Divorce under muslim law

This powerpoint seeks to explain the various aspects of divorce law under Mohammedan Law in India with the help of flowcharts and relevant case laws.

1. DIVORCE UNDER MUSLIM LAW By Yusra Raouf, Ex-Intern @ Prime Legal

2. Significance of Divorce under Muslim Law the fixing of dower revocation of talaq restraints on re-marriage

3. During the British Raj, the colonial courts were directed to apply “indigenous legal norms” in matters relating to family law and religion, with “native law officers” advising the courts on the determination of those norms . Legal commentators on the development of the indigenous system of “Anglo- Muhammadan ” law. attach varying degrees of significance to the subsequently authoritative position of these works (and the quality of the translations) There was the absence of judicial expertise in Muslim law which is why courts had to introduce principles of English law and procedure through judges trained in the English legal tradition and through interpretation of the residual formula of justice and right and the reliance was placed on customary law . Evolution of Divorce under Muslim Law Divide and Rule by British India And Jinnah’s attempts at Muslim Representation led to creation of The Muslim Shariat Act, 1937

4. The Muslim Personal Law Application Act 1937 ( Shariat Act) directs the application of Muslim Personal Law to Muslims in a number of different areas mainly related to family law.  Application of Personal Law to Muslims.- Notwithstanding any custom or usage to the contrary, in all questions ... regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq ,, ila , zihar , lian , khula and mubaraat , . . the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law ( Shariat )

5. Extra Judicial- 1. By husband (Repudiation/ Talaq ) Talaq in its literal sense means “the taking off of any tie or restraint” Moonshee Bazloor Raheem v. Shamsoonissa Begum (1867)11 MIA 551 (610) “Matrimonial law of the Muhammadan like that of every ancient community favours the stronger sex where the husband can dissolve the marital tie at his will”

6. " Talaq -e- Ahsan "  is the 'most proper ' form of  talaq  in which the husband expresses divorce in single sentence - "I have divorced thee" - during the period of  tuhr  (when the wife is not menstruating) and then has to wait till the  iddat  period is over.  Iddat  period for a woman who has been divorced by her husband is usually three menstrual cycles. In case the woman is pregnant, the  iddat  period lasts until she gives birth During this time, she cannot marry another man. If before the completion of  iddat , the husband resumes co-habitation with his wife or says that "I have retained thee" , the divorce is revoked . " Talaq -e- Hasan "  is the 'proper' form of  talaq . In this form, three successive pronouncements of  talaq  are made by the husband in three successive  tuhrs   In case of a nonmenstruating woman, its pronouncement may be made after the interval of a month or thirty days between the successive pronouncements. This form of  talaq  can be revoked any time before the third pronouncement.

7. In Yusuf v. Sowramma , IR 1971 Ker 261 the Kerala High Court observed that, “it is popular fallacy that a Muslim male enjoys, under Quranic law, unbridled authority to liquidate the marriage. The holy Quran expressly forbids a man to seek pretext for divorcing his wife so long as she remains faithful and obedient .” He further observed about the state of affairs in India, that Muslim law as applied in India has taken a course contrary to the spirit of what the holy Prophet (PBUH) or the holy Quran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce. Shamim Ara v. the State of U.P., (2002) 7 SCC 518 –NOTABLE CASE “… The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters — one from the wife’s family and the other from the husband’s; if the attempts fail, talaq may be effected (para 13 ).

