Zihar under Muslim Law

Muslim personal law in India recognises various forms of marriage dissolution, many of which date back centuries. One such unique mode is Zihar. Zihar does not instantly break the marital bond, but it places the relationship in a state of suspension. The concept might seem unusual from a modern legal viewpoint, but understanding Zihar is important for anyone studying Islamic law or personal law in India. 

What is Zihar?

Zihar is a constructive or inchoate divorce under Muslim law. It takes place when a husband compares his wife (or any part of her body) to a woman within the prohibited degrees of relationship—such as his mother, sister, or any other close female relative with whom marriage is permanently unlawful in Islam.

For example, a husband may say, “You are to me like my mother’s back,” or “You are like my sister to me.” Such a declaration is called Zihar, which literally means “back” in Arabic, referencing the ancient practice of making such comparisons.

What are the Essentials of Zihar?

Zihar is not just a casual statement. For a Zihar to be legally recognised under Muslim law, certain essentials must be fulfilled:

1. Capacity of the Husband: The husband must be an adult (at least 18 years old) and of sound mind. He must have full mental capacity to understand the seriousness of the statement.
2. Comparison to a Prohibited Relation: The wife must be compared to a woman who is permanently prohibited in marriage (haram in perpetuity), such as mother, sister, paternal/maternal aunt, etc. Temporary prohibitions (like a woman during iddat or a married woman) do not count for Zihar.
3. Clear and Unambiguous Statement: The words used by the husband must be explicit and direct in comparing his wife to a forbidden relation. Vague or figurative statements, or jokes, do not qualify as Zihar.
4. Husband’s Intention: There must be an intention to create the legal effect. If the words are spoken in anger but without intention, Zihar may not be established.
5. No Immediate Effect on Marriage: Zihar does not dissolve the marriage instantly. It merely suspends conjugal rights until the husband performs an act of expiation or until further action is taken by the wife.

Legal Consequences of Zihar

Unlike other forms of divorce, Zihar does not end the marriage as soon as the comparison is made. Instead, it brings about several legal consequences:

1. Prohibition of Cohabitation: After pronouncement of Zihar, the husband is strictly prohibited from having any sexual relations with his wife. Cohabitation remains forbidden unless and until the husband completes a formal act of expiation (kaffarah).
2. Marriage Remains Intact: The marital bond is not broken, and both husband and wife retain their respective rights and obligations, except for conjugal relations.
3. Expiation (Kaffarah) is Necessary: The husband must perform expiation to restore conjugal rights and resume a normal marital relationship. If he fails to do so, the wife gains certain judicial remedies.

Modes of Expiation (Kaffarah) in Zihar

Islamic law prescribes specific acts for a husband to revoke Zihar and resume conjugal relations with his wife. These are:

Fasting for Two Consecutive Lunar Months

• The husband must fast for two consecutive lunar months without any break.
• The fasts should not include the month of Ramzan or the five days when fasting is forbidden in Islam.
• If a prohibited day or Ramzan interrupts the fast, he must start afresh after the interruption.

Feeding Sixty Poor Persons

• If the husband is unable to fast due to old age, illness, or any valid reason, he must feed sixty indigent persons.
• Each poor person must be provided with a meal of average quality or the equivalent value in staple food (such as wheat, rice, or its monetary value).

Freeing a Slave

• Historically, the husband could free a slave as expiation.
• However, since slavery is abolished in India and worldwide, this option has become irrelevant today.

What Happens if Expiation is Not Done?

If the husband refuses or fails to perform the expiation, the wife can approach a Qazi (Islamic judge) or, in the Indian legal context, the civil court for relief. The court may:

• Compel the husband to perform expiation, or
• Dissolve the marriage if expiation is not performed within a reasonable time.

In this way, Zihar can ultimately become a ground for judicial divorce, but only after all procedural steps and opportunities for reconciliation have been exhausted.

The Four-Month Waiting Period

A key aspect of Zihar is the waiting period. Traditionally, the husband must abstain from conjugal relations for four lunar months after making the injurious comparison.

• During this period, he can revoke Zihar by performing expiation.
• If he completes expiation, the marital relationship resumes as usual.
• If he does not perform expiation and continues to withhold conjugal relations, the wife can seek judicial intervention after the expiry of four months.

This waiting period ensures that the husband has time to reconsider and make amends, while also protecting the wife’s rights if he remains obstinate.

Judicial Remedies for the Wife

If the husband fails to perform expiation within the stipulated four months, the wife has the following options:

1. Apply for Judicial Divorce: The wife may petition the court for a decree of divorce on grounds of Zihar, especially if the husband neither expiates nor resumes cohabitation.
2. Restitution of Conjugal Rights: Alternatively, she may ask the court for restitution of conjugal rights—compelling the husband to resume marital relations by performing expiation.
3. Right to Maintenance: During the period of suspension, the wife continues to have the right to maintenance and all other marital rights, except conjugal relations.

Procedural Requirements: Sunni and Shia Law

There are some procedural differences between the Sunni and Shia schools of law:

• Sunni Law: Zihar does not require any formal witnesses. The husband’s clear statement is enough to establish Zihar.
• Shia Law: The pronouncement of Zihar must be made in the presence of at least two adult witnesses for it to be legally valid.

Despite these differences, both schools agree on the essentials and expiatory requirements of Zihar.

Zihar versus Other Forms of Divorce

It is helpful to compare Zihar with other modes of dissolution of marriage in Muslim law:

• Talaq: Immediate and direct form of divorce pronounced by the husband, ending the marriage bond.
• Ila: The husband swears to abstain from sexual relations with his wife for a specified period. If he keeps the oath for four months, the marriage may be dissolved.
• Khula: Divorce initiated by the wife, often involving the return of dower (mahr).
• Lian: Divorce based on false accusations of adultery against the wife.

Zihar is unique because it neither ends the marriage instantly nor is it initiated as a result of direct conflict. Instead, it is triggered by an injurious comparison and is reversible through expiation.

Summary Table: Key Features of Zihar

Conclusion

Zihar, though a rare and somewhat antiquated form of marital separation under Muslim law, represents an important part of Islamic jurisprudence. It highlights the care taken in Islamic law to balance marital harmony, the rights of women, and the seriousness with which words and intentions in marriage are regarded.