In the Islamic Law, a marriage is not a sacrament. It is purely civil contract. The primary object of the marriage is procreation of children. The dissolution of Muslim marriage may be done in any one of the following ways:

• By the death of spouse.
• By the Act of the parties; and
• By the judicial process.

Dissolution of Muslim Marriage by the Death of Spouse:

Death of the husband or wife during subsistence of marriage, dissolve the marriage immediately under all the personal law system. The husband is free to remarry immediately, if his wife dies. But the wife has to wait for remarry till the period of ‘iddat’ is completed, if her husband dies. The period of ‘iddat’, in case of death of husband is 4 months 10 days. If the wife is pregnant at the time of death of a husband, the period of ‘iddat’ extends up to delivery of the child. The very fact of the death of any party to the marriage is sufficient to terminate the marriage. There is no need of any formality or decree of the court to dissolve the marriage.

Dissolution of Muslim Marriage by the Act of Parties:

There are superior rights to husband in case of divorce in Muslims. The husband can divorce his wife, without any misbehaviour on her part and without assigning any cause. A Muslim man can have four wives at a time, whereas a Muslim woman can have only one husband at a time. While a Muslim woman cannot divorce herself from the husband, except by obtaining a decree from a Civil Court that also under specific provisions. The wife cannot divorce herself from her husband without his consent, except under a contract made before or after marriage.

After a divorce is pronounced by the husband, his wife must wait for a given period of 3 months or 3 menstrual cycles (iddat). During this period, the wife is allowed to stay in the same house and the husband is responsible for her welfare and maintenance. He may choose during the Iddat to reconcile with her, in a process known as ‘Ruju’. This can be a verbal statement or resuming normal marital life. If, after this waiting period, the husband fails to take his wife back, then the couple are completely divorced.

Dissolution of Muslim Marriage by the Act of Husband:

A Muslim who wishes to divorce his wife is advised – in the first instance – to ask for an arbitration meeting, arranged by elders of the couple so that a reconciliation may be reached. If such efforts fail and the man sincerely thinks he cannot live a harmonious life with his wife, he may divorce her either verbally or in writing – known as Talaq. In both cases, it is recommended for there to be two witnesses present on the occasion of the pronouncement of such a divorce. A man should divorce (a) only once, (b) only during the time when his wife is not on her menses, and (c) when there has been no sexual contact with her since the time of her last menses. There are three ways by which a husband can give divorce.

1. Talaq
2. Zihar
3. Ila

Talaq:

The word talaq means the husband’s will to dissolve the marriage.  Talaq means freedom from the ties of marriage or dissolution of marriage by husband in accordance with the law. Islamic divorce laws recognize a man’s absolute right to give divorce to his wife. According to Islamic Law, any husband who is of sound mind and has attained puberty may divorce is wife whenever he desires, without assigning any reason, at his mere whim or caprice. Talaq may be oral or written. The words of pronouncement of Talaq must be very clear, unambiguous, express, and referring to wife. In both the cases oral or written, it is recommended for there to be two witnesses present on the occasion of the pronouncement of such a divorce. In absence of any witness, it is at the complete will of the husband. In absence of the wife, the husband can pronounce the Talaq before two witnesses, or before family council. A talaq given by a husband under compulsion or in jest or in a state of voluntary intoxication is valid in Sunnis. Shia school does not recognise a talaq given by a husband under compulsion or in jest or in a state of voluntary intoxication. Until the talaq becomes irrevocable, the husband has the authority to revoke it.

