These are frequently asked questions about dissolution of Muslim marriage, Talaq, Talaq-e-ahasan, Talaq-e-hasan, Talaq-e-biddat, and Talaq-e-tafweez.
a) Talaq-e-Tafweed under Muslim Law:
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.
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.
- Delegated power of her husband
- Khula
- Mubara’at
- 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.
b) Talaq-e-biddat:
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. 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.
Islamic divorce laws recognize a man’s absolute right to give divorce to his 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. Different kinds of talaq by the act of husband are Talaq-e-ahasan, Talaq-e-hasan, and Talaq-e-biddat.
Talaq-e-biddat 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”. It is irrevocable. 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. Under the Shia law, an irrevocable Talaq is not recognized
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.
c) Khilawat-us-Sahiha or Valid Retirement:
Sunni law recognizes valid retirement, and it has a similar legitimate impact as actual consummation with respect to dower, the foundation of paternity, the recognition of iddat, the bar of marriage with the spouse’s sister, and the bar of successive marriage. When the husband and wife are alone together under circumstances that present no legal, moral or physical impediment to marital intercourse, they are said to be in “valid retirement”. The term is also famously referred to as khilwat-us-sahiha in Muslim Law.
Valid retirement only takes place when the couple is in complete privacy. So any place i.e. accessible by the public or is in open will not be considered as the consummation of marriage and then the assumption of the culmination of marriage doesn’t emerge.
According to Fatwa-e- Alamgiri, a valid retirement is equivalent to actual consummation of marriage of the following purposes:
- For confirmation of dower;
- For the establishment of paternity;
- For the observation of iddat;
- For the wife’s right of maintenance;
- For making a man’s marriage unlawful if he look a fifth wife or married his wife’s sister.
But the valid retirement has to be proved firstly in such cases. But it doesn’t have a similar impact as genuine fulfillment with respect to the bar of marriage with the spouse’s daughter or remarriage bar between divorced people. Shia law does not validate the concept of valid retirement.
d) Khula and Mubaraat under Muslim Law:
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.
- Delegated power of her husband
- Khula
- Mubara’at
- By the judicial process
Khula:
Khula is the right of a woman in Islam to divorce and it means separation from her husband. 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.
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.
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:
- Khula is a redemption of the two contract of marriage, while Mubarat is a ‘mutual release’ from the marriage tie.
- 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.
- In Khula a ‘consideration’ passes from the wife to the husband. In Mubarat, the question of consideration does not arise.
- In Khula, the aversion is one side of the wife, while in the Mubarat, there is mutual aversion.
e) Talaq-e-ahsan:
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.
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. Different kinds of talaq by the act of husband are Talaq-e-ahasan, Talaq-e-hasan, and Talaq-e-biddat.
Talaq-e-sunnat 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 and Talaq-e-hasan
Talaq-e-ahasan 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.
g) Faskh
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.
Ian and Faskh are the grounds on which a marriage maybe dissolved under the Marriage Act.
The word ‘fakh’ literally means annulment or abrogation. The term, also sometimes referred to as ‘tahkim’, refers to the power of a Muslim Kazi to annul a marriage on the application of the wife. 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.
h) Ila
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.
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.
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.