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Family Law - I

Mohammedan law – Divorce in Muslim law

For a happy family life, it is necessary that a husband and wife should have a firm union. Thus, Islam insists on the subsistence of marriage. They prescribe that the breach of marriage should be avoided. Also, in Muslim divorce when both the parties agree then the only divorce may take place.

Modes of Muslim Divorce

Muslim Divorce

                 Mohammedan Law – Divorce in Muslim Law

In Islam, the husband can divorce his wife by merely repudiating the marriage. Thus, the only pronouncement of such words is sufficient to end the marriage. So, these intentions signify that the husband wants to disown his wife.

Usually, this form is called a talaaq. But there are different forms like Ila and Zihar that are different from talaaq. Furthermore, a wife cannot divorce her husband by her own choice. Only under an agreement where the husband has devoted this right to his wife when she can act according to her choice.

Before 1939, it was almost impossible for a Muslim wife to divorce her husband. Unless there are false charges of insanity, adultery, and impotence of the husband.

Now under the Muslim marriages act of 1939, there are several grounds laid down based on which a Muslim divorce is possible. There are categories under this law. They are:

  1. Judicial divorce
  2. Extrajudicial divorce

Furthermore, there are three sub-categories in which extrajudicial divorce is divided. These are

  • By wife – talaaq-i-Hafeez
  • Husband – talaaq
  • By mutual agreement – khula

Talaaq

Talaaq in its literal sense means letting loose or setting free. Thus, in a similar way, in Muslim law, it means freedom from a bond called marriage. Also, legally this means dissolution of marriage by the husband.

Some of the conditions for a valid talaaq is free consent and capacity. Except for Hanafi law, there needs to be a free consent while pronouncing the word talaaq. While under the Hanafi law, a talaaq under the influence, compulsion, fraud, etc is also considered valid.

Every Muslim husband who is the age of puberty and is of sound mind can pronounce the word talaaq. Thus, there is no requirement of any reason for the pronouncement. While a husband who is not of sound mind and age cannot pronounce it.

By Mutual Agreement

There are two forms of divorce which can be done by mutual consent. Also, in both of the wife has to be a part of the agreement. These processes are called khula and Mubarat. By law, it is said that there should be an agreement between the spouses while dissolving where the compensation should be made by the wife to her husband out of her property.

Thus, consideration of khula becomes necessary. Once the husband gives his consent then this results in irrevocable divorce. Thus, the husband cannot have any power to reject the ‘khul’ on the basis of any consideration being not paid. The consideration can be anything from a whole or a part of it. But it cannot be any illusory.

While in Mubarat both the parties want the divorce. Thus, the proposal can be from either side. So, in Mubarat both the person wants to get rid of each other.

Solved Example on Muslim Divorce

Q. Under Mohammedan law, muta means

A. Permanent marriage

B. Temporary marriage

C. Illegal marriage

D. None of the above

Answer: B. Temporary marriage

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