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:
- There must be a common consent of both husband and wife.
- 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:
- Ikhtiyar (choice):
It means giving her the authority to talaq herself.
- Amr-bi-ya:
It means leaving the matter in her own hands.
- 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]:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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:
- Dr. M.A.Qureshi, Muslim Law 113(Central Law Publications, Allahabad, 4th
edn. 2012).
- The Dissolution of Muslim Marriage Act, 1939.
- Dr. M.A.Qureshi, Muslim Law 112(Central Law Publications, Allahabad,
4th edn. 2012).
- AIR 1919 Ind 49: Cas 256.
- AIR 1926 All 56.
- The Majority Act, 1875, s.3.
- AIR 1882 ILR 8: Cal 327.
- The Dissolution of Muslim Marriage Act, 1939, s.2 (ix).
- Dr. M.A.Qureshi, Muslim Law 126(Central Law Publications, Allahabad,
4th edn. 2012).
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