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Divorce By Wife Under Muslim Law

A strong bond between husband and wife is necessary for a happy family. In Islamic Law, marriage is a contract between the parties. But in some cases the husband and wife faces a lot of difficulties in performing their matrimonial ties which leads to divorce between them. In Islamic Law divorce is considered as an evil. But in some cases this evil is considered as a necessity because when it is impossible for the parties to the marriage to maintain their relationship with mutual love and affection, then Islam permits them to get separated and live apart.

A divorce may be by the act of either husband or wife. In Islamic Law, the basis of divorce is the inability of spouses to live together. If the spouses are not happy together then it is better for them to live separately and independently rather than to compel them to live together in an atmosphere of hatred and anger.

Divorce By Wife

According to Prophet Mohammad (S.A.W), "If a woman be prejudiced by a marriage, let it be broken off" [i]. It is of essence in Islamic Law that women are given proper opportunity to divorce their husbands if they are not able to perform their marital ties. Generally there are two ways in which a woman can divorce her husband. First through a mutual agreement between husband and wife i.e., Khula and Mubarat. Secondly, through a judicial decree by filing a suit against the husband in court of law i.e. under the Dissolution of Muslim Marriage Act, 1939.[ii]

Muslim Law provides for various kinds of divorce that Muslim women can give to Muslim men:

Khula:

Khula means literally to take off clothes and hence to lay ones authority over a wife. Under Muslim Law, a marriage can be terminated either at the will of husband or wife or by a mutual agreement by the two. If the marriage is dissolved at the request of husband then it is known as Talaq.

Similarly, the wife can also divorce her husband if she is satisfied that the two of them are not able to perform their matrimonial ties. The Muslim woman can release herself from the marital tie by giving up some property in consideration for which the husband is to give her a Khula and when they have done this a Talaq-ul-bain would take place.[iii]

Valid conditions of Khula are:

  1. There must be a common consent of both husband and wife.
  2. Some Iwad must be given by wife to her husband.

For Khula to take place it is necessary that some Iwad (return consideration) should be given by wife to her husband. Under Khula, a marriage can be dissolved by an agreement between husband and wife for a consideration paid or to be paid by wife to her husband. Such an agreement if the wife alone is desirous is called Khula and if both husband and wife are desirous is called Mubarat.

When the husband and wife are not able to live happily together and are apprehensive that they cannot observe the bonds prescribed by the divine laws, then a right is conferred to the wife to get her released from the marital ties. The concept of consideration is a necessary precondition for the validity of Khula.

Since the wife is interested to break her marital tie and leave her husband then she must pay a consideration to her husband as compensation and she can also forgive full or part of her dower money. However, if the consideration is not paid to the husband by his wife than he cannot be compelled to comply with the agreement of Khula and he can ask for restitution of conjugal rights.

Khula is a conditional divorce in which the wife is at liberty to purchase her freedom from her husband if she comes to the conclusion that it is not possible for them to live as husband and wife. Khula is at the instance of wife in which she agrees to pay a consideration in return of which her husband would release her from the marital ties.

LIAN:- Under Muslim Law, a woman is guaranteed a right to divorce her husband if he falsely and baselessly charges her with adultery and this doctrine is known as Lian. The Quran and Hadith both guarantee a right of divorce to a Muslim wife if her husband is imputing a false unchastity to her character. If a man is charging his wife with adultery then he must prove the allegations made by him and if he is not able to prove it then the wife has a right to divorce him under the doctrine of Lian.

The objective behind this doctrine is to punish the husband for falsely alleging the charge of adultery upon his wife. In India, a Muslim wife can also bring a suit for defamation against her husband as a ground for false charge of adultery.

In Z Hussain v. Ummat Ur Rahman,[iv] it was held that a Muslim wife is entitled to bring a suit for divorce against her husband and can obtain a decree on the ground that the latter falsely charged her with adultery.

In Rahima Bibi Case,[v] it was held that a Muslim wife can sue her husband for divorce on the ground that he had falsely charged her with adultery.

Under the doctrine of Lian, a mere charge levied by the husband will not automatically dissolve the marriage, a dissolution decree by court of law is essential to put an end to the marital ties. The charge of adultery by a husband against his wife can only be established by a direct testimony of 4 witnesses from the nature of offence. However, the case in which clear and direct evidence is present is extremely rare.

Talaq-E-Tafweez:

It is also known as Delegated Divorce. The delegation of power to dissolve is technically called tafweez. Tafweez means to make someone the owner of an act which appertains to the person making the tafweez. Talaq-e-tafweez is one of the most important forms of divorce under Muslim Law because it gives to Muslim women a right to divorce their husband without going to court of law.

In this form of divorce a Muslim male can delegate his power of repudiation of marriage to a third person or to his wife also. He can delegate his own right of pronouncing divorce to his wife. It is a delegation by the husband of the power of Talaq to the wife designing her to give the effective sentence.

Tafweez is of 3 kinds:

  1. Ikhtiyar (choice):
    It means giving her the authority to talaq herself.
  2. Amr-bi-ya:
    It means leaving the matter in her own hands.
  3. Mashiyat (pleasure):
    It means giving her the option to do what she likes.

Under Muslim Law, a husband and wife can enter into agreement at the time of marriage that this shall be the duty of husband to maintain his wife and if he is not able fulfill his promise then the wife is at liberty to dissolve the marriage. Under certain conditions a wife can pronounce divorce upon her provided first that the option is not absolute and secondly that the conditions are necessary and are not opposed to public policy.

