Marriage and Divorce of Muslim Law
- Marriage is called out Nikah (union of sexes)
- Contract between two parties for the purpose
- Legalising sexual intercourse
- Procreation of Children
- Muslim Marriage is a contract and there are no ceremonies required for marriage in Muslim Law, only the conditions for a valid contract of marriage must be fulfilled which are:
- The parties must have capacity to contract marriage
- There should be a proposal
- There should acceptance of proposal
- The should be no impediments to the marriage.
Capacity to contract marriage:
- Any Muslim with sound mind who has attained the age of puberty has a capacity to marry. Persons who are not of sound mind or who have not attained puberty can be married by their guardians.
- Marrying a person of different religion
- A woman cannot marry any man who is not a Muslim under Muslim Law
- A Sunni mohammedan can marry a not marry a non Muslim women even if she is a Kirabia.
- If the other person converts to Islam before marriage then there is no bar.
Proposal and Acceptance:
- The Proposal (ijab) and acceptance (qubul) should be there for a valid Muslim nikah.
- There should be two male witnesses or one male and two female witnesses
- Proposal and acceptance should be without ambiguities and should be made by the parties themselves or by other on their behalf.
- Proposal and acceptance should be expressed in one meeting
- A assurance to marry in future does not constitute a proposal.
Void and Voidable (Irregular) Marriage:
In Muslim Law:
- A valid marriage is 'Sahih'
- A void marriage is 'batil'
- An Irregular marriage is 'Fasid'
Batil Marriage- A void marriage:
A married woman cannot contract another marriage while her husband is alive and the marriage is subsisting. Such marriage is void.
- The bar of consanguinity renders a marriage void. The following are the prohibited relationships of consanguinity, viz., a man cannot marry his:
- Ascendants, e.g., mother or grandmother, how highsoever;
- Descendants, e.g., daughter or grand-daughter, how lowsoever;
- His sister, whether full, consanguine or uterine;
- His niece or great niece, how lowsoever;
- His aunt or great aunt, how highsoever, whether paternal or maternal.
- Marriage is also prohibited on ground of affinity. Thus, a man cannot marry:
- His wife's mother, or grandmother, how highsoever;
- His wife's daughter or grand-daughter, how lowsoever, if his marriage with his wife is consummated;
- His father's wife or any other ascendant's wife; and
- His sons, or any other lineal descendant's wife.
- Fosterage is another impediment to a valid Muslim Marriage.
Fasid Marriage- Irregular Marriage-Voidable:
A fasid marriage is a marriage i.e. with the process of removing irregularity.
- Without Witnesses (by acknowledgement before witnesses)
- With his fifth wife (by divorcing one of the 4 wives)
- With a woman undergoing iddat (by expiration of iddat period)
- Prohibited by reason of difference of religion (conversion of religion, women can adopt Islam, Christianity or Jewish religion but man has to adopt Islam)
- With a woman so related to the previous wife that if one of them had been a male, they could not have lawfully intermarried. (by divorcing the wife who is the obstacle).
Termination of Fasid Marriage:
- An irregular marriage may be terminated by either party, if the termination is before consummation it has no legal effect.
- But if the termination is after consummation, then:
- Wife is entitled to dower, prompt or specified, whichever is lower
- She is bound to observe iddat for three courses.
- Children born out of such marriage are legitimate.
- In both the cases of irregular marriage (consummated or not consummated) no legal rights of inheritance are created between the parties.
Effects of a Legal Muslim Marriage:
- Sexual intercourse becomes lawful and the children born of the union are legitimate.
- The wife becomes entitled to her dower (mahr)
- The wife becomes entitled to maintenance.
- Mutual rights of inheritance are established.
- The prohibitions regarding marriage due to the rules of affinity come into operation.
- The wife is not entitled to remarry after the death of her husband, or after the dissolution of marriage, without observing iddat.
- A woman does not change her status on marriage. She remains subject to her own pre-marital school of law. Neither the husband nor the wife acquires any interest in the property of the other by reason of marriage.
- Talaq-e-rajaee - Revocable Divorce
- Talaq-e-Bain - Irrevocable Divorce
Any Mahomedan who is of sound mind and has attained puberty may divorce his wife
without any cause.
