Out of the divorce laws applicable to different religions in India, the law related to the marriages and divorces of Muslims is the most varied and can be challenging to understand. A comprehensive overview of the same would be beyond the scope of this article. This article shall focus on some basics of the law in India related to divorces for Muslims. For a proper and detailed understanding of the law, further reading is recommended.
The primary source of law for all Muslims is the Muslim Personal Law or the ‘Shariat’. And, whatever laws get passed in India for Muslims, have to be in consonance with the ‘Shariat’, unless it goes against the Constitution of India. Unlike the divorce laws in India for other religions, a big difference in Muslim divorce laws is the applicability of certain provisions to Shias and certain provisions only to the Sunnis.
In this article, let’s have a quick look at some of the laws related to Muslims passed by the Indian Parliament and a landmark Judgement of the Supreme Court of India in 2019 concerning the practice of Triple Talaq among Muslims. The genesis of all Muslim codified laws in India is the Muslim Personal Law (Shariat) Application Act, 1937.
Before we go ahead, it is necessary to understand the Shariat from the lens of Indian law. Asaf A.A. Fyzee, in his book ‘Outlines of Muhammadan Law,’ states that “…What is morally beautiful must be done, and what is morally ugly must not be done. That is law or Shariat, and nothing else can be law. But what is absolutely and indubitably beautiful, and what is absolutely and indubitably ugly? These are the important legal questions, and who can answer them? Certainly not man, say the Muslim legists. We have the Qur’an, which is the very word of God. Supplementary to it, we have Hadith which are the Traditions of the Prophet- the records of his actions and his sayings- from which we must derive help and inspiration in arriving at legal decisions. If there is nothing either in the Qur’an or in the Hadith to answer the particular question which is before us, we have to follow the dictates of secular reason in accordance with certain definite principles. These principles constitute the basis of sacred law or Shariat as the Muslim doctors understand it…”
Further, according to Justice Bader Durrez Ahmad in Masroor Ahmed v. State (NCT of Delhi) & Anr., ILR (2007) II Delhi 1329:
“14. In essence, the Shariat is a compendium of rules guiding the life of a Muslim from birth to death in all aspects of law, ethics, and etiquette. These rules have been crystallized through the process of ijtihad employing the sophisticated jurisprudential techniques. The primary source is the Quran. Yet, in matters not directly covered by the divine book, rules were developed looking to the hadis and upon driving a consensus. The differences arose between the schools because of reliance on different hadis, differences in consensus, and differences on qiyas and aql as the case may be.”
(For ease of understanding, please note that the one who approaches the Court is the Plaintiff. The one against whom the proceedings have been filed is the Defendant. And, a decree is a final order in a specified format)
This Act is applicable in situations where the divorce proceedings have been initiated at the instance of a woman married under Muslim law, and the proceedings take place in a Court.
As per Section 2 of the DMM, the following are some of the grounds on which, a woman married under Muslim law can file for divorce against her husband (the language may not be verbatim and has been simplified for this article):
1. The whereabouts of the husband have not been known for a period of four years;
2. The husband has neglected or has failed to provide for her maintenance for a period of two years;
3. The husband has been sentenced to imprisonment for a period of seven years or upwards;
4. 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 the marriage and continues to be so;
6. That the husband has been insane for a period of two years or is suffering from a virulent venereal disease;
7. That she, having been given in marriage by her father or another guardian before she attained the age of fifteen years, repudiated the marriage before reaching the age of eighteen years. However, the marriage must not have been consummated;
8. That the husband treats her with cruelty, that is to say, –
a. habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment or
b. Associates with women of evil repute or lead an infamous life or
c. Attempts to force her to lead an immoral life, or
d. Disposes of her property or prevents her from exercising her legal rights over it, or
e. Obstructs her in the observance of her religious profession or practice, or
f. If he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;
9. On any other ground which is recognized as valid for the dissolution of marriages under Muslim law:
Provided that –
● No decree shall be passed on the ground (3) until the sentence has become final;
● A decree passed on the ground (1) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and
● Before passing a decree on the ground (5), the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent. If the husband satisfies the Court within such period, no decree shall be passed on the said ground.
The Supreme Court of India passed a landmark judgment wherein the practice of Triple Talaq was declared to be a non-essential practice in Islam. It was therefore set aside as being unconstitutional. In the Judgement, the Supreme Court has delved very deep into the basic tenets of Islam and, more particularly, the ones governing marriages and divorces. Below is a summary of what the Supreme Court has said in the said Judgement.
It is to be understood that under Islamic law, divorce is classified into three categories. Talaq simply means divorce, which is at the instance of the husband. ‘Khula’ is another mode of divorce, which is at the instance of the wife. The third category of divorce is ‘mubaraat’, which is divorce by mutual consent. ‘Talaq’ which is at the instance of the husband, is also of three kinds – ‘talaq-e-ahsan’, ‘talaq-e-hasan’, and ‘talaq-e-biddat’, which are differentiated by the procedure, primarily the waiting periods, if any, prescribed for each kind. Amongst Muslims, ‘talaq-e-ahsan’ is regarded as ‘the most proper’ form of divorce and ‘talaq-e-hasan’ only as ‘the proper form of divorce’. The third kind of ‘talaq’ is – ‘talaq-e-biddat’ in which divorce is effective the moment the necessary words are uttered. The instant talaq, unlike the other two categories of ‘talaq’, is irrevocable at the very moment it is pronounced. Even amongst Muslims, ‘talaq-e-biddat’, is considered irregular. This kind of talaq, also known as ‘triple talaq’ or ‘instant talaq’, was declared by the Supreme Court of India as being unconstitutional and hence, illegal.
If the divorce has been initiated at the instance of the husband, then the process as per the Shariat has to be followed, and the priest shall, after the completion of the formalities as per the Shariat, prepare and sign the ‘Talaqnama’.
As the name of the Act suggests, this law protects the rights of women who have been divorced by or have obtained a divorce from their husbands with respect to the Mahr and the maintenance after the divorce which will be applicable after the completion of the period of iddat but only when the divorced woman has not remarried.
After the Judgement of the Supreme Court declaring the ‘talaq-i-biddat’ as illegal, the Government of India passed this law. The salient feature of this law with respect to divorces is that, if the Muslim husband pronounces the ‘talaq-i-biddat’, that will be considered as void and illegal. The Muslim husband then faces imprisonment for up to 3 years and shall also be liable to fine.
During the period of the husband’s incarceration, the husband shall also be ordered to pay maintenance to his wife and children, if any. And, the custody of the children shall remain with the wife. Needless to stay, the marriage does not stand terminated despite the pronouncement of ‘talaq-i-biddat.’
Having gone through this article, you must have realized that the answer to this question cannot be given unless all the details regarding the kind of talaq procedure followed are known. Giving a generic answer to this question is not possible. Only a licensed legal practitioner can advise you after having under the specific facts and circumstances of your case.
Note: Please remember that although the law is the same for all, it can never be ‘one size fits all’.