Shashwat Family Law.docx

DIVORCE UNDER Muslim Law of Marriage, Dower, Divorce and Maintenance

By- SHASHWAT PATHAK [ B.A.L.L.B. (Hons.) (S.F.) SEMESTER-4]

INDEX SR. No.

CONTENT

PAGE NO.

1.

INTRODUCTION

1

2.

POSITION IN PRE ISLAMIC ARABIA

2

3.

AFTER THE ADVENT OF ISLAM

3

4.

CLASSIFICATION OF DIVORCE

4

4.1 4.2

By the death of Parties By the act of Parties

4 4

5.

APOSTASY AND CONVERSION AS GROUNDS FOR DIVORCE

15

6.

LEGAL EFFECTS OF DIVORCE

17

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DIVORCE INTRODUCTION- Divorce is the legal dissolution of marriage. A divorce is among the most traumatic misfortunes for any couple. The entire process of divorce that starts from coping up with emotional ups and downs to contesting for the long awaited divorce decree for several months is definitely a tough affair to get through. Before opting for a divorce one should be aware of the fact that a divorce procedure in India extents for almost a year and in some special cases of disputes the procedure may continue for years. Since India is a land of varied religious communities having their own marriage laws, the divorce procedure too varies, according to the community of the couple seeking divorce. All Hindus as well as Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act 1955. The Muslim, Christian and Parsi communities, on the other hand, have their own laws governing marriage and divorce. Spouses belonging to different communities and c astes can seek divorce under the Special Marriage Act, 1956. There is also the Foreign Marriage Act 1969, governing divorce laws in marriages where either partner belongs to another nationality. With the advancement of time and social awareness, several ac ts have been passed by the government to make the present day divorce procedure in India more progressive with respect to gender affairs and related sensitive issues. The topic of discussion here to talk about is the Divorce under Muslim Law.

POSITION IN PRE-ISLAMIC ARABIA-

In the pre islamic times, husbands had unlimited power of divorce A husband could divorce his wife, then take her back, resume cohabitation, again divorce her and keep on repeating the process with no end (suspen sory divorce). A husband could divorce his wife anytime without assigning any reason. There was no check on the iresponsible power of the husband to divorce and a simple intimation from him to the effect that the tie was dissolved was considered sufficient. At times, he continued staying in t he same house but swear not to have intercourse with his wife. He could also hurl false charges of unchastity or adultry on her and then 2|Page

divorce her to bear the consequences of his false charges. In such cases, the intention of the husband was not to allow the woman to get security by getting married, whereas he himself got married again. Hence the kinds of divorce which prevailed in pre-islamic Arabia were nothing but sheer harrasment of women. According to Abdur Rahim, the kinds of divorces which were prevalant in the pre islamic times were Talaq, Lia, Zihar, Khulaa. A woman if divorced by any of the four kinds of dissolution of marriage, could re -marry, but only after the period of iddat. The purpose of this iddat period was biological , i.e., to ascertain the paternity of the child, in case the woman was pregnant by the husband. On the death of the husband, the period of iddat was one year .

AFTER THE ADVENT OF ISLAM-

The practise of divorce

followed by the Arabs, was stopped by trge Prophet . He said, if you pronounce Talaq for the third time, then it will become irrevocable. The Prophet restrained the unlimited power of divorce by the husban d and gave to the women the right to obtain separation on reasonable grounds. Islam has permitted divorce, but it lays emphasis on the fact that divorce should be resorted to only in unavoidable circumstances when there is no other alternative. The literal meaning of Talaq is ‘to snap off’ or to ‘separate or repudiation’. Talaq in Shari’ah means terminating with explicit or implied words the bond created by marriage contract. According to Hedaya, in its primitive sense it means ‘dismission’; in law, it signifies the dissolution of marriage or the annulment of its legality by certain Code. Divorce can occur by the act of parties, i.e., can be produced by the husband, by the wife, by mutual consent or through judicial process. The marriage can also dissolve by the death of husband or wife. According to Sunni law, a talaq may be oral or in writing. No specific formula or use of any particular word is required to constitute a valid talaq. Any expression which clearly indicates the husband’s desire to break the marriage is sufficient. It need not be made in the presence of the witnesses. According to Shias, talaq must be pronounced orally, except where the husband is unable to speak. If the husband can speak but gives it in writing, the talaq is void under Shia law. Here talaq must be pronounced in the presence of two witnesses. The words of talaq must clearly indicate the husband’s intention to dissolve the marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage.

