FAMILY LAW ASSIGNMENT
TOPIC:
DIVORCE
SUBMITTED TO SUBMITTED BY:
MR. ASHISH SINGHAL SHRESTH KASHYAP
ASST. PROFESSOR [Link] 2ND YEAR
ICFAI LAW SCHOOL SECTION C
18FLICDDN02144
ACKNOWLEDGEMENT:
I would like to express my special thanks of gratitude to my teacher MR.
ASHISH SINGHAL who gave me the golden opportunity to do this wonderful
project on the topic, DIVORCE, which also helped me in doing a lot of
Research and I came to know about so many new things I am really thankful to
them.
Secondly I would also like to thank my parents and friends who helped me a lot
in finalizing this project within the limited time frame.
Introduction
The religious law of Islam is seen as the expression of God’s command for
Muslims and, in application, constitutes a system of duties that are incumbent
upon all Muslims by virtue of their religious belief. Known as the Shariah
(literally, “the path leading to the watering place”), the law represents a divinely
ordained path of conduct that guides Muslims toward a practical expression of
religious conviction in this world and the goal of divine favour in the world to
come.
In classical form, the Shariah differs from Western systems of law in two
principal respects. In the first place, the scope of the Shariah is much wider,
since it regulates the individual’s relationship not only with neighbours and with
the state, which is the limit of most other legal systems, but also with God and
with the individual’s own conscience. Ritual practices—such as the daily
prayers, almsgiving, fasting, and pilgrimage—are an integral part of Shariah
law and usually occupy the first chapters in legal manuals. The Shariah is
concerned as much with ethical standards as with legal rules, indicating not only
what an individual is entitled or bound to do in law but also what one ought, in
conscience, to do or to refrain from doing. Accordingly, certain acts are
classified as praiseworthy (mandūb), which means that their performance brings
divine favour and their omission divine disfavour, and others as blameworthy
(makrūh), which has the opposite implications. However, in neither case is there
any legal sanction of punishment or reward, nullity or validity. The Shariah is
thus not merely a system of law but also a comprehensive code of behaviour
that embraces both private and public activities.
The second major distinction between the Shariah and Western legal systems is
a consequence of the Islamic concept of the law as the expression of the divine
will. With the death of the Prophet Muhammad in 632, direct communication of
the divine will to human beings ceased, and the terms of the
divine revelation were henceforth fixed and immutable. The overall image of
the Shariah is thus one of unchanging continuity, an impression that generally
holds true for some areas of the law, such as ritual law. However, revelation can
be interpreted in varying ways, and, over time, the diversity of possible
interpretations has produced a wide array of positions on almost every point of
law. In the premodern period, the ʿulamāʾ (Muslim religious scholars) held a
monopoly over interpretation of the law, but, since the 19th century, their
monopoly has been challenged by Westernized elites and laypeople. The
question of which interpretations become normative at any given time is
complex. Early Western studies of Islamic law held the view that while Islamic
law shaped Muslim societies, the latter had no influence on Islamic law in
return. However, this position has become untenable. Social pressures and
communal interests have played an important role in determining the practice of
Islamic law in particular contexts—both in the premodern period and to an even
greater extent in the modern era.
Historical development of Muslim Law
For the first Muslim community, established under the leadership of the Prophet
Muhammad at Medina in 622, the Qurānic revelations laid down basic
standards of conduct. But the Qurān is in no sense a comprehensive legal code:
only about 10 percent of its verses deal with legal issues. During his lifetime,
Muhammad, as the supreme judge of the community, resolved legal problems
as they arose by interpreting and expanding the general provisions of the Qurān,
thereby establishing a legal tradition that was to continue after his death. With
the rapid expansion of the Islamic realm under Muhammad’s political
successors, the Muslim polity became administratively more complex and came
into contact with the laws and institutions of the lands that the Muslims
conquered. With the appointment of judges, or qadis, to the various provinces
and districts, an organized judiciary came into being. The qadis were
responsible for giving effect to a growing corpus of administrative and fiscal
law, and they pragmatically adopted elements and institutions of Roman-
Byzantine and Persian-Sāsānian law into Islamic legal practice in the conquered
territories. Depending on the discretion of the individual qadi, judicial decisions
were based on the rules of the Quran where these were relevant, but the sharp
focus in which the Quranic laws were held in the Medinan period was lost with
the expanding horizons of activity.
Muslim jurisprudence, the science of ascertaining the precise terms of the
Shariah, is known as fiqh (literally, “understanding”). Beginning in the second
half of the 8th century, oral transmission and development of this science gave
way to a written legal literature devoted to exploring the substance of the law
and the proper methodology for its derivation and justification. Throughout
the medieval period, the basic doctrine was elaborated and systematized in a
large number of commentaries, and the voluminous literature thus produced
constitutes the traditional textual authority of Shariah law.
