DISSOLUTION OF MUSLIM MARRIAGE: UNDERSTANDING ISLAMIC PRINCIPLES, JURISPRUDENTIAL TAKE AND STATUS OF WOMEN

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This article is written by Gungun Sharma of 3^rd Semester of Hidayatullah National Law University, Raipur

ABSTRACT

Marriage is considered as an important concept in the arena of family law. Disregarding of different traditions and religions giving their own definition and meaning to it, the legal system has endured to bring up certain uniformity although with regards to different personal laws, that marriage between two persons leads to the establishment of rights and liabilities which can be categorized as religious as well as legal. “Divorce (talaq)”, acts as the extinguisher of the same rights and liabilities of spouses. The perpetual debate of considering the Muslim marriage as a sacrament or a contract gives us the recourse to consider it both from religious and legal perspective. Legally said, divorce is the right of both the spouses to get rid of a marriage which has become destructive for their individual dignity. But this right cannot be used as a source for taking unreasonable course to fulfill the personal greed and the maintenance of balance between individual’s rights and rationality is equally necessary which will be dealt in this article in detail. With this, this article also attempts to explain the substantive and procedural legislative structure supporting the concept of talaq in Islam and the status of women and the consequences that a woman have to deal with after talaq in different form respectively.

KEYWORDS

Talaq, Rights and Liabilities of Spouses, Exploitation of Muslim Women, Islamic principles, Muslim personal law.

INTRODUCTION

Since ages, “divorce” is being regarded as a natural marital right of the spouses in some cultures like in Romans, Hebrews, Israelies, etc. It is said that “Islam is the first religion to recognize divorce as a means to break the marital ties”. In Islam, talaq is considered, according to “Prophet Mohammad”, as the last resort a person should course for, and it is considered as the most hateful before the Almighty God of all permitted things, for it prevents conjugal happiness and interfers with the proper bringing up for children. As described earlier, a Muslim marriage can be dissolved by various ways that are the result of practices being followed since ages and the rules as given in different legislations. Under Muslim law, the “dissolution of marriage” can be taken place through means that include death of either of the spouses or by expressly giving divorce. Divorce in Muslim law, also leads to certain legal consequences, irrespective of the way through which talaq was taken, such as parties getting the recourse to marry any other person, dower (mahr) becomes immediately payable, illegality of cohabitation between the divorced spouses, cessation of mutual rights of inheritance. The various ways through which divorce can be taken in “Muslim law” are “Talaq-ul-Sunnat, Talaq-ul-Biddat, Ila, Zihar, Talaq-e-tafwiz, Khula, Mubarat, through judicial decree under Dissolution of Muslim Marriage Act, 1939”. Since ages, it has been observed that, the husband’s rights with respect to divorce is much greater than the wife that displays that how, to a certain extent, it leads to exploitation of Muslim women. Divorce is the source of husband’s putting his irrational will on the wife which is also inconsistent with the Islamic principles. This status of Muslim women, however, are being endeavoured by the legal system to get bettered that can be displayed through recent case laws that are respectively discussed later in this article.

RESEARCH OBJECTIVES

This research article has been written to aim for the following given objectives:

To find out how rights and liabilities (which were the result of marriage between the spouses), gets affected.
To find out the Islamic and legislative principles regarding divorce in Muslim law.
To find out how women are being exploited through the imbalanced quantity of rights being practiced by the husband and the developments being done in the legal system for the betterment.
To find out solutions and suggestions for the better implementation of Muslim personal law so as also to maintain balance between Muslim personal law and Constitution of India.

RESEARCH METHODOLOGY

This research article has used primary sources through delving into the intricacies of the Quranic verses to get the authentic knowledge of the Islamic principles related to dissolution of Muslim marriage. Also, secondary sources like articles from national journals and magazines of approx. 10 years have been studied to come to different kind of interpretations. These methodologies have also been helpful to know the timeline and the trend in evolution and development of Muslim personal law regarding dissolution of marriage.

DISSOLUTION OF MUSLIM MARRIAGE AND ISLAMIC PRINCIPLES

It is a perpetual debate to consider a Muslim marriage as a sacrament or a contract. The controversy can, however be summed up as of now that a Muslim marriage has the characters of both. Marriage is a union between two people to bind themselves together, and in the same time, it is also a type of social contract between two persons as regards to the procedure followed and the essentials needed for a valid marriage. Whatever nature does it have, it definitely leads to establishment of certain rights and liabilities. When this union or marital ties between the spouses become odious, there is always a recourse for ending it, through dissolution of marriage which also leads to the wiping out the marital rights and liabilities.