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Under the Shari’ah Law, a marriage may be dissolved during the lifetime of the spouses in one of the following three ways, i. ii. iii.

By act of the husband called Talaq By mutual agreement, known as Khula and Mubarat By a judicial decree of separation at the instance of the wife. The death of the husband or the wife operates in law as a dissolution of the marri age.

In Furzand Hussain v. Janu Bibee, it was held that Talaq means the taking off the marriage ti by appropriate words. Muslims in India are governed by the classical law under which the hu sband has a unilateral power to divorce his wife. Apart from the husband’s unilateral right of divorce, Muslim law has given certain rights of divorce to the wife (out of Court divorce) like, Talaq-e-tafweed (delegated divorce), divorce by mutual consent i.e., Khula and Mubarat. Further, the Dissolution of Muslim Marriages Act, 1939 was passed giving Muslim women a right to claim dissolution from the Court on the grounds given under the Act.

CLASSIFICATION OF DIVORCE By the Death of Husband or Wife With the death of husband or wife, the marriage comes to an end. If the wife dies, the husband can immidiately marry, but if the husband dies, the wife has to wait till the expiry of the period of iddat ( four months and ten days) or if pregnant, till delivery to get remarried.

By the Act of Parties A. By the Husband As regards the attributes of divorce, it is of two kinds (i)

Talaq Al-Sunnat or Masnun (according to the rules laid down in the Traditions of the Prophet)

(ii)

(ii) Talaq Al-Biddat or Ghayr Masnun (not according to the rules laid down in the Traditions of the Prophet).

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Talaq-ul-Sunnat (Revocable Talaq): Talaq-ul-Sunnat is regarded to be the approved form of Talaq. It is called as Talaq- ul-Sunnat because it is based on the Prophet’s tradition (Sunna). As a matter of fact, the Prophet always considered Talaq as an evil. If at all this evil was to take place, the best formula was one in which there was possibility of revoking the effects of this evil. With this idea in mind, the Prophet recommended only revocable Talaq, because in this form, the evil consequences of Talaq do not become final at once. There is possibility of compromise and reconciliation between husband and wife. Talaq-ul-Sunnat is also called as Talaq-ul-raje. Only this kind of Talaq was in practice during the life of the Prophet. This mode of Talaq is recognised both by Sunnis as well as by the Shias. Talaq-ul-Sunnat may be pronounced either in Ahsan or in the Hasan form. (i) Talaq Ahsan (Most Proper):This is the most proper form of repudiation of marriage. The reason is twofold: First, there is possibility of revoking the pronouncement before expiry of the Iddat period. Secondly, the evil words of Talaq are to be uttered only once. Being an evil, it is preferred that these words are not repeated. In the Ahsan Talaq there is a single declaration during the period of purity followed by no revocation by husband for three successive period of purity. In this form, the following formalities are required: (a) The husband has to make a single pronouncement of Talaq during the Tuhr of the wife. Tuhr is the period of wife’s parity i.e. a period between two menstruations. As such, the period of Tuhr is the period during which cohabitation is possible. But if a woman is not subjected to menstruation, either because of old age or due to pregnancy, a Talaq against her may be pronounced any time. (b) After this single pronouncement, the wife is to observe an Iddat of three monthly courses. If she is pregnant at the time of pronouncement the Iddat is, till the delivery of the child. During the period of Iddat there should be no revocation of Talaq by the husband. Revocation may be express or implied. Cohabitation with the wife is an implied revocation of Talaq. If the cohabitation takes place even once during this period, the Talaq is revoked and it is presumed that the husband has reconciled with the wife. When the period of Iddat expires and the husband does not revoke the Talaq either expressly or through consummation, the Talaq becomes Irrevocable and final. It may be noted that the characteristic feature of the Ahsan form of Talaq is a single pronouncement followed by no revocation during the period of three month’s Iddat. Therefore, where a husband makes any declaration in anger, but realising his mistake afterwards, wants to cancel it, there is sufficient time for him to do so. Single pronouncement

