What Is The Step-By-Step Process For Filing For Mutual Divorce Under Muslim Law?

A man and a woman enter into a civil contract called as NIKAH with love, respect, and mutual consent, in the presence of Witnesses in accordance with Muslim law. This contract, which is established by a written agreement, mandates that the husband give Mahr (dower) to the bride. 

Witnesses are required to formally confirm the relationship, and the marriage can be celebrated in a religious or civil ceremony. Islamic law describes the respective rights and obligations of couples. The official termination of a marriage is known as a divorce in Islamic law, or TALAQ. 

It stresses that both parties must give their consent for a peaceful divorce, yet either spouse may start the process. The procedure normally includes a formal declaration of divorce, performing the waiting period of IDDAT, and, if required, financial settlements. In Muslim law TALAQ, or divorce procedure, entails a number of crucial procedures.

What is Muslim marriage?

Muslim marriage is not a sacrament but it is a legal contract between the two individuals. The parties signed the contract with terms and conditions in the presence of witnesses. They create rights and duties through “NIKHANAMA”, if any rights and duty breach they can take divorce.

There are some conditions of Muslim marriage are:

• The Muslim marriage can be valid when parties give mutual consent and have a capacity to enter into a contract.
• At least 2 male witnesses are required.
• The groom must give MAHR (dower) to the bride; it is a mandatory condition for Muslim marriage. The Mahr is decided mutually by the parties.
• The marriage age of parties is puberty.
• The bride and groom must be Muslim. 

What is divorce under Muslim marriage?

The Muslim marriage is a civil contract not a sacrament. Sometimes the husband and wife do not desire to continue the marriage or they want to end their marriage this is called dissolution of marriage.  

Grounds of divorce under The Dissolution of Muslim Marriage Act, 1939:

The section 2 of this Act provides the 9 grounds to obtain a divorce by Muslim wife are as follows:

• If the husband is absent for a period of 4 years.
• If the husband fails to maintain her for 2 years.
• The wife can claim divorce on the grounds that the husband is imprisoned for 7 years or above.
• The husband only fulfills the marital obligation for up to 3 years.
• If the husband is Impotent.
• When the husband suffers from insanity or venereal disease.
• Wife can repudiate her marriage by attaining 15 years but before attaining 18 years and marriage is not consummate.
• If cruelty is done by the husband.
• The wife can take even on other ground which are recognize by Muslim law i.e. Talaq-e-Tafweez, Khula, Mubarat. 

What is mutual divorce under Muslim law?

In the pre-Islamic, there is no such provision of mutual divorce. Only husbands have a right to divorce. Mutual divorce means when husband and wife mutually agree on certain terms and conditions to dissolve the marriage. But after the enactment of THE DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939, the wife has a right to demand divorce with her husband with exchange of compensation or Mahr. 

What are the types of divorce under Muslim law?

There are various ways for divorce under Muslim law:

BY HUSBAND: The husband can divorce to his wife in Muslim law in the following ways:

ILA: In ILA the husband is promise in the name of God that he will not have sexual intercourse with wife till she observes the Iddat period.

TALAQ

• TALAQ-A-SUNNAT: In this, the husband pronounces the TALAQ 3 times over a period of 3 months.
• TALAQ-UL-AHSAN: The Ahsan is a proper form of talaq that can be revoke before the expiry period of the Iddat period (the waiting period).
• TALAQ-UL-HUSAN: In this type of Talaq, the husband pronounces 3 times in the TUHR PERIOD (the purity period of wife).
• TALAQ-UL-BIDDAT (TRIPLE TALAQ): It is also called triple talaq; the husband pronounces “talaq” in one sitting.

ZIHAR: When a husband compares his mother and insults his wife.

By Wife:

TALAQ-E-TAFWIZ: The husband delegates his power of Talaq to his wife.

By Mutual Consent:

• KHULA: Under khula, the husband allows the wife to give divorce in exchange of Mehr or compensation.  
• MUBARAT: The husband and wife mutually decided on certain terms and conditions amicably.

Under The Dissolution Of Muslim Marriage Act, 1939

• LIAN: The husband makes false allegations of adultery on wife. This makes a valid ground of divorce under this Act.
• FASK: The court dissolves the marriage on the application of the wife on any of the grounds which the Islamic law provides.

What are the steps and processes for filing for mutual divorce under Muslim law?

Step 1: consult with a legal expert.

Step 2: agree on the same terms and conditions.

Step 3: collect all documents like Nikhanama, marriage certificate, aadhar card, etc.

Step 4: the mutual divorce agreement will be draft (regarding child custody, visitation rights, etc.)

Step 5:  file a mutual divorce petition and be sign by both the parties.

Step 6:  the parties appear in the court on the decided date.

Step 7: after first hearing the wife observes the period of Iddat (The 3 mensuration month).

Step 8: The final hearing after observing the Iddat period (To confirm any possible pregnancy, the wife needs to observe the Iddat period, which lasts for three menstrual cycles or until childbirth.)

Step 9: After the final hearing court issued the divorce decree.

Landmark case law related to divorce under Muslim law

Abdul Jalil Ahmed v. Marina Begam AIR 1998

In this case, the mutual divorce filed by Muslim wife on the ground that her husband did not fulfil the marital obligation, ill-treatment and cruelty. The court grants the decree of mutual divorce.  

CONCLUSION

In pre-Islamic law the concept of divorce is not available but now the divorce under Muslim law is allow. There are many ways of divorce available in Muslim law. The wife under Muslim law does not have a direct right to get divorce. The Muslim wife can get divorce through Talaq-e-Tafweez. The Muslim husband and wife can mutually get divorce through KHULA AND MUBARAT. The husband and wife mutually agree on the terms and conditions. Firstly, they consult an expert lawyer then file a draft of divorce. After filing the petition of divorce, the court fixes the date of hearing. On the first hearing, the wife observes the Iddat period. After observing the Iddat period, the court provides the decree of divorce.

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