8. Talaq -i- tafweez is also known as Talaq -i- Tawhid . Literally, tafweez means ‘delegate’. A Muslim husband can delegate his power of pronouncing talaq to his wife or to any other person. Extra Judicial- 1. By husband (Delegation) Capacity to delegate the power: A husband: Who is of sound mind, and b ) Who has attained the age of puberty may delegate his right of pronouncing talaq . If a husband becomes insane after delegating his power, the delegation will not be invalidated . It is not necessary that the wife or any other person, to whom the power is delegated, should also have attained the age of puberty Muslim husband may delegate the power absolutely or conditionally, temporarily or permanently

9. Mubaraat means “release”, which puts an end to matrimonial rights. The word Mubaraa means an act of freeing one from another mutually. It is a mutual discharge from marriage i.e. It is a divorce by mutual consent of the husband and wife . But mutual agreement must be made at the same meeting and the word “ Mubaraat ” must be clearly expressed in the proposaland if ambiguous expressions are used, intention must be proved. Extra Judicial- 2. By Mutual Consent ( Mubarat )

10. “A divorce by khula is a divorce with the consent and at the instance of the wife in which, she gives or agrees to give a consideration to the husband for her release from the marriage tie. In such a case, the terms of the bargain are matters of arrangement between the husband and wife, and the wife may, as the consideration, releases her dower mahr and other rights or make any other arrangement for the benefit of the husband”. . Khula infact is thus a right of divorce purchased by the wife from her husband Both the husband and the wife must be of sound mind and have attained puberty . Under Hanafi law, the guardian of a minor wife may enter into a khula on her behalf; but the guardian of a minor husband cannot enter into a khula on his behalf. Extra Judicial- 3. By Wife ( A. Khula ) Husband’s Consent or not?

11. I la means “oath” or “vow”. In law, it means that, when a husband takes an oath that he will not do sexual intercourse with his wife for four months or above on the expiry of four months after making ila , if the husband has abstained from sexual intercourse during this period, the marriage shall stand dissolved.147 There is no limit prescribed for the longest period. ila made under compulsion or intoxication would be valid as in the case of talaq under similar circumstances Extra Judicial- 3. By Wife ( B . Ila )

12. The term “ zihar ” is derived from ‘ zuhar ’, the back. When the husband compares his wife with the back of his female relations within the degrees of prohibited relationship Capacity to make zihar : A husband who is: Of sound mind, and b ) Who has attained puberty can make zihar . Once the husband makes it, the wife gets a right to refuse cohabitation with him until he performs a penance and if the husband refuses to perform the penance, the wife may get a judicial divorce. i.e., she may apply to the court for the penance to be performed by the husband or to pronounce a talaq on her. On the refusal of the husband to do either thing, the court may grant a divorce Extra Judicial- 3. By Wife (C. Zihar )

13. Allahabad High Court: Zafar Husain vs Ummat -Ur- Rahman on 3 January, 1919 The main question in the case is whether a Muhammadan wife is entitled to bring a suit for divorce and obtain a decree for dissolution of marriage on the ground that her husband has falsely charged her with adultery. The defendant denies having made such a charge, but both the Courts below have found that he made it and imputed to the wife incest with her own brother and that the imputation was wholly without foundation. “We have, therefore, to consider whether in these circumstances the plaintiff is entitled under the Muhammadan Law, which must govern questions of marriage and divorce, to have it declared that her marriage with the defendant has been dissolved. The authorities of Muhammadan Law on the subject have been laid before us and, in my opinion, they clearly establish that she is entitled to such a declaration .” The Muhammadan Law of evidence being no longer in force and the ordinary Courts having taken the place of Kazis , these Courts are the authorities which should make a decree for divorce on being satisfied according to the ordinary rules of evidence that a false imputation was made by the husband and it is unnecessary to comply with the formalities of laan . L ian

14. Judicial Divorce - by DMMA In 1939, British India enacted the Dissolution of Muslim Marriages Act ("DMMA "). The DMMA provides grounds for marriage dissolution unrecognized prior to its enactment . Only a wife can file for divorce under the DMMA; a husband cannot invoke the DMMA to divorce his wife.' 27 This is probably because husbands have broad talaq rights and do not need the rights that the DMMA gives.