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of the civil words of Talaq and sufficient opportunity to the spouses for reconciliation, are the two reasons for calling this form as the ‘most proper’ form of Talaq. (ii) Talaq Hasan (Proper):This Talaq is also regarded to be the proper and approved form of Talaq. In this form too, there is a provision for revocation. But it is not the best mode because evil words of Talaq are to be pronounced three times in the successive Tuhrs. The formalities required under this form are as under: (a) The husband has to make a single declaration of Talaq in a period of ‘Tuhr. (b) In the next Tuhr, there is another single pronouncement for the second time. It is significant to note that the first and second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, the words of Talaq become ineffective as if no Talaq was made at all. (c) But, if no revocation is made after the first or second declaration then lastly the husband is to make the third pronouncement in the third period of purity (Tuhr). As soon as this third declaration is made, the Talaq becomes irrevocable and the marriage dissolves and the wife has to observe the required Iddat. It may be noted that the important feature of Talaq Hasan is its revocability before the third pronouncement and its irrevocability after the third. In order to make an effective Talaq, the words must be uttered three times in three consecutive period of purity. In Ghulam Mohyuddin v. Khizer, a husband wrote a Talaqnama in which he said that he had pronounced his first Talaq on 15th September and the third Talaq would be completed on 15th November. He had communicated this to his wife on 15th September. The Lahore High Court held that this was a Talaq Hasan. The Court observed that the Talaqnama was merely a record of the first pronouncement and the Talaq was revocable. The Court further observed that for an effective and final Talaq, the three pronouncements must actually be made in three Tuhrs-, only a mention of the third declaration is not sufficient.

Talaq-ul-Bidaat (Irrevocable): This Talaq is also known as Talaq-ul-Bain. It is a disapproved mode of divorce. A peculiar feature of this Talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. The Prophet never approved a Talaq in which there was no opportunity for reconciliation. Therefore, the irrevocable Talaq was not in practice during his life. The Talaq-ul-Bid’at has its origin in the second century of the Islamic-era. According to Ameer Ali, this mode of Talaq was introduced by the Omayad Kings because they found the checks in the Prophet’s

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formula of Talaq inconvenient to them. Since then this mode of Talaq has been in practice among the Sunni Muslims. It came into vogue during the second century of Islam. It has two forms: (i)

the triple declaration of talaaq made in a period of purity, either in one sentence or in three,

(ii)

the other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise. This type of talaaq is not recognized by the Shias. This form of divorce is condemned. It is considered heretical, because of its irrevocability.

In Marium v. Md. Shamsi Alam, the wife left her husband’s place and went to her parent’s house because she found that the husband was negligent to her health. When the husband went to take her back, she refused to go with him. The husband became agitated and in anger he uttered Talaq three times in one breath. But later on, realising his mistake, he revoked the Talaq within the period of Iddat. It was held by the Allahabad High Court that although the word “Talaq” was uttered thrice, but since they were pronounced in one breath it is to be interpreted as one single pronouncement. It was observed by the court that in this case the Talaq was in the Ahsan form which was revocable. As the husband expressly revoked the Talaq before the Iddat he cannot be said to have intended the divorce seriously. The marriage was, therefore, not dissolved and the wife had to accompany the husband. In this case the court has interpreted the rules of Muslim law liberally in order to discourage hasty and unconsidered divorces. It is significant to note that in the recent years Talaq-ul-Biddat has become a subject of criticism among the jurists and the Indian Courts have attempted to discourage it. In Rahmat Ullah v. State of U.P., the Allahabad High Court has observed that an irrevocable Talaq (Talaq-e-Biddat) is unlawful because this kind of Talaq is against the dictates of the Holy Quran and is also against the provisions of the Constitution of India.

Ila/Aila (Vow of Continence): In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve.Under Ithna Asharia (Shia) 7|Page

School, Ila, does not operate as divorce without order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband. In Bibi Rehana Khatun v. Iqtidar-uddin Hasan, it was held that, a vow is a solemn thing and should not be taken in a moment of excitement. If the words are not express, the intention to effect a divorce must be proved. Illa is not practised in India.

Zihar (Injurious Comparison) In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete. After the expiry of fourth month the wife has following rights: (i) She may go to the court to get a decree of judicial divorce (ii) She may ask the court to grant the decree of restitution of conjugal rights. Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce. It can be revoked if: (i) The husband observes fast for a period of two months, or, (ii) He provides food at least sixty people, or, (iii) He frees a slave According to Shia law Zihar must be performed in the presence of two witnesses. Although Zihar is no more prevalent anywhere.

