Divorce is practiced among all the nations in one form or the other, however, Islam was the first religion in the world that has expressly recognized Divorce. As per Muslim law, it is considered that out of all the permitted things, divorce is the most detestable thing. It acts as a hindrance to the proper upbringings of children and restricts conjugal happiness. However, sometimes situations arise when divorce becomes inescapable. Under Muslim law, both men and women are allowed to divorce but the women have to seek the permission of their husbands.
Modes of Dissolution of Marriage by Muslim Women
Muslim females were the first females who received the right to divorce their spouses. Their divorce rights were not at par with the Muslim men. Muslim women can get a divorce from their husband through two customary ways:
Personal Laws
- Talaq-i-Tafweez
Under Muslim laws, women are also given the right to seek divorce from their spouses. Earlier the right to seek divorce by pronouncing ‘Talaq’ was the exclusive right of the husband. In Talaq-i-Tafweez, the wife purchases her right to divorce from her husband at the time of marriage. Tafweez is not possible without the consent of the husband. If she has been delegated with the power to seek divorce from her husband at the time of marriage, she can exercise her power by pronouncing ‘Talaq’ or with the intervention of a Qazi. The grounds on which a wife can exercise her power of Tafweez need to be decided between the parties at the time of the wedding.
In Talaq-i-Tafweez a husband can delegate his right to divorce from any person and that person can act as an agent while exercising his right to divorce. This agent to whom the power to divorce is delegated can be the wife. Under Tafweez, divorce depends on whether a specific event occurs or not. It is based on conditions such as men treating their wives cruelly and not taking care of his wife financially.
- Lian
If there has been a false allegation on the wife by the husband for the commitment of adultery then the wife has a right to file for the divorce in the family court. The wife must prove that she has not been involved in any kind of adulterous relation. If the husband can prove that the wife was involved in an adulterous relation then the marriage is dissolved by the husband seeking Divorce. However, if the husband was not able to prove and the wife proves that she was not involved in any such relation, it becomes a ground for divorce through which only a wife can claim divorce. If the husband sticks on his charges of adultery committed by his wife then four oaths are to be taken by the husband and further four oaths by the wife to prove that she is innocent and if proved, she is entitled to a divorce. A couple divorced through Lian cannot be remarried again under Muslim law, however, they have a special right to marry under the Special Marriage Act.
- Zihar
This divorce can be exercised by a wife when the husband compares her with his mother or any other female within the prohibited degrees. It gives her the right to refuse herself to her husband till the time he makes expiation and in default to apply for judicial divorce. This form of divorce is not prevalent in India.
- Khula
It is a form of divorce that takes place in consensus between the parties initiated by the husband, by paying him a certain amount of Mehr. Earlier Khula can be exercised only when the husband accedes to the wife’s request so if he refuses, the woman has no option but to approach courts of law under the provisions of the Dissolution of Muslim Marriage Act,1939. In a recent judgment, the Kerala High Court held that when a woman decides to dissolve the marriage for appropriate reasons she has the right to pronounce unilateral extra-judicial divorce by the way of Khula. The Muslim women can exercise this right without the intervention of the court if the husband has delegated the right to divorce from his wife. The second right exercised by them is through their personal law is divorce by mutual consent, by the process called Mubaarat. The third right that is enjoyed by Muslim women to divorce is by way of Khula, where she decides to terminate the marriage. This process may be called Talaq initiated by the wife.
Statutory Laws
- Dissolution of Muslim Marriage Act, 1939
Apart from the personal Sharia law, there are statutory provisions under which Muslims can file for divorce. Under this law, there are several grounds through which Muslim women can obtain a decree for dissolution of marriage from their husbands. They are:
- when the whereabouts of the husband are not known for four years.
- when the husband has neglected the maintenance of her wife for two years.
- when the husband has been imprisoned for seven years or more.
- when the husband has been insane for two years or is suffering from any virulent venereal disease or an incurable form of leprosy.
- when the husband has not performed any marital obligations for three years or more.
- any other ground which is recognized as valid for the dissolution of marriage under Muslim Law.
- when the husband was impotent at the time of marriage and he continues to be.
- that her father has given her in marriage before she attained the age of fifteen years, and she repudiated the marriage before attaining the age of eighteen years.
- when the husband treats her with cruelty in any form:
- by disposing of her property or preventing her from exercising her legal rights over it.
- by associating with any women of evil repute and lives an infamous life.
- Stops her from practicing her religious profession or practice.
- by treating any of her wives with inequality if he has more than one wife.
- by forcing her to live an immoral life.
- By treating her miserably and by assaulting her even if that assault does not lead to physical ill-treatment.
Rights of Muslim Women after Divorce
- A reasonable and fair amount of maintenance to be received by her from her former husband during the iddat period.
- All the properties which belong to her and all the properties which she has received before or after the marriage or during the marriage belong to her and she has the sole right over it.
- A certain amount of money has been paid as mahr or dower during the marriage. A female is entitled to receive that amount as soon as the marriage is dissolved.
- A reasonable amount for the maintenance of children born before marriage and the wife holds the custody of the children.
Case Laws
In Noor Jahan Bibi v. Kazim Ali,[1] the petitioner filed a suit against her husband for the dissolution of marriage. The husband had raised allegations against the wife for immoral character and adultery. The court held that the doctrine of Lian is not absolute under the Muslim law and a wife can bring a suit against her husband on the false ground of adultery. Therefore, the wife was entitled to a divorce.
In M.B. Rahim v. Shamsoonnissa Begum,[2] the Privy Council observed that the husband disposed of the wife’s property and confined her to a room as if she is in jail and assaulted her. She started living separately. The husband then raised the contention that under Muslim law, the wife has no right to live separately even if the husband treats her badly. The Privy Council held that a woman has the right to live separately and giving her no rights to live separately violates the principle of natural justice.
Conclusion
With the changing time and coming of new laws, Muslim women are getting more rights and their position is becoming better day by day. Several pro-female judgments have been passed recently but still, there is a long way to go so that women can be at par with men. The abolishment of the Triple Talaq has improved the position of Muslim women. Several other reforms are required in Muslim law to uplift the position of women. More women organizations should be encouraged because they have played a tremendous role in improving the position of females in India. However, there is a need for a uniform law for the whole country for all the citizens irrespective of their religion so that the implementation of laws could become easier.
Edited by: Joshua Joseph
References
[1] Nurjahan Bibi vs Md. Kajim Ali, AIR 1977 Cal 90
[2] Moonshee Buzloor Ruheem v Shumsoonissa Begum, (1867) 1 MIA 551.
