For evaluation of the theories of divorce in Muslim law, it was deemed necessary to assess various other aspects of the religion. Hence this article contains information regarding the roots of the religion, the sources of its law in the hierarchy of their importance, and lastly the divorce laws. The Quran has been given utmost importance for all spheres of the community including their justice system. There has been a visible conflict between the decisions made by High Courts and the Supreme Court and the teachings of the Quran.
- Iddat: Period of waiting observed by a Muslim woman upon the death of her husband or divorce, termination of the marriage contract by any other means, after which a new marriage is permissible.
- Tuhr: Tuhr refers to a state of purity, the period between two menstrual cycles
- Ahkam: Legal rulings
- Mahr: Wedding gift given to the wife by her husband
Muslim law consists of rules based on the teachings of the sacred book of Islam, ‘the Quran’ as well as the sayings of prophet Muhammed. Muslim Law in India means ” that portion of Islamic civil law which is applied to Muslims as a personal law” It contains decrees of the Quran that have been altered and added to state legislations and modern judicial precedents of High Courts and the Supreme Court of India.
Origin of Muslim law
Islam was introduced into the Arabian Peninsula by Prophet Muhammed. Before Islam, the Arabian Peninsula was inhabited by tribes that worshipped idols. After the death of Prophet Muhammed in A.D. 632, his companions ruled Arabia for about 30 years. These rulers were known as caliphs and they continued to develop Islamic law and conquered various regions like India, Northwest Africa, and Spain, thus extending Islam’s reach in the world.
Islam got introduced in India way back in the 7th century. It is believed that one of Prophet Muhammed’s companions Malik Bin Deenar came to India’s west coast in the 7th century and a mosque was built here in 629 AD which still exists. However Muslim Personal law as we know it today did not become prominent until the colonial era. On October 7, 1937, the British passed the Shariat Act, 1937 to regulate the personal laws of Muslims in India.
Sources of Islamic Law
The Quran is the holy scripture of the followers of Islam and is considered the primary source of their law. It consists of 114 chapters and 6237 verses. It encompasses teachings for all spheres of human life. It is believed to be a revelation to Prophet Muhammed through Angel Jibril. On the occasion that something is not explicitly mentioned or explained in the Quran people look for alternate sources.
2. Sunnah & Hadith
Sunnah and Hadith are the next major sources of Islamic law. Sunnah in Arabic means “habitual practice” Sunnah and Hadith are often used interchangeably but they are different. Sunnah is the ideal way to live life which will bring humans closer to Allah whereas Hadith means everything narrated concerning the life of the Prophet before or after the revelation. This includes his sayings, acts, approvals, attributes, and other reports.
Ijma in Arabic means ‘consensus’. It is the collective agreement on any rule or legislation within the Muslim community. It is held in high regard especially by Sunni Muslims who believe that the authority in matters of religion belongs to the entire community and is not restricted to one individual.
Qiyas means analogical deduction. The need for qiyas developed after the death of Muhammed when situations beyond the scope of the Quran and the Sunnah arose. It is considered a variant of ijtihad by Muslim scholars.
Ijtihad is the process where scholars of Islam try to find a solution to an issue on which the Quran and Sunnah are silent. The ones who attempt to understand the deeper meanings of the Quran and Hadith and enlighten others about Islamic practices are known as Mujtahids.
Urf means ‘custom.‘ ‘Urf or Customary law is one of the most important supporting sources in Islamic law. This can be seen through many ahkam in Islamic law, which was based on ‘urf in which most of these ahkam will change according to the change of circumstances, place, and time. As for the basis of ‘urf or custom, it is the product of the nature of the people and their culture, it grows in strength and popularity through imitation that transfers and implants it in the lives of people. Normally these ‘urf or customs will be inherited by generations until the arrival of other customs that can overrule the previous ones.
There have been various legislations that have influenced the way Muslim law is governed to date. These include:
- The Mussalman Wakf Validating Act 1913
- The Child Marriage Restraint Act 1929
- The Shariat Act 1937
- Dissolution of Muslim Marriage Act 1939.
