Dissolution of Muslim Marriage

Talaq:
The word Talaq originally meant "repudiation" or "rejection". In Muslim law, it means release
from a marriage tie, immediately or eventually. In a restricted sense it means separation
effected by the use of certain appropriate words by the husband and in a wide sense it means all
separations for causes originating from the husband. It is also generic name for all kinds of
divorce but it is particularly applied to the repudiation by or on behalf of husband.
In Moonshee Buzloor Rahim vs Lateefutoon Nissa, it was said that Talaq is a mere arbitrary
act of a muslim husband, by which he may repudiate his wife at his own pleasure with or
without cause.

As per Islamic law, only the husband has a right to pronounce Talaq. Under Talaq-e-tafweez, a
husband may delegate the authority to the wife to pronounce talk on his behalf. The husband
must posses the following qualifications to be able to pronounce a valid Talaq –

Shia - He must be of sound mind and attained the age of puberty. It must be pronounced orally
in the presence of two witnesses unless he is unable to speak. Further, Talaq must not be
pronounced under duress or compulsion otherwise Talaq is void. It must be spoken in Arabic
terms and strictly in accordance to sunnat.

Sunni - Only two requirements - Sound mind, attained majority. A Talaq pronounced under
compulsion or intoxication is effective.

It is not necessary that Talaq must be pronounced in the presence of wife. In Fulchand vs
Navab Ali Chaudhary 1909, it was laid that Talaq should be deemed to have come into effect
on the date on which the wife came to know of it.

Intention is not necessary for a Talaq to take effect. If unambiguous words denoting irrevocable
Talaq are pronounced even by mistake or in anger, it is a valid Talaq.
Talaq can be effected orally or in writing (Talaqnama). If the words are express and well
understood as implying divorce (e.g. "I have divorced thee"), no proof of the intention is
required. If the words are ambiguous (e.g. "Thou art my cousin, the daughter of my uncle, if
you goest"), then intention of the user must be proved.
After the passing of Muslim Marriage Dissolution Act 1949, a muslim wife can also get a
divorce on certain grounds. (Explained below)

The following diagram shows various types of divorces - (Note that technically, Talaq is not
same as divorce, but in the exam when these morons ask about types of Talaq, they actually
mean types of divorce)

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 Type of Talaq Shia Sunni
By Husband
Talaq ul sunnat - It is a Talaq which is
effected in accordance with the traditions
of Prophet. It is further divided in two
types - Ahasan and hasan.
Ahasan - It is the most approved and
considered to be the best kind of Talaq.
The word ahasan means best or very
proper. To be of Ahasan form, it must
satisfy the following conditions -
 Written Talaq is not
 Written Talaq is
1. the husband must pronounce the acceptable unless the
acceptable.
formula of divorce in a single husband is unable to
 No witnesses are
sentence. speak.
required.
 Two male witnesses
2. the pronouncement of divorce  Talaq
are required.
must in done when the wife is in pronounced even
 Intention to divorce
state of tuhr (purity), which means by mistake is
when she is free from her menses. is required on the
binding.
part of husband.
3. husband must abstain from
intercourse for the period of iddat.

If the marriage has not been

consummated, if the spouses are away
from each other, or the wife is beyond

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the age of mensuration, Talaq may even
be pronounced while the wife is in
menses.
Pronouncement in this form is
revocable during the period of iddat.
Such revocation may be either express
or implied. It becomes irrevocable at
the expiry of iddat.
Hasan - Hasan in arabic means "good"
and so this form of Talaq is considered to
be a good form of Talaq but not as good
as Ahasan. To be in this form, it must
satisfy the following conditions -

1. there must be three successive

pronouncements of the formula of
divorce.
2. in case of a menstruating wife, the
three pronouncements must be
made in three consecutive tuhrs.
3. in case of a non-menstruating wife,
the three pronouncements must be
made during the successive
intervals of 30 days.
4. no sexual intercourse must take
place during these three periods of
tuhr.

