Dissolution of marriage means ‘putting the marriage to an end’. It is a process by which the material relationship between the husband and the wife is extinguished. In Muslim law, dissolution of marriage takes place by the following means:-
1. By Death of either Spouse:
A valid marriage is dissolved or terminated at the death of husband or wife. In case of death of wife, the husband is free to marry another woman immediately if he so wishes. But in case of death of husband, the wife has to undergo and observe IDDAT period of four months and 10 days. If in case she is pregnant, the IDDAT period shall extend till her delivery and then she is entitled to marry, if she so wishes.
2. Divorce or by Act of Parties:
The parties may choose to end marital relationship. Such act of the parties is known as ‘divorce’ which literally means ‘leave’ or ‘reject’. Divorce may further be classified into following two kinds:
a. Extra-Judicial Divorce:
Extra-Judicial divorce is executed outside of the Court. It may be executed by the following:
i. By Husband:
A divorce pronounced by husband is called Talaq. Any Muslim of sound mind and age of puberty may, himself or through an agent, divorce his wife by pronouncing talaq, whenever he so desires without assigning any cause. Talaq may be effected in oral or writing. Presence of wife is not necessary at the time of pronouncement of talaq but it must be communicated to her for the purpose of dower.
Modes of Talaq: Following are the different modes by which talaq is pronounced:
1. Talaq-e-Sunna:
Talaq-e-Sunnah is approved form of dissolution as per the dictates of the Prophet (pbuh). It has further been divided into following two kinds:
a. Talaq-e-Ahsan:
Ahsan means ‘very good’. It is the most approved form of talaq consisting of a single pronouncement of the word ‘talaq’ in the period of purity (tuhr). Tuhr is a period during which a woman is free from her menstrual courses. The pronouncement during the period of tuhr is followed by abstinence from sexual intercourse during Iddat. It may be revoked during Iddat and not afterwards. Such revocation may be expressed or implied. During such period of Iddat the wife is a ‘woman in probation (Muatteeda).
b. Talaq-e-Hassan:
Hassan means ‘Good’. It is less approved form of talaq consisting of three successive pronouncements during three consecutive periods of purity (tuhrs) with abstinence of sexual intercourse in each tuhr. The talaq is finalized on third pronouncement and becomes irrevocable.
2. Talaq-al-Biddat:
Talaq-e-Biddat is disapproved form of talaq among Muslims. It is known as ‘al talaq-al-bain’, which means irrevocable divorce. It is disapproved form of talaq consisting of three pronouncements made in a single period of purity (tuhr), either in one sentence or in three sentences. This form of talaq becomes irrevocable with pronouncement. It is lawful in Hanafi law but unlawful in Ashari and Fitmid laws.
Legal Effects of Talaq:
Following are the legal effects when talaq becomes irrevocable:
1) When divorce is irrevocable marital intercourse becomes unlawful.
2) If the husband or wife dies during Iddat without revocation, each is entitled to inherit from the other.
3) If the divorce is irrevocable neither of them can inherit from the other.
4) Wife is entitled to maintenance during Iddat.
ii. By Wife:
The husband can delegate his own right of pronouncing divorce to his wife, which is called ‘tafwid’. In this form, an agreement is made either before or after the marriage where it is provided that the wife would be at liberty to divorce herself from her husband under certain specified condition. Firstly such option of wife would not be absolute and unconditional and secondly conditions would be reasonable and not opposed to public policy. Talaq-e-Tafwid is of three kinds:
1. Ikhtiyar:
It is an option or choice. The husband may say to his wife ‘choose’ or a similar word in connection of talaq, giving her liberty to get rid of matrimonial life. Delegation of such power is implied. This delegation of power of divorce to wife may be for a day, or for a certain period of time or for all the times to come. This delegation is subject to some conditions. The wife may divorce herself saying ‘I am divorced’ or ‘I divorce myself’.
2. Amr Bi-yad:
The husband may say to his wife ‘the affair is in your hands or you are at liberty’. Incase husband says ‘divorce yourself thrice or twice’ and she divorced only once, divorce would take effect because it is part of the delegation. Here expression is implied.