B. By the Wife Talaq-i-Tafweed (Delegated Divorce) Also known as delegated divorce (recognized among both, the Shias and the Sunnis). The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently. A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated.

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It should be noted that even in the event of a contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of contingency does not result in automatic divorce. Islam gave wife a right to initiate the process to come out of marital bond or seek for divorce on the grounds recognized under Muslim Law (or Shariya law). It is no more exclusive domain of a husband to end the marriage contract by unilaterally pronouncing Talaq. Though, the wife does not have a right to pronounce Talaq unless such a power is delegated to her by her husband at the time of contracting marriage, all the same she is given a right to seek divorce through intervention of Qazi (court) on the grounds pleaded by her, or by mutual consent on the terms agreed by the parties. This is the exercise of the right of divorce by Talaq by the wife through the power delegated to her by her husband who is of age at the time of the marriage or even after.The delegation of the right of divorce by the husband in favor of the wife may be conditional or unconditional. But, it is not however revocable. It has also been held that the mere fact that the husband has delegated to the wife the power of pronouncement of her own Talaq did not deprive the husband of his right to pronounce Talaq. In Talaq-i Tafweed, wife needs to purchase divorce from her husband as husband’s consent is essential for tafweez.In this, husband delegates his right of giving divorce to any person, as an agent even to his wife, and that person is possessed with the right of pronouncing a divorce on behalf of the husband. A divorce through Talaq-i-Tafweez might be dependent upon the contingency of happening or not happening of a condition and that condition is mostly when men are cruel to their wife or incapable of taking care of her financially. The right of re-marriage of the divorced couple whose marriage is dissolved Talaq by the wife must naturally depend upon the mode of talaq chosen by the wife. Delegation by the husband of the power of divorce has been classified into; 

 

Tafweed or delegation- wife to whom the power is delegated has absolute right to exercise the power as she chooses in respect of her person. This power cannot be revoked by the husband. Tawkeel or agency- an agent is appointed by the husband to divorce his wife on his behalf. Risalah- the husband appoints a person as his messenger, to convey his message to the wife that he has delegated his power of divorce to her.

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If the husband delegates the power to the wife of divorcing herself from him on the happening of a contingency, the marriage does not get automatically dissolved once the contingency happens. It was held in Mirjan Ali v. Mst. Maimuna Bibi that in such cases there should be a formal pronouncement of Talaq and it should be made either to the husband or in the presence of witnesses. In Ayatunnisa Bibi v. Meer Ashad Ali, a question was raised as to whether a wife, who has been given power by her husband to terminate the marriage in the event of her husband taking a second wife, looses her option by failing to exercise it the very moment she knows he has done so. The Court held that this right is a continuing right and the wife does not loose the same if she does not exercises it immidiately after knowing the fact that husband has committed a breach of the stipulation in the contract.

C. BY JUDICIAL PROCESS FASKH In Islamic law the right of terminating the marriage through a Talaq has been given to the husband. There is great wisdom in this teaching of Islam. Not withstanding the above, Islam has also taken into consideration the fact that a husband may sometimes abuse the power given to him and cause his wife undue distress by refusing to release her from marriage, despite the objectives of the marriage not being achieved. In these circumstances Islam has given the wife an opportunity to seek relief from such oppression. However, it is important to bear in mind the severe warnings directed to a wife who unduly seeks a divorce. Rasulullah r has mentioned that the fragrance of Jannah is Haram for a woman who seeks a divorce without a valid reason (Musnad Ahmad). Importantly a woman must exhaust all possible avenues of reconciliation prior to considering Faskh. Faskh is resorted to as an absolute last resort when all other mechanisms have failed. Valid Grounds for Faskh The following constitute some of the common valid grounds for Faskh: 1. Absent husband: absconding or missing 2. Failure to provide maintenance: inability or refusal 3. Serious health condition or Disease: insanity, leprosy, impotency, HIV or any such disease that could endanger the wife 4. Severe abuse: Physical or other 5. Gross neglect and/or undesirable conduct: spouses fear inability to fulfill the limits

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prescribed by Allah 6. Lengthy imprisonment

Lian If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for a divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian. Here is the procedure of divorce under Muslim law of Lian   

Allegation of adultery (zina) by the husband upon wife. A regular suit to be filed by the accused wife before the Family court. If husband retracts or justifies the allegations are proved and a proper ground for divorce is justified. However, if the husband insists on his charges of adultery committed by his wife then, further, four oath are to be taken by the husband and subsequently four oath by the wife to prove her innocence and if proven, she is entitled to divorce.