As said earlier, Islam had a practical outlook towards marital affairs, which is the reason of it recognizing divorce as an important right for the individual married spouses but in a sense that it is a necessary evil which the spouses should prevent themselves for by endeavouring to protect their marital ties in every way possible. In the case of “Musst. Rebun Nessa v. Musstt. Bibi Ayesha & Ors., the court observed that the correct law of Talaq as ordained by the Holy Quran is that (i) Talaq must be for a reasonable cause (ii) it must be preceded by an attempt of reconciliation”. [1]There is a saying in Quran, “…. if ye fear a breach between them twain (the husband and the wife), appoint an arbiter from his folk and an arbiter from her folk. If they desire amendment, Allah will make them of one mind”. This quote shows that Quran gives allowance for divorce for some reasons like to ensure that the spouses are not living in a ravaged marital union. Quran also gives some religious rules for the men and women to follow and keep in mind while taking divorce from each other as well as after the divorce has taken place such as about compensating the wife for divorce, observance of Iddat period by the wife, among others.

The establishment of Islamic law through the reforms made by Prophet Mohammad aspired to bring some rules and restrictions to do away with the irrational and unnecessary pre-Islamic practices such as the dominating control of husband. It laid down proper rules to be followed by both the spouses while taking divorce. The Prophet also discouraged and disapproved divorce expect in extremely intolerable circumstances. Islam accentuates on the concept that men and women are at par in every aspect. Therefore, with regards to divorce as well, Islam has proper restrictions so as not to let the husband put their groundless volition upon his wife.

CLASSIFICATION OF DIVORCE UNDER MUSLIM LAW

Under the Muslim law, there are various means to dissolve the marriage, and the marital ties between the spouses. The various ways through which the Muslim marriage can be dissolved. It can be broadly classified as divorce by the death of either of the spouses and through divorce. Both the parties to the marriage have the recourse to get divorce from the other spouse on reasonable grounds. Although under Islam, both the gender has equal rights, but in practice the husband has an upperhand in giving divorce. The wife also has the rights for the same but she has to get her right delegated from the husband. Also, the consent of wife is not important for taking divorce while the consent of husband is of utmost importance. The rights of women are however being protected under the “Dissolution of Muslim Marriage Act, 1939”, wherein the wife gets the rights to claim divorce from her husband on some reasonable grounds.

The divorce can be further classified as following:

By the death of a party to the marriage
By divorce
1. By husband
Talaq [ “Talaq-ul-Sunnat {Ahasan and Hasan} and Talaq-ul-Biddat”]
Ila
ZiharBy wife
Talaq-e-tafweezBy mutual consent
Khula
Mubarat By Judicial decree under Dissolution of Muslim Marriage Act, 1939.
Lian
Fask

Talaq-ul-sunnat

It is the approved form of divorce wherein the husband can pronounce talaq to his wife expressly. It is further sub categorized into Ahasan and Hasan. Ahasan is the most approved form of Talaq among the two. In this form, the husband pronounce divorce in single sentence and there is also a condition that it should be pronounced only in the Tuhr period i.e., the period when the wife is not in her menstruating time. The women spouse has to observe Iddat period after the pronouncement and this kind of talaq can be revoked during the “iddat period”. Hasan is the less approved form of Talaq. Talaq in this form involves three successive pronouncements of divorce. Every single pronouncement here should be made in three different tuhr period in case the wife is menstruating and in the gap period of 30 days if the wife is non-menstrauting respectively. This kind of Talaq is revocable until the third pronouncement of divorce has done by the husband.

Talaq-ul-biddat

It is a disapproved form of talaq which was introduced by the Omeyyads. It is recognized by the Sunni law. In this form of talaq, the husband makes three pronouncements in one single sentence or in three sentences but in one tuhr period with the clear intention of breaking the marital ties with his wife forever (shown in the case of “Rashid Ahmad v. Anisa Khatoon”[2]). This type of divorce, although practiced in some cultures, is considered as immoral from the point of view of morality because it gives the husband unnecessary, irrational right over the wife on groundless factor which is deprivative for the dignity of women. In the case of “Sarabhai vs. Rabia Bai”,[3] this form of Talaq was considered as theologically improper. Also, in the case of “Fazlur Rahman v. Aisha”[4], it was decided that this type of divorce is against the Islamic principle and this cannot bind the court to give judgement in favor of it.

Ila

It is a kind of vow of continence, wherein the husband is of major age and sound mind. Here, if the husband, pledges to God to not involve in any sexual intercourse with his wife therein promising to break the marital ties with his wife, he is said to make ila. The husband, in consequence for the ila that he has made has to abstain from sexual intercourse with his wife for four months to make the divorce irrevocable from that period. This practiced is however not practiced in India.

Zihar

In this type of divorce, the husband with a disrespectful intention, compares his wife to someone within his own prohibited degree. If the husband does this, the wife gets the option to refuse herself to her husband he performs the penace. If he defaults in performing it, she can also claim for judicial divorce.