It can be revoked any time before the

third pronouncement. It becomes
irrevocable on the third
pronouncement.
Talaq ul biddat - It is a disapproved and
sinful form of Talaq. It was introduced
by Ommeyyads in order to escape the Shias and Malikis do not
strictness of law. To be of this form, it recognize this form.
must satisfy the following conditions - Recognized but
1. three pronouncements may be Shia law does not recognize considered sinful.
made during a single tuhr either in any form of irrevocable
one sentence (e.g. "I divorce thee Talaq.
thrice." ) or in three sentences (e.g.
I divorce thee, I divorce thee, I

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 divorce thee).
2. a single pronouncement made
during a tuhr clearly indicating an
intention to dissolve marriage
irrevocably (e.g. "I divorce thee
irrevocably").

It becomes irrevocable immediately

when it is pronounced irrespective of
iddat. Thus, once pronounced, it
cannot be revoked. One a definite
complete separation has taken place, they
cannot remarry without the formality of
the woman marrying another man and
being divorced from him.

In Saiyyad Rashid Ahmad vs Anisa

Khatoon 1932, one Ghayas Uddin
pronounced triple Talaq in the presence
of witnesses though in the absence of the
wife. Four days later a Talaqnama was
executed which stated that three divorces
were given. However, husband and wife
still lived together and had children.
While the husband treated her like a
wife, it was held that since there was no
proof of remarriage, the relationship was
illicit and the children were illegitimate.

It has been said that this type of Talaq is

theologically improper. In Fazlur
Rahman vs Aisha 1929, it was held that
Quran verses have been interpreted
differently by different schools. Thus, it
is legally valid for Sunnis but not for
Shia.
Ila - (Vow of continence) - Where the
husband is of sound mind and of the age
of majority, swears by God that he will
not have sexual intercourse with his wife
and leaves the wife to observe iddat, he is
said to make ila. If the husband after
having pronounced ila abstains from

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having sexual intercourse with wife for
four months, the marriage is dissolved
with the same result as if there had been
an irrevocable divorce pronounced by the
husband. This requires following
conditions -

1. Husband must be of sound mind

and above the age of majority.
2. must swear by God or must take a
vow.
3. vow must be that he will not have
sexual intercourse with his wife.
4. must abstain from sexual
intercourse with his wife for four
months or more after taking the
vow.

It can be canceled by - resuming sexual

intercourse within the period of four
months or by a verbal retraction.
It is not in practice in India.
Zihar - Injurious Assimilation - If a
husband compares the wife with his
mother or any other female relative
within prohibited degree, the wife has a
right to refuse herself to him until he has
perfomed a penance such as freeing a
slave or fasting for a month. In default of
expiation by penance, the wife has the Comparison must have
right to apply for judicial divorce.
been done in presence of
Ingredients - No such
two witnesses.
Requirement.
1. husband must be sane and adult
2. husband compares wife to his Muta marriage may be
mother or any other female relative dissolved by Zihar.
within prohibited degrees.
3. then the wife has a right - a) to
refuse to have sexual intercourse
with him till he has expiated
himself by penance, b) to apply in
court for an order directing him for
a penance or to decree her a

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 regular divorce.

Legal Effects - Zihar by itself does not

terminate the marriage nor does it cause
the wife to lose her right to maintenance
even in case of default of penance. It
causes the following -

1. sexual intercourse becomes

unlawful
2. husband is liable for penance
3. wife can claim judicial separation
if the husband persists in wrong
doing.

The comparison must be done

intentionally and with disrespect. If the
husband makes a comparison to show
respect to his wife, an expiation is not
necessary.
This form has become obsolete.
By Wife
Talaq e tafweez - A husband may
delegate his power to give Talaq to any
third party or even to his wife. This
delegation is called tafweez. An
agreement made either before or after the
marriage providing that the wife is at
liberty to divorce herself from her
husband under certain specified
conditions (e.g. husband taking a second
wife), is valid, provided that such power
is not absolute and unconditional and that
the conditions are reasonable and are not
opposed to public policy.

