DISSOLUTION OF MARRIAGE IN MUSLIM LAW

DISSOLUTION OF MARRIAGE IN MUSLIM LAW
Part I – Dissolution of Marriage
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 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 in whatever manner the divorce is effected 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
a 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:
A husband may divorce his wife by repudiating the marriage without giving any reason.
Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally
this done by talaq. But he may also divorce by Ila, and Zihar which differ from talaq only in form,
not in substance. A wife cannot divorce her husband of her own accord. She can divorce the husband
only when the husband has delegated such a right to her or under an agreement. Under an agreement
the wife may divorce her husband either by Khula or Mubarat. Before 1939, a Muslim wife had no
right to seek divorce except on the ground of false charges of adultery, insanity or impotency of the
husband. But the Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the
basis of which a Muslim wife may get her divorce decree passed by the order of the court.
There are two categories of divorce under the Muslim law:
1. Extra judicial divorce, and
2. Judicial divorce
The category of extra judicial divorce can be further subdivided into three types, namely,
I. Unilateral divorce at the instance of husband
II. Unilateral divorce at the instance of wife
III. Divorce by Mutual Consent
I. Unilateral divorce at the instance of husband Talaq:
Talaq in its primitive sense means dismission. In its literal meaning, it means “setting free”,
“letting loose”, or taking off any “ties or restraint”. In Muslim Law it means freedom from the
bondage of marriage and not from any other bondage. In legal sense it means dissolution of
marriage by husband using appropriate words. In other words talaq is repudiation of marriage by
the husband in accordance with the procedure laid down by the law. The following verse is in
support of the husband’s authority to pronounce unilateral divorce is often cited: “ Men are
maintainers of women, because Allah has made some of them to excel others and because they
spend out of their property (on their maintenance and dower)”.
When the husband exercises his right to pronounce divorce, technically this is known as talaq.
The most remarkable feature of Muslim law of talaq is that all the schools of the Sunnis and the Shias
recognize it differing only in some details. In Muslim world, so widespread has been the talaq that
even the Imams practiced it . The absolute power of a Muslim husband of divorcing his wife
unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of
intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in
modern India. All that is necessary is that the husband should pronounce talaq; how he does it, when
he does it, or in what he does it is not very essential.
In Hannefa v. Pathummal, Khalid, J., termed this as “monstrosity” .Among the Sunnis, talaq
may be express, implied, contingent constructive or even delegated. The Shias recognize only the
express and the delegated forms of talaq.
A. Express Talaq (by husband): When clear and unequivocal words, such as ‘I have divorced thee” are
uttered, the divorce is express talaq which fails in to to categories —
1. Talaq-i-sunnat,
2. Talaq-i-biddat.
1. Talaq-i-sunnat has two forms:
# Talaq-i-ashan (Most approved)
# Talaq-i-hasan (Less approved).
Talaq-i-sunnat is considered to be in accordance with the dictats of Prophet Mohammad.
 The ashan talaq: consists of a single pronouncement of divorce made in the period of tuhr
(purity, between two menstruations), or at any time, if the wife is free from menstruation,
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.
The hasan talaq – wherein the husband has to pronounce talaq consecutively in three tuhrs.
If menstruation of wife stopped then three declaration after every 30 days , 3 times. After
the last pronouncement, talaq is irrevocable. It is necessary that each of the three
pronouncements should be made at a time when no intercourse has taken place during that
period of tuhr. It was a pre-Ismalic practice where pronouncement of divorce in one tuhr,
followed by its revocation and again pronouncement of divorce– like that lead to
harassment and misery of wife, Prophet laid down the divorce will become final and
irrevocable at the third pronouncement. Further condition was imposed that parties were
not free to remarry unless the wife married another man who had actually consummated
the marriage and then divorced her. On the completion of idda, the woman could marry her
husband. This is a penal provision meant to chastise the husband who repudiates his wife
thoughtlessly.
2. Talaq -ul-bidda – This form came in to vogue during the second century of Islam. It is
practiced in two forms – i. the triple declaration of talaq made in a period of tuhr /purity, either
in one sentence, such as ‘I divorce thee triply or thrice’ or in three sentences such as ‘I divorce
thee, I divorce thee, I divorce thee’, the moment pronouncement is made, marriage stands
dissolved irrevocably.
ii. a single irrevocable pronouncement of divorce made in a period of purity or even
otherwise, results in irrevocable divorce.
This type of talk is not recognised among the Shias. This type of divorce is also
condemned and considered heretical as is irrevocable.