Talaq-e-tafweez

This is a type of divorce wherein the wife gets the right to give divorce through delegation from her husband. The agreement for delegation can be made either before marriage or after the marriage that the wife can give divorce to her husband on the ground of some specified reasonable conditions.

Khula

In this type of divorce, the wife purchases from her husband. It is taken with the consent of the wife wherein she also provides the husband with some consideration from her property for releasing herself from him.

Mubarat

It is a type of divorce under Muslim law wherein both the husband and the wife mutually agreed to divorce each other, both of them wants separation. There has to be an offer from the side of either the wife or the husband and once the offer gets accepted, it leads to breakage of the marital ties or union between them and the divorce becomes irrevocable (talaq-ul-bain). Thereafter, the woman has to observe the iddat period.

Lian

Lian is the false charge of adultery levied on the wife by her husband. If the husband does so, the wife is entitled to claim for divorce. This doctrine of lian was recognized in the case of Zafar Husain v. Ummat-ur- Rahman[5]. Here, the husband as well as the wife should be adult and of sound mind. Also, the charges levied should be false and the wife must file for a regular suit for the dissolution of marriage. The validity of marriage is a pre-requisite too.

Fask

This means abolishment or cancellation of marriage union between the husband and wife. Quran gives this saying that the husband has the duty to give good treatment to his wife and the wife should obey every reasonable order. If any of them doesn’t perform their duty and both of them resolved to not live as husband and wife and to break their marital ties, they can refer their matter to the Qazi who after examining their matter properly, can cancel the marriage.

Judicial divorce

Before the passing of the “Dissolution of Muslim Marriage Act, 1939”, the Muslim women were, to a large extent, denied the right to dissolve the marriage at their instance. Previously, the Muslim women could take the course to divorce her husband only on the grounds of Impotency of husband, lian, and she could use the option of puberty (khyar-ul-bulugh). The need to give the wife the recourse to dissolve her marriage was felt because there can be some instances wherein the husband mistreats her or makes her life so miserable that the dignity of women gets violated and she don’t feel to live as a wife with him. Among this situation, the Dissolution of Muslim Marriage Act, 1939, was passed which is applicable to all the Muslims disregarding of which school do they belong to.

Section 2 of the Dissolution of Muslim Marriage Act, 1939 provides for nine grounds on which a Muslim woman can claim for and obtain divorce from her husband. The grounds are as follows:

Non-presence of the husband
Failure to maintain the wife
Imprisonment of the husband
Failure to perform marital obligations
Impotency of husband
Insanity, leprosy, or venereal disease
Repudiation of marriage by wife
Cruelty of husband
Grounds of dissolution recognised by Mohammedan Law

LEGAL CONSEQUENCES OF DIVORCE

Remarriage

The husband is free to remarry after the divorce has become irrevocable. For the wife, remarrying to another person is conditional. If the marriage was consummated, then the wife can only remarry after fully observing the Idda period. If the marriage was not consummated, the wife is free to remarry any time after the irrevocable divorce.

Dower

The dower (Mehr) has to be paid by the husband to his wife immediately after the irrevocable divorce has taken place.

Cohabitation

The cohabitation between the divorced man and woman becomes illegal because the marriage that gave them the legal acceptance to cohabitate now stands terminated.

Marital rights

All the marital rights and liabilities extinguishes as soon as the marriage gets terminated. Also, the mutual rights of inheritance cease after the irrevocable divorce.

HOW LEGAL SYSTEM IN INDIA HAVE BEEN DEALING WITH DISSOLUTION OF MUSLIM MARRIAGE

The Islamic/ Quranic principles have strived to bring on new changes so as to do away with the irrational use of divorce as a source to fulfil the personal needs. With the inspirations taken from the teachings of Prophet Mohammad, proper rules and restrictions have been put into practice that ensures the effective working of different ways of divorce under Muslim law. Developments in the legal system have taken place with the interference of legislatures and judiciary in the matrimonial laws of Muslims to make sure that the impracticality and unreasonableness of pre-Islamic era does not get repeated. One of the major developments in the Muslim law of India that has happened is the establishment of the “Dissolution of Muslim Marriage Act, 1939”. The “DMMA, 1939” provides Muslim women with various alternatives to seek divorce from her husband in case of instances wherein the woman is in such a position so as not to live with the man as his wife because the situation is destructive for her dignity. This act has ventured to bring back the broad gender gap which was dug by the irrational practices by the Muslim man. Also, for a long time, there had been misinterpretation of Islamic principles that it gives a leverage to Muslim man in case of getting divorce from his wife. This misinterpretation has been time and again reiterated as wrong.

