INTRODUCTION :

All the Muslims in India are governed by the Muslim Personal Law (Shariat) Application
Act, 1937. This law deals with marriage, succession, inheritance and charities among
Muslims. The Dissolution of Muslim Marriages Act, 1939 deals with the circumstances
in which Muslim women can obtain divorce and rights of Muslim women who have been
divorced by their husbands and to provide for related matters. These laws are not
applicable in the state of Goa, where Goa civil code is applicable for all persons
irrespective of religion. These laws are not applicable to muslims who married under
the Special Marriage Act, 1954. Marriage unites two souls into one with the grace of god.
The rituals and customs of performing marriage are performed as prescribed in one’s
own personal law. The bond between a woman and a man is for the time immemorial
but sometimes subsistence of Marriage may dissolve earlier.

MODES OF DISSOLUTION OF MARRIAGE AMONG MUSLIMS:

(1) By the death of any Spouse(Husband or wife).
(2) By act of parties.
(1)By the death of any Spouse: Death is natural phenomena as we all know
“Man is Mortal”. There is no hindrance by any person where as divorce is only a way to
end the subsistence of Marriage and to separate from each other. When the wife dies,
the husband may remarry immediately, but in the case of husband’s death, the widow
has to wait till the expiry of iddat (4months and 10 days, or if pregnant, till delivery).

(2) Divorce by the act of parties:

(i) by the Husband
(ii) by the wife
(iii) by mutual consent
*By the Husband:
(1) Talaq: A Muslim husband can give his wife by pronouncing the word
Talaq without stating any reason. It is not necessary that wife should be
present at the time of divorce, but divorce can only be effective from the
date when wife will known about the pronouncement of Talaq. Talaq can
be expressed or implied.
*Talaq-ul-Sunnat
This form of divorce is based on Muslim Personal Laws. It is further sub-
divided into the following categories:
(i)Ahsan
 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.
(ii)Hasan
 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.
* Talaq-ul-Biddat
 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 recognised 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 further divided into two;
(i)Ila
(ii)Zihar
*Divorce by wife
(1)Talaq-e-Tafweez:
 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
(1)Khula.
 Itmeans ‘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 Mehr 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.
(2)Mubarat.
 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
(1)Lian.
 This type of divorce occurs when a wife is falsely charged with adultery
by her husband.
 She can move to court 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.
(2)Faskh.
 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.
Rights conferred by personal laws based on religion is not absolute. For instance, the
two most popular and important judgments of the Supreme Court in this regard are
discussed hereinafter, in the case of Mohd. Ahmed Khan vs Shah Bano, Shah Bano at
the age of 62 was divorced by her husband Mohammed Ahmed Shah, and she along with
her five children were disowned and tossed out from her marital home. When she
approached Madhya Pradesh High Court to restore her maintenance amount of rupees
200 which was halted by her husband, and to increase its amount to rupees 500, she
was divorced by her husband through instant triple talaq or Talaq-ul-Biddat, who used
it as a defence not to pay maintenance as she no longer was his wife. But the court
granted maintenance to Shah Bano under Section 125 of CrPC on the grounds that she is
unable to earn and maintain herself. Though it was against the provisions of Islamic law,
Section 125 of CrPC override the personal law and gave effect to the judgement.

Similarly, in the case of Shayara Bano vs Union of India, Shayara Bano married to
Rizwan Ahmed, was a victim of domestic violence, while she was visiting her parents,
Rizwan Ahmed sent her a divorce letter of Talaq-ul-Biddat declaring instant divorce.
She filed a petition before the Supreme Court to declare triple talaq, nikah halala, and
polygamy to be unconstitutional. Although the court took into account only the plea of
triple talaq declaring it to be unconstitutional and it also held that until the government
formulates a law regarding instant triple talaq, there would be an injunction against the
pronouncement of triple talaq by husbands on their wives.
Talaq-ul-Biddat or triple talaq is unconstitutional as it violates Article 14 of the
Constitution in two ways; firstly, it discriminates Muslim women from Muslim men on
the basis of gender, as only Muslim men have the right to declare triple talaq, and
secondly, it is discrimination on the basis of religion, women of no other religion are
subject to cruelty and unjust behaviour of triple talaq except Muslim women. Talaq-ul-
Biddat also violates Article 21 of the Constitution on the grounds of the right to live with
human dignity, Muslim women are subject to derogatory and cruel behaviour of the
Talaq-ul-Biddat, which reduces their presence to mere unwanted beings in the eyes of
their husband and society. A divorce that is arbitrary, without justified reasoning and a
reconciliatory process is never allowed by the Koran. Thus, personal laws of Muslims are
given prominence unless and until they are against the right of women to live a dignified
life or are unconstitutional.

*Changes brought by the Muslim Women (Protection Of Rights On

Marriage) Act, 2019
The Muslim Women (Protection Of Rights On Marriage) Act, 2019 brought the
following changes:
 Section 3- Pronunciation of triple talaq on wife by husband in any manner
(including electronic), by words either spoken or written, is void or illegal.
 Section 4- Any person who pronounces talaq to his wife in a manner prescribed
in section 3, shall be subject to imprisonment extendable to 3 years or shall be
liable to a fine.
 Section 5- Muslim women who are being divorced can seek allowance from their
husband to maintain themselves and children dependent on them.
 Section 6- Muslim women divorced by husband are entitled to seek custody of
their minor child.
 Section 7- Magistrate can grant bail to the accused after hearing both the
parties, if he feels that reasonable ground exists for granting bail. The offence is
compoundable and there is also an option of compromise at the instance of a
married Muslim wife, which will drop the charges on the basis of fulfilment of
certain terms and conditions.

Conclusion
Under the Muslim Law, there are 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.

REFERENCE:
 Muslim Law ; Khalid Rashid
 Aqil Ahmed; on Muslim Law
 Dissolution of Muslim Marriages Act, 1939
 Law notes, on Family Law
 Cases on ipleader.com