In Khlemniss v. State of UP Writ Petition no. 57 of 1993 – Tilhari J. had held that
triple divorce was unconstitutional, as it perpetrated male authoritarianism. also held as is
contrary to Art. 15, 15 and 21 of the Constitution of India.
Recent decision of Supreme Court on Triple Talaq Talaq-ul-bidda –
The decision of Supreme Court in invalidating triple talaq has long history which will be
understood by going through following cases –
1. Shamin Ara v. State of UP 2002(7) SCC 518 :
a. The Supreme Court invalidated instant triple talaq quoting the case – Rukia Khatun v.
Abdul Laskar(1981) 1 GLR 375 – the Court held that the law of talaq as ordained by
the holy Kuran is – i. the talaq must be for a reasonable cause
ii. that it must be preceeded by an attempt of reconciliation
between husband and wife by two arbitrators, one from each
family. If their attempt fails, then talaq be affected.
b. Talaq to be effective has to be pronounced i.e. to proclaim, utter formally or to declare.
c. A plain affidavit or talaqnama without any efforts of reconciliation can’t effectuate a
talaq.
d. Plea taken by the husband that he had given talaq to his wife at an earlier date doesn’t
amount to dissolution of marriage, unless talaq is duly proved with pre-condition of
arbitration and valid reason.
2. Dagadu Pathan v. Rahimbi Pathan (2002) DMC 315 Bom –
A muslim husband can’t repudiate the marriage at will. The right to divorce of wife
without reason, only to harm her or to avenge her for resisting husband’s unlawful demands and to divorce her in violation of the procedure prescribed by the Shariat is haram
i.e. unlawful.
3. Mansoor Ahmed v. State of Delhi 2008(103)DRJ 137 (Del) – while interpreting Shamim Ara case held that a revocable talaq, the dissolution of marriage doesn’t take place at the time of pronouncement but it automatically deferred till the end of iddat period – which provides the man to review and reconcile with his decision. Hasan and Ashan are revocable talaq and accordingly talag-e-biddat is also a single revocable talaq.
4. Shayara Bano v. UOI LNIND 2017 SC 415 –
Shayara Bano and other Petitioners along with Supreme Court’s own suo motu Public Interest Litigation are jointly heard to consider the issue of “Whether certain aspects of Islamic Personal Laws amount to gender discrimination and hence violates Constitution?” and challenges validity of triple talaq on the touchstone of Articles 14, 15, 21 and 25 of the Indian Constituion.
The Court held that – i. Religious offices of Islam who propagate, support and authorize practices like talaq-e-biddat, nikah halaa and polygamy are grossly misusing their position, influence and power to subject to muslim women to treat them as chattel and hence violate their Fundamental Rights under Articles 14,15, 21 and 25.
ii. Muslim Personal laws in India permit practice of talaq-e-biddat /badai/ unilateral triple talaq which practically treats women like chattel is neither harmonious with modern principles of human rights and gender equality nor an integral part of Islamic faith, according to various noted scholars.
iii. Triple talaq is not an essential tenet of religious belief of muslims and is not protected under Art.25, but the Petitioner no where questions the inherent discretion given to Muslim husband to pronounce talaq to wife rather it challenges practice of triple talaq. Hence Shayara Bano petition doesn’t bring out the ills of triple talaq, as it stands today.
iv. All India Muslim Personal Board filed counter affidavit and plead that the Supreme Court has no jurisdiction to adjudicate over Muslim Personal Law since it is part of Islam which is based on Quoranic injunction and not a law enacted by the Parliament. But this argument not hold good as the Supreme Court has in innumerable cases intervened in personal laws in reforming personal legal position.

v. Triple talaq is instant and irrevocable hence no attempt of reconciliation is made between parties which is essential to save marital tie, that too without valid reason from Rashid Ahmad by Privy Council to Shamim Ara, it is clear that Triple Talaq is manifestly arbitrary, hence be held violative of Article 14 and Sec.2 of the Shariat Act, 1937 be also
declared void.
B. Implied and Contingent Divorce : Only Sunnis recognise this type of divorce. When the words of talaq are not clear but gives intention of the husband, then is considered as implied talaq. If husband pronounce divorce so as to take effect on the happening of future event, it is termed as the Contingent talaq which become effective only on happening of contingency. In Hamid Lai v. Imtiazan (1878) 2 Bill 71 – husband puts a condition to wife that if you go to your father’s house, I will treat you as sister. Despite this wife left for her father’s house. The wordas used by the husband appears as implied divorce, but condition performed by wife made it contingent, hence Court held it as a divorce. In Baschoo v. Bismillah 1936 All 387 – the husband gave an undertaking in writing that he would pay her the amount of maintenance within the specified period and that if he defaulted in making the payment, it would operate as talaq. On the husband’s failure to pay the amount within the stipulated period, the court held that the writing took effect as a valid talaq.
