Classification of Divorce
By the Husband
The divorce available to the husband is of two kinds:
- Talaq-al-sunnat or Masnun (according to the rules laid down in the
traditions of the prophet)
- Talaq-i-biddat or Ghair Masnun( not according to the rules laid down in
the traditions of the prophet).
This is the regular divorce. It is of two kinds- Talaq Al-Ahsan and Talaq-Al�Hasan
One single revocable divorce is pronounced by the husband who has consummated
the marriage, during the period in which the wife is free of menstruation and in
which there has been no co-habitation, and then leaves her to the observance of
iddat of three months prescribed time, unless she is pregnant, in which case
till she is delivered of the child. The divorce remains revocable during iddat,
and the parties retain the right of inheritance. This kind of divorce is termed
as the most approved one.
This is also an approved form of divorce where a husband who has consummated the
marriage pronounces one divorce during each successive period in which the wife
is free from menstruation (tubr) and has not been cohabited with. Through this
method of Talaq, the husband has been given two chances of divorcing and then
taking the wife back, but if the third time, he does so, the Talaq becomes
This is an irregular divorce. This is of two kinds:
- Three declarations: Here a husband repudiates his wife by three divorces
at a time in one sentence or where he repeats the sentence separately thrice
within one period of purity.
- One Irrevocable declaration: the husband may say that he divorces his
wife a hundered times, the Talaq is complete. He can write, I by my free
will divorce my wife by one Bain Talaq (irrevocable divorce), an
irrevocable divorce is effected. Here neither purity or abstinence from
intercourse is taken into consideration. Such a divorce is sinful but valid
under Hanafi law. Under the Shia sect, no divorce is effected by the
pronouncement of three divorces at a time.
- Divorce under intoxication: According to the hanafi jurists, the divorce
pronounced in an intoxicated condition occasioned by willful use of liquor
or other unlawful intoxicating substances with the purpose of bringing on
intoxication and thereby enjoying its pleasure, shall take effect. But if he
was intoxicated under compulsion or from necessity, there is no divorce.
Shias do not recognize divorce under intoxication.
- Divorce under compulsion: Hanafi jurists consider consider a Talaq given
by a man under compulsion as valid, while the Shia jurists consider it
- Divorce pronounced in a jest: According to the Hanafis, if a person uses the
words of divorce of for his wife even in a jest without the intention of really
effecting it, Divorce shall duly take effect. Under Shia Law, Such a kind of
divorce is not valid.
- Should three utterances of Talaq be treated as one Talaq: The question
arises, as to how should three utterances of Talaq be treated? Should the three
utterances of Talaq on a single occasion be equated with three utterances of
Talaq made separately over a three months period.
There is a hadith recorded by
imam abu dawud and several other traditionalists- Rukana ibn Abu yazid said
Talaq to his wifr three times on a sibgle occasion, then he was extremely sad on
the step he had taken.
The prophet asked him exactly how he had divorced her. He
replied that he had said Talaq to her three times in a row. The prophet then
observed. All three counts as one. If you want, you may revoke it.
Ila/Aila (Vow of Continence)
Ila in its primitive sense signifies a 'vow'
. It is when a person swears
that he will not have sexual intercourse with his wife and abstains from it for
four months; an irreversible divorce is effected on its termination.
If intercourse is had within a period of four months, the ila shall lapse but he
has to atone for breaking his oath. Where the husband having made ila abstains
from having intercourse with his wife for four months, the marriage is dissolved
with the same legal results, as if there had been an irrevocable divorce
pronounced by the husband.
In Bibi Rehana Khatun v/s Iqtidar-Uddin Hasan,
the marriage ceremony was over, the parents of the boy pushed him into a room
where his wife was waiting for him. It appears from the facts of the case that
the husband was not interested in that marriage. Immediately on entering the
room, he took a vow in the presence of his wife that he would never have sexual
intercourse with her. Soon after giving this Statement he came out of the room
and repeated the vow in the presence of his mother and his mother's sister.
father then came out of another room and he again repeated that vow. The Court
refused to accept the version of the husband. The Court said that the husband
has failed to establish that there had been a divorce in the 'ila' form. A vow
is a solemn thing and should not be taken in a moment of excitement. If the
words are not express, the intention to effect a divorce must be proved.
Ila is not in practice in India.
Zihar (lniurious Comparison)
The word 'Zihar' means 'Zihr' the back. According to the Hedaya
It signifies a man comparing his wife to any of his female relations, within
such prohibited degrees of kindred whether by blood, by fosterage or by marriage
as renders marriage with them invariably unlawful as if he were to say to her
you are to me like the back (Zihr) of my mother.
Its effect is to prohibit the person who pronounces it from carnal connection
with his wife until he shall have performed an expiation.
The wife has a right (a) to refuse to have sexual intercourse with him till he
has expiated himself from penance prescribed by law, such as by freeing a slave,
fasting for two months or by feeding sixty poor persons; or (b) to apply to the
Court for an order requiring him either to perform a penance or to grant her a
Zihar is a wrong, an injustice to the wife, hence a proper punishment has been
provided for the husband by making the wife unlawful to him by a prohibition and
that prohibition cannot be removed unless he performs the expiation.