In Rashid Ahmed v. Anisa Khatoon, (1932) 34 Bom L.R. 375 case, where a husband gave triple talaq to his wife under compulsion of his father. After Talaq the wife and the husband lived together and five children were born to them. The man acknowledged the children as his children. After the death of the man, the collateral heirs raised the dispute that the children of deceased are illegitimate and wewre not entitled to get share in the property. The children prayed to the Court to presume the marriage of their parents trough their conduct and thus they were legitimate children and also asked to acknowledge their legitimacy. The privy council held that the pronounce talaq by the deceased was valid. Thus, the children could not be treated as legitimate. It held that the divorce by the husband created a bar in this case. The bar can only be removed by providing that their mother had after the divorce married another man and the latter had died or divorced her after actual consummation of the marriage, and married the former husband. As these conditions are not proved, remarriage between them cannot be presumeds, and the children could not be held to be legitimate, and their claim must fail.

There are various forms of talaq, they are as follows:

Talaq-ul-Sunnat:

It is one of the most approved forms of Talaq as it confirms the traditions of Prophet. It is further sub-divided into two types:

• Talaq-e-ahasan: It can be defined as a single pronouncement of Talaq in the period of ‘tuhr’ or purity. It is followed by the abstinence from any sexual relationship during the period of tuhr and whole of the Iddat period. Iddat is the period during which a wife is prohibited from re-marrying after the dissolution of the first marriage. Talaq-e-Ahsan is considered as the most approved form of Talaq as it is revocable during the period of Iddat. The husband may revoke the Talaq by express words or by conduct including the resumption of Sexual intercourse. Thus Talaq by this method becomes irrevocable and complete after expiration of the period of iddat.
• Talaq-e-hasan: Talaq Hasan is also considered as an approved form of Talaq but comparatively less than Talaq-e-ahasan. It consists of three successive pronouncements of Talaq which are made by the husband during three consecutive periods of Tuhr (purity). During each Tuhr period, no sexual intercourse must have taken place else the pronouncement made during that period shall not be considered as valid.
  In a case where the wife has crossed the age of menstruation, the three pronouncements have to be made at successive intervals of 30 days. When the last pronouncement has been made, the Talaq becomes final and irrevocable. Thus Talaq by this method becomes irrevocable and complete on the third pronouncement irrespective of iddat.

Talaq-e-biddat or Talaq-e-badai:

It is the disapproved form of Talaq. In Talaq-e-biddat, pronouncement of Talaq was done by saying Talaq three times in a row. Nowadays, it is known as “Triple Talaq”. The only way to reconcile the marriage is through the practice of nikah halala, which requires the woman to get remarried, consummate the second marriage, get divorced, observe the three-month Iddat period and return to her husband. Thus Talaq by this method becomes irrevocable and complete immediately irrespective of iddat.

In the recent judgement of Shayara Bano v. Union Of India  case, the Supreme Court of India declared that the practice of triple talaq is unconstitutional, as this form of Talaq is violative of the fundamental right provided under Article 14 of the Constitution of India.

Talaq-e-Bain:

It is a talaq in writing and irrevocable. It takes immediate effect on its execution. It is to be registered with a Kazi and the divorce operates from the date of such Talaq.

Zihar:

Zihar is also a constructivedivorce and unknown in India. In this mode, the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such an objectionable comparison, the husband does not cohabit with his wife for a period of four months. Upon the expiry of the fourth month, the Zihar is complete. But the marriage as such does not dissolve. After completion of fourth month the wife has following rights:

• She may go to the court for a judicial divorce or,
• She may go to the court for an order for restitution of conjugal rights.

Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce. But cohabitation with a wife who had been compared with mother or sister is sinful. Therefore, in such a circumstance although the wife cannot claim a judicial divorce, yet she can compel the husband to perform penance for this sinful conduct of comparing her with his mother or sister.  Muta marriage, which admits no other sort of divorce may be dissolved by zihar.

According to Shia law, the declaration of Zihar must be made in presence of two competent witnesses.

Ila:

The situation wherein a husband who is of sound mind and has attained the age of majority swears in the name of God that he will not have sexual intercourse with his wife and abstains for 4 months or more, he is said to make Ila. If the husband resumes sexual intercourse within the iddat period being observed by wife, it will lead to cancellation of Ila. 