Development of Muslim law in regard to
Marriage
Marriage under Islam is a matrimonial relation and an institution which
legalizes the sexual activities between a male and female for the object of
procreation of kids, promotion of love, mutual support and creation of families
which are considered an essential unit in a society. Just like Hinduism, Islam is
also a strong advocate of marriage. However, the Muslim conception of
marriage differs from the Hindu conception according to which marriage is not
a mere civil contract but a sacrament. According many philosophers, marriage
in Islam is a religious duty. Everyone must marry in order to fulfil one’s desire
of procreation of kids legally.
The general essentials of a Muslim Niqah are:
● Parties must have capacity to marry.
● Proposal (ijab) and acceptance (qubool).
● Free consent of both the parties.
● A consideration (mehr).
● No legal Impediment.
● Sufficient witnesses (different in shia and sunni).
Classification of Marriage
Valid (sahih)
When all the legal requirements are fulfilled and there are no prohibitions
affecting the parties, then the marriage is correct or ‘sahih’. The prohibitions
can be permanent as well as temporary, in case of permanent prohibitions: the
marriage will be void and if the prohibitions are temporary then the marriage is
irregular.
Effects of a valid marriage:
● The cohabitation between the husband and the wife becomes lawful.
● The children born out of a valid marriage are legitimate and they have
right to inherit their parent’s properties.
● Mutual rights of inheritance between husband and wife are established.
That is to say, after the death of the husband, the wife is entitled to
inherit the husband’s properties and after the wife’s death, husband
may also inherit her properties.
● Prohibited relationship for purposes of marriage is created between
the husband and wife and each of them is prohibited to marry the
relations of the other within prohibited degrees.
● The wife’s right to claim dower is fully established just after the
completion of marriage.
● The marriage gives to the wife also the right of maintenance from her
husband with immediate effect.
● After the dissolution of the marriage, the widow or the divorced wife is
under an obligation to observe the Iddat, during which she cannot
remarry.
Void (Batil)
The marriage being void ab initio creates no rights or obligations and the
children born out of such marriage are illegitimate. A marriage forbidden by the
rules of blood relationship, affinity or fosterage is void. Similarly, a marriage
with the wife of another or a divorced wife during iddah period is also void.
Irregular (Fasid)
Due to lack of some formality, or the existence of an impediment which can be
rectified, a marriage becomes irregular, However, this irregularity is not
permanent in nature and can be removed. Thus, the marriage itself is not
unlawful. It can be made valid once the prohibitions are rectified. Marriage in
such circumstances or with following prohibitions are called ‘Fasid’.
1. A marriage contracted without required number of witnesses;
2. A marriage with women during her Iddat period;
3. A marriage with women without the consent of her guardian when
such consent is considered necessary;
4. A marriage prohibited on account of difference of religion;
5. A marriage with a woman who is pregnant, when the pregnancy was
not caused by adultery or fornication;
6. A marriage with a fifth wife.
Muta or Nikah mut’ah
The term literally means “pleasure marriage”. Muta marriage is a temporary
agreement for a limited time period, upon which both the parties agreed. There
is no prescribed minimum or maximum time limit, it can be for a day, a month
or year(s). The marriage dissolves itself after the expiration of the decided
period, however if no such time limit was expressed or written, the marriage
will be presumed permanent. This type of marriage is seen as prostitution by the
Sunni Muslims and thus, is not approved by Sunnis.
However, it is considered legitimate by the Twelver Shia sect, which is
predominant in Iran and constitutes 90% of India’s Shia population. In Iran, the
word mut’ah is only from time to time utilized and this practice is called
‘sigah’. The rules for sigah are fixed for eg- the contract for temporary marriage
can be attracted for one hour to 99 years; it can’t be for an indeterminate period.
This provision distinguishes muta from nikah or lasting marriage, which has no
time limit. However, just like in nikah, in sigah too, the bride must get some
monetary benefit.
No witnesses are required for mut’ah. And just like in any other contract, the
woman being a party can lay down conditions for her sexual union throughout
this time limit, this can also include her daily maintenance. Her temporary
husband must respect these conditions. The marriage automatically dissolves at
the end of the stated period. No matter how short the duration was, the woman
has to practice abstinence lasting up to two menstrual cycles.
Interesting part is that, the temporary husband and wife can renew the contract
but the husband must regardless of this pay the amount to the bride. Husband
has a unilateral right to revoke the marriage-mark of his superior position in the
relationship. But the woman can refuse to be intimate with him or even leave
him, but in such case, she must return back the amount she received from him.