In Mohd Khan vs Mst Shahmali AIR

1972, there was a pre-nuptial agreement
in which the defendant agreed to live in
plaintiff's parental house after marriage
and if he left the house, he would pay a
certain sum to the plaintiff, the default of
which the condition would act as divorce.

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It was held that the condition was not
unconscionable or opposed to public
policy.

Note that a wife does not divorce her

husband but gets herself divorced from
the husband.
Ameer Ali gives three kinds of tafweez -
Ikhtiar - giving her authority to Talaq
herself.

Amr-bayed - leaving the matter in her

own hands.

Mashiat - giving her the option to do

what she likes.

This does not deprive the husband from

his right to give Talaq.
Talaq e taliq - It means contingent
divorce. Under the Hanafi law,
pronouncement of divorce may take
effect immediately or at some future time
or event.
By Agreement
Khula - Divorce at the request of wife -
A wife has a right to buy her release from
marriage from her husband. It must Husband must be adult,
satisfy the following conditions - sane, free agent (mukhtar), Only two conditions -
and must have intention to Husband must be adult
1. there must be an offer from the
divorce her. and sane.
wife.
2. the offer must be accepted with
Husband has no power of It is irrevocable and
consideration (evaz) for the
revocation but wife can partners cannot resume
release.
reclaim the consideration sexual intercourse until
3. the offer must be accepted by the
during iddat. In this case, a fresh marriage is
husband.
the husband can revoke arranged.
It becomes effective as well as Khula.
irrevocable (Talaq ul bain) as soon as it
is accepted by the husband and the wife

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is bound to observe iddat.

As a consideration for release by the

husband, everything that can be given in
dower can be given. If the wife fails to
give the consideration that was agreed
upon at the time of Khula, divorce does
not become invalid but the husband has
the right to claim the consideration.

In Moonshee Buzloor Rahim vs

Lateefutoon Nissa, Khula was defined
as a divorce by consent in which the wife
gives or agrees to give a consideration to
the husband for her release from the
marriage tie. Khula is thus the right of
divorce purchased by the wife from her
husband.
Mubarat - Divorce by mutual agreement
- It is a form of dissolution of marriage
contract, where husband and wife both
are averse to the marriage and want to
separate. It requires following conditions
-

1. Either of husband or wife can

make the offer.
2. The other one must accept it.
3. As soon as it is accepted, it
become irrevocable and iddat is
necessary. Since it is a mutual
agreement, there is no question of
consideration.

By Judicial Decree
Lian - False charge of adultery - When
the husband charges the wife with
adultery and the charge is false, the wife
is entitled to sue for and obtain divorce.
In Zafar Hussain vs Ummat ur
Rahman 1919, the Allahabad HC
accepted the doctrine of Lian. The

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following conditions must be satisfied -

1. Husband, who is adult and sane,

charges his wife with adultery or
denies the paternity of her child.
2. Such charge is false.
3. The marriage is a Sahih marriage.

Features of Lian -

1. Such false charge does not

dissolve the marriage
automatically but only gives a
right to the wife to sue for divorce.
The marriage continues till the
decree is passed.
2. Wife must file a regular suit and
just an application will not suffice.
3. Judicial separation due to Lian is
irrevocable.
4. Lian is applicable only to Sahih
marriage and not to Fasid ones.

Retraction - A husband may retract the

charge. However, the retraction must be
bona fide and unconditional. It must be
made before the closing of evidence.
Fask - Cancellation - Muslim law allows
a lady to approach a qazi for dissolving
the marriage under the following
conditions -

1. if the marriage is irregular.

2. if the person having an option to
avoid a marriage has exercised his
options.
3. if the marriage was within
prohibited degrees or fosterage.
4. if the marriage has been contracted
by non-Muslims and the parties
have adopted Islam.

