Kinds of Divorce under Muslim Law

Divorce, in its simplest sense, means the legal dissolution of a marriage. The word “divorce” comes from the Latin term divortium, which means to separate or to turn aside. In Muslim law, marriage is regarded as a civil contract, and like any contract, it can be ended by either party or by mutual consent. The process and rights relating to divorce in Muslim law are unique and have evolved over centuries, taking into account religious scriptures, customs, and legislative reforms.

What are the Different Types of Divorce under Muslim Law

Muslim law recognises multiple forms of divorce, which can be classified broadly into:

• Divorce by husband
• Divorce by wife
• Divorce by mutual consent
• Divorce by judicial decree

Divorce by Husband

Talaq

The most well-known form of divorce under Muslim law is talaq. Literally, “talaq” means repudiation. It refers to the unilateral right of the husband to end the marriage by pronouncing divorce. In traditional Muslim law, a husband could pronounce talaq without providing any reason, though Islamic teachings recommend restraint and efforts at reconciliation.

There are different forms of talaq, and the rules may vary slightly between the Sunni and Shia sects. Let’s look at the main types i.e. Talaq-ul-Biddat and Talaq-ul-Sunnat:

Talaq-ul-Sunnat

This is the “approved” form of talaq, carried out according to the traditions of the Prophet. It is subdivided into two types:

• Talaq-i-Ahsan: The husband pronounces talaq once during a period when the wife is not menstruating (tuhr). After this single pronouncement, the wife must observe an iddat period of three menstrual cycles. If the couple resumes marital relations during the iddat, the divorce is revoked. If no reconciliation occurs, the divorce becomes final after iddat. Considered the most proper and preferred form, as it allows time for reflection and possible reunion.
• Talaq-i-Hasan: The husband pronounces talaq three times, once in each of three consecutive periods of purity (tuhr). After each pronouncement, there must be no sexual relations. The first and second pronouncements can be revoked, either by words or by resuming relations. If the third pronouncement is made without reconciliation, the divorce becomes final and irrevocable. Like Ahsan, this form also provides an opportunity for the parties to rethink and reconcile.

Talaq-ul-Biddat (Triple Talaq)

This is an “instant” form of divorce, where the husband pronounces talaq three times in one sitting or during a single tuhr. The marriage ends immediately and irrevocably, without any waiting period for reconciliation. This form has been widely criticised for being harsh and unjust to women. In India, talaq-ul-biddat (triple talaq) has been declared unconstitutional by the Supreme Court in the Shayara Bano v. Union of India (2017) case. It is now void, and its pronouncement does not dissolve the marriage.

Ila

Ila is a rarely practised form of divorce. In this form, the husband takes an oath not to have sexual relations with his wife and abstains for four months. If he sticks to his oath and does not resume marital relations within this period, the marriage is automatically dissolved. However, if the husband resumes relations within four months, the ila is cancelled, and the marriage continues.

Zihar

Zihar is another old and rarely used form of divorce. Here, the husband compares his wife to a female relative within prohibited degrees (such as his mother or sister), implying that she is as forbidden to him as that relative. After such a declaration, the wife can refuse cohabitation until the husband performs an act of penance (expiation). If he fails to do so, the wife can approach a court for divorce.

Divorce by Wife

Historically, Muslim law gave limited rights to the wife to seek divorce. However, over time and especially after legislative reforms, women have been granted specific avenues to dissolve their marriage.

Talaq-e-Tafweez (Delegated Divorce)

This form of divorce is recognised by both Sunni and Shia schools. In talaq-e-tafweez, the husband delegates the power of divorce to his wife, either absolutely or conditionally. For instance, the marriage contract may specify that the wife can divorce herself if the husband takes a second wife or neglects her.

Key Points

• The delegation can be made at the time of marriage or after marriage.
• The power may be absolute (wife can use it at any time) or conditional (wife can use it if a certain event occurs).
• Once the wife exercises this power as per the agreement, the marriage dissolves.

Lian

Lian arises when the husband falsely accuses his wife of adultery. If the wife feels aggrieved by the accusation, she can approach a court to seek divorce. The process involves the husband swearing four times to the truth of his allegation and the wife swearing four times in her defence. If the husband cannot prove the charge and persists, the court can grant a divorce. This provision acts as a safeguard for women against baseless moral accusations.