This was the procedure on how to get a divorce from husband by Muslim women in India by the method of Lian.

Dissolution of Muslim Marriage Act,1939 Tafweez and Lian are not the only two modes which confer on the Muslim wife the right to seek divorce and that too through the instrumentality of the Court. Impotency of the husband has also been recognized as a ground for dissolution. On no other ground, however valid or reasonable it may be, the Muslim law allows the Muslim women to snap the marital tie on her own accord. It is in order to relieve the Muslim women from the miseries of misfit marriages, the Dissolution of Muslim Marriage Act 1939 came into existence. Both the customary obligations and statutory obligations are put forwarded on a parallel plane before granting a divorce. As per the rules, here are the ways in which a Muslim woman in India can divorce under Dissolution of Muslim Marriage Act, 1939 – Section 2(i)- When a husband goes missing for a period of 4 months, that is to say, the whereabouts of the husband have not been known for a period of four years. If a woman files for a divorce under this provision on 1.01.2017 and her husband appears within 6 months of 11 | P a g e

pronouncement of the decree, i.e within 30.06.2017 by himself or through his agent and satisfies the court that he is willing to perform his conjugal duties, the court will set aside the divorce. Section 2(ii) A divorce can be granted when the husband has neglected or has failed to provide for her maintenance for a period of two years. Section 2(iii) When the husband has been sentenced to imprisonment for a period of seven years or upwards. No divorce is to be granted until and unless the sentence is proved by the proper court. Section 2(iv)When the husband was impotent at the time of the marriage and continues to be so provided the court will call the husband in this case to justify his stand. Section 2(v)When the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease. (a disease that is contracted and transmitted by sexual contact, or that are transmitted via semen, vaginal secretions, or blood during intercourse) Section 2(vi)When woman having been given in marriage by her father or another guardian before she attained the age of fifteen years, recalled the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated (when sexual relationship have not yet been established). Section 2(vii)Cruelty toward wife is also a ground for divorce. Cruelty is when the husband does any one of the following     

Habitually assaults her or makes her life miserable by cruelty even if such conduct does not amount to physical ill-treatment. Associates with women of evil repute or leads an infamous life. Attempts to force her to lead an immoral life. Disposes of her property or prevents her exercising her legal rights over it. Obstructs her in the observance of her religious profession or practice. If he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.

In Syed Ziauddin v. Parvez Sultana, Parvez Sultana was a science graduate and she wanted to take admission in a college for medical studies. She needed money for her studies. Syed Ziaudddin promised to give her money provided she married him. She did. Later she filed for divorce for non-fulfillment of promise on the part of the husband. The court granted her divorce on the ground of cruelty. Thus we see the court’s attitude of attributing a wider meaning to the expression cruelty.

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In Zubaida Begum v. Sardar Shah, a case from Lahore High Court, the husband sold the ornaments of the wife with her consent. It was submitted that the husband’s conduct does not amount to cruelty. In Aboobacker v. Mamu koya, the husband used to compel his wife to put on a sari and see pictures in cinema. The wife refused to do so because according to her beliefs this was against the Islamic way of life. She sought divorce on the ground of mental cruelty. The Kerela High Court held that the conduct of the husband cannot be regarded as cruelty because mere departure from the standards of suffocating orthodoxy does not constitute un-Islamic behaviour. In Itwari v. Asghari, the Allahabad High Court observed that Indian Law does not recognize various types of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on, and that the test of cruelty is based on universal and humanitarian standards; that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health.