C. Delegateddivorce (talaq-i-Tafweez) – Talaq-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 talaq 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 1972 J&K 8 – 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.
D. Constructive divorce – Two types of constructive divorce have existed in Muslim Law asi.
Ila – This divorce is construed by the conduct of husband and abstains wife’s company for 4 months,
then talk get confirms. It is also irrevocable in nature. Shafis and Shias believe it is not itself a talk, but
gives a ground for wife to go for judicial divorce. Ithana Ashari believe that this form of divorce is
possible only after consummation of marriage.
ii. Zihar – In this form, the husband expresses his dissatisfaction with his wife by comparing her with
the back of his mother or sister or any other woman within the degrees of prohibited relationship. In
such a case wife acquires a right to refuse cohabitation with her husband and can get judicial divorce.
Formalities of Talaq :
1) Capacity: Every Muslim husband of sound mind, who has
attained the age of puberty, is competent to pronounce talaq. It is not necessary for him to give any
reason for his pronouncement. A husband who is minor or of unsound mind cannot pronounce it.
Talaq by a minor or of a person of unsound mind is void and ineffective. However, if a husband is
lunatic then talaq pronounced by him during “lucid interval” is valid. The guardian cannot pronounce
talaq on behalf of a minor husband. When insane husband has no guardian, the Qazi or a judge has the
right to dissolve the marriage in the interest of such a husband. Thus before the completion of iddat,
the husband resumes cohabitation with his wife or says I have retained thee” the divorce is revoked.
Resumption of sexual intercourse before the completion of period of iddat also results in the
revocation of divorce.
2) Free Consent: Except under Hanafi law, the consent of the husband in pronouncing talaq must
be a free consent. Under Hanafi law, a talaq, pronounced under compulsion, coercion, undue
influence, fraud and voluntary intoxication etc., is valid and dissolves the marriage. Talaq pronounced
under forced or involuntary intoxication is void even under the Hanafi law. Under the Shia law (and
also under other schools of Sunnis) a talaq pronounced under compulsion, coercion, undue influence,
fraud, or voluntary intoxication is void and ineffective.
3) Formalities: According to Sunni law, a talaq, may be oral or in writing. It may be simply
uttered by the husband or he may write a Talaqnama. No specific formula or use of any particular
word is required to constitute a valid talaq. Any expression which clearly indicates the husband’s
desire to break the marriage is sufficient. It need not be made in the presence of the witnesses.
According to Shias, talaq, must be pronounced orally, except where the husband is unable to speak. If
the husband can speak but gives it in writing, the talaq, is void under Shia law. Here talaq must be
pronounced in the presence of two witnesses.
4) Express words: The words of talaq must clearly indicate the husband’s intention to dissolve the
marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove
that the husband clearly intends to dissolve the marriage.
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 talaq, 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.
II. Divorce at the instance of wife:
The divorce by wife can be categorized under two categories:
(i) The Khul or Khula
(ii) Talaq-ul-tafweex / delegated talaq (discussed above)
(iii) Judicial divorce
i. The Khul / Khula – literally means ‘to put off’ – when both the husband and wife are not ready to
follow the rights and obligations of marriage, wife has to give some property to husband in return of
Khula and is called as Talk-ul-bain also. Only a major and sound minded wife can obtain Khula or in
case of minor, her guardian can exercise Khula. Once the husband consents for this then it become
irrevocable. Khula can be given in consideration of dower also. The wife can take back the proposal of
Khula before its acceptance by the husband, otherwise it become irrevocable.
Most of the textbook writers discuss Khul under the tiele ‘Divorce by Mutual Consent’, but as
in the Khul the desire to separate emanates from the wife and she has to make her husband agree to it
by giving consideration, it would be proper to call it divorce at the instance of wife.
iii. Judicial Divorce (Turkaf / separation) –
Prophet mohammad applied Koranic verses regarding judicial divorce as – ‘in case of dispute
between husband and wife let the be referred to two muslim arbitrators, free and just (one from each
family), who will see as to the possibility of reconciliation and their decision shall be binding on
them.’
Ameer Ali said ‘when husband is guilty of conduct which makes matrimonial life intolerable
to wife / neglects her or fail to fulfill matrimonial duties, wife has right of preferring a complaint
before Kazi or judge and take divorce.’.