A delegated divorce can be given by a person who has attained the age of majority and of sound mind. In delegated divorce the age of majority is determined by Muslim law and not by Sec.3 of The Majority Act [vi]. In delegated divorce the husband can delegate his power of divorce to any other person including his wife also. The husband possesses the power to appoint another person as his Vakil. He can also appoint a third person to divorce his wife on his behalf. But the husband still possesses the power to divorce his wife even after he delegated his power to any other person.

In Hamidoollah v.Feizunnisa, [vii] it was held that under Muslim Law, a husband may give to his wife the power to divorce herself from him according to the form prescribed by that law for divorce by the husband.

Dissolution Of Muslim Marriage Act, 1939:

In 1939, an act was passed to secure the rights of Muslim women. The Dissolution of Muslim Marriage Act, 1939 was passed to provide various grounds to enable Muslim women to divorce her husband. Women generally faced many difficulties in their matrimonial relations for which they have no remedy. To solve these problems the Act of 1939 enabled the Muslim women to divorce their husband.

Sec.2 (ix)[viii] of the said act states that a woman married under Muslim law shall be entitled to obtain a decree for dissolution of her marriage on any one or more of the grounds mentioned in the act. This act states that it is lawful for a Muslim wife to dissolve her marriage on any of the recognized grounds in the act. But the wife cannot dissolve the marriage herself, she has to obtain a decree from the court of law and the marriage can be dissolved only if the court has passed the dissolution decree.

Various grounds on which a Muslim wife can claim dissolution of her marriage are [ix]:

  1. Whereabouts of husband not known:
    A woman married under Muslim Law is entitled to obtain a decree for dissolution of her marriage if the whereabouts of her husband is not known for a period of 4 years. However, it is of essence of that lady not to marry for 6 months after the decree is passed. The reason for this is that if her husband appears within 6 months and is willing to perform his marital obligations and the court is satisfied then the decree may be set aside by the court.
     
  2. Failure to maintain wife or negligence on part of husband:
    A woman married under Muslim Law in entitled to obtain a decree for dissolution of her marriage if her husband has neglected her or has failed to provide her maintenance for a period of 2 years. Under Muslim Law it is essential that the husband is duty bound to maintain his wife and if he fails to maintain her then the wife can sue him for divorce.
     
  3. Imprisonment of husband:
    A woman married under Muslim Law in entitled to obtain a decree for dissolution of her marriage if her husband has been sentenced to imprisonment for duration of 7 years or upwards.
     
  4. Failure to perform marital obligations:
    A woman married under Muslim Law in entitled to obtain a decree for dissolution of her marriage if her husband has failed to perform his marital obligations for a period of 3 years. But it is of essence that he may have failed to perform his marital obligations without a reasonable cause.
     
  5. Impotency:
    A woman married under Muslim Law in entitled to obtain a decree for dissolution of her marriage if her husband has been impotent at the time of marriage and continues to be so. In this case the burden of proof is upon the husband to prove that he is not impotent. The husband can satisfy the court within a period of 1 year that he is no longer impotent. If the court is satisfied then it can set aside the dissolution decree.
     
  6. Insanity, Leprosy and Venereal Disease:
    A woman married under Muslim Law in entitled to obtain a decree for dissolution of her marriage if her husband has been insane for two or more years or has a leprosy which may be curable or incurable or has a venereal disease which may be curable or incurable and may be of any duration.
     
  7. Option of puberty:
    A woman married under Muslim Law in entitled to obtain a decree for dissolution of her marriage if she has been married before she attained the age of 15 by her father or any other legal guardian.
     
  8. Cruelty:
    A woman married under Muslim Law in entitled to obtain a decree for dissolution of her marriage if her husband treats her with cruelty. Cruelty has been a ground for divorce even before this act. A Muslim is always given the right to divorce her husband if she has been meted with cruelty.

Conclusion
In this patriarchal society, where woman are always considered inferior to men. Where a man has every right and remedy but a women has very little to cherish for her. Women are not given their basic rights to live their lives. In India, Talaq is a mere arbitrary act of husband who may repudiate his wife at his own pleasure. Men can divorce their spouses easily whereas a woman faces a lot of legal, financial and patriarchal hurdles to divorce their husbands. Women face a lot of criticism of this patriarchal system if they want to give divorce to their husbands.

However, this trend is changing now and women are also provided with equal rights to divorce their husbands. Under Muslim Law, women are given rights to divorce their husbands if he is not able to support her life. Muslim Law provides for various kinds of divorce that a wife can give to her husband i.e. Khula, Lian, Talaq-e-tafweez, Dissolution of Muslim marriage act 1939. Women can also divorce their husbands if she is satisfied that they are not happy together and cannot perform their matrimonial ties. Women are now standing on an equal footing with men.

End-Notes:
  1. Dr. M.A.Qureshi, Muslim Law 113(Central Law Publications, Allahabad, 4th edn. 2012).
  2. The Dissolution of Muslim Marriage Act, 1939.
  3. Dr. M.A.Qureshi, Muslim Law 112(Central Law Publications, Allahabad, 4th edn. 2012).
  4. AIR 1919 Ind 49: Cas 256.
  5. AIR 1926 All 56.
  6. The Majority Act, 1875, s.3.
  7. AIR 1882 ILR 8: Cal 327.
  8. The Dissolution of Muslim Marriage Act, 1939, s.2 (ix).
  9. Dr. M.A.Qureshi, Muslim Law 126(Central Law Publications, Allahabad, 4th edn. 2012).

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