What Is The Procedure For Muslim Divorce?
Our team conducts a comprehensive discussion on divorce from an Islamic perspective, highlighting the valid and non-valid reasons for Muslim couples to seek divorce. We carefully identify the legitimate grounds for divorce, as well as those that are not considered acceptable according to Islamic teachings.
Conditions of Talaq:
- Capacity
- Free Consent
- Formalities under Sunni Law
- Formalities under Shia Law
- Express Words
How Y/our Lawyer helps in the procedure of Muslim Divorce?
Our consultant will discuss the issue over a 24X7 helpline .
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Our consultant will discuss the issue over a 24X7 helpline .
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A detailed analysis of your case will be done by an experienced lawyer.
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You will be able to track your case with a personal account
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How Y/our Lawyer helps in the procedure of Muslim Divorce?
Our consultant will discuss the issue over a 24X7 helpline .
Step 1
Our consultant will discuss the issue over a 24X7 helpline .
Step 1
A detailed analysis of your case will be done by an experienced lawyer.
Step 2
You will be able to track your case with a personal account
Step 3
Overview
Despite divorce being acknowledged in various religions, Islam stands out as one of the first religions to explicitly recognize divorce as a legitimate means of ending a marriage. In pre-Islamic Arabia, divorce was often employed as a form of punishment, with husbands possessing unrestricted power to dissolve their marriages. Recognizing the prevalent social and moral injustices, as well as the need to ensure the stability of marriages without compromising individual freedom, the Prophet of Islam sought to address these issues.
The Muslim divorce law gives rise to two significant topics for discussion. Firstly, there is the issue of the manner in which divorce is initiated, specifically the practice of triple pronouncement of divorce. This practice warrants examination and exploration of its implications.
Secondly, the matter of gender disparity in relation to the right to divorce arises. It is important to analyze and address any existing inequalities or discrepancies in the rights granted to men and women in divorce proceedings.
Different Types Of Talaq Practiced By Muslims
Talaq-ul-Sunnat (Approved Mode/Revocable Talaq):
Talaq-ul-Sunnat is a recognized form of divorce that is carried out in accordance with the traditions (Sunna) of the Prophet. It is also known as Talaq-ul-raje.
It can be further categorized as:
- Ahsan (Most Proper): Ahsan is considered the most proper form of divorce for two reasons. Firstly, the pronouncement can be revoked before the completion of the Iddat period. Secondly, the severe words of divorce are to be spoken only once, and it is preferable not to repeat them as they carry negative connotations.
In Ahsan Talaq, there is a single pronouncement of divorce during the wife’s period of purity, followed by no retraction by the husband for three consecutive periods of purity.
- Hasan (Right): Hasan is not considered the best mode of divorce since the severe words of divorce must be pronounced three times during the subsequent Tuhrs (periods of purity).
Talaq-ul-Biddat:
Talaq-ul-Biddat is an irregular form of divorce that is not approved by the Prophet. It is regarded as a Bidat, meaning it is considered a disapproved, wrong innovation, or forbidden practice from a religious standpoint. It is strongly condemned, disapproved, and even declared sinful. However, it is considered legally effective.
Talaq-ul-Biddat, also known as Talaq-ul-Bain or Talaq-ul-mughallazah, is an irrevocable form of divorce. It can be pronounced as a triple divorce or a single irrevocable talaq.
The pronouncement of Talaq-ul-Biddat by the husband can be made during the wife’s period of purity or even during her menstrual period. It can be declared regardless of whether the husband has had sexual intercourse with her since her last menstruation. The husband does not consider the period of purity or abstain from intercourse in this form of divorce. According to Hedaya, if a man divorces his wife during her menstrual period, it is considered valid. Although divorcing during the menstrual period is disapproved, it is still considered lawful. Talaq-ul-Biddat is an irrevocable form of divorce, and no changes can be made once it is pronounced.
Divorce Under Muslim Law, 1939
Following are the grounds of Divorce under Section 2 of the Muslim Law 1939
- A woman married under Muslim law has the right to obtain a decree for the dissolution of her marriage if her husband’s whereabouts are unknown for four years; however, a decree issued on this basis will not take effect for six months from the date of the decree; if the husband appears in person or through an authorized agent within that time and convinces the court that he is ready to perform his conjugal duties, the court must grant the decree.
- A married Muslim woman can get a divorce decree if her husband has neglected or failed to provide for her maintenance for a period of two years.
- If the husband has been sentenced to seven years or more in jail, the woman has the right to have her marriage annulled by the Court, but no ruling can be issued until the sentence has become official.
- The wife can have her marriage dissolved by a decree if the husband has failed to perform his marital obligations for three years without justifiable cause.
- The wife is entitled to a judicial divorce for the dissolution of her marriage if the husband was impotent at the time of the marriage and continues to be so. Before granting such a decree on this cause, the Court shall, upon the husband’s application, make an order requiring the husband to satisfy the court within one year of the date of such order that he has ceased to be impotent, and if he does so, no judgment on this ground shall be passed.
- The wife may seek a judicial divorce under the Act if the husband has been mad for two years or is suffering from leprosy or a virulent venereal illness. It’s worth noting that leprosy and virulent sickness don’t have to be two years old; in fact, they can be rather recent.
- She is entitled to a divorce if she was given in marriage by her father or other guardians before the age of 15 years and the marriage was not consummated since he repudiated it before reaching the age of eighteen.
- Husband’s Cruelty
- A decree for the dissolution of her marriage on any other cause recognized as valid for the dissolution of marriage under Muslim law is likewise available to the wife. For example, a wife may seek her divorce by legal order based on a false claim of infidelity leveled against her (Lian).
Divorce's Legal Consequences
Irrespective of the mode of divorce, the below are legal effects on the parties’ rights and obligations that follow divorce:
Once a divorce has become final and irreversible, both parties are free to enter into another marriage contract. If the marriage was consummated, the wife is required to observe the Iddat period before marrying another spouse. However, if the marriage was not consummated, she is free to marry immediately without observing the Iddat period.
In the case of a consummated marriage, the wife is entitled to the immediate payment of all unpaid dower, including both the immediate and delayed portions.
Upon the final and irreversible divorce, reciprocal inheritance rights between the divorced couple come to an end.
After a divorce has become irreversible, cohabitation between the divorced couple becomes illegal, and any children born out of such a relationship are considered illegitimate. These children cannot be legitimized through acknowledgment.
In the case where the husband has divorced the wife by pronouncing three declarations of divorce, remarriage between the divorced couple is not legally permissible unless the following steps are followed:
- After observing the Iddat period, the wife must enter into a lawful marriage with another husband.
- This interim marriage must be consummated.
- The second husband must either declare divorce or pass away.
- The wife must observe the Iddat period again after the second divorce or the death of the second husband.