There are two categories of divorce under the Muslim law:
1.) Extra judicial divorce, and
2.) Judicial divorce.
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The category of extra judicial divorce can be further subdivided into types, namely,
1) By husband- talaaq, ila, and zihar.
2) By mutual agreement- khula and mubarat.
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The category of judicial divorce can be further subdivided into types, namely,
1) By wife- talaaq-i-tafweez, lian. (This category is the right of the wife to give divorce under the Dissolution of Muslim Marriages Act 1939.)
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Different Kinds of Talaq
1) Talaq-ul-sunnat (Revocable)
Talaq Ahsan (Most Proper)
Talaq Hasan (Proper)
2) Talaq-ul-biddat (Irrevocable)
Tripple Talaq (Not Proper)
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1) Talaq-ul-sunnat
As per the Prophet Mohammad talaq is one of the most detestable things allowed in Islam. Though, Prophet allowed two forms of talaq which provided adequate time for reconsideration and reconciliation of divorce. Talaaq-ul-sunnat is considered to be in accordance with the dictats of Prophet Mohammad and is based on his Sunna and practiced during his time. Talaq-ul-sunnat is a revocable form of talaq which provides specific time within which the decision can be reverse. Pronouncement of talaq does not become final at once always a possibility of comprise between husband and wife.
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Talaq-ul-Sunnat is further subdivided into two parts:
Talaq Ahsan (Most Proper)
Talaq Hasan (Proper)
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Talaq Ahsan (Most Proper)
This form o talaq is considered as most proper as there is always a possibility of revoking it during the Iddat period and the single pronouncement of divorce should be made in the period of tuhr (purity, between two menstruations), or at any time, if the wife is free from menstruation.
After that pronouncement must be followed by abstinence from sexual intercourse during the period if iddat. The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce and does not apply to talaq in writing. Similarly, this requirement is not applicable when the wife has passed the age of menstruation or the parties have been away from each other for a long time, or when the marriage has not been consummated. The advantage of this form is that divorce can revoked at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may effected expressly or impliedly.
Talaq can be revoked expressly or impliedly. The cohabitation of husband and wife during the period of Iddat will give presumption of reconciliation. But in case if talaq is not revoked during that period that period after completion of Iddat it will be considered as irrevocable.
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Talaq Hasan (Proper)
The talaq hasan is just a proper but approved mode of talaq. In this mode of talaq the word talaq has to be pronounced thrice during three successive tuhr (purity) period of wife. In case on non menstruating wife it has to be pronounced after interval of a month or thirty days between the successive pronouncements. Every pronouncement of talaq has to be made in purity period and no sexual intercourse should be made First pronouncement of talaq must be in tuhr period by express words. After that second time again husband will pronounce talaq during purity period and no sexual intercourse should be made. He again revoked it by cohabiting with wife first and second pronouncement. Again when the wife enters her third period of purity and before any intercourse takes place husband pronounces the third pronouncement. The moment husband makes this third pronouncement, the marriage stands dissolved irrevocably, irrespective of Iddat.
In this the husband is required to pronounce the formula of talaaq three time during three successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be made after the interval of a month or thirty days between the successive pronouncements. When the last pronouncement is made, the talaaq, becomes final and irrevocable. It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during the period of tuhr.
Example: W, a wife, is having her period of purity and no sexual intercourse has taken place. At this time, her husband, H, pronounces talaaq, on her. This is the first pronouncement by express words. Then again, when she enters the next period of purity, and before he indulges in sexual intercourse, he makes the second pronouncement. He again revokes it. Again when the wife enters her third period of purity and before any intercourse takes place husband pronounces the third pronouncement. The moment H makes this third pronouncement, the marriage stands dissolved irrevocably, irrespective of iddat. This form of talaq can be recovered before third pronouncement the moment the third pronouncement is made the talaq become irrevocable.
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2) Talaq-ul-Biddat:
It is disapproved form of talaq as it is irrevocable mode of talaq which gives no rooms for reconciliation between the parties. This mode of talaq is being introduced by Umaiyad Kings. A Muslim has to pronounce talaq thrice during the period of or purity tuhr that he has divorced the wife or it is known as triple pronouncement of talaq (triple talaq).
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Tripple Talaq (Not Allowed)
'Triple talaq' is a customary practice, prevalent among Muslims, that dissolves a marriage when the husband says the word 'talaq' thrice with intention or without intention to dissolve marriage. Immediately after the third pronouncement of word talaq the marriage dissolved and talaq become irrevocable. This form of talaq is not approved in Islam though is being in practice from long time. Therefore time and again the constitutionality of this form of talaq is being challenged in the Supreme Court. In Khlemnissa vs. State of Uttar Pradesh [1] the Hon’ble Judge held that triple talaq is contrary to Articles 14, 15 and 21 of the Indian Constitution and declared void.
