Written by: Chitrakshi Sharma
Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be avoided. Initially no marriage is contracted to be dissolved but in unfortunate circumstances the matrimonial contract is broken. One of the ways of such dissolution is by way of divorce. A good Muslim Divorce Lawyer will be able to guide you through it.
Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. However manner the divorce is affected it has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of marriage.
THE PROPHET declared that among the things which have been permitted by law, divorce is the worst. Divorce being an evil, it must be avoided as far as possible. But in some occasions this evil becomes a necessity , because when it is impossible for the parties to the marriage to carry on their union with mutual affection and love then it is better to allow them to get separated than compel them to live together in an atmosphere of hatred and disaffection. The basis of divorce in Islamic law is the inability of the spouses to live together rather than any specific cause (or guilt of the party) on account of which the parties cannot live together. A divorce may be either by the act of the husband or by the act of the wife .there are several modes of divorce under the Muslim law, which will be discussed hereafter.
MODES OF DIVORCE
In Islam, the husband can divorce his wife by merely repudiating the marriage. Thus, the only pronouncement of such words is sufficient to end the marriage. So, these intentions signify that the husband wants to disown his wife.
Usually, this form is called a talaaq. But there are different forms like ILA and Zihar that are different from talaaq. Furthermore, a wife cannot divorce her husband by her own choice. Only under an agreement where the husband has devoted this right to his wife when she can act according to her choice.
Before 1939, it was almost impossible for a Muslim wife to divorce her husband. Unless there are false charges of insanity, adultery, and impotence of the husband.
Now under the Muslim marriages act of 1939, there are several grounds laid down based on which a Muslim divorce is possible with the help of Muslim Divorce Lawyer. There are categories under this law. They are:
- Judicial divorce
- Extrajudicial divorce
Furthermore, there are three sub-categories in which extrajudicial divorce is divided. These are
- By wife – talaq-i-Tafweez , lian
- Husband – talaq , ila and zihar
- By mutual consent – khula and mubarat
Talaaq in its literal sense means letting loose or setting free. Thus, in a similar way, in Muslim law, it means freedom from a bond called marriage. Also, legally this means dissolution of marriage by the husband.
Some of the conditions for a valid talaaq is free consent and capacity. Except for Hanafi law, there needs to be a free consent while pronouncing the word talaaq. While under the Hanafi law, a talaaq under the influence, compulsion, fraud, etc is also considered valid.
Every Muslim husband who is the age of puberty and is of sound mind can pronounce the word talaaq. Thus, there is no requirement of any reason for the pronouncement. While a husband who is not of sound mind and age cannot pronounce it.
DIVORCE BY HUSBAND
There are four ways a husband can give divorce.
This form of divorce is based on Muslim Personal Laws. It is further sub-divided into the following categories:
- Husband has to make an announcement of divorce in a single sentence when the wife is free from the menstrual cycle.
- After divorce women have to observe Iddat for a certain period of time, during which the husband cannot indulge in any form of sexual intercourse, if he indulges then revocation of talaq becomes impliedly revocable, otherwise, it becomes irrevocable.
- This type of talaq can be pronounced even when the wife is undergoing menstruation, but for that marriage must not be consummated between the parties.
- It is the most approved form of talaq.
- It is a less approved form of Talaq Ahasan.
- There is a provision for revocation of divorce.
- The word talaq is to be pronounced three times simultaneously.
- Three announcements should be made in the three states of purity if the wife has not crossed the age of menstruation.
- If the wife has crossed the age of menstruation, pronouncement must be made at the 30 days interval between the successive pronouncements.
- During the period of three pronouncements, no sexual intercourse should take place, if it happens divorce is revoked.
- After completion of the iddat period, this type of divorce becomes irrevocable.
- It is this disapproved/sinful form of divorce.
- It is also known as triple talaq, after pronouncing talaq three times it becomes irrevocable immediately.
- This form of divorce is only recognized under Sunni Law and not by Shias and Malikis.
- Parties can remarry only after performing nikah halala by the female partner, under which she has to marry another man and then get divorced from him.
- This type of divorce is unconstitutional in India, through the judgement of the Supreme Court in the case of Shayara Bano vs Union of India and Others.
- It is a form of divorce under which the husband has the power to pronounce that he would not indulge in sexual intercourse with his wife.
- Subsequent to this pronouncement, the wife is required to observe iddat.
- If the husband cohabits with the wife during this period, then the ILA is revoked.
- Once the period of iddat is over, divorce becomes irrevocable.
- This type of divorce is not practiced in India.
- It is also constructive divorce like ILA.
- In this form of divorce, the husband compares his wife with a woman who comes under a degree of prohibited relationship, such as his mother, sister etc, and pronounces that she is like his mother or sister.
- For doing this the husband must be of sound mind and above the age of eighteen years.
- The wife has the right to seek judicial remedies such as restitution of conjugal rights, cohabitation etc., but cannot seek judicial divorce.
- Husband can revoke such divorce by observing two months fast, feeding sixty people and freeing a slave.
- This type of divorce is no longer in practice.
DIVORCE BY WIFE
- It is also known as delegated divorce.