Before the Dissolution of Muslim Marriage Act, 1939 Indian Courts granted a Decree of
divorce to wife only on two grounds viz. – i. Lian and ii. Apostasy
i. Lian: If the husband levels false charges of unchastely 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 of Nurjahan v. Kazim Ali by the Calcutta High
Court.
ii. Apostasy – It means either renouncing Islam or conversion to other religion than Islam and is an
offence under Muslim law. It may be express or implied, but is valid ground for dissolution of
marriage.
Now under the Dissolution of Muslim Marriage Act, 1939 –
a. Apostasy of husband results in instant dissolution of marriage hence if wife marries during idda, it is
not an offence,
b. if muslim wife of other faith reconverts to her original faith, immediate dissolution of marriage
takes place,
c. Apostasy of muslim wife doesn’t result in apostasy.
Dissolution of Muslim Marriages Act 1939:
Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on 17th
April 1936. It however became law on 17th March 1939 and thus stood the Dissolution of Muslim
Marriages Act 1939. It is amended in 1959 and is applicable to whole of India and to all muslims
irrespective of the Sect or School they may belong.Section 2 of the Act runs there under: “ A woman
married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her
marriage on any one or more of the following grounds, namely:-
1. that the whereabouts of the husband have not been known for a period of four years: if the husband
is missing for a period of four years the wife may file a petition for the dissolution of her marriage.
The husband is deemed to be missing if the wife or any such person, who is expected to have
knowledge of the husband, is unable to locate the husband. Section 3 provides that where a wife files
petition for divorce under this ground, she is required to give the names and addresses of all such
persons who would have been the legal heirs of the husband upon his death. The court issues notices
to all such persons appear before it and to state if they have any knowledge about the missing
husband. If nobody knows then the court passes a decree to this effect which becomes effective only
after the expiry of six months. If before the expiry, the husband reappears, the court shall set aside the
decree and the marriage is not dissolved.
2. That the husband has neglected or has failed to provide for her maintenance for a period of two
years: it is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife
may seek divorce on this ground. A husband may not maintain his wife either because he neglects her
or because he has no means to provide her maintenance. In both the cases the result would be the
same. The husband’s obligation to maintain his wife is subject to wife’s own performance of
matrimonial obligations. Therefore, if the wife lives separately without any reasonable excuse, she is
not entitled to get a judicial divorce on the ground of husband’s failure to maintain her because her
own conduct disentitles her from maintenance under Muslim law.
3. That the husband has been sentenced to imprisonment for a period of seven years or upwards: the
wife’s right of judicial divorce on this ground begins from the date on which the sentence becomes
final. Therefore, the decree can be passed in her favour only after the expiry of the date for appeal by
the husband or after the appeal by the husband has been dismissed by the final court.
4. That the husband has failed to perform, without reasonable cause, his marital obligations for a
period of three years: the Act does define ‘marital obligations of the husband’. There are several
marital obligations of the husband under Muslim law. But for the purpose of this clause husband’s
failure to perform only those conjugal obligations may be taken into account which are not included in
any of the clauses of Section 2 of this Act.
5. That the husband was impotent at the time of the marriage and continues to be so: for getting a
decree of divorce on this ground, the wife has to prove that the husband was impotent at the time of
the marriage and continues to be impotent till the filing of the suit. Before passing a decree of divorce
of divorce on this ground, the court is bound to give to the husband one year to improve his potency
provided he makes an application for it. If the husband does not give such application, the court shall
pass the decree without delay. In Gul Mohd. Khan v. Hasina A.I.R. 1988 J&K 62 the wife filed a suit
for dissolution of marriage on the ground of impotency. The husband made an application before the
court seeking an order for proving his potency. The court allowed him to prove his potency.
6. If the husband has been insane for a period of two years or is suffering from leprosy or a virulent
veneral disease: the husband’s insanity must be for two or more years immediately preceding the
presentation of the suit. But this act does not specify that the unsoundness of mind must be curable or
incurable. Leprosy may be white or black or cause the skin to wither away. It may be curable or
incurable veneral disease is a disease of the sex organs. The Act provides that this disease must be of
incurable nature. It may be of any duration. Moreover even if this disease has been infected to the
husband by the wife herself, she is entitled to get divorce on this ground.
7. 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.
8. That the husband treats her with cruelty, that is to saya.
Habitually assaults her or makes her life miserable by cruelty of conduct even
if such conduct does not amount to physical ill treatment, or
b. Associates with women of ill-repute or leads an infamous life, or
c. Attempts to force her to lead an immoral life, or
d. Disposes of her property or prevents her exercising her legal rights over it, or
e. Obstructs her in the observance of her religious profession or practice, or
f. If he has more than one wives, does not treat her equitably in accordance with
the injunctions of the Holy Quran.