A Comparison of law between different sects of Islam:
In India, Islam is divided into two major religious sects, the Sunnis, and the Shiites. After the death of Prophet Muhammed, his successor’s identity had become debatable, the difference in opinions lead to the formation of different sects Sunni being the majority and Shia the minority. Shia gave importance to literature that was written by the family and close associates of Prophet Muhammed, whereas the Sunni gave importance to all Islamic literature. This deepened the difference in understanding and interpretations of Islamic law between the Shia and Sunni. The Sunnis follow four principle schools of thought namely, the Hanafi, the Maliki, the Shafi’i and the Hanbali whereas the Shia follow Ithna’asharialso known as Imamis, Imamiyyah, and Jafariya
Marriage in Muslim law
Marriage or Nikah in Islam is a contract for legalising the procreational desires of people. Unlike other religions, Islam considers marriage purely as a civil contract and not a sacrament. As marriage is a civil contract, registration of marriage in Muslim law is mandatory. According to Section 3 of the Muslim Marriages Registration Act 1981, “Every marriage contracted between Muslims after the commencement of this Act, shall be registered as hereinafter provided, within thirty days from the conclusion of the Nikah Ceremony”.
Divorce in Muslim law
Prophet Muhammed states that “With Allah, the most detestable of all things permitted is divorce”. Since divorce is considered an evil, it is advised to not consider it unless the circumstances are so severe that the couple cannot co-exist anymore. A husband could previously divorce his wife without a reason by the mere statement of an intention to do so, known as triple talaq, until it got criminalised in August 2019 by an order of the Supreme court.
Theories of Divorce
1. Will theory
According to this theory, one can divorce one’s spouse anytime they want to do so. This theory is accepted under Muslim Law. In Islam, the husband has been awarded the power of divorcing his wife unilaterally, without stating any reason.
Types of divorces under this theory are:
The husband pronounces divorce in a single sentence to his wife during her Tuhr (when she is not menstruating).
The husband pronounces talaq three times over a period of three-monthly courses. If there is resumption of cohabitation within a period of one month, the divorce gets revoked.
Known as triple talaq, it is the dissolution of marriage at the husband’s utterance of “talaq” thrice in one instant. It now stands criminalised by law.
2. Fault theory
This theory advocates divorce only on the occasion that one of the parties has committed a matrimonial offence. The aggrieved party can seek divorce on this ground against the guilty party. The injury done should be specific to the partner, and not anyone else. Hence criminal offences against others does not stand as a ground for divorce under this theory.
Ground for divorce under this theory:
- Refusing maintenance
3. Consent/No-Fault theory
The consent theory advocates that both parties of a marriage have equal right to dissolve their marriage by mutual consent.
Types of divorces under this theory are:
Under Muslim law:
Khula is initiated by the wife but carried out by the mutual consent of the couple. The wife must return the mahr she received from her husband.
Mubarrat is initiated by both sides. The wife has to part with her mahr even in Mubarrat.
Under Hindu law:
Section 13B of the Hindu Marriage Act 1955 allows a couple to dissolve a marriage on the ground that they have been living separately for a year or more, that they have not been able to live together, and that they mutually agreed that the marriage should be dissolved.
4. Irretrievable breakdown theory
This theory is based on the principle that marriage is a union of two people based on love, affection, and respect for each other. If any of these is affected due to any reason (cruelty, desertion, adultery, insanity ) and the relationship is beyond repair and it is possible for them to live together peacefully , it is better to dissolve such marriage. This was used as a ground to grant divorce in the case of Noor Bibi v. Pir Bux[i].
Grounds for divorce under this theory:
Under Muslim law:
- Non-fulfillment of maintenance by the husband: It is the duty of a husband to look after the needs of a family and if he fails to do so, this may be taken up as a ground for divorce.
- Complete Incompatibility between the spouses: Where both parties are not getting a long at all and are unable to co-exist peacefully, this may be taken up as a ground for divorce.
Modes of divorce
Talaq means “freeing or undoing the knot,” according to Imam Raghib. For a Talaq to be valid it should be pronounced by free consent of a major person of sound mind and the expression must be a clear indication of the husband’s intention to dissolve the marriage.
Talaq is of three types:
Talaq-e-Ahsan is considered the most laudable form of talaq wherein a husband expresses divorce in a single sentence- “I have divorced thee” during the period of Tuhr and then must wait till the Iddat period. Iddat period for a woman is usually three-monthly periods and during this time, she cannot marry another man. If before the completion of Iddat, the husband resumes cohabitation with the wife or says that ‘’I have retained thee’’, the divorce is revoked.
Talaq-e-Hasan is the laudable form of talaq, in this form, three successive pronouncements of talaq are made by the husband in three successive Tuhrs. In the case of a non-menstruating woman, its pronouncement may be made after a month or thirty days between successive pronouncements. This form of talaq can be revoked any time before the third and final pronouncement is made.
Lastly, Talaq-e-Biddat or Talaq-ul-Bain is what we know commonly as triple talaq and is effective as soon as the word “Talaq” has been said thrice continuously. This form of Talaq has been criminalised and is no longer effective. Shayara Bano v. Union of India and others[i] is the landmark case revolving around Triple Talaq.
In Ila, the husband promises to not have sexual intercourse with his wife. If he does so for a period of four months, after the expiry of the fourth month, the marriage dissolves and is irrevocable. If he indulges in intercourse within those four months, the divorce stands canceled
In this mode, the husband compares his wife to a woman within his prohibited relationship e.g. mother, sister, etc. The husband would say that from that point on this wife is like his mother or sister. If the husband does not indulge in intercourse within 4 months after such a statement is made, the expiry period of Zihar is considered to be completed.
Khula or Mubarrat translates to a divorce by mutual agreement. In Khula, the wife initiates the divorce and must return her mahr [wedding gift given by the husband]. Mubarrat can be initiated by either the husband or the wife and on acceptance, it becomes irrevocable and Iddat is necessary.
Talaq can be pronounced only by the husband upon his wife. However, he can delegate this power to his wife. This is called Talaq-e-Tafweez, a delegated divorce. The delegated divorce does not imply that the woman will give divorce to her husband but that she has delegated the right of pronouncing talaq upon herself. For example, a woman who has been delegated the power of divorce will say “I am divorced” or “I divorce myself”. Saying “I divorced you” will have no effect as it is a wife that can be divorced and not a husband.
If the husband falsely accuses his wife of adultery or unchastity, the wife has the right to ask for a divorce. Lian works only if it was a voluntary false charge made by the husband. If such accusation is made during an argument as a response to the wife’s bad behaviour or in an unsound state of mind, it cannot be used as a ground for divorce under lian. This took place in the case Nurjahan Bibi v. Md. Kajim Ali[ii] wherein the wife brought a suit against the husband for dissolution of marriage for falsely accusing her of adultery and having bad character. The husband failed to prove his allegations and hence the judgement was given in the wife’s favour.
Dissolution of Muslim Marriages Act 1939
Under section 2 of this Act, a Muslim woman is entitled to obtain a decree for divorce on the following grounds:
1. Husband has been missing for a period of four years
If the husband is unheard of for four years or more, his wife may file a suit, and get a decree for divorce. This comes into operation after six months and marriage gets dissolved
2. Husband’s failure to provide maintenance
It is the duty of a husband to provide maintenance to his wife and neglecting such duty for two years or more gives his wife the right to file a suit.
3. Impotency of the husband
For getting a decree of divorce on this ground, the wife must prove that the husband was impotent at the time of the marriage and continues to be impotent until the filing of the suit. Before passing a decree of divorce on this ground, the court is bound to give to the husband one year, to improve his potency provided he makes an application for it. If the husband does not give such an application, the court shall pass the decree without any delay.