Before the enactment of Muslim

Marriage Dissolution act, this was the

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only way for a muslim woman to
repudiate a marriage.
Judicial Divorce - Section 2 of Muslim Marriage Dissolution Act, 1939 gives the following
grounds to wife belonging to Shia as well as Sunni sects, upon which she can ask for divorce -

1. Absence of husband - 4 yrs. Decree passed on this ground will take affect only after 6
months of passing and if the husband shows up during the 6 months he can request the
court to set the decree aside.
2. Failure to maintain - for 2 yrs. Cause is immaterial. Poverty, incapacity is no excuse.
There is no agreement among HCs regarding the conduct of wife. In Fazal Mahmood vs
Ummatur Rahman AIR 1949, Peshawar HC held that if a wife is not faithful or
obedient, the husband is under no obligation to maintain her and her suit for divorce was
dismissed. However, in Mst Nur Bibi vs Pir Bux AIR 1950, Sind HC held that a wife is
entitled to divorce if the husband has failed to maintain her for two years preceding the
suit even though she may not be entitled to maintenance owing to her bad conduct.
3. Imprisonment of husband - for 7 yrs or more.
4. Failure to perform marital obligations - for 3 yrs
5. Impotency of husband - If the husband was impotent at the time of marriage and
continues to be so.
6. Insanity, leprosy, or venereal disease - For insanity, 2 yrs are required. For disease, no
time period is required.
7. Repudiation of marriage - If the wife was married before she was 15, she can repudiate
the marriage before she turns 18.
8. Cruelty of husband - cruelty involves - habitual assault, associates with women of bad
repute, attempts to force her to lead immoral life, disposes off her property, obstructs her
practice of religion, and does not treat all his wives equally.
9. Grounds allowed by muslim law - This covers all the grounds such as Ila, Zihar, Khula,
and Mubarat, which are provided by muslim law.

Section 4 of this act removes apostasy as a ground for granting divorce automatically.
However, if a woman reconverts back to her original faith, the marriage will stand dissolved.

The grounds on which a Muslim woman can demand Talaq

As per the definition of Talaq propounded in Moonshee Buzloor Rahim vs Lateefutoon

Nissa, Talaq is a mere arbitrary act of a muslim husband, by which he may repudiate his wife at
his own pleasure with or without cause. Thus, a muslim wife does not have any right to give
Talaq to her husband. However, there are ways through which a muslim wife can repudiate her
marriage and get a divorce from her husband. These are as follows -

1.Talaq e tafweez
2. Khula

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3. Zihar
4. Lian
5. Fask
6. Dissolution of Muslim marriage act 1939

Consequences arising from Talaq

1. Marriage - Parties are entitled to contract another marriage. If the marriage was
consummated the wife has to wait until the period of iddat is over, otherwise, she may
remarry immediately. If the marriage was consummated and if the husband had four
wives at the time of divorce, he can take another wife after the period of iddat.
2. Dower - Dower becomes payable immediately if the marriage was consummated,
otherwise, the wife is entitled to half of the amount specified in dower. If no amount is
specified, she is entitled to 3 articles of dress. Where the marriage is dissolved due to
apostasy of the wife, she is entitled to whole of the dower if the marriage has been
consummated.
3. Inheritance - Mutual rights of inheritance cease after the divorce becomes irrevocable.
4. Cohabitation - Cohabitation becomes unlawful after the divorce has become irrevocable
and children from such intercourse are illegitimate and cannot be legitimated by
acknowledgment as held in In Saiyyad Rashid Ahmad vs Anisa Khatoon 1932.
5. Remarriage - Remarriage between the divorced couple is not possible until
1. the wife observes iddat
2. after iddat she lawfully marries another man
3. this intervening marriage is consummated
4. the new husband pronounces divorce or dies
5. the wife again observes iddat

A marriage done without the fulfilment of the above is irregular, not void. But mere
cohabitation after an irrevocable divorce is void.

6. Maintenance - The wife becomes entitled to maintenance during the period of iddat.

Shayara Bano versus Union of India and others

Case Description of

Shayara Bano, a Muslim woman has petitioned the Supreme Court to declare the practice of
triple talaq (talaq-e-bidat) to be unconstitutional as it violates her fundamental rights. The court
will decide whether these practices are violations of her fundamental rights or otherwise
protected by the right to religion.

