Divorce is the legal process through which a marriage comes to an end. Marriage is considered a religious sacrament by the Hindu Marriage Act 1955. According to Muslim law, the Contractual relationship between two people is known as marriage. Required for a Contractual relationship is offer acceptance, consideration, consent, and the capacity of both the parties. The motive of this Contractual marriage is legalizing sexual intercourse and the procreation of children. Divorce is the process through which the marital relationship is dissolved. There are two ways in Muslim law through which their marriage can be terminated:
- Divorce
- Talaq
According to Muslim law if a person wants a divorce he will be directed by the Dissolution of Muslim Marriage Act 1939. Whereas the Talaq affairs are directed by Muslim personal laws. The Supreme Court of India has come up with a new law in recent times, in which triple Talaq is not legal and the Muslim marriage cannot be terminated through this process. If any husband still practices triple Talaq he will get an imprisonment of 3 years. This is one of the biggest decisions by the Supreme Court in order to save the rights of Muslim ladies. Marriage is recognized as sacred by the Indian legislation. Islam was the first religion to recognize divorce or talaq as a Dissolution of marriage. Under Muslim law two different problems originate through the concept of talaq, The first one is the very method of divers which is triple talaq second one is the inequality between the husband and wife after the marriage, which results in different suffering for the wife.
Also read: What is Grey Divorce? Causes and Impacts on Modern Marriages
The process of divorce under Muslim Law
The process of divorce has changed in Muslims after the passing of time. There were various different ways of divorce in the Pre-Islamic era and post-Islamic era.
The Pre-Islamic era
In the pre-Islamic era, husbands were given unlimited rights of divorce, the husbands of that age never considered their wives as their companions, they always considered them as their property. Due to this, unlimited social evils arose in society, as women get divorced by their husbands at any time without any reason. The divorce was also revocable at any time when the husband wanted this was a total injustice to the woman. In the pre-Islamic era, there were four ways to dissolve a marriage. Women were able for a second marriage but they had to serve the period of iddat before their second marriage. Period in which the legitimacy of the child was determined but this was not the strict rule at that time.
The post-Islamic era
In the post-Islamic era, such a tradition of divorce did not get support from the prophet. Even then also the practice of divorce was there, but a husband could only give divorce to a woman for some valid reason this was not there in the pre-Islamic era. The prophet said that remarriage is also essential for women so that they can start a new life with another man. In the post-Islamic Era also women were intended to follow the Iddat period. Given below are different ways through which divorce was made in Muslim Law:
Divorce by Husband
There we have three ways through which husbands used to give divorce to their wives and Muslim law, the first one is Talaq, the second one is Ila and the third one is Zihar. Husbands used to give the Talaq to their wives without any reason. Even the presence of the wife was not important at the time of talaq. The day on which the wife got to know about Talaq from that day only Talaq used to get in effect. However, it was important to inform the wife about the lock as she has to follow that Iddat period. The second one is Ila, in this process husband used to swear in the name of god that he would not have any sexual intercourse with his wife and directly leave her. Then the lady has to follow the iddat period. In Zihar also divorce was made by the husband and the women of his life had to follow the iddat period.
Divorce by the wife
This is the agreement made before the marriage that the wife will also get privileged to get separated from her husband via divorce on the day she wants the separation just like her husband. If her husband chooses another wife or would not be able to manage her for a specific time or any other conditions.
Divorce through mutual consent
In the Dissolution of Muslim Marriage Act 1939, it is mentioned that divorce can also happen mutually, by the mutual consent of both husband and wife but it is not valid in Muslim law.
Through Unexpected circumstances like the death of a husband or wife
Death of a person is a very unexpected circumstance and it happens naturally. The marriage also comes to an end naturally if anyone, whether husband or wife, dies. The husband can have another marriage immediately if a wife dies, but if a husband dies, the wife has to follow the period of Iddat. The period was 4 months and 10 days and if the wife is pregnant she has to wait till her delivery and then only she can have another marriage.
Changes by Muslim Women Protection Act, 2019
According to section 3, the concept of triple Talaq is totally removed and the husband can’t pronounce triple talaq to his wife in any way, whether it be oral, written, or electronic. According to section 4 if a husband gives triple Talaq to his wife he will get imprisonment of 3 years with a fine. According to section 5 Muslim women were allowed to ask for money after the divorce to take care of themselves and their children from their husbands. According to section 6 if a child is minor his custody will be contested by the women. Both parents have the right to fight for the custody of their children in court.
Also read: Juvenile Justice Act, 2015: Care & Protection for Children
Conclusion
After the Declaration of Triple Talaq was unconstitutional by the Supreme Court, both husband and wife were given equal rights to terminate their marriage under Muslim law. Talaq was an ancient practice that was totally unfair to women, who didn’t even know when their husbands had given Talaq to them. Now, finally, Muslim women have equal rights in marriage just like men.