D. By Mutual Consent Khula A Muslim woman has a right to ask for a divorce if she does not desire to live with her husband even where he is not at fault. It may be dissolved by an agreement between the husband and the wife called khula. In accordance with the terms and conditions between the husband and the wife, the wife may agree to relinquish part or whole of her dower amount or any other benefit that may be agreed upon between the two. Once the offer is accepted by the husband it operates as an irrevocable divorce. However, a woman may not compel her husband to give her divorce under khula and even a suit to that effect is not maintainable in law. It is only the husband or his agent who may agree to khula and neither the court nor the qazi is competent to do it. Once a khula has been accepted by the husband and affected, the husband has no power to cancel it on the ground that the consideration has not been paid and his remedy is to sue the wife for it. Under Hanafi Law, a Khula under compulsion or by a person in a state of intoxication is valid. In Vadaka Vitil Ismail v. Odakel, court held that there is no objection under the Muslim law to grant the wife Khula divorce at her request when both husband and wife disagree and apprehend that do not perform the duties incumbent upon them by virtue of the marriage relation. For any reason if the Khula fails, the right to dower revives.

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Mubarat is also a form of dissolution of a marriage contract. It signifies a mutual discharge from the marriage claims. In mubarat the aversion is mutual and both the sides desire separation. Thus it involves an element of mutual consent. In this mode of divorce, the offer may be either from the side of wife or from the side of the husband. When an offer mubarat is accepted, it becomes an irrevocable divorce ( talaq-ul-bain) and iddat is necessary. Muslim law favours more husband than wife when it comes to divorce. Husband has been given more powers to dissolve the marriage in their own instances. Triple talaq is one of the worst forms of talaq where uttering of words by husband three times would result in the dissolution of marriage and wife has no remedy against unreasonable use of such right but this form or Triple-Talaq had been declared unconstitutional by Supreme Court. Under an agreement, the wife may divorce her husband either by Khula or Mubarat. Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery, insanity or impotency of the husband. Even with the advent of such legislation wives are not on the same pedestal with husband. They have not been provided same right so due to such procedure, it is always unfavourable to wife. On the instances of the delegated power of divorce, Faizee observes, “this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India”. The Shia law is stringent though. It requires that both the parties must bona fide find the marital relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word talaaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words. Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required.

APOSTASY & CONVERSION AS GROUNDS FOR DIVORCE conversion could have the following legal effects on the marriage: (i) (ii) (iii)

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An automatic dissolution of the marriage. A ground for divorce at the instance of the non-convert. A ground for divorce at the instance of the convert

As to, (i), though there is no statutory provision to that effect in any of the personal laws, under the Islamic law, a husband who renounces Islam is an apostate, and as such,, his marriage with his Muslim wife is dissolved ipso facto According to Mulla, apostasy of the husband from Islam operates as a complete and immediate dissolution of the marriage.As to (ii), conversion is a ground available for divorce and judicial separation at the instance of the non-convert under all the personal law statutes. As to (iii), the converts Marriage Dissolution Act, 1866, which seeks to legalise, under certain circumstances, the dissolution of marriage of converts to Christianity, is the only relevant statute. Prior to the enactment of the Dissolution of Muslim Marriages Act, 1939 (DMMA), conversion of either spouse had the effect of automatic dissolution of the marriage under the Muslim personal Law. The present law however. is different and it makes a difference between a Muslim wife who was before her marriage a non-Muslim and a wife who was a Muslim before marriage. In the former case, the conversion of the wife would result in instant dissolution of the marriage. In other words, if a woman converts to Islam from some other faith and then re-embraces her former faith, then it will have the effect of immediate dissolution of her marriage. To take an example. a Muslim male marries a woman who was a Hindu prior to marriage but she Converts to Islam and gets married. After sometime, she renounces Islam and converts to Christianity. This will not ipso facto dissolve the marriage, because she has not reembraced her former faith, viz., Hinduism. Had she re-embraced Hinduism, it would have had the effect of immediate dissolution of the marriage bond.

Thus, in Munavvar-ul-Islam v. Rishu Arora, a Hindu wife converted to Islam at the time of marriage. On her re-conversion back to her original faith viz Hinduism. her marriage stood dissolved. Her case falls under the second proviso to s. 4 of the Act, and the pre-existing Muslim Personal Law under which apostasy of either party to a marriage ipso facto dissolves the marriage, would apply.

In the case of a Muslim married woman, her renunciation of Islam or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. Thus, if she remarries before the dissolution of her marriage, she can be prosecuted. bigamy. However, even after such reconciliation or conversion, the woman is entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in s. 2 of the Act, viz, unknown whereabouts of the husband, neglect, imprisonment of husband, failure to perform marital obligations, impotency, insanity, and cruelty. She can also exercise her option of puberty by repudiation of the marriage. The husband's apostasy is not a ground on which she may seek dissolution.