After a husband has committed Zihar ar, the wife can prevent her husband from
intimacy with her till he has made the expiation. According to Shia jurists, Zihar must
be pronounced in presence of two reliable witnesses, who must hear the words of Zihar.
Zihar is no more prevalent anywhere.
By the Wife
Talaq-e-Tafweed (Delegated Divorce)
Delegation of the right of divorce is the entrustment by the husband with the
wife of the right to act as her husband's delegate in effecting divorce to
herself. Delegation of authority by the husband to the wife can be either at the
time of entering the marriage contract or any time during married life. By this
delegated right to divorce, the wife can break-off the marital relationship and
this divorce is as effective as pronounced by the husband himself.
of Talaq-e-tafweed is recognized by all the Sunni schools of thought. Under the
Sunni law, power of divorcing a wife can be delegated either prior to the
marriage, at the time of the marriage, or subsequent to the marriage. Muslim
jurists hold that the delegation of the power is perfectly valid at whichever of
the Stages it is done.
There are two ways of delegation of the power of divorce: (1) either it is
restricted in time so that it has to be exercised within the time Stipulated, or
(2) it is unrestricted by time, i.e., for an indefinite period to be exercised
as and when the wife chooses. In case of former, if the period expires, the
right of the wife shall become void and ineffective. In the event, where the
husband has delegated his power of effecting divorce to his wife, the husband's
own right of effecting divorce does not lapse. That means he can still divorce
her and once he pronounces divorce to the wife, the wife's right shall become
void and ineffective.
Delegation by the husband of the power of divorce has been classified into:
- Tafweed or delegation
- Tawkil or agency
- Risalah or messenger ship
- Tafweed-Here the wife to whom the power is delegated has absolute right to
exercise the power as she chooses in respect of her person. This power cannot be
revoked by the husband.
- Tawkil-Here the husband appoints an agent to divorce his wife on his (the
husband's) behalf. The agent exercises the power delegated to him in respect of
divorcing the wife
- RisaIah-In Risalah, the husband appoints a person as his messenger, to
convey his message to the wife that he has delegated his power of divorce to
The power given by Tafweed cannot be revoked, but the other two, i.e., Tawkil (agency)
and Risalah (message) can be revoked by the husband as long as they have not
Delegation of power may be conditional or unconditional
Conditional delegation of power is where its exercise may be made to depend on
the occurrence or non-occurrence of a certain specified contingency-for example,
the husband may authorize the wife to divorce herself if he marries another
Here the wife
shall be entitled to exercise the power only when he marries another woman.
Similarly, he may authorize the wife to divorce herself if a certain condition
agreed between the parties as regards maintenance is breached. But she should
not have contributed to the breach of the condition by the husband. Such
condition or contingency should not be opposed to any law or public policy or
the spirit of Muslim Law. Cases
It was held in Mirjan Ali
v. Mst. Maimuna Bibi
that in such cases there should
be a formal pronouncement of Talaq and it should be made either to the husband
or in the presence of witnesses.
In Buffatdin Bibi v. Sheikh Abdul Salim
, it was held that an
anti-nuptial agreement by a Muslim husband that he would pay separate
maintenance to his wife in case of disagreement and that the wife would have
power to get herself divorced in case of the failure of husband to pay the
amount, was not opposed to public policy and was enforceable under the Muslim
A stipulation conferring an authority on the wife to exercise her right of
divorce may be made either at the time of marriage or after the marriage."
In Sainuddin v. Latifunnessa Bibi
, the parties were married in April 1901. On
12' July, 1905, the husband executed a post-nuptial Kabinnama, in place of an
unregistered ante-nuptial Kabinnama, in favour of his wife, who was stated
therein to be a minor. The husband delegated his power of divorce to his wife to
be exercised by her in case of a breach of any condition specified in the
document. The husband married a second wife, according to him, with the consent
of his first wife.
But the first wife said that her consent was never obtained.
She left her matrimonial home and started living with her mother. The husband
instituted a suit for restitution of conjugal rights. Thereafter, the defendant
wife executed a Talaqnama divorcing her husband, in exercise of the delegated
power of Talaq. The main issue in this case was whether there had been a valid
divorce. The Court held that the delegation of power of divorce is not revocable
and that a post-nuptial delegation of the power of divorce was a valid
delegation of power. Hence, the divorce was held to be valid.
In Ayatunnessa Bibi
v. Karam Ali
, a queStion was raised as to whether a wife,
who has been given power by her husband to terminate the marriage in the event
of her husband taking a second wife, loses her option by failing to exercise it
the very moment she knows that he has done so. The Court held that this right is
a continuing right and the wife does not lose this right if she does not
immediately exercise it the moment she comes to know that the husband has
committed a breach of the stipulation in the contract.
In Meer Ashraf Ali v. Meer Ashad Ali,
at the time of the marriage, a Kabinnama was
executed by the husband fixing the dower and covenanting not to marry a second
wife or to keep a concubine. If he did either of these things, the wife was to
have the power of divorcing herself from him. The wife many times during her
lifetime declared that in consequence of her husband's infidelity with a
concubine, she had availed herself of the privilege granted to her in the Kabinnama,
and had divorced her husband.