In Syed Ziauddin v. Parvez Sultana, ( 1979) II Andh LT 179 – Parvez Sultana was a science
graduate and she wanted to take admission in a college for medical studies. She needed money for her
studies. Syed Ziaudddin promised to give her money provided she married him. She did. Later she
filed for divorce for non-fulfillment of promise on the part of the husband. The court granted her
divorce on the ground of cruelty. Thus we see the court’s attitude of attributing a wider meaning to the
expression cruelty.
In Zubaida Begum v. Sardar Shah, (1943) 210 IC 587. a case from Lahore High Court, the
husband sold the ornaments of the wife with her consent. It was submitted that the husband’s conduct
does not amount to cruelty.
In Aboobacker v. Mamu koya, (1971) KLT 663 – the husband used to compel his wife to put
on a sari and see pictures in cinema. The wife refused to do so because according to her beliefs this
was against the Islamic way of life. She sought divorce on the ground of mental cruelty. The Kerela
High Court held that the conduct of the husband cannot be regarded as cruelty because mere departure
from the standards of suffocating orthodoxy does not constitute un-Islamic behaviour.
In Itwari v. Asghari,1960 All 694 the Allahabad High Court observed that Indian Law does not
recognize various types of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on, and that the test
of cruelty is based on universal and humanitarian standards; that is to say, conduct of the husband
which would cause such bodily or mental pain as to endanger the wife’s safety or health.
Irretrievable Breakdown as a ground of divorce :
Divorce on the basis of irretrievable breakdown of marriage has come into existence in
Muslim Law through the judicial interpretation of certain provisions of Muslim law. In 1945 in Umar
Bibi v. Md. Din ,1954 Lah 51 it was argued that the wife hated her husband so much that she could not
possibly live with him and there was total incompatibility of temperaments. On these grounds the
court refused to grant a decree of divorce. But twenty five years later in Neorbibi v. Pir Bux, A.I.R.
1971 Ker 261 again an attempt was made to grant divorce on the ground of irretrievable breakdown of
marriage. This time the court granted the divorce. Thus in Muslim law of modern India, there are two
breakdown grounds for divorce: (a) non-payment of maintenance by the husband even if the failure
has resulted due to the conduct of the wife, (b) where there is total irreconcilability between the
spouses.
III. Divorce by Mutual Consent :
The Khul and the Mubarra are considered as types of mutual consent divorce. It is proper to
call Khula as divorce at the instance of the wife.
In Munbarra/ Mubarat the aversion is mutual and proposal for divorce may emanate from either party,
it alone falls under the ground of Mutual consent.
Among Sunnis, when the parties to marriage enter into a Mubarra, all mutual rights and obligations
come to an end. The Shia law is stringent as it requires that both the parties must bona fide find the
marital relationship tobe irksome. Among Sunnis no specific form is laid down, but the Shias insist on
a proper form. Among both Shias and Sunnis, Mubarra is irrevocable divorce. Other requirement of
Mubarra are like Khula and wife wife must undergo idda. In both Khula or Mubarra it is an act of
parties, hence no intervention of the Court is required.
Conclusion:
In contrast to the Western world where divorce was relatively uncommon until modern times,
and in contrast to the low rates of divorce in the modern Middle East, divorce was a common
occurrence in the pre-modern Muslim world. In the medieval Islamic world and the Ottoman Empire,
the rate of divorce was higher than it is today in the modern Middle East. In 15th century Egypt, Al-
Sakhawi recorded the marital history of 500 women, the largest sample on marriage in the Middle
Ages, and found that at least a third of all women in the Mamluk Sultanate of Egypt and Syria married
more than once, with many marrying three or more times. According to Al-Sakhawi, as many as three
out of ten marriages in 15th century Cairo ended in divorce. In the early 20th century, some villages in
western Java and the Malay peninsula had divorce rates as high as 70%.In practice in most of the
Muslim world today divorce can be quite involved as here may be separate secular procedures to
follow as well.
Usually, assuming her husband demands a divorce, the divorced wife keeps her mahr, both the
original gift and any supplementary property specified in the marriage contract. She is also given child
support until the age of weaning, at which point the child’s custody will be settled by the couple or by
the courts. Women’s right to divorce is often extremely limited compared with that of men in the
MiddleEast. While men can divorce their spouses easily, women face a lot of legal and financial
obstacles. For example, in Yemen, women usually can ask for divorce only when husband’s inability
to support her life is admitted while men can divorce at will. However, this contentious area of
religious practice and tradition is being increasingly challenged by those promoting more liberal
interpretations of Islam.

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