Divorce Among Muslims
As per traditional rules,a Muslim husband can divorce his wife when ever he desires without assigning any specific reasons. Divorce petition initiated by a Muslim husband is called Talak. The Talak may be oral or in writing. A divorce by Muslim husband through spoken words is oral Talak. When it is through a written document, it is called a Talaknama. For an oral Talak there are no specific words prescribed. The words of Talak should be clear and it should convey the intention of divorce. The Talak need not be pronounced in the presence of the wife.A deed of divorce by a Muslim husband is called a Talaknama. Normally Talaknama is executed in the presence of Kazi or the wife’s father or other witnesses. The Talak may be effected by a simple pronouncement or by three pronouncements. A husband may delegate the power to divorce to the wife or to a third party and such a delegate may pronounce the divorce. In general the Talak is a divorce proceeding that is initiated by a husband wherein the wife has no say in the proceedings.
Supreme Court in Shamim Ara-vs- State of UP and another has held that talak shall be preceded by attempts for reconciliation and shall be for a reasonable cause. The reconciliation between the husband and wife shall be conducted by two arbiters, one chosen by the wife from her family and the other by the husband from his family. Any talak, in violation of the same can be legally challenged by the wife. Hence there is no more absolute power on a Muslim husband to divorce his wife at his whims and fancies. The Karnataka High Court in Zulekha Begum @ Rahmathunnissa Begum -vs-Abdul Raheem held that a Mohammedan husband cannot divorce his wife at his whim or caprice.
A Muslim marriage may also be dissolved by an agreement between the husband and wife. There are two types of divorces by mutual consent: Khula and Mubarat.
In Khula divorce, the proceedings are at the instance of the wife wherein the wife agrees to give a consideration to the husband to release her from the marriage.
Mubarrat is another form of consent divorce between a Muslim husband and wife. Here the initiative may be taken from either husband or wife. This also takes place with an agreement.
A Muslim wife may file a suit for the dissolution of marriage before the competent court under the dissolution of Muslim Marriage Act 1939. The following are the grounds under which a Muslim wife can obtain a decree for the dissolution of her marriage.
1) that the whereabouts of the husband have not been known for a period of four years.
2) that the husband has been sentenced to imprisonment for a period of seven years or upwards
3) that the husband has neglected or has filed to provide her maintenance fir a period of two years.
4) that the husband has failed to perform without reasonable cause his marital obligations for a period of three years.
5) that the husband was impotent at the time of marriage and continues to be so
6) that the husband is suffering from leprosy or virulent venerable diseases.
7) That she, having been given marriage by her father or other guardian before she attain the age of fifteen years, repudiated the marriage before attaining the age of eighteen years.
Another ground for a Muslim wife to approach the court of law for dissolution of marriage is cruelty from the part of her husband. The court will consider cruelty as a ground to dissolve the marriage if the husband
a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment
b) associates with women of evil repute or leads an infamous life
c) attempts to force her to lead an immoral life
d) disposes her property or prevent her exercising her legal rights over it,
e) obstructs her in the observance of her religious profession or practice
f) if he has more wives than one, does not treat her equitably in accordance with the instructions of the Quran.
After the divorce proceedings are completed, the parties have the right to enter into another marriage. If the marriage was consummated the wife has to wait for the completion of iddat before her remarriage. If the marriage is not consummated, she may marry immediately. On divorce being completed the amount of dower due to a wife becomes immediately payable.