Divorce in Islam under Muslim Laws in India

There are various types of divorce in Islam. Read about divorce under Islamic laws in India, triple talaq and an Islamic woman's right to divorce.

By Shivi Gupta in Divorce

Aug. 28, 2018, 6:26 p.m.

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Divorce is the legal termination of a marriage when the spouses decide to get separated rather than living together, due to any unsolvable personal discord. Divorce in Islam is governed by the Muslim personal laws and may either be initiated by the act of husband or wife. 

Types of Divorce in Islam

Judicial Divorce: Judicial divorce is a form of separation of husband and wife, implemented by the court on the basis of personal laws governing them. The Muslim Marriage Act, 1939 lays down laws relating to the grounds on which a judicial divorce can be pronounced by the court: 

  1. When the whereabouts of husband is not known.
  2. When the husband has failed to maintain the wife for more than 2 years.
  3. When the husband is sentenced to jail.
  4. When the husband is impotent.
  5. When the husband is insane or has leprosy or virulent venereal diseases.
  6. When the marriage is repudiated.
  7. When the wife is subjected to cruelty by her husband.
  8. When the wife is falsely accused of adultery.
  9. When the spouse has converted to another religion.
 

Divorce by will: The husband or wife may file for divorce on their own will or by mutual consent. The husband and wife can get a divorce by will under Dissolution of Muslim Marriage Act, 1939, which also grants various rights to both the man and woman to get a divorce. Divorce in Islam is divided into the following on the basis of will:

I. Talaq: Talaq means freedom from the ties of marriage or dissolution of marriage by husband in accordance with law. Islamic divorce laws recognise a man’s absolute right to give divorce to his wife without assigning any reason and at his own will. The law does not consider such talaq invalid even if the man is in jest, intoxicated or the wife is not present at the time when a husband announces talaq. 

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Talaq may be oral or written, in any form or expression, in absence of any witness and at the complete will of the husband. The word talaq must be a clear indication of husband’s will to dissolve the marriage. There are various forms of talaq under divorce in Islam which allow a man to divorce his wife at his complete will:

a) Talaq-i-Sunnat: This type of divorce in Islam is further divided into: 

Ahasan: Ahasan consists of one divorce pronouncement during the period of tuhr i.e. purity or the time between 2 menstruation cycles. The condition of tuhr is applicable only in case of oral divorce and not in case of written talaq. A divorce in form of ahasan can be revoked any time before the iddat period gets over, thus, preventing any reckless decision of divorce by the husband. No physical relationship must be made between husband and wife during the iddat period.

Hasan: Hasan requires a husband to pronounce talaq three times during 3 successive periods of tuhr, which becomes final and irrevocable after the last pronouncement. No physical relationship must be made during this period of tuhr.

b) Talaq-i-Biddat: Biddat means instant divorce. It is the controversial triple talaq or 3 divorce in Islam, which was held unconstitutional by the Supreme Court of India and struck down. Triple talaq or 3 divorce in Islam is the instant divorce by husband in which there is no waiting period for the talaq to be valid. When the husband pronounces the word ‘talaq’ three times, the divorce is final instantly.

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Triple talaq has been a matter of debate for decades, with many countries striking it down. However, the 3 divorce in Islam remained legal in India, until the Supreme Court held triple talaq to be unconstitutional. The Lok Sabha also has passed the Triple Talaq Bill, making the practice a crime and subject to 3 years imprisonment if practiced. 

II. Ila: Under this type of divorce in Islam, the husband pledges to refrain from sexual relations with his wife for a period of 4 months. After this period, the marriage automatically dissolves. However, if the husband consummates with his wife during this period, Ila is cancelled. 

III. Zihar: In this type of divorce in Islam, the husband gives his wife a title equal to any other woman, like his mother or wife. After such comparison, the husband has to refrain from cohabiting with this wife for 4 months. This type of divorce can be revoked if the husband resumes cohabitation during those 4 months and the husband observes fast for 2 months, provides food to 60 or more people or frees a slave. However, at the end of this period, the wife is assigned the right to approach the court to get a judicial divorce or ask for restitution of conjugal rights.

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The law recognises an Islamic woman's rights and grants her the right to get a divorce from her husband in 2 ways:

IV. Talaq-i-Tafweez: The Muslim man has the option to delegate the power of divorcing to his wife or any other person absolutely or imposes some conditions, either permanently or for a temporary period. If the power is assigned to the wife, she has the right to exercise it, and if she uses this power, the divorce is valid and final.

V. Lian: If the husband falsely accuses his wife or adultery or unchastity, the law recognises an Islamic woman’s right to get a divorce on the ground of character assassination. This type of divorce in Islam is only available to an Islamic woman if the allegations by the husband are false and voluntary. 

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VI. Divorce by mutual consent: Islamic divorce laws recognise an Islamic woman’s right to ask for divorce if she does not want to live with her husband even without his fault. The marriage can be dissolved by a divorce contract called khula in which the terms and conditions of the divorce are laid down. The Islamic woman has the option to include a provision to relinquish her dower entirely or partially. However, the consent of the husband must be free to enter into a khula and not influenced by force or coercion.

There is another type of mutual consent divorce in Islam known as mubarat in which the offer for divorce may be made by either husband or wife. When the other spouse accepts the divorce offer, it becomes final and irrevocable. The period of iddat has to be observed after this type of divorce in Islam. 

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The debate over divorce in Islam, especially triple talaq or 3 divorce is not new. Many contest that the Islamic divorce laws are more favourable toward the men and women who have been divorced through triple talaq have no legal resort against their husbands. Triple talaq has been considered as a heinous practice of divorce in Islam that does not consider a woman’s rights in case her husband divorces her. 

The inclusion of Triple Talaq laws is being seen as a ray of hope that will safeguard an Islamic woman’s rights, once enacted. Prior to the enactment of the bill, a woman who has been wrongfully divorced by her husband through a triple talaq can contact a gooddivorce lawyer in Indiato understand the legality of such divorce or take a legal action her husband. MyAdvoconnects you with the best divorce lawyers in your city. Simply email us at info@myadvo.in or call us at +919811782573.