In Hanafi Law, after the expiry of the period of 4 months, the marriage is dissolved without any legal process. Under Ithna Ashari (Shia) school, Ila does not operate as divorce without order of the court of law. Accordingly, to this school, after the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If, there is no cohabitation, even after expiry of four months, the wife may file suit for restitution of conjugal rights against husband. If husband does not cohabit even then, the marriage is dissolved by a decree of the court. 16 If she does not obtain the decree of court, the marriage does not dissolve. It is not practised in India.

Dissolution of Muslim Marriage by the Act of Wife:

There are superior rights to husband in case of divorce in Muslims. The husband can divorce his wife, without any misbehaviour on her part and without assigning any cause. The wife cannot divorce herself from her husband without his consent, except under a contract made before or after marriage. A Muslim woman can divorce herself from the husband, by obtaining a decree from a Civil Court that also under specific provisions. The divorce by the act of the wife, is more or less dependent on the willingness of the husband. The Muslim wife can obtain divorce from her husband in following four ways.

1. Delegated power of her husband
2. Khula
3. Mubara’at
4. By the judicial process

Delegated Power of Her Husband( Talaq-e-tafweez):

This is the only way through which a woman can give divorce to his husband, however, such power to give divorce needs to be delegated by the husband only.  Under Talaq-e-tafweez, the husband delegates the power to divorce from his wife or any third party the power to repudiate the marriage on his behalf. If a man says to his wife, “the authority to divorce yourself is in your hand as often as you please;” that means the husband gives the authority to the wife to divorce herself until and unless she revokes such authority. The fact that husband delegates the power to the wife does not dispossess him of his right pronounce talaq. The wife can pronounce Talaq by any one of the modes of Talaq, Talaq-e-ahsan ot Talaq-e-hasan, whichever she likes.

Khula:

Khula is the right of a woman in Islam to divorce and it means separation from her husband. After divorce, the husband is responsible for the education and maintenance of the children. The children live with the mother till the age of Hizanat which is seven years for son and age of puberty for daughters. After the age of Hizanat, the children have the right to live with the father or the mother, and their opinion will be considered by the court but will not be taken as conclusive and decisive factor. A woman seeks a Khula while a man seeks a Talaq. The Iddat period also allows for reconciliation for the husband and wife.

In this case the wife proposes the husband for the dissolution of their marriage. In consideration of it, she expresses her willingness to forego/forfeit her dower and other rights or to make any other agreement for the benefit of the husband. Once the offer by the wife is accepted by the husband, the divorce operates as Talaq-e-bain. The Hanafi school believes that all adult females have the exclusive right to enter into a khula. ‘Wife’s right to khula is parallel to the man’s right of talaq. Like the latter the former too is unconditional.

The difference between a khula divorce and a mubara’at divorce is that in khula the wife desires the divorce and initiates it, while in mubara’at both spouses desire the separation.

In Qasim Husain Beg v. Kaniz Sakina, (1932) 54 All 806 case, the Court held that for her release, the wife has to pay something to the husband as compensation. Any sum of money or property may be settled as consideration for Khula. There is no maximum or minimum limit as is in the case of dower. But once this consideration has been settled, it cannot be increased.

Mubara’at:

The literal meaning of the word Mubaraat is ‘obtaining release from each other.’ It is said to take place when the husband and wife, with mutual consent and desire, obtain release and freedom from their married state. The offer for separation in mubaraat may proceed either from the wife or from the husband and as soon as it is accepted dissolution is complete. It takes effect as one irrevocable divorce (Talaq-e-bain) without the aid of the court.

Under Hanafi law, mubarat is equivalent to one irrevocable pronouncement of talaq, making it necessary for the parties to contract a fresh marriage with each other if they wish to resume a marital relationship. The difference between a khula divorce and a mubara’at divorce is that in khula the wife desires the divorce and initiates it, while in mubara’at both spouses desire the separation.