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If a husband renounces Islam, the marriage stands automatically dissolved. Thus if his wife remarries even before the expiry of iddat, she will not be guilty of bigamy under s.494 of the Indian Penal Code, 1860. in Abdul Ghani v/s Azizul Huq. a Muslim man and woman got married. After sometime, the husband embraced Christianity but reverted to Islam during the wife's iddat. Before the expiry of the iddat period, however, the wife got married to another man. The first husband thereupon filed a complaint against the wife, her father and her second husband under s.494. It was held that no offence had been made. The court remarked: Whatever view be taken of the uncertain status of the parties during the period of iddat and however illegal and void under Mohammedan law the second marriage of the woman during the period of iddat may be, there is no foundation for any charge under. s 494 of IPC against her. Her second marriage is not void by reason of its taking. place during life of prior husband but by reason of special doctrine of the Mohammedan law of iddat with which the Indian Penal Code has nothing to do.

(1) Apostasy by Husband: If a Muslim husband renounces Islam the marriage dissolves immediately. Section 4 of the Dissolution of Muslim Marriages Act, 1939, does not apply to apostasy by a husband. The result is that apostasy by the husband is still governed by the old law under which renunciation of Islam by the husband operates as immediate dissolution of the marriage. Where a Muslim husband converts to another religion (say Christianity), his marriage is immediately dissolved and the wife ceases to be a Muslim wife of that husband. As such, the wife is not governed by Muslim law and is free to marry another person (immediately) without waiting for the Iddat period.

(2) Apostasy by Wife: If a Muslim wife renounces Islam, the marriage is not dissolved. In other words, the apostasy by a Muslim wife does not operate as immediate dissolution of the marriage. She continues to be a wife married under Muslim law. Moreover, even after renouncing Islam, if the wife wants, she may obtain a decree for the dissolution of her marriage on any of the grounds specified in Section 2 of the Act.

(3) Exception: The provision given in (2) above, does not apply if the wife was not a Muslim by birth. That is to say, where the wife was a converted Muslim at the time of her marriage, and such converted Muslim wife renounces Islam and again embraces her original religion, and then

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the marriage dissolves immediately. Thus, an apostasy by a converted Muslim wife results in the immediate dissolution of her marriage.

LEGAL EFFECTS OF DIVORCE

(1) Cohabitation becomes illegal:Cohabitation between the husband and wife becomes unlawful after completion of the divorce. (2) Iddat:The wife is required to observe an Iddat of three lunar months after the divorce or, if pregnant, till the delivery of the child. However, if the divorce takes place before consummation, the wife need not observe Iddat. (3) Maintenance during Iddat:During the period of Iddat, the divorced wife is entitled to be maintained by her former husband. Maintenance of divorced wife is now governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986. Under this Act to the former husband is liable to maintain the divorced wife only upto the period of Iddat. (4) Right to Contract another Marriage:Both the parties are free to contract another marriage with other persons. Thus, husband can marry another woman immediately after the divorce. But a divorced wife cannot marry another husband before the expiry of the period of Iddat. If their marriage had dissolved before the consummation, the wife is also free to contract another marriage immediately after the divorce. However, if the husband has four wives at a time and one of them has been divorced, the husband too cannot contract another marriage during the Iddat of the divorced wife. (5) Dower:The unpaid dower becomes immediately payable to the divorced wife. Whether the dower is prompt or Deferred, the divorced wife is entitled to it immediately after the divorce. If the marriage was consummated, she is entitled to the full amount of her Specified Dower; if the divorce takes place before consummation then she is entitled to only half of the

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Specified Dower. Where dower was not specified, she is entitled to Proper Dower; but if divorce takes place before consummation, she is entitled to get only some presents. It is to be noted that Section 5 of the Dissolution of Muslim Marriages Act, 1939, provides that the Act does not affect, in any manner, the right to dower which a married woman may have under Muslim law on the dissolution of her marriage. Therefore, where a wife seeks a judicial divorce under this Act her right to claim dower is not lost; she is entitled to dower in accordance with the rules of Muslim personal law.

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