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In the case of Rahmtullah vs. State of UP.,[2] Justice Tilhari made the following observation(the obiterdicta off the case): “talak-ul-biddat.. without allowing the period of waiting for reconciliation or without allowing the will Allah to bring about reuion, by removinbg difference or cause of differences and helping the too in solving their differences, run counter to the mandate o the Holy Quran and has been regarded as by all under Islam- Sunnat, to be sinful.”
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In the case of Shamin Ara vs. State of U.P[3] and another Supreme Court observed that for a valid divorce, to ‘pronounce’ means to proclaim, to declare, to articulate, and to utter formally. The plea of pronouncing it in past does not by itself brings into effect talaq (on the date of delivery of the copy of written statement to the wife).
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Recently the apex court has declared triple talaq as unconstitutional on the ground it violates Article 14, 15, 21 and 25 of the Constitution of India on the basis of Sharaya Bano and several batches of petitions as well as Supreme court’s Suo Moto PIL.
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On 15th December, 2017 Muslim Women (Protection of Rights on Marriage) Bill, 2017 was introduced in Lower House, to make the practice of triple talaq a criminal offence.
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2. ILA or VOW OF CONTINENCE:
It is a constructive divorce in which husband takes an oath not to have sexual intercourse with his wife and abstains from cohabitation for four months after such declaration. After completion of fourth month the talaq becomes irrevocable. But if the cohabitation resumes in the said period the lla stands cancelled.
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3. ZIHAR ( INJURIOUS ASSIMILATION):
Zihar is an inchoate divorce in this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete
After the expiry of fourth month the wife has following rights:
(i) She may go to the court to get a decree of judicial divorce
(ii) She may ask the court to grant the decree of restitution of conjugal rights.
Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce.
Zihar can be revoked if:
(i) The husband observes fast for a period of two months, or,
(ii) He provides food at least sixty people, or,
(iii) He frees a slave.
According to Shia law Zihar must be performed in the presence of two witnesses
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4) Divorce by mutual agreement-
Khula and Mubarat: They are two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or a part of some other property. A verse in the Holy Quran runs as: "And it not lawful for you that ye take from women out of that which ye have given them: except (in the case) when both fear that they may not be able to keep within the limits (imposed by Allah), in that case it is no sin for either of them if the woman ransom herself." The word khula, in its original sense means "to draw" or "dig up" or "to take off" such as taking off one's clothes or garments. It is said that the spouses are like clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of each other.
In law it is said is said to signify an agreement between the spouses for dissolving a connubial union in lieu of compensation paid by the wife to her husband out of her property. Although consideration for Khula is essential, the actual release of the dower or delivery of property constituting the consideration is not a condition precedent for the validity of the khula. Once the husband gives his consent, it results in an irrevocable divorce. The husband has no power of cancelling the 'khul' on the ground that the consideration has not been paid. The consideration can be anything, usually it is mahr, the whole or part of it. But it may be any property though not illusory. In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the proposal may emanate from either side. In mubarat both, the husband and the wife, are happy to get rid of each other . Among the Sunnis when the parties to marriage enter into a mubarat all mutual rights and obligations come to an end.
The Shia law is stringent though. It requires that both the parties must bona fide find the marital relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word talaaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words. Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required.
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Divorce by wife:
The divorce by wife can be categorized under three categories:
(i) Talaaq-i-tafweez
(ii) Lian
(iii) By Dissolution of Muslim Marriages Act 1939.
Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently . A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. The power of talaaq may be delegated to his wife and as Faizee observes, "this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India".
This form of delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v. Shahmai, under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law's house without paying the amount. The wife exercised the right and divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to her. Delegation of power may be made even in the post marriage agreements. Thus where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable and not against public policy . It should be noted that even in the event of contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of contingency does not result in automatic divorce.
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Lian:
If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian. This was held in the case ofNurjahan v. Kazim Aliby the Calcutta High Court.
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Dissolution of Muslim Marriages Act 1939:
Grounds for decree for dissolution of marriage.—
A woman married under Muslim law shall be entitle to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: ––
that the whereabouts of the husband have not been known for a period of four years;
that the husband has neglected or has failed to provide for her maintenance for a period of two years;
that the husband has been sentenced to imprisonment for a period of seven years or upwards;
that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
that the husband was impotent at the time of the marriage and continues to be so;
that the husband has been insane for a period of two years or is suffering from 4 *** a virulent venereal disease;
that 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 ;
that the husband treats her with cruelty, that is to say, —
habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
associates with women of evil repute or leads an infamous life, or
attempts to force her to lead an immoral life, or
disposes of her property of prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or
if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran;