This Article is written by Shambhavi Singh (a student of Symbiosis Law School, Hyderabad doing a BA.LLB.)
Abstract
For a happy married life, the foremost important thing is respect and togetherness of husband and wife. This is the reason, the laws of different religions try to always prevent the breach of marriage- a contract. Marriages are not meant to be broken intentionally but due to some very unfortunate situations that occur divorce happens. Divorce is seen as a special case to the position of marital status in Islam. Divorce may be granted by the partners individually or by a courtroom, according to Islamic laws. Nevertheless, regardless of how the separation is carried out, it is not considered a principle of life. Divorce, according to the Prophet, is “by far the trounce thing that has been authorized by law”. A divorce is an unpleasant act that should be prevented as much as feasible.In Muslim law, divorce is based on the incapacity of the couples to stay together rather than any single cause for why the couple cannot live with each other. A dissolution of marriage can be obtained by either of the partner’s actions. Under Muslim law, there are numerous types of divorce, which will be addressed further in the paper.Under Muslim Law, the concept of judicial separation does not exist. This study will aim to carefully investigate Mahomedan personal laws, with a great emphasis on nameless rights granted to men in the event of separation in order to restrict those of Muslim wives. In Islamic laws, both conjugal and separation duties are considered. Then suggestions are suggested on how to preserve the interests of spouses while also respecting the independence of each faith and therefore establishing an equilibrium among both parties.
Introduction
In Islamic law husband, ’s have been given the capacity to declare divorce to their wife in the absence of court. They can simply get separation from their wife without giving any valid reason for divorce under Mohammedan law. This is a very oppressive power given to Muslimhusbands and is in continuous practice controlled by certain measures to safeguard the rights of their wives. Shoharat Singh v Jafri Begum[1] case law mentions, that the Privy Council ruled that marriage is a religious event under Muslim law. Marriage is seen as a social foundation in Islam. Marriage is an entity that promotes man’s advancement as well as the survival of the human race. In Islamic law, if the husband speaks the precepts of Talaq then even without going to court there is the end of the marriage. It is determined by an unpredictable choice. In reality, his caprice is not certainly governed by the requirement to provide alimony in the case of divorce. Usually, these things are done through talaq. He may, however, separate from the spouse by Ila and Zihar, which varies only in format and not in content from talaq. The wife was not given the authority to divorce the spouse of her own free will. She can separate her spouse only if he has allocated that authority to her or if they have struck a deal. “According to the provisions of the contract, the lady may divorce her husband through Khula or Mubarak. Prior to 1939, a Muslim wife had no recourse to dissolving the marriage unless the husband was falsely accused of cheating, illness, or impotency. However, the Dissolution of Muslim Marriages Act of 1939 establishes a number of alternative reasons on which a Muslim woman may get a divorce decision by court order. Talaaq signifies dismission in its most general sense. It literally means “to set free,” “to let the other person go,” or “to remove any bonds or restraints”[2]. It signifies liberation from the servitude of weddings and not from some other bondage in Muslim Law. In a legal context, it refers to the husband’s use of suitable language to dissolve the relationship. In other terms, talaq is the husband’s formal rejection of married life in line with the law.
Research Findings
Men are women’s keepers because Allah made some of them superior to others and because they spend from their possessions (on their maintenance and dower). When the husband uses his right to divorce, this is referred to as talaq. The most striking element of Muslim talaq law is that it is recognized by both Sunni and Shia schools, with only minor differences. Talaaq was so common in the Muslim world that even Imams practised it. Modern India recognizes a Muslim husband’s unrestricted ability to divorce his wife unilaterally, without providing any cause, essentially at his whim, even in jest or in a state of drunkenness, without appeal to the court, and even in the absence of the woman.
Modes of giving divorce by husband
When the husband pronounces talaq between a time period of two menstruation cycles (tuhr) of his wife and in this method husband gets a chance to reexamine his decision of separation from his wife. This method is called Talak Ahasan. If he again pronounces talaq during his wife’s menses, it shows his intent also still again pronounces talaq during wife’s menses. Ahasan has a rule that there is no necessity for the presence of a wife during the time when the husband announces his decision of getting divorced and after this marriage is no more and is dissolved. Talak does not focus more on whether talaq is announced orally or is in written format; it gets completed after its iddat period i.e, three times during the menstrual cycle. This method is regarded as a proper and efficient method because the husband also gets time to rethink the decision.
The other method of divorcing their wife is Talak Hasan. In this method, the husband announces talak consecutively over three tuhr periods. This method does not need the iddat period to get over still the husband gets time to rethink his decision of getting divorced. There should be no sexual intercourse during this time period and if something happens means that the husband has changed his mind and has revoked his decision of separation.
The third method is Talak- ul- biddat which is basically a heterodox divorce. This law is itself not documented under Shia law. This method of talaq was created by the “Umayyads” in hopes of avoiding the rigidity of the law. According to Hanafis, this is an immoral kind of talaq. Sunni law defines this manner of talaq, albeit it is also considered immoral. Shias and Malikis, on the other hand, reject this style. Three announcements are done in a single tuhr, whether in a single statement or in distinct utterances. Companions who have been parted due to triple talaq are unable to reunite without such protocol of the female marrying another man and divorcing him, a procedure known as Nikah Halala.
In the case of Jiauddia Ahmed vs. Anwara Begum[3], the court ruled that the partner’s unfair and unjust separation is legal but theologically incorrect. The courts also attempted to instil rationality in the pronouncement of triple talaq, although they were hesitant to intervene and test the benchmark of the legislation.
Disbanding of Muslim Marriage Act, 1939
Section 2 (ix) of the Muslim Marriage Act of 1939 states that a wife may sue for divorce on any legal grounds. To that extent, the act serves as a declaration. The Mahomedan law so recognizes the following grounds:
Method of li ‘an – She can file for divorce if her husband wrongly accuses her of infidelity. If the marriage is not irregular marriage, this reason is possible. In such a case, the wife must show that her husband accused her of infidelity. It is up to the husband to establish that his accusation is correct. If he is unable to demonstrate this, the wife may seek a divorce decree.
Talak through tawfeez– A lawful settlement agreement to a marriage in which the wife is free to divorce her husband in certain circumstances is valid. An agreement like this might be made before or after marriage. The transfer of divorce power to the wife might be permanent or temporary, i.e. for a set period of time. However, the requirement must not be contrary to public policy and must be acceptable.
Ineffectiveness of husband- The woman had to show that she was unaware of her husband’s impotency when they married. The statute of 1939 removed this prerequisite; prior to this act, the court had to defer the case for a year to see if the husband might restore his manhood. This is only required under the 1939 statute if the husband seeks to the court for a period of time to reclaim his manhood.
The act of 1939 has improved the situation of women by recognizing a few more grounds of divorce and they are-
- If the husband’s activities have been unknown for the past four years
- If for a two-year period, the spouse has neglected or is unable to do something for her support.
- If the partner has been sentenced to seven years or more in imprisonment
- If the husband has failed to uphold his marital commitments for three years without justifiable cause.
- If her husband is unkind to her, that is to say,
- assaults her on a regular basis or makes her life miserable through cruel conduct, although such behaviour does not constitute poor physical health, associates with women of evil repute or leads an infamous life, or tries to impose her to lead an immoral life, or wants to get rid of her property or prevents her from exercising her rights under the law over it, or hinders her in the obedience of her religious profession or practice,
In Veeran Sayvu Ravuthar v Beevathumma[4], the court ruled that the wife had to leave the marital home and return to her own family since she was not treated fairly due to the husband’s discriminating treatment of his other spouses. However, once she left home, he never attempted to obtain his wife’s conjugal companionship and fellowship, and he never filed an action for recovery of conjugal rights. He also did not pay her alimony.
It was determined that the man had failed to execute his marital obligations without sufficient justification, entitling the wife to obtain a divorce decision.
After-effects of Divorce
The wife in case of a divorce is provided maintenance known as iddat until the divorce is concluded. She can claim her dower after the divorce however she can only claim half of the total dower if the marriage was not consummated. The wife can directly remarry without any delay if the marriage is not consummated however she can only remarry as soon as the period of iddat is finished if the marriage was consummated. The wife loses all her right to inherit any of her husband’s property once the divorce is final.
The man in case of divorce has to pay the dower to his wife and loses all rights to inherit any of his wife’s property. He can marry again if he has less than 4 wives after the divorce, however, he can only marry again after completing the period of iddat if the marriage was consummated (not necessary if there is no consummation). The man can only remarry his divorced wife he can co it during the period of iddat itself, however, in irrevocable divorces like Triple talaq the woman has to marry a second man and then has to divorce him in order to marry the same man again. Cohabiting with the divorced wife after divorce is unlawful and can be taken as an illegitimate matter.
Conclusion and Recommendation
Divorce was recurrent in the earlier Muslim world, in comparison to the world today, where it was comparatively rare until contemporary days, and to the moderate risk of separation in the modern Middle East. Divorce rates were greater in the medieval Islamic world and the Ottoman Empire than they are now in the middle east today. Typically, if her spouse files for divorce, the single woman retains her mahr, including the initial presents and any supplemental assets mentioned in the marital agreement. She also receives child maintenance until the kid reaches the age of nursing, at which time the couple or the courts will decide on the child’s ownership. In the Middle East, women’s separation rights are sometimes severely curtailed in comparison to men’s.
In these days of equality, things ought to change. When it comes to men, especially in Mahomedan Law, things are very difficult to face for women. The question arises when males are allowed to take divorce without giving any legitimate issues and it is because of these things men are taking women for granted and this power of giving divorce by them is used as a weapon against women to suppress them and their rights which is morally wrong. These things must be amended as it is very well mentioned in Article 14, “ that state should never deny a person’s equality before law irrespective of their religion, sex, age, etc.”
[1] Shoharat Singh v Jafri Begum, (1915) 17 BOMLR 13
[2] Setu Gupta, The Concept of Divorce under Muslim Law,
https://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html
[3]Jiauddia Ahmed vs. Anwara Begum, (1981) Gau. LR 358
[4]Veeran Sayvu Ravuthar v Beevathumma, AIR 2002 Ker. 370