15. Under pure Islamic law, where a husband made an accusation of adultery against his wife, he was required to prove his charge by the testimony of four law worthy witnesses If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian . 2. Judicial Divorce - by Change of Relegion and Prohibited Relationship (LIAN) The DMMA governs the effects of one spouse changing faiths. There are three possibilities that can occur . First , if the husband renounces, or apostasies, Islam, the marriage is immediately dissolved . Second , it was true that if the wife apostatized, the marriage was again dissolved. Third , if the couple was married under a different religion and only one spouse converted to Islam, then the marriage is terminated if the other spouse refuses to convert also to Islam

16. COMMON PROCEDURAL DIFFICULTIES WITH DIVORCE UNDER MUSLIM LAW

17. Shariat Court vs. Family Court However , by stopping short of terming them illegal, it allows the continued functioning of such parallel courts whose judgements are often enforced on the strength of social sanction. Sharia courts are those ‘courts’ which seek to safeguard and enforce Sharia laws. These courts are traditionally called “ Darul Qazas ” (or house of qazi ). These Sharia courts are not courts in their strictest sense but more of a counselling and arbitration centres . They are popular because they are accessible, informal and voluntary institutions that provide speedy and inexpensive justice especially to the poor. It has also been held by Supreme Court in   Vishwa Lochan Madan v. Union of India and others   (2014) itself that the fatwas or Islamic edicts given by the Sharia courts have “no place in independent India” and these must not be used to punish the innocent. The court further noted that the advice of these are not binding and the parties are free to accept or reject it. The verdict also solely referred to Sharia Courts as “informal justice institutions” with “laudable objectives Therefore, these courts cannot produce verdicts that are binding on an individual or infringe the fundamental rights vested in the citizens of India.

18. Talaqnama is talaq given in the  written form . Talaq via talaqnama can be provided in the absence of wife and also there is no necessity to be signed in the presence of  Qazi   or wife’s father . Husband has to execute a proper deed. A deed must contain the name of the women whom he has divorced and his name . Points to be considered for a valid T alaq Talaq pronounced under intoxication is not recognized valid under Muslim law. For a valid talaq , intention is not an essential element . Husband may give talaq by mere words without any talaqnama or deed but once challenged, it can be difficult for husband to prove the divorce. Talaqnama

19. Shakil Ahmad Jalaluddin Shaikh vs Vahida Shail Shaikh And Anr on 20 January, 2016- HC of Bombay Mere existence of a document like talaqnama , is not sufficient to render a valid Talaq . Justice M.S. Sonak held that, for a valid Talaq , it is not sufficient if challenged by wife. Even in case of irrevocable Talaq in the presence of a Qazi or the wife's father or two witnesses the factum of this form of Talaq is required to be proved, if challenged before a competent court in appropriate proceedings . The witnessed should be as per law that is two men or four female witnesses The husband is required to discharge his burden of proving that he had no physical relationship with the wife during the waiting period and the reasons for exercising such a right are required to be putforth . The factum of conciliation or arbitration is also one of the conditions preceding the process of Talaq is also to be proved

20. With regard to maintenance upon divorce, classical Hanafi law has been modified in India by the Muslim Women (Protection of Rights on Divorce) Act 1986, passed following fierce protest by sectors of the Muslim community that viewed the Supreme Courts ruling in the Shah Bano case as a gross interference in matters of Muslim personal status. In Mohammad Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945), the Supreme Court ruled that there was no conflict between classical Hanafi law, which only specifies the obligation to maintain a wife during her iddat period (90 days), and the requirement to support a former wife unable to maintain herself established by state legislation. During the aftermath of the controversial judgement, the Congress government passed the Muslim Women (Protection of Rights on Divorce) Act . The Act entitles the divorced Muslim woman to “a reasonable and fair provision and maintenance to be made and paid to her within the idda period by her former husband.” The court practice allows the Muslim divorce to appeal to the courts if her former husband has not provided her with a reasonable sum for maintenance during her iddat period Divorce and Maintanence

21. The END