Theoretical overview
Pre-Islamic Arabia laws were made favorabley towards males. Meanwhile, they remained discriminatory towards females. Women did not have independent identity. Nikah literally means to tie up together. It is a matrimonial contract which gives women particularly high status. Islam allows limited Polygamy (4 at a time)
Islam defines marriage as a marital relationship and an institution that legalizes sexual activity between a male and female with the goal of conceiving children, fostering love, providing support to one another, and building families, which are seen as a fundamental social unit.
Talaq: Concept and Modes
Under Muslim law talaq can take place under five conditions
- By death of husband.
- By husband
- By wife
- By mutual consent.
- By court
TALAQ BY HUSBAND
Talaq-ul-sunnat
- This is followed by Shia and Sunni
- It is the most proper form of Talaq as time is given to the husband to think about it
- It is considered to be a tradition of prophet
- Revocation under talaq-ul-sunnat is possible
There are two forms of talaq-ul-sunnat
Ahsan– a single declaration during period of purity (time between menstrual cycles), the husband conveys to the wife the talaq and then iddat is followed. This can be revoked during iddat period.
Hasan- has to pronounce Talaq 3 time. 1 time every month during period of purity. This is also revokable during iddat but here iddat is followed simultaneously with the 3 months of proclamation. This becomes irrevocable on the third pronouncement.
Iddat is of 3 months. It can be revoked during iddat period.
Talaq-ul-biddat
- It is considered to be sinful as it is recognised among Hanafis. This form of divorce is recognised under Sunni law.
- Three Pronouncements are made during a single period of purity. It is considered to be irrevocable.
- In the judgement of Shayara bano Vs Union of India and ors. Supreme Court declared triple talaq to be unconstitutional as it violates Article 14.
Ila
- Iddat period is of four months.
- Here the husband who is of sound mind and has attained the age of majority swears in the name of God, that he will no longer have sexual intercourse with his wife.
- If the husband during the period of iddat resumes sexual intercourse with his wife it is considered to be revoked
Zihar
- This is also known as Injurious Comparison
- If the husband compares his wife to any of the females are prohibited degree of marriages and a Muslim law or his own mother the wife can refuse sexual intercourse with her husband.
- Grounds of revocation of this form are
- Free one slave
- By fasting for two months continuously
- By feeding 60 people
TALAQ BY WIFE
Talaq-e-tafweez
- This way women can give divorce to her husband. Here the power to divorce is delegated by the husband to his wife.
- This is a form of agreement where the husband gives power to wife to initiate the divorce proceedings.
- When the husband agrees to the divorce it is considered to be valid.
Khula
- The wife proposes to the husband for divorce.
- If husbands gives consent is is considered divorce and if he does not give consent it is no considered to be valid divorce.
TALAQ BY COURT
Lian
- False charges of adultery are filed against the wife
- This amounts to character assassination and the wife can file for a divorce.
- It is revoked if the husband takes back the charges
Faskh
- It is the judicial annulment of marriage the wife can approach the court
- if the husband is gone for more than four years. He is considered dead and therefore there exists talaq.
Ground for dissolution of marriage under Dissolution of the Muslim Marriage Act, 1939
i. Absence of Husband:
When the husband is not heard of in 4 years, a woman married to that man is entitled to a decree of divorce, but it will not be effective till 6 months from the date of passing.
ii. Failure to Maintain:
If the husband has failed to maintain her for more than 2 years, the woman can obtain a decree for dissolution of marriage.
iii. Imprisonment of husband:
If the husband is sentenced to imprisonment of more than 7 years, the woman can file for a dissolution of marriage.
iv. Impotency of husband:
If the husband is impotent then the wife is entitled to file for dissolution of marriage, but the husband is given 1 year to satisfy the court that such order is not required and prove against his impotency.
v. Insanity, leprosy or venereal disease:
The wife is entitled to file for dissolution of marriage if the husband has Insanity, leprosy or venereal disease.
vi. Cruelty of husband:
Judicial divorce may also be claimed by a Muslim wife, if the husband treats her with cruelty.
Relevant sections
Section 2 – Grounds for decree for dissolution of marriage A woman married under Muslim law shall be entitle to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:–(i) that the whereabouts of the husband have not been known for a period of four years;(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;(v) that the husband was impotent at the time of the marriage and continues to be so,(vi) that the husband has been insane for a period of two years or is suffering from 3 *** a virulent venereal disease;(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years :Provided that the marriage has not been consummated ;(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, or(c) attempts to force her to lead an immoral life, or(d) disposes of her property of prevents her exercising her legal rights over it, or(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 Qoran;(ix) on any other ground which is recognised as valid for the dissolution of marriages under muslim law :Provided that–(a) no decree shall be passed on ground (iii) until the sentence has become final;(b) 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; and(c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.
Important case laws
Shayara Bano vs. Union of India, 2017 – it was held that the practice of triple talq is unconstitutional. It was opined that triple talaq is a way by which maritall bonds can be broken on the whims of the husband and the wife cannot do anything and is thus violative of article 14.
Shah Bano vs. Mohd. Ahmed Khan, 1985 – it was stated that a muslim wife is entitled to maintenance even after her under section 125 of CrPC if she is incapable of doing so until she remarries
Daniel Latifi vs. Union of India, 2001 – it was clarified that the husband has to provide a reasonable and fair amount to his wife even after iddat, if she is incapable to do so until she remarries. Also, relatives have to maintain her after the death of the husband and if there are no relatives, then the wakf board must do so.