Although, there is an edge given to the personal laws in cases of matrimonial matter but there is always a need for the legislative and judicial interference to keep a check on the personal matters so as to ensure the judgments given or the practices being followed are in consistency with the Constitution of India. “Talaq-ul-biddat”, as discussed previously is a kind of divorce which is immoral as well as violative of the Indian Constitution. It violates “Article 14 of COI” as it discriminates Muslim women on the basis of gender as well as religion. It is also violative of “Article 21 of CO” I as it is derogatory for the Muslim women’s dignity. The legal system has thus come up with the “Muslim Women (Protection of rights on marriage) Act, 2019” to make this Talaq as illegal. Various cases under Muslim law such as “Shayara Bano vs. Union of India”[6], “Shamima Farooqui v. Shahid khan”[7], “Saral Mudgal v. Union of India”[8], “Asma Bi. V. Umar[9]”, have also attempted to establish better principles and disregard the irrational dominance.

STATUS OF MUSLIM WOMEN

The status of women when it comes to dissolution of Muslim marriage is disagreeable. Pre-Islamic era used to be more male-dominating where Muslim husbands would use divorce as a tool to make the women deprived of their individual’s right and dignity. The development in the Islamic era that took place through Prophet’s teachings has ventured to lead to some improvement in the status of women by introducing proper rules regarding termination of marriage so that the husband cannot put their unnecessary will upon the wife. In “Moonshee Buzul-ul-Rahim v. Lateef-un-Nissa Begum”, [10]the court reclaimed that talaq is a more irrational act of the husband who can cancel the marital ties with his wife even without any cause. Also, after that various legal development has taken place with the introduction of some legislations and some judicial pronouncements which led to upgrade and betterment in Muslim women’s status. There are instances in the arena of dissolution of Muslim marriage wherein women get deprived of their rights such as the concept of Triple Talaq that is so discriminatory for the women because of its arbitrary nature. In this arena, judicial trend from cases like “Sara Bai v. Rabia Bai”[11], “Saiyid Rashid Ahmad v. Mst. Aneesa Khatoon” [12]to cases like “Mohd. Ahmed Khan v. Shah Bano Begum” and “Shayara Bano v. Union of India”, the legal system has attempted to bring upliftment in the status of Muslim women. The other problem is of Polygamy where only the Muslim men are allowed to have four wives at once which has to be taken into consideration and effective evolution is also needed. Also, some of the legislations like “Dissolution of Muslim Marriage Act, 1939” has also done their work in improving women’s status.

CONCLUSION

Muslim personal law has gone with lots of evolution and developments through the interference of legislature and judiciary which was anyway necessary. The trend from the pre-Islamic era till now shows the efforts put by the whole legal system to improve the situations but there are still some rooms for more improvement in this area. People should firstly prevent for misinterpreting the Islamic principles. “Mr. Justice Krishna Iyer pointed out that the view that the Muslim husband enjoys an arbitrary unilateral power to inflict instant divorce does not accord with Islamic injunctions….it is a popular fallacy that a Muslim male enjoys under the Quranic law unbridled authority to liquidate the marriage”[13]. Also, there are lots of complexity involved in the dissolution of Muslim marriage which make it interpretation by the court difficult which should be made effective through uniform legislations. There should be also a maintenance of balance between personal law and provisions of constitution. Most importantly, there should be more attempts to improve women’s status and effective legislations and orders should come to not let arbitrariness (that can lead to violation of individual’s rights and dignity) to step into the personal matters.

REFRENCES

Art. 14, the Constitution of India.
Art. 21, the Constitution of India.
“Dr. Paras Diwan, Muslim Law in Modern India, 165-198, (13^thed., 2018)”.
Aqil Ahmed, Mohammedan Law, 163, (21^st ed., 2004).
S.2, The Dissolution of Muslim Marriage Act, 1939.
Shagufta Omar, Dissolution of Marriage: Practices, Laws and Islamic Teachings, 4 Pluto Journals, (2007), available at https://www.jstor.org/stable/429009165, last seen on 02/06/23.
Furqan Ahmed, Understanding the Islamic Law of Divorce, 45 Journal of the Indian Law Institute, (2003), available at https://www.jstor.org/stable/43951877, last seen on 01/06/23.
Narendra Subramanian, Islamic Norms, Common Law, and Legal Reasoning: Muslim Personal Law and the Economic Consequences of Divorce in India, 24 Islamic Law and Society, (2017), available at https://www.jstor.org/stable/44634472, last seen on 02/06/23.
Anees Ahmed, Reforming Muslim Personal Law, 36 Economic and Political Weekly, (2001), available at https://www.jstor.org/stable/4410313, last seen on 02/06/23.
Ragini Sahay, Divorce in Muslim Society, Laws and Reality: A study among Telis in Delhi, 28 Indian Anthropoligist, (1998), available at https://www.jstor.org/stable/41932563, last seen on 03/06/23.