Divorce by Mutual Consent

Divorce by mutual consent reflects the idea that if both parties no longer wish to remain married, they should have the freedom to end their relationship amicably. Muslim law recognises two such forms: Khula and Mubarat.

Khula

Khula is a form of divorce initiated by the wife, but it requires the husband’s consent. The wife offers to return her mehr (dower) or provides some compensation in exchange for her release from the marriage. Once the husband agrees, the marriage is dissolved. The wife must observe the iddat period after the divorce.

Key Features of Khula:

• The offer for khula is made by the wife and accepted by the husband.
• The wife relinquishes her financial claims (mehr) or gives other compensation.
• It is irrevocable once finalised.
• Khula is recognised in both Sunni and Shia law.

Mubarat

Mubarat means “mutual release.” Here, both husband and wife agree that they no longer wish to live together and want to end the marriage. The offer can come from either side, and once accepted, the divorce is complete. Like khula, mubarat is irrevocable and the wife must observe iddat.

Distinction between Khula and Mubarat:

• In khula, the wife initiates the divorce; in mubarat, either party can initiate.
• In mubarat, there is no need for compensation or the return of mehr, unless mutually agreed.
• Both forms require the free consent of both parties.

Judicial Divorce (Faskh)

The Dissolution of Muslim Marriages Act, 1939, was enacted in India to protect the rights of Muslim women. It provides specific grounds on which a woman can seek a judicial decree for divorce, known as faskh.

Grounds for Judicial Divorce under the 1939 Act:

A Muslim woman can file for divorce on the following grounds:

1. Whereabouts of Husband Unknown: Husband’s whereabouts have not been known for four years.
2. Failure to Maintain:Husband has neglected or failed to provide for her maintenance for two years.
3. Imprisonment:Husband has been sentenced to imprisonment for seven years or more.
4. Non-performance of Marital Obligations: Husband has failed to fulfil his marital obligations for three years.
5. Insanity, Leprosy, or Venereal Disease: Husband has been insane for two years, or is suffering from leprosy or a serious venereal disease.
6. Impotency: Husband was impotent at the time of marriage and continues to be so.
7. Repudiation of Child Marriage: The woman, married by her guardian before the age of 15, repudiates the marriage before she turns 18, provided the marriage has not been consummated.
8. Cruelty: Husband has treated the wife with cruelty, which includes habitual assault, making her life miserable, associating with women of evil repute, forcing her into immoral life, obstructing her religious practices, or unfairly disposing of her property.
9. Any Other Ground Recognised by Muslim Law: Any ground that is accepted under Muslim law as valid for the dissolution of marriage.

Procedure

• The woman must file a petition in the family or district court, stating the grounds for divorce.
• The court will summon the husband, hear both sides, and consider evidence.
• If satisfied that grounds exist, the court will grant a decree of dissolution of marriage.
• The wife must observe iddat after the divorce is finalised.

Landmark Judgements and Legal Developments

Shayara Bano v. Union of India (2017)

In this landmark case, the Supreme Court of India declared instant triple talaq unconstitutional. The judgement was a turning point, safeguarding Muslim women against arbitrary and instant divorce. Following this, the Parliament passed the Muslim Women (Protection of Rights on Marriage) Act, 2019, making instant triple talaq a criminal offence.

Other Important Points

• The law now ensures that a husband cannot end a marriage without due process and consideration for the wife’s rights.
• Women have clear statutory grounds to seek divorce, and courts actively safeguard these rights.
• Judicial divorce (faskh) under the 1939 Act is a powerful tool for women facing cruelty, abandonment, or injustice.

Key Differences between Various Forms

• By Husband (Talaq, Ila, Zihar): Mostly unilateral, but now subject to constitutional and statutory checks.
• By Wife (Talaq-e-Tafweez, Lian, Faskh): Only possible through delegated authority, legal grounds, or mutual agreement.
• By Mutual Consent (Khula, Mubarat): Both parties agree; ensures fair and peaceful separation.
• Judicial Divorce (Faskh): Court intervention required; based on statutory grounds.

Conclusion

The kinds of divorce under Muslim law reflect a blend of tradition, religion, and legislative reform. While the law originally granted husbands significant power to dissolve marriage, modern statutes and court judgements have worked to balance the rights of both spouses, particularly to protect women. Today, a Muslim marriage in India can be dissolved by various means, including mutual consent, delegation, judicial decree, and certain specified forms initiated by the husband.