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Matrimonial remedies under Muslim Law

When a Muslim married couple doesn't see any point of carrying on their matrimonial life for any reason, whether it is good or bad, they need certain solutions so that they can move on their respective lives, those solutions are referred to as matrimonial remedies in law. Along with the Musim personal law and latest Supreme Court guidelines in Triple talaq case Shayara bano vs Union of India (2017), there is the dissolution of Muslim Marriage Act 1939 provides for matrimonial remedies under Muslim law. Either party can get a relief in the matrimonial dispute in the form of talaq (divorce). Talaq can be irrevocable or revocable under Muslim law. We will discuss this further as under.

Talaq (Divorce)

talaq or dissolution of marriage under Muslim law means when a married Muslim couple doesn't want to live together under the same roof, they have a remedy to get legally separated as per the law. Marriage is dissolved under the Dissolution of Muslim Marriage Act of 1939. This act is enacted to release the party from its bounds. Talaq can be given by husband or wife, or it can be given by mutual consent. We will discuss it further below:
  1. Talaq by husband

    A husband can get separated from his wife and relieve her from her duties in four different ways:
    1. Talaq-ul-sunnat (Revocable Divorce)
      Talaq-ul-Sunnat is also known as "revocable talaq." It is the most approved form of talaq given by a husband to his wife because there is a certain possibility of compromise between the parties. In this form of talaq, time is given to the husband in which he can reflect on his actions and decide if he gave talaq in anger or haste. Marriage is not dissolved immediately, if they want to revoke the talaq, they can do so within the time frames specified. Talaq-ul-Sunnat is based on Prophet-based sunnah.

      It is further subdivided into two categories:
      • Talaq-ul-Ahsan:
        It is the most proper form of talaq because the husband has to pronounce the word talaq once during the "tuhr" period. The tuhr period is when the wife is free from the menstrual cycle. Following that, the wife must observe the three-month iddat period. If the wife is pregnant at that time, the iddat period will be observed until the date of delivery of the child. Before the expiration date of the iddat period, the husband has the right to revoke the talaq.
      • Hasan-ul-Talaq:
        It is proper form of talaq because the husband pronounces the word talaq three times during the three-tuhr period. Before the third pronouncement of the word talaq, the husband has the right to revoke the marriage, but after the third pronouncement, talaq will become irrevocable.
    2. Talaq-ul-Biddat (Irrevocable Divorce):
      It is the sinful form of talaq. In this form of talaq, the husband has to pronounce the word "talaq" at the same time, and it becomes effective immediately. It is not a legal form of talaq and is also known as "triple talaq." This form of talaq was declared unconstitutional in Shayara Bano vs. Union of India (2017) by a two-third majority in the Supreme Court.
    3. Ila (abstain from the consumption of marriage)
      It is a form of divorce where the husband takes an oath in the name of God. In order to keep that oath, the husband must refrain from or limit sexual activity for four months. Before the expiration of four months, if the husband cohabits with his wife, the divorce will be revoked. After the expiration of four months, divorce will become irrevocable, and the wife has the right to file a decree for divorce under Shia law, but marriage will be dissolved automatically under Sunni law. This form of divorce is not practised in India.
    4. Zihar (unlawful comparison):
      In this type of divorce, the husband must be sane, and he expresses his displeasure with his wife and compares her to his mother and sister. He says that his wife is similar to his mother, sister, etc. In pursuance of this comparison, he abstained from sexual activity for four months. On the expiration of four months, a wife has two rights: either she can refuse to cohabit with her husband and ask him to perform penance, or she can go to court and seek a divorce. This form of talaq is not practised in India.
  2. Talaq by wife

    Talaq e Tafweez (delegated talaq):
    In this form of talaq, the husband gives the power to divorce to his wife or a third person. This type of talaq is in the form of an agreement. Both parties can enter into the agreement before or after the marriage. It can be absolute or conditional.
  3. Talaq by Mutual Consent:

    Talaq by mutual consent is another type of talaq in which both parties agree to get separated. There are two types of talaq by mutual consent, i.e.
    1. Khula:
      In this form of divorce, the wife is willing to seek divorce or ask for a divorce. The wife proposes to her husband that they divorce permanently. In lieu of divorce, the wife is willing to forego her mahr and, if it has already been paid, she will return it. If the husband gives his consent to release her from the marriage, they can seek khula from court . The wife has to observe Iddat after Khula.
    2. Mubarat:
      In this form of divorce, aversion can come from either the wife or the husband. If both parties mutually consent to seek divorce or mubarat, there is no consideration needed. After talaq, iddat is mandatory for women.
  4. Judicial divorce by the decree of court

    judicial divorce by the decree of the court under the Dissolution of Muslim Marriage Act of 1939. Under section 2 of the act, "grounds for the decree for dissolution of marriage" are given, where these rights of divorce are available for women only. This section provides nine grounds for divorce for women, which are further described below.
    1. Absence of a husband for four years:
      In the absence of her husband for four years, a wife may file for divorce. When the court passes the decree under this ground, the court waits for six more months to see if the husband appears or not. If he doesn't appear after six months, the court will pass the judgement.
    2. Failure to give maintenance for a period of two years:
      If he fails to maintain her for two or more years, she can file for divorce.
    3. Husband has been imprisoned for at least seven years:
      If the husband has been sentenced to imprisonment for seven years or more, she can file for divorce. However, the court will not pass the decree for divorce until the sentence for imprisonment becomes final.
    4. The husband failed to perform his marital obligations for three years:
      If the husband fails to perform marital obligations or there is desertion on the part of the husband without any reasonable cause for a period of three years or more. However, if there are reasonable grounds for divorce, the wife will not be granted the right to divorce.
    5. The husband is impotent-
      If the husband was impotent at the time of marriage and continues to be so. However, the court, on the application of the husband, will provide time to cure his impotence in one year. If the husband cannot cure his impotency within a year, the decree will be issued ex parte.
    6. Your husband is insane or he has been suffering from venereal disease for two years.
      If the husband is suffering from any kind of venereal disease or any kind of sexually transmitted disease for two years or more, the wife can file a decree for divorce. Leprosy under this clause was removed through the Personal Law Amendment Act of 2019.
    7. option of puberty-
      If the woman was married before attaining the age of puberty by her father or guardian, she gains the right to divorce as soon as she reaches the age of 15. This right is available until she is 18 years old, provided that marriage is not consummated.
    8. Her husband treats her with cruelty
    9. Any other law that is recognised as a valid ground for the dissolution of marriage under Muslim law.

I would like to conclude that tho marriage is beautiful thing and is a very legal necessity for legalising procreation of children and having sexual relationship with the opposite sex, but we all are humans and when two people are living under the same roof they are bound to have certain disagreements over many things and when things goes out of control in the relationship it has to end one way or another.

That there is method prescribed by the Quran and Sunnah for getting married and when thing doesn't work out between a Muslim married couple the same source provides a legal and smooth way of getting separated and dissolve the marriage between the two, so that things wont go any worse and it provides a way out so that the parties involved can move on in their respective lives.

Award Winning Article Is Written By: Ms.Syedah Naureen Fatima
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Authentication No: AP347743614200-21-0423

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