Distinction between Khula and Mubarat:

The distinctions between the two are as follows:

1. Khula is a redemption of the two contract of marriage, while Mubarat is a ‘mutual release’ from the marriage tie.
2. In Khula, the offer is made by the wife and its acceptance is made by the husband, in Mubarat any of the two may make an offer the other accept it.
3. In Khula a ‘consideration’ passes from the wife to the husband. In Mubarat, the question of consideration does not arise.
4. In Khula, the aversion is one side of the wife, while in the Mubarat, there is mutual aversion.

Dissolution of Muslim Marriage by the Judicial Process:

There are superior rights to husband in case of divorce in Muslims. The husband can divorce his wife, without any misbehaviour on her part and without assigning any cause. A Muslim man can have four wives at a time, whereas a Muslim woman can have only one husband at a time. While a Muslim woman cannot divorce herself from the husband, except by obtaining a decree from a Civil Court that also under specific provisions. The wife cannot divorce herself from her husband without his consent, except under a contract made before or after marriage. This inequality created dissatisfaction among educated Muslims in British India. They agitated and prayed British Government to bring an Act. As a result of their efforts, the Dissolution of Muslim Marriage Act, 1939 has been enacted.

Following are the grounds on which a marriage maybe dissolved under the Marriage Act.

• Lian: Where the wife is charged with adultery and the charge is false. She can file a regular suit for dissolution of marriage as a mere application to the court is not the proper procedure. It must be noted that Lian does not ‘ipso facto’ dissolve a marriage, rather allows it to be heard in the court of law provided the charge of adultery is proved to be wrong.
• Fask: Under Faskh, the wife can approach a Qazi for the termination or dissolution of marriage provided the marriage is irregular in nature, or such a marriage takes place amongst the prohibited degrees or when such a marriage takes place between non-muslims who converted into Islam. the passing of the dissolution of Marriage Act, Muslim women could only apply for the dissolution of their marriage under the doctrine of Fask.

A Muslim woman may file for divorce on the following 9 grounds-

• That the whereabouts of the husband have not been known for a period of 4 years (Section 2(i))
• That the husband has neglected or has failed to provide for her maintenance for a period of two years. (Section 2(ii))
• That the husband has been sentenced to imprisonment for a period of seven years or upwards. (Section 2(iii))
• That the husband has failed to fulfill his marital obligation for a period of three years. (Section 2(iv))
• That the husband has been insane for two years or is suffering from leprosy or a virulent form of venereal disease.
• That the husband was impotent at the time of marriage and continues to be so. (Section 2(v))
• That the husband is suffering from physical or mental disease. (Section 2(vi)
• Woman using option of puberty. (Section 2(vii)
• That the husband is treating her with cruelty. (Section 2(viii)
• Any other valid ground (Section 2(ix))

Legal Consequences of Divorce:

As soon as the divorce takes place, be it any of the methods discussed above there are certain obligations that both the husband and wife need to follow which includes:

• The wife needs to observe the period of iddat and the husband can remarry only after the completion of his divorced wife’s iddat period.
• The divorced wife who is observing iddat will be counted for the limit of a maximum of four wives until the iddat period so observed by her comes to an end.
• The unpaid dower is paid immediately, even in case of prompt or deferred dower.
• The mutual rights available in case of inheritance become irrevocable.
• Any intercourse between the divorced husband and wife will be termed as ‘illegitimate.’ 
• The wife observing iddat after divorce is entitled to maintenance, whereas the wife observing iddat after the death of the husband is not entitled to maintenance.

Conclusion:

Under the Muslim Law, there are more than one form for dissolution of marriage. To cater to the needs of changing circumstances along with Muslim personal laws certain legislations are brought by the Government of India such as the Muslim Dissolution of Marriage Act, 1939, the Muslim Women (Protection of Rights on Marriage) Act, 2019 etc., to govern Muslim marriage and divorce. However, apart from these legislations and personal laws, there is a need for the Uniform Civil Code for creating single informed laws governing all the citizens of the nation to strengthen national unity and integrity.

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