physically incapable of pronouncing it.

(2)    Sunni law does not require witnesses but shia law requires two male witnesses at the time of pronouncement.

(3)    Under shia law, intention is essential, talaq pronounced in intoxicated state or jest not valid while it is valid under sunni law.

(4)    Sunni law recognizes talaq-ul-sunnat as well as talaq-ul-biddat while shia law recognizes only talaq-ul-sunnat.