3. Mashiat:
It means ‘at will’ or ‘pleasure’. In this form the delegation of right to talaq is in express form. While delegating the power to wife, the husband may say ‘give yourself talaq when you please’.
iii. By Mutual Consent:
Since marriage is a civil contract, so marriage may be dissolved by an agreement between the parties. This kind of divorce is further classified into following two kinds:
1. Khulla:
The word Khulla literally means ‘to take off’. It means ‘getting rid of the ownership by marriage’. A khulla is a divorce whereby wife offers, husband accepts and with an iwad (consideration) passing from wife to the husband for redemption. Although it is a divorce which takes place at the instance of wife, but it is effected with mutual consent of the parties. It becomes irrevocable as soon as accepted by the husband.
2. Mubaraat:
Mubaraat literally means ‘release’ which also puts an end to matrimonial rights. It is the actual divorce by mutual consent, whereby parties desire to have a separation. Offer may proceed from either of the parties and accepted by the other party. The divorce by Mubaraat effects as soon as other party accepts the offer.
b. Judicial Divorce:
Judicial divorce takes place by following means:
i. Ila:
Ila means a ‘vow’ or an ‘oath’. It is a kind of constructive divorce whereby husband makes an oath to abstain from sexual intercourse with wife for more than four months, upon which wife acquires a right to get judicial divorce. The vow in itself is not pronouncement of talaq by husband. The husband may revoke the oath by resumption of marital life.
ii. Zihar:
It is a kind of divorce whereby husband compares his wife with a female within the prohibited degree of relationship saying ‘to me the wife is like my mother or sister etc’, the wife has a right to refuse herself to him until he has performed penance. If such abstinence continues for the period of four months, the wife acquires the right to pray Court to direct the husband either to perform penance or otherwise the Court allows divorce.
iii. Lian or Mutual Imprecation:
Lian means imprecation. It is a kind of divorce on the ground of adultery. If a man accused his wife of adultery, the wife may request her husband to withdraw his statement. In case of refusal by the husband, the wife may approach the Court where husband is required to substantiate his allegation. Incase of failure of husband, the wife acquired the right to get dissolve marriage through judicial decree.
iv. Faskh and Tafrid:
The Arabic term Faskh means ‘annulment’, ‘cancellation’ or ‘abrogation’. It refers to dissolution or recession of the contract of marriage by judicial decree. In other words, it refers to the power of Court to annul a marriage on the application of the wife. According to section 2 of Muslim Marriage Act, 1939 various grounds of dissolution of marriage by woman are as under:-
1. Absence of Husband: If the husband’s whereabouts are unknown for four years or more, the wife can go for divorce. The decree comes into force after six months. During this period, if the husband appears and prepares to join matrimonial relations, the Court may set aside the decree.
2. Failure to Provide Maintenance: If the husband fails or neglects to provide maintenance to his wife for two years or more.
3. Imprisonment of Husband: If the husband has been sentenced to imprisonment for 7 years or more.
4. Failure to Perform Mutual Obligation: If the husband fails to perform mutual obligation for a period for three years without reasonable cause.
5. Impotency of Husband: Impotency means inability to have sexual intercourse. It is a ground for divorce if the husband was impotent at the time of marriage and continues to be so. In such a case, on the application of husband require him to satisfy the court within a period of one year from such decree that he has ceased to be impotent, in case he succeeds no decree on such ground can be passed otherwise the decree comes into effect soon after the elapse of said period.
6. Insanity of the Husband: Insanity of husband for a period of two years or his suffrage from leprosy or virulent venereal disease is a good ground of divorce by wife.
7. Repudiation of marriage: It means to avoid marriage. The wife may repudiate her marriage before attaining the age of 18 years if she has been given in marriage by her father or guardian before she attained the age of sixteen years. This ground is effective only if the marriage has not been consummated.
8. Cruelty of the Husband: The wife may seek divorce if the husband treats her with cruelty, which includes assault and physical ill-treatment, associating her with women of evil repute, forcing her to lead immoral life, deposing her property or prevent her exercising her legal rights over it, obstructing her to observe her religion, or treating her inequitably among other wives.
9. Any other Ground: In addition to these grounds, a marriage can be dissolved on any grounds as recognized under Muslim law.
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