Talaq

Muslim Divorce law 

Under Muslim Law Talaq means parties releasing themselves from the contract immediately or eventually.

 

A. Divorce by wife

1. Talaq -e- Tafweez (Delegated Talaq)

Husband delegates his right to repudiate contract of marriage to wife. Husband can give condition for delegation.

 

2. Lian

Husband false charges wife for adultery.  It is judicial Talaq taken by wife from husband through court on only one ground i.e. "adultery". Essentials are 1st husband (major and sound mind) must have falsely alleged adultery charge on wife or denied paternity of child, 2nd such charge must have been proved false. Wife is entitled to sue the husband for this. The court will decided whether divorce needs to be given or not.

Note: Section 497 of IPC, adultery decriminalized in 2017 Joseph Sine Vs Union of India.

 

3. Faskh (Cancellation)

When wife apply to a quazi for divorce through mutual consent. Both are unable to survive the marriage or live up to the contract of marriage.

 

 

 

(B) Mutual Divorce

1. Khula

- Offer by wife accepted by husband

- Mutual Consent

- Female observes iddat then

 

2. Mubarat

- Mutual Discharge

- Offer by either. Accepted by other

- Female observes Iddat

 

(C) Dissolution of Marriage as per Muslim Marriage Act, 1939

8 Grounds wherein wife can get divorce

1. Husband is absent for 4 years

2. Husband fails to maintain wife for 2 years

3. Husband is imprisoned for 7 years

4. Marital obligation not performed for 3 years

5. Impotency. Husband has to prove to court within 1 year that he is not impotent

6. Wife wants divorce

7. Husband treats her with cruelty. e.g. He got another woman, disposed wife's property etc.

8. Any other ground, violating any ground/law of Muslim Law.

 

Dower

Token of respect amount from husband to wife

- Wife can refuse to have sex

- If Dower was less, court can increase it

- Only married women gets it

Dower

Prompt

(Muajjal)

 Deferred

(Muajjal)

 Un Specified

(Mehr-e-misal)
Husband has obligation to pay then and there Amount paid on Death of husband/ Divorce Amount is not fixed
Wife can refuse sex Family will pay from man's share in his will Amount determined by social qualities e: education, income..

 

Maximum Amount of Dower

- Sunni 500 Dirhams

- Shia 500 Dirhams

Minimum Amount

- Sunni  10 (Harafs)/3 (Maliki)

- Shia - X

 

 

 

Guardianship

Guardian of someone who has not attained puberty.

1. Jabar (Marriage)

(a) Father

(b) Grand father

(c) Borther / uncle in none

(d) Mother

(e) Matternal relations

(f) Quazi

 

2. Property

How the minor needs to be taken care of:

Male Child : Mother Up to 7 years. Father after that

Female Child: Mother up to puberty. Father after that

 

3. Property and Marriage

Who will take care of Minor's property

1. Legal

2. Court

3. Defacto

 

WAQF (Detention/ Dedication)

- Someone gives his property as donation to mosque for religious purpose.

- If done for limited time it is void

- If waqf done for an immovable property, then it has to be registered if the value is more than Rs. 100.

- If a person giving quran to someone, it is a waqf.

Mutawalli - Caretaker of immovable property.

 

Concept of Gift - Hiba

When a person out of his dedication, wants to give something to someone. It has to be given during his life time. If it is after death it will be given through will only.

Life time - whole property allowed to be gifted

After death - Maximum allowed is 1/3rd

- Gifts are giving movable and tangible asset to the Donor to the Donee

- Movable assets can also be given as gift but possession should be given

- Oral gift is allowed when it is made at present. Future oral gift is not allowed

- If gift is made for religious motive it is sadaqah

 

Will (Wasiyat)

- Document made by law - Waziyat nama

- Shariat Act, 1925

- Testator - Person who makes the will (should be competent)

- Legatee (who gets it)

- Sound mind, could be for a non Muslim as well valid

- Will can be made only for present property.

- The Testator must be the owner of the property at the time of making will

- Will is revocable

- Oral will can be revoked orally and written will can be revoked in writing

 

Maintenance

Section 125 CrPC

Section 4 The Muslim Women (Protection of Rights On Divorce) Act, 1986

Wife has a right to get maintenance

Parents cannot claim maintenance from son if they are well off

No maintenance after iddat ends

Mohd. Ahmad Vs. Sha Bano 1985 - A Muslim women is entitled to maintenance under 1985

Only valid marriages. Except irregularity by each of witness.

 

Divorce by husband

Talaq

- Talaq-ul-Sunnat -> Talaq-e-ahsan or Talaq-e-ahsan

- Talaq ul Biddat

Ila

Zihar

Muslim husband has unrestricted right to terminate the marriage without any reason. In Islam, talaq is permitted only when wife by her conduct or by her words does injury to the husband or happens to be omnious.

 

Conditions of valid Talaq

1. Capacity - Sound mind and puberty

2. Free consent

3. Formalities

 

Sunni

1. Oral or Written

2. Witness not necessary

3. No Script

 

Shia

1. Oral (Except when husband cannot speak)

2. 2 Witnesses

3. Specific Script

- Presence of wife is not compulsory

- Notice to wife is compulsory

 

1. Talaq-ul-Sunnat

- Approved form

- Revocable Talaq as there is possibility of reconciliation and compromise between husband and wife.

- Recognised by both Sunni and Shia

 

(i) Talaq Ahsan

- Possibility of Revocation of Talaq

- Talaq pronounced once

- Talaq pronounced once during Tuhur

- Wife observes 3 months Iddat

- During the 3 months husband makes 'talaq' once during her tuhur

- After the above announcement, wife observes a 3 month Iddat.

-  Talaq should not be reversed during these 3 months

- Living together and consummating again is implied revocation.

- When husband does not revoke talaq after Iddat, divorce is final and irrevocable.

 

(ii) Talaq Hasan

- Husband makes "talaq" Pronouncement once

- During next Tuhur, another "Talaq"

- Both above are recoverable

- If no revocation is made, husband has to make third "talaq" during Tuhur.

- Now 3rd talaq becomes irrecovable.

 

2. Talaq - e - Biddat

- Only for Sunni not for Shia

- Tripple Talaq announced simultaneously thrice duringTuhur

- Irrevocable - No reconciliation

Shayara Bano Vs Union of India

Supreme Court declared Talaq-e-biddat to be unconstitutional and violates Article 14.

 

(B) Ila

Husband takes oath not to have sexual intercourse with wife

Then husband takes oath for no consummation for 4 months. Divorce done after 4 months.

But if cohabitation happens, divorce revoked.

 

(C) Zihar

Husband compares wife with a woman within a prohibited relations ship i.e. mother or sister

After comparison, husband does not live with his wife and consummate

After 4 months wife has the following rights:

(i) She may go to court to get decree of judicial divorce

(ii) She may seek relief from court to grant the decree of restitution of conjugal life

(iii) She con forgive. The husband has to do something for her.

If husband want to revoke Zihar by resuming cohabitation with the said period of 4 months wife cannot seek judicial divorce.

Cohabitation with wife who had been compared to a prohibited relationship is sinful.