Procedure for Muslim Divorce

In its primitive sense, the divorce means dismission. In a literal sense, it means “Setting Free” or “letting loose”. Divorce under the  Muslim Law could be understood as  Freedom from bondage of marriage. In legal terms, it means the dissolution of marriage by the husband using appropriate words. In other words Talaq is a repudiation of marriage by the husband in accordance with the law. 

The Prophet declared that many things have been permitted under the law out of which divorce is the worst, which is evil and as far as possible it should be avoided. However, in some instances, it becomes necessary. The basis of divorce under the Muslim law is the inability of the parties to live together and not any specific cause. Divorce could be initiated by the husband or the wife. Several models have been provided under the law, which have been discussed in the following article. 

Kinds of Divorce- 

Judicial Divorce: is a form of separation of the husband and wife, by the court as per the laws governing them. Under the Muslim Marriage Act, 1939, some grounds have been provided under the which the proceedings for divorce could be initiated. They are- 

1. If the whereabouts of the husband is unknown.
2. If the husband has failed to maintain his wife for a period of more than 2 years.
3. If the husband is sentenced to jail
4. If the husband is impotent.
5. If the husband is insane, is suffering from leprosy or any other virulent venereal disease. 
6. If the marriage is repudiated.
7. If the wife is facing  cruelty by her husband.
8. If the husband has falsely accused the wife of committing adultery.
9. If the spouse has converted to another religion.

Divorce by their own will

The husband or wife could initiate the proceedings for the divorce by their own will or by mutual consent. The Dissolution of the Muslim Marriage Act, 1939 provides the right to file for divorce for both, i.e. the husband and wife. There are various kinds of divorce in the Islam, on the basis of who is initiating the divorce proceedings- 

Talaq- Islamic laws provide the absolute right to  the husband to give divorce to his wife, without providing any reason or on his own will. According to law, even if the Talaq was given in jest or in a state of intoxication, or even if the wife was not present at the time of pronouncing the divorce,  such divorce would be valid.

Talaq in Islam could be oral or written, in any form or expression, with or without the presence of the witnesses, thus at the complete will of the husband. The different kinds of Talaq are as under- 

i) Talaq-i-Sunnat- it could be further divided into two forms-

Ahasan- during Tuhr (purity or the time between two menstrual cycles), just pronouncing divorce once. The condition of Tuhr is necessary only in the case if the divorce is given orally. Ahasan divorce could be revoked any time before the period of Iddat gets over, thus providing the husband another chance to change his decision.  

Hasan- Talaq has to be pronounced three times during three successive periods of Tuhr, and the divorce becomes irrevocable after the last pronouncement.

ii) Talaq-i-Biddat-

Biddat means instant divorce. It is commonly called as ‘triple Talaq’ and has been held unconstitutional by the Supreme Court of India. 

Ila- Under this kind of divorce the husband pledges to refrain from from sexual relations with his wife for a period of 4 months. After this period ends, the marriage is dissolved automatically. However, if during this period, the husband consummates with his wife, the divorce by ila would be cancelled. 

Zihar- In case the husband compares his wife with his mother or any other relation which comes under the prohibitive degrees as per the Muslim law, the wife can initiate the proceedings for divorce.

Talaq-i-Tafeweez- The Muslim husband could delegate the power to divorce to his wife or some other person absolutely or could impose some conditions for a certain period of time. The wife in this case uses the power to divorce, then the divorce would be valid and final.

Lian- In case the husband falsely accuses the wife of committing adultery or unchastity, then, according to the law, the wife has the right to get a divorce on the ground of character assassination. This ground is provided to Muslim women in case the allegations by the husband are false and intentional.

By Mutual Consent –

According to the Islamic law, a Muslim woman can seek divorce from her husband in case she is not willing to live with him. The option of ‘Khula’ is provided to her as per the law, in which a divorce contract is drawn, in which certain conditions have been mentioned, however the consent of the husband should be voluntary and not under any influence or coercion. 

Another option is of divorce by ‘Mubarat’. In this type of divorce, the proceedings for the divorce could be initiated by the husband or wife. The partner when accepts the divorce offer, it becomes final. The period of iddat is to be  observed after the divorce has been finalised.