4. Unsoundness/Insanity of the husband
If the husband is suffering from insanity, leprosy, or any venereal disease, the wife may get a decree. The disease must be of an incurable nature and the duration is unspecified. Even if the disease has been transmitted to the husband by the wife, this still stands as a valid ground for divorce on the wife’s part.
5. Habitual Cruelty
If a husband abuses his wife mentally or physically, makes false accusations against her character, forces her to lead an immoral life, the wife is entitled to get a decree of divorce. The court gets to define what falls under the parameters of “cruelty.”
Alimony is not a provision under Islamic law. At the time of marriage, or after the marriage, Muslims decide an amount known as Mehr. It is supposed to be used as financial security by the women if she gets divorced. This was challenged before the judiciary in the landmark case of Mohd. Ahmed Khan v. Shah Bano[iii] wherefore it was decided that Muslim women can approach the court to demand maintenance after divorce.
For most decision-making processes, the Muslim community looks towards the Quran as its primary source. A few laws are seemingly biased such as the fact that a husband can divorce his wife without a reason and by a mere statement of intention to do so. Another example of such discrimination is that only the husband can pronounce Talaq on his wife.
There have been judgments like the famous triple talaq case, which although had a lot of backlashes has set an example for change and possibly paving a gradual path for acceptance of more changes to be welcomed in a growing society.
Frequently Asked Questions
1. Whether Triple Talaq should have been criminalised?
Although done to stop the misuse of triple talaq, criminalizing it comes with its risks. The illiterate, poor, and uninformed people would still do it and be put behind the bars. Merely pronouncing it as an act that does not affect the marriage would have been a safer choice.
2. How has the community reacted to the striking down of Triple Talaq?
Triple Talaq was met with a lot of disagreement and backlashes. The Muslim board as well as the religious organisation Jamiat Ulama-i-Hind said it went against the Shariat and is an interference in their personal law. Former union law minister Salman Khurshid stated that it will be an intrusion into the personal lives of individuals and bring divorce, a civil issue, into the realm of criminal law.
3. Is “Khula” an absolute right of a woman?
Khula though initiated by the woman is not an absolute right of a woman. Unlike the husband who can divorce at the mere expression of an intention to do so, the wife must give up the right to mahr, observe a period of Iddat and list the grounds for initiating Khula ( insanity, negligence , cruelty, impotency etc) . The court must be satisfied that the reasons stated are valid.
4. What are the different types of “Iddat”?
Iddat is a period of waiting that a woman must follow upon being divorced, on her husband’s death.
Iddat is of two types:
- Iddat-e-wafaat: Iddat-e-wafaat takes place after the death of the husband. In this case the wife can calculate her Iddat period from the day he died. Even if the husband dies immediately after marriage, she still must observe Iddat-e-wafaat.
- Iddat after talaq: The Iddat after talaq begins immediately after the husband has issued talaq, whether the wife knows or not. Even in the case of a written note it will commence the moment the husband writes it, unless he has specified that she will be divorced when she receives the letter.
5. Who has the right of custody (Hizanat)of a minor after divorce?
Under the Muslim Personal law Application Act, 1937, the custody of the minor shall belong to:
In the case of a son, among Sunnis, the mother exerts right of custody until he completes the age of seven and in the case of Shias the right of custody extends till the age of weaning. In the case of a daughter, the mother can exert right of custody till the age of puberty.
The father is considered the natural guardian of his children under Shariat law. But since the mother can exert right to custody of a minor ( up to the age of seven in the case of a boy and until puberty in case of a girl) the father can exert his right to custody after the completion of the age by the children up to which they can be under the custody of their mother. Another instance where the father can exert his right to custody is during the absence of the mother or other females.
Sources of Islamic Law:
Origin of Islamic law:
Divorce in Islamic Law:
Difference between the two sects:
Basic theories of divorce:
- [i] https://www.lawyerservices.in/Noor-Bibi-Versus-Pir-Bux-1949-10-24
- [ii] https://indiankanoon.org/doc/115701246/
- [iii] AIR 1977 Cal 90
- [iv] 1985 AIR 945, 1985 SCR (3) 844