India is a country that has partially approved live-in relationships; However, it
will still be quite difficult for the Supreme Court to constitutionally invalidate
this form of marriage. In modern day era, where feminists all across the globe
see this arrangement equivalent to prostitution. There are many advocates of
Nikah mut’ah who believe that being a contract, this arrangement is superior to
the live- in relationships.
Registration of Marriage under Muslim Law
Registration of marriage in Muslims is compulsory and mandatory, as a Muslim
marriage is treated as a civil contract. According to section 3 of Muslim
Marriages Registration Act 1981- “Every marriage contracted between Muslims
after the commencement of this Act, shall be registered as hereinafter provided,
within thirty days from the conclusion of the Nikah Ceremony”. Nikahnama is a
type of legal document in Muslim marriages which contains the essential
conditions/details of the marriage.
According to this act, a Nikahnama contains:
1. Place of marriage (with sufficient particulars to locate the Place.)
a. Full name of the bridegroom
b. Age
c. Address
d. Full name of bridegroom’s father
e. Whether father is alive or dead
f. Civil condition of the bridegroom at the time of marriage whether –
Unmarried Widower Divorced Married, and if so, how many wives are
alive
g. Signature or thumb impression of the bridegroom/Vakil/ Guardian
according as the Nikah was performed in person by the bridegroom or
through his Vakil or Guardian
h. Full name of Nikah-Khan (that is the person conducting the Nikah
Ceremony.)
i. Signature of the Nikah-Khan (i.e person conducting the Nikah
Ceremony with date.)
j. Amount of dower fixed
k. Manner of payment of dower
l. Name of witnesses with parentage, residence and address
Case laws:
Mohuddin v. Khatijha1
Where consent to marriage has not been obtained, consummated against the will
of the woman will not validate the marriage.
Narul Hassan v. M. Hassan2
It was held that in the case of all the marriages which are irregular byb reason of
any defect, the children became legitimate.
1 1920 Bom. LR 4
2 AIR 1935 Lahore 622
Chand Patil v. Bismillah Khan3
The revisional court held that the personal law of the parties could not come in
the way of a muslim to pray for and obtain maintainence under section 125
CrPc. Since, an obligation is upon the appellant to maintain his wife and
children till the marriage between them was declared null and void by a
competent court. The bar of unlawful conjunction renders a marriage irregular
and not well.
Dissolution of Marriage:
There are 2 categories of divorce under Muslim law:
● Judicial
● Extra-Judicial
The Extra-judicial mode of Divorce can further be divided into 3 subdivisions:
1. By husband- talaaq, ila, and zihar.
2. By wife- talaaq-i-tafweez, lian
3. By mutual agreement- khula and mubarat
Talaaq-i-sunnat
It can further be divided into two categories:
i) Talaaq-i-ahsan
A single pronouncement of divorce is made during the period of tuhr (the period
of purity between two menstrual cycles), followed by abstinence from sexual
intercourse during the period of iddat. Here, the divorce can be revoked at any
time before the completion of iddat, thus preventing hasty and unreasonable
divorces.
3 2008 IDLJ SC 588
ii) Talaaq-i-hasan
A husband is required to pronounce a formula of Talaaq three times, during
three successive tuhrs. It is important that pronouncements are made when no
intercourse takes place during any period of tuhr. The marriage is dissolved
irrevocably, regardless to the period of iddat.
Talaaq-i-Biddat
It is a form of Islamic divorce which is instant in nature. It allows any Muslim
man to legally divorce his wife by stating the word “Talaaq” three times in oral,
written, or more recently, electronic form. This is prevalent among the Muslims
in India, especially among the adherents Hanafi school of Islam. This is also
known as “Triple Talaaq” and has been a subject to debate and controversy.
In Shayara Bano V. Union of India and Ors4. It was submitted that:
“This practice of talaq-e-biddat (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. Muslim women are subjected to such to such gross
practices which treats them as chattel, thereby violating their fundamental rights
enshrined in Articles 14, 15, 21 and 25 of the Constitution. The practice also
wreaks havoc to the lives of many divorced women and their children,
especially those belonging to the weaker economic sections of the society.
There have been many cases in High courts and the supreme court, where the
court invalidated the instant triple talaaq. In Shamim Ara V. State of U.P5, the
court observed that:
The correct law of Talaaq as ordained in Holy Quran is that:
1. There must be a reasonable cause for the divorce.
2. The declaration of divorce must be preceded by attempts of
reconciliation between husband and wife by 2 arbitrators. If the
attempts fail, then only the divorce will come into effect.