In Sunni Law a Talaq under compulsion or intoxication or fraud is also valid but
it is void in Shia Law.Talaq could be oral (Spoken words) or in writing (talaqnama):
- By the husband at his will, i.e., talaq-ul-sunnat, talaq-ul-biddat, ila, Zihar
- By the wife under a power delegated to her, i.e., talaq-e-tafwid;
- By the mutual consent of the husband and wife, i.e., khula and mubara'at;
- By judicial decree under the Dissolution of Muslim Marriages Act,1939.
: It was means that Talaq which is based on the tradition propounded by the prophet.
- Talaq-ahsan (ahsan means best, very proper form of talaq)
- Husband makes a single pronouncement of divorce
- The pronouncement is made during a tuhr (period when women is not menstruating)
- Husband abstains from sexual intercourse for the period of iddat (90 days). (After iddat the divorce becomes irrevocable)
- Talaq Hasan (Hasan means good, proper from of talaq):
- There are three pronouncements of talaq made during successive tuhrs.
- There must be abstinence from sexual intercourse until the third pronouncement.
- Biddat came from biddah (innovation), which means that this form of talaq was devised later.
- This form of talaq is for 'instant divorce'. It is an irrevocable form of divorce.
- It is banned in most of the Islamic nations of the world.
- In India also it was only recognized by the Sunni School.
- It was held unconstitutional by Supreme Court in Shayara Bano vs UOI (2017)
- The Triple Talaq Act i.e. The Muslim Women (Protection of rights on marriage) Act, 2019 criminalizes 'Triple talaq' with up to 3 years of punishment for husband.
- It is a type of constructive divorce, in this the husband vows of abstinence and if he keeps the vow for 4 months wife gets the right to seek a judicial divorce. This type of divorce is almost obsolete nowadays.
- Zihar is a form of inchoate divorce. If the husband compares his wife to any of his female relations within such prohibited degrees as render marriage with such a person as unlawful, the wife has a right to withdraw from him until he has performed penance. If the husband does not expiate, the wife has a right to apply for a judicial divorce.
- Husband can delegate his power of giving talaq to some third person or to his wife.
- This power could be delegated absolutely or conditionally, for a particular period of time or permanently.
- Temporary delegation is irrevocable, but a permanent delegation may be revoked.
- An agreement made either before or after the marriage, that under certain conditions, the wife can pronounce divorce upon herself is valid, provided the conditions are reasonable and not opposed to the policy of Mahomedan law.
- An agreement between husband and wife, by which the husband authorizes the wife to divorce herself from him in the event of his marrying a second wife without her consent is also valid in this regard.
- The power is delegated from the husband, so in talaq-e-tafwid, though it is in form, the divorce of the husband by the wife, it operates in law as a talaq of the wife by the husband.
Khula or Khoola is a divorce with the consent and at the instance of the wife.
Khula or redemption literally means, 'to lay down'. In law it means laying down
by a husband of his right and authority over his wife.
- There is an offer from the wife;
- The offer is accompanied by some consideration or compensation by the wife to the husband in lieu of her release from the marital bond;
- The offer must be accepted by the husband.
- Once the offer is accepted, it operates as a single irrevocable divorce (talaq-e-bain)
- Like khula, mubara'at is also a form of divorce where marriage is dissolved by agreement between the parties.
- The difference between the two is that in khula, the aversion is on the side of the wife, and she desires a separation, whereas in mubara'at, the aversion is mutual, and both parties desire a separation.
- Unlike as in khula, in mubara'at, the wife is not required to pay any compensation.
- The offer in a mubara'at divorce may proceed from the wife or it may proceed from the husband, but once accepted, the dissolution is complete, and it operates as a talaq-e-bain as in the case of khula.
Muslim law provides for multiple avenues for the solemnization of marriages and
the initiation of divorces in order to dissolve a marriage. The Government of
India has introduced laws governing Muslim marriage and divorce, such as the
Muslim Women (Protection of Rights on Marriage) Act, 2019 and the Muslim
Dissolution of Marriage Act, 1939, to meet the needs of evolving circumstances
in addition to Muslim personal laws. In order to create uniform laws that govern
all of the country's citizens and preserve national unity and integrity, the
Uniform Civil Code is necessary in addition to these laws and individual laws.