- The husband has the power to delegate such power to the wife; he must be of sound mind and above 18 years of age.
- This type of talaq is also called an agreement, which may be entered between the parties before or after marriage.
- If the terms of an agreement are not fulfilled, the wife can ask for a divorce.
- It is the only way through which a woman can ask for a divorce.
- The right of the husband to divorce his wife remains intact; it does not deprive the husband of his right to pronounce the divorce.
DIVORCE BY MUTUAL CONSENT
- It means ‘laying down’, where the husband lays down the authority over his wife.
- This is done through mutual consent between husband and wife, where the wife pays the consideration from her property to the husband, for her release.
- Wife releases Meher and other rights for the benefit of her husband.
- Thus, divorce is purchased from husband by wife.
- There is an offer from the wife, which is accepted by the husband.
- Women are required to observe iddat after Khula.
- It means ‘release’; it releases/discharges parties from marital rights.
- Divorce is with mutual consent among parties to become free from one another.
- Its formalities are the same as Khula, where there is an offer from one party and acceptance from another.
- Women are required to observe Iddat.
DIVORCE BY JUDICIAL DECREE UNDER MUSLIM DISSOLUTION OF MARRIAGE ACT,1939
- This type of divorce occurs when a wife is falsely charged with adultery by her husband.
- She can move to court with the help of a good Muslim Divorce Lawyer to file a regular suit for dissolution of marriage, under the Muslim Dissolution of Marriage Act, 1939.
- The ground of divorce must be a false charge of adultery on the wife, his husband.
- The husband imposing charge must be sane and above 18 years of age.
- Marriage is not dissolved until dissolution degrees are passed by the court, once it is passed divorce becomes irrevocable.
- The husband can prevent divorce by the withdrawal of false assertion of adultery on the wife, before passing of the decree by the court.
- If husband and wife feel that they are not compatible together, they can file for divorce.
- Section 2 of The Dissolution of Marriage Act, 1939, states grounds on the basis of which the wife may sue for divorce.
- Whereabouts of husband not known for 4 years.
- Husband has failed to maintain wife for two years.
- Husband is sentenced for imprisonment of 7 years or more.
- Husband has failed to perform marital obligations for three years, without any reasonable cause.
- The husband is impotent.
- Husband is suffering from insanity (for two years), leprosy or virulent venereal disease.
- Wife being married before 15 years, rejects the validity of marriage after attaining the age of 18 years, provided marriage must not be consummated.
- Husband treats her with cruelty, such as imposing physical assault. Making defamatory statements that affect her reputation etc.
Under the Muslim Law, there is more than one form of ways through which marriage can be solemnized and divorce can be initiated for dissolution of marriage. To cater to the needs of changing circumstances along with Muslim personal laws certain legislations are brought by the Government of India such as the Muslim Dissolution of Marriage Act, 1939, the Muslim Women (Protection of Rights on Marriage) Act, 2019 etc., to govern Muslim marriage and divorce. However, apart from these legislations and personal laws, there is a need for the Uniform Civil Code for creating single informed laws governing all the citizens of the nation to strengthen national unity and integrity.
To know more about the modes and procedure you need to find a Muslim Divorce Lawyer or just contact Century Law Firm for best lawyers.
How to find the Best Muslim Divorce Lawyer for Filing a Divorce under Muslim Laws?
If you are looking for a Muslim Divorce Lawyer, important factor to consider is the lawyer’s experience while dealing with Muslim Divorces. Some lawyers may have worked on more complex cases than others, which could lead to better results. Additionally, review their online reviews to see if anyone has had negative experiences with them. You can also contact Century Law Firm now. You can also get your case transferred under some circumstances, for that visit Lawyer for Transfer Petition.
Frequently Asked Questions (FAQs) regarding Muslim divorce and the role of a Muslim divorce lawyer in India:
- Q: What is the process of obtaining a Muslim divorce in India? A: The process of obtaining a Muslim divorce in India is governed by the Muslim Personal Law. Generally, it involves the husband pronouncing talaq (divorce) thrice in the presence of witnesses, after which the divorce is considered final. However, the process may vary depending on the type of divorce sought and the circumstances of the case.
- Q: Can a Muslim woman initiate divorce proceedings in India? A: Yes, Muslim women have the right to initiate divorce proceedings in India under the Muslim Personal Law.
- Q: What are the grounds for seeking divorce under Muslim personal law in India? A: The grounds for seeking divorce under Muslim personal law in India include cruelty, adultery, impotence, desertion, and conversion to another religion.
- Q: What are the legal requirements for a Muslim divorce in India? A: The legal requirements for a Muslim divorce in India include a valid marriage, the husband’s intention to divorce his wife, and the pronouncement of talaq (divorce) in the presence of witnesses.
- Q: What is the role of a Muslim divorce lawyer in India? A: A Muslim divorce lawyer in India can provide legal advice and representation to clients seeking divorce under Muslim personal law. They can help clients understand their legal rights and obligations, as well as navigate the legal process.
- Q: Can a Muslim divorce lawyer in India represent both parties in a divorce case? A: No, a Muslim divorce lawyer in India cannot represent both parties in a divorce case as it would create a conflict of interest.