3. Supreme court in August 2017 declared Triple Talaaq as
“unconstitutional”. The Modi Government introduced a bill called The
Muslim Women (Protection of Rights on Marriage) Bill, 2017 and
presented it in the Parliament which was passed on 28 December 2017
4 AIR 1985 SC 945
5 MANU/SC/0850/2002
by the Lok Sabha. The bill makes moment triple (talaq-e-biddat) in
any structure spoken, recorded as a hard copy or by electronic
methods, for example, email, SMS and WhatsApp unlawful and void,
with as long as three years of imprisonment for the husband.
4. However, one of the principle conflicts against the proposed enactment
has consistently been its acknowledgment of a common offense as a
cognisable and non-bailable offence
Development of Muslim law in regard to
Dower
Mulla defines dower as the sum of money or the other property which the
wife is entitled to receive from her husband at the time of their marriage.
Dower is also called mehr. Dower is considered as an integral part of
marriage. It may be settled before or at the time of marriage or after the
marriage. Non specification of dower does not affect its validity.
Objectives of dower are:
1. Imposing an obligation towards the husband as a mark of respect
towards his wife
2. Placing a check on the capricious exercise of power of divorce of
thr husband
3. To provide for the subsistence of the wife after the dissolution of
marriage
There are two types of dower:
a) Specified dower which is fixed: if the amount of dower id fixed by the
parties before the marriage or at the time of marriage, it is called specified
dower or mehr-i-musamma.
The Hanafi law take the view that the amount fixed by the father is binding on
the son, and the father is not liable personally or as surety for his son while
under the Shia law, the father is liable if the son has no means. Under the Hanafi
law the wife is entitled to receive the minimum amount of dower, even if she
has agreed to receive less.
Under the Shia law and Shafii law, the wife is entitled to receive only the
amount fixed under the agreement whatever may be its quantum
Under Kukkiya begum v. Radha Kishan6, the Allahabad High court held that the
amount of dower fixed earlier maybe increased after the marriage by mutual
consent.
The specified dower is usually in two parts:
● Prompt dower
● Deferred dower
Prompt dower is payable and realisable at once after the solemnization of
marriage on demand, the wife has a right to refuse conjugal relationship to the
husband till the prompt dower is paid.
In Rabia Khatoon v. Mukhtar Ahmed7, the Allahabad high court held that the
wife may refuse to live with the husband and to admit to sexual intercourse until
the prompt dower has been paid. It was further held that prompt dower is
payable at demand and the proof sexual intercourse between the parties is not
necessary for claiming payment.
Deferred dower is payable either on the expiry of specified contingency or in
every case, on the dissolution of marriage, by death or divorce.
Proper dower:
Dower is an integral part of Muslim marriage even when dower is not
stipulated in the marriage contract, the wife is entitled to what is known as a
proper or customary dower, mahr-i- misl or mahrul-mithul.
The wife is entitled to proper dower even when at the time of marriage she had
agreed to receive no dower.
The proper dower is fixed by the court, having regard to the nobility of her
birth, the beauty of her person, and the custom of her female relations.
In other words, proper dower is fixed on the basis of custom prevailing on the
side of the wife and not the husband.
6 AIR 1944 ALL 241
7 AIR 1966 ALL 568
It was observed in the case of Abdul Kadir v. Salima8 that dower/Mahr was
the exchange or consideration given by the man to the women, but an effect of
the contract imposed by the law on the husband as a token of respect for the
wife. The term consideration is explained by Mahmood J, Mahr has been
compared to the price in a contract of sale because marriage is a civil contract
and sale is a typical contract to which Muslim Jurists are accustomed to
referring by way of analogy.
Hammeera Bibi v Zubaida Bibi9it was first time in the history of dower held
by the Privy Council that the amount whatever is unpaid during the marriage
should be paid in accordance with Islamic law and declared the right of the
women to claim the unpaid dower with the interest amount which was contrary
to the Islamic rule of law (taking of interest on loan amount).
The practices with respect payment of dower are still continuing in Islamic
Marriages Law. Payment dower continues to hold essential in Islamic
marriages. It was concluded from the case law that women have special rights to
claim her unpaid dower and husband have a legal obligation to pay such
amount. In lieu of unpaid dower, women can exercise her right to retain the
property of the husband is still conflicting. In this respect, the High Courts and
Supreme Court across the country have expressed different opinions. There is
no single position of law that they have arrived at.
As far as unpaid dower is concerned, the majority opinion suggests that unpaid
dower basically remains as a debt that must be paid by the husband to wife in
case of Muslim marriages. Additionally, the general opinion on whether a
widow has the right to
8 [1886] 8 All 149
9 , [1916] ILR ALL 581.
CONCLUSION :