Dissolution Of Muslim Marriage Act
The Dissolution of Muslim Marriages Act, 1939 deals with the circumstances in
which Muslim women in India can obtain divorce. Section 2 of the Dissolution of
Muslim Marriage act, 1939 provides nine grounds under which a Muslim wife can
obtain a decree for the dissolution of her marriage:
The Grounds Are: S2i. Absence of Husband:
that the whereabouts of the husband have not been known
for a period of four years;
s2ii.Failure to maintain:
that the husband has neglected or has failed to
provide for her maintenance for a period of two years;
There are two views and different High Courts are divided on this point. It was
held by the Lahore High Court in Akbari Begum V Zafar Hussian
that in clause
(ii) the words without reasonable cause do not occur. It must therefore be held
that whatever the case may be, the wife is entitled to a decree for the
dissolution of her marriage if the husband fails to maintain her for a period of
two years even though the wife may have contributed towards the failure of
maintenance by her husband.
It was reversed by the Lahore High Court itself in Zafar hussain v Akbari Begum
where it was held that it is not correct to say that Section 2 (ii) casts upon
the husband an absolute duty to maintain his wife in all cases and any failure
in that duty would be a ground for divorce, even if the wife herself was at
fault and was really the cause of the husband refusing to maintain her. A
husband is not legally bound to maintain his wife if the wife without valid and
reasonable cause refuses to live with him and to obey his instructions and also
refuses to cohabit with him.
S2iii. Imprisonment of the husband:
that the husband has been sentenced to
imprisonment for a period of seven years or upwards;
S2iv. Failure to perform marital obligatlons:
that the husband has failed to
perform, without reasonable cause his marital obligations for a period of three
years ; continues to be so:
In Veeran Sayvu Ravuthar V Beevathumma
, the court held that the wife had to
leave the matrimonial home and go to her own family house as she was not treated
decently because of the discriminatory treatment of the husband who had other
wives also. But after she left the house he never made any attempt to get
conjugal company and consortium of his wife, he did not take any action for
restitution of conjugal rights. He also did not provide maintenance to her.
It was held that the husband has failed to perform his marital obligations
without any reasonable cause entitling the wife to get a decree of divorce on
the ground of Section 2iv of the dissolution of Muslim marriages Act, 1939.
S2v. Impotency of Husband:
That the husband was impotent at the time of the
In Ghulam Mohammad khan v Hasina
, was a case for dissolution of marriage on the
ground of impotency of the husband. Suit was filed by the wife for dissolution
of marriage on ground of impotency of the husband. The trial court directed the
husband to get examined by the Medical board. The husband got himself examined
by the board and a certificate to this effect was issued by the Board. Without
giving consideration to the certifacte, the trial court passed another order
directing the husband to appear before the said board again for a fresh
examination. The court held that where the issue is potency of the husband, the
trial court had no jurisdiction under any law or even under s141 CPC to order
the husband to submit for any medical examination against his will, hence the
second order for medical examination is prima facie without jurisdiction.
6. Insanity, Leprosy or venereal disease:
that the husband has been insane for a
period of two years or is suffering from leprosy or a virulent venereal disease;
7. Repudiation of Marriage by wife:
if she, having been given in marriage by her
father or other guardian before she attained the age of fifteen years,
repudiated the marriage before attaining the age of eighteen years , Provided
that the marriage has not been consummated;
In Ghulam Sakina v Falak Sher Allah Baksh
, marriage of the girl was solemnized
and consummated before she attained the age of 15. The court held that this did
not amount to consummation within the meaning of the act, meaning thereby option
to repudiate marriage would not be lost if consummation of marriage took place
However it has been held by the Madhya Pradesh high court in Pir Mohammed v
that repudiation of marriage in the exercise of the option of puberty
must be confirmed in the court.
8. Cruelty of Husband:
that the husband treats her with cruelty that is to say:
- habitually assaults her or-makes her life miserable by ill-treatment, or
of conduct even if such conduct does not amount to physical ilI-treatment
- associates with women of evil repute or leads an infamous life
- attempts to force her to lead an immoral life, or rights over it, or
- disposes of her property or prevents her exercising her legal practice,
or (e) obstructs her in the observance of her religious profession or
- If he has more wives than one, does not treat her equitably in
accordance with the instructions of the Quran;
In KPY Siddiqui v Amina
, the respondent had succeeded in proving that the life
with the appellant was miserable and his cruel conduct towards her was mainly
responsible for it. It was cruelty to force a young woman who was desirous of
becoming a mother to abort her pregnancy since it was not necessitated to save
her own life.
In Itwari v Asghari,
it was held that bringing a second wife during
the subsistence of the first marriage will constitute cruelty.
In Tufail Ahmed v Jmila Khatun
, It was held that a false imputation
of adultery against the wife is recognized as a valid ground for divorce under
9. on any other ground which is recognized as valid for the dissolution of
marriages under Muslim Law.Award Winning Article Is Written By: Mr.Prajjwal Singh
Authentication No: OT030049134953-26-1020