- Q: How can I find the best Muslim divorce lawyer in India? A: You can find the best Muslim divorce lawyer in India by conducting research, reading reviews and testimonials, and scheduling consultations with prospective lawyers.
- Q: How can a Muslim divorce lawyer in India help me in my divorce case? A: A Muslim divorce lawyer in India can help you in your divorce case by providing legal advice, negotiating on your behalf, drafting legal documents, and representing you in court.
- Q: What is the role of mediation in Muslim divorce cases in India? A: Mediation can be used in Muslim divorce cases in India to help parties reach an agreement without going to court. A Muslim divorce lawyer can provide guidance on the mediation process.
- Q: What are the legal consequences of a Muslim divorce in India? A: The legal consequences of a Muslim divorce in India include the dissolution of the marriage, the division of property and assets, and issues related to custody and maintenance.
- Q: How long does a Muslim divorce case take in India? A: The duration of a Muslim divorce case in India varies depending on the complexity of the case and the willingness of the parties to reach an agreement. A Muslim divorce lawyer can provide an estimate of the time frame based on the specific circumstances of the case.
- Q: What are the rights of Muslim women in divorce cases in India? A: Muslim women in India have the right to seek divorce under the Muslim Personal Law and are entitled to custody of their children, maintenance, and a fair division of assets and property.
- Q: How can a Muslim divorce lawyer help me with child custody issues in India? A: A Muslim divorce lawyer in India can help you with child custody issues by providing legal advice and representation, negotiating on your behalf, and helping you understand your legal rights and obligations.
- Q: What is the role of the Sharia court in Muslim divorce cases in India? A: The Sharia court in India is responsible for overseeing matters related to personal law for Muslims.
- Q: What is a Muslim divorce lawyer? A: A Muslim divorce lawyer is a legal professional who specializes in the area of Muslim divorce law in India. They provide legal assistance to Muslim clients who are seeking a divorce under the Muslim personal law.
- Q: What are the grounds for divorce under Muslim personal law in India? A: Under Muslim personal law, a Muslim man can divorce his wife by uttering the word “talaq” thrice, either in person or in writing. A Muslim woman, on the other hand, can seek a divorce on various grounds such as cruelty, desertion, impotence, and adultery, among others.
- Q: Can a Muslim woman initiate a divorce in India? A: Yes, under Muslim personal law in India, a Muslim woman can initiate divorce proceedings on various grounds such as cruelty, desertion, impotence, and adultery, among others.
- Q: What is the process for Muslim divorce in India? A: The process for Muslim divorce in India involves the husband pronouncing talaq three times, either in person or in writing, and then submitting a copy of the talaq to the relevant authorities. Alternatively, a Muslim woman can initiate divorce proceedings on various grounds such as cruelty, desertion, impotence, and adultery, among others.
- Q: What are the legal requirements for a Muslim divorce in India? A: The legal requirements for a Muslim divorce in India depend on the specific circumstances of the case. However, generally, the husband must pronounce talaq three times, either in person or in writing, and then submit a copy of the talaq to the relevant authorities. Alternatively, a Muslim woman can initiate divorce proceedings on various grounds such as cruelty, desertion, impotence, and adultery, among others.
- Q: How can a Muslim divorce lawyer help in a divorce case? A: A Muslim divorce lawyer can help in a divorce case by providing legal guidance and representation to their client throughout the divorce process. They can assist in drafting and filing legal documents, representing their client in court, and negotiating settlements.
- Q: Can a Muslim man and woman reconcile after a divorce in India? A: Yes, a Muslim man and woman can reconcile after a divorce in India. However, this depends on the specific circumstances of the case.
- Q: What is khula divorce in India? A: Khula divorce is a form of divorce under Muslim personal law in which a Muslim woman seeks a divorce from her husband.
- Q: What are the rights of Muslim women in divorce cases in India? A: Under Muslim personal law, Muslim women have the right to seek divorce on various grounds such as cruelty, desertion, impotence, and adultery, among others. They also have the right to receive maintenance from their husband and to be given custody of their children, among other rights.
- Q: What is the role of a Qazi in Muslim divorce in India? A: A Qazi is a person who is authorized to solemnize marriages and oversee divorce proceedings under Muslim personal law in India. The Qazi plays an important role in Muslim divorce by ensuring that the process is conducted in accordance with the relevant laws and procedures.
- Q: What are the legal requirements for remarriage after a Muslim divorce in India? A: The legal requirements for remarriage after a Muslim divorce in India depend on the specific circumstances of the case. However, generally, the parties must comply with the legal requirements for marriage under Muslim personal law in India.
- Q: Can a Muslim woman remarry after a divorce in India? A: Yes, a Muslim woman can remarry after a divorce
- Employee Provident Fund Organisation (EPFO): EPF&MP Act, EPFO Benefits, Eligibility & Dispute Resolution
- Adoption Procedure in India Under the New Juvenile Justice Act
- Environment Protection Act of 1986: Safeguarding Nature for a Sustainable Future
- The Indian Contract Act, 1872: Types of Contracts, Validity and Drafting