Background

Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, he divorced her through
instantaneous triple talaq (talaq -e bidat). She filed a Writ Petition in the Supreme Court
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challenging the constitutional validity of three practices – talaq-e-bidat, polygamy, nikah-halala
– for violating Articles 14, 15, 21, 25 of the Constitution.

Talaq-e- bidat is a practise which gives a man the right to divorce to his wife by uttering ‘talaq’
three times in one sitting without his wife’s consent. Nikah Halala is a practise where a
divorced woman who wants to remarry her husband would have to marry, and obtain divorce,
from a second husband before she can go back to her first husband. And polygamy is a practice
which allows Muslim men to have more than one wife.

The court in its Feb 16th order asked Shayara Bano, the aggrieved petitioner, the Union of
India, women’ rights bodies and the All India Muslim Personal Law Board (AIMPLB) to give
written submissions on the issue of talaq-e- bidat, nikah-halala and polygamy. The Union of
India and the women rights organizations like Bebaak Collective and Bhartiya Muslim Mahila
Andolan(BMMA) have supported the petitioner’s plea that these practices are unconstitutional
albeit on different grounds. The AIMPLB has argued that uncodified Muslim personal law is
not subject to constitutional judicial review and that these are essential practices of the Islamic
religion and protected under Article 25 of the Constitution.

After accepting the Shayara Bano’s petition, the Apex Court formed a 5 judge constitutional
bench on 30th March, 2017. On 22.08.2017, the 5 Judge Bench of the Supreme Court of CJI
J.S. Khehar, Abdul Nazeer J., Rohinton Nariman J., U.U. Lalit J., and Kurien Joseph J.
pronounced its decision in the Triple Talaq Case, declaring that the practice was
unconstitutional by a 3:2 majority.

Triple Talaq or Talaq-e-Biddat, a practice that allowed for a Muslim man to instantaneously
and irrevocable divorce his wife by saying the word ‘talaq’ three times successively was
challenged before Supreme Court as being violative of Muslim women’s Right to equality
among other constitutional freedoms. The the five judge Constitutional Bench of the Supreme
Court heard the matter on 11.05.2017 and after having six days of arguments from both sides,
reserved the case for judgement.

The decision dated 22.08.2017 though by a narrow majority has struck down the practice as
unconstitutional, further directing the Parliament to take legislative measures to the said effect,
the said verdict has been reached with a clear divergence of opinions, that of Rohinton Nariman
and U.U. Lalit JJ. holding that Talaq-e-Biddat is regulated by the Muslim Personal Law
(Shariat) Application Act, 1937, as contrasted with the decision furthered by Kurien Joseph J.
While the former two judges have held the practice to be unconstitutional owing to its
manifestly arbitrary nature that permits a muslim man to bring into effect a unilateral
termination of marriage rather capriciously and whimsically with no scope for reconciliation,
thus violating Article 14 of the Constitution, Kurien Joseph J. on the other hand, in his
concurring but separate opinion records that the reason the practice lacks legal sanction is
because it is against the tenets of the Quran. To quote ” What is held to be bad in the Holy
Quran cannot be good in Shariat and, what is bad in theology is bad in law as well”

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Notably, the dissenting minority opinion of CJI Khehar and Abdul Nazeer J. traces the the
elevation of Personal Law to the status of fundamental rights in the Constituent Assembly
Debates on Articles 25 and 44, holding that the practice of Triple Talaq is not regulated by the
Shariat Act of 1937, but is an intrinsic part of personal law, thus enjoying constitutional
protection under Article 25. Further, the remedy against the gender discriminatory practice
of Talaq-e-Biddat lies not in challenging its constitutionality but by way of legislative action.
To this effect, the minority opinion further proposed that Triple Talaq be made inoperative for 6
months in which time the Pariamnet must frame a law on the said aspect. However, given that
the majority opinion has explicitly outlawed Triple Talaq, the aforesaid directive holds no
force.

It is suggested to go through the class notes also.

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