Theme: Divorce for Muslims

Can I file for divorce if my husband is mentally ill under Muslim law?

Yes, you can go to the Court to file divorce against your husband if your husband is suffering from mental illness. However, your husband should be suffering from mental illness for at least 2 years before you approach the Court. It is better to consult a lawyer to understand more.

I am a Muslim man and my wife filed a divorce case against me stating that I am impotent. This in fact is untrue. She has already obtained a decree from Court so what can I do?

If your wife has filed a case against you saying that you are impotent, and if this is untrue, you can deny these allegations by going to Court with the assistance of a lawyer. Even if you are impotent, under the law, you have every right to file an application asking for time (one year) to prove to the Court that you have ceased to be impotent.

Can I divorce my wife by saying talaq, talaq, talaq at once under Muslim law?

No you cannot divorce your wife this way.

In 2017, Courts viewed talaq al- ba’in or triple talaq as a form of divorce which is no longer valid and one which cannot be practiced by husbands in India.

In this type of divorce, you can divorce your wife with three pronouncements of divorce at the same sitting. The effect of Triple Talaq is that the marriage comes to an immediate end once it is pronounced.

This form of divorce, left no room for the husband to change his mind nor did it give the woman any say in the way her own marriage ends.

For example, Arshaf says “Talaq, Talaq, Talaq” while looking at his wife one afternoon. Instantly, the marriage and marital obligations comes to an end. There would only be certain legal obligations between them which would remain, such as the husband or wife cannot inherit money or property from each other.

As of today, such divorces are illegal under the law and even if you do it, you would not be divorced from your wife.

What is talaq under Muslim law?

Talaq is divorce under Islam. Each School of Muslim law has a different approach to ending a marriage.

For example, the practice followed by the Ithna Ashari School is that they have to orally say the word talaq in front of two Muslim males who would be witnesses to the divorce and they have to say a certain set of words to end the marriage.

Ending a Muslim Marriage

Divorce in Islam is governed by the Quran and other customary practices. These principles have been recognized by the law and this is what people are bound by. Since the origin of all this law is the Quran and many non-codified customs followed by people, the laws on marriage and divorce are not linear and clear. However, there are basic principles of what will constitute a valid divorce for Muslims across sects.

Marriage is a contract under Muslim law, which may be in a written form or an oral form. A married Muslim couple under the law has to fulfill certain marital obligations such as living together and having sexual relations. Apart from marital obligations, they also have certain legal obligations to fulfill, such as: 

  • Dividing the property (land, flats, investments and insurance) of the husband and wife.
  • Giving maintenance to the wife.
  • Right to dower/mehr of the wife.

When a Muslim marriage ends, it means that the contract you have with your husband or wife has also ended. This, in turn, stops marital obligations between your spouse and you but does not necessarily stop all the legal obligations.

There are two ways by which, a marriage can end:

Death of a Spouse

Death of either your husband or your wife ends the marriage. Since the nature of the marriage is of a contract, it is as if death has resulted in the spouse exiting the contract.

Divorce

Divorce for Muslims can happen without involving the Court. However, if required, you can involve the court in the case of a dispute during a divorce. During a divorce, either you or your spouse can initiate the divorce.

Marriage can end in either of the following ways:

  • When the husband chooses to end it.
  • When the wife chooses to end it.
  • When both husband and wife end it together.

In most cases, it is the man who has more options than the woman to say that he no longer wishes to be part of the marriage without approaching the court. The woman has only one way of doing this. However, she has other recourses through the Court.

Husband Wants Divorce for Muslim Marriage

As a man in a Muslim marriage, you can simply divorce your wife by ending the contract of marriage you have entered. You don’t necessarily have to approach the Court since you have many options of ending the contract of marriage through various methods prescribed under Islam.

Since your marriage is a contract, you can decide to end your marriage simply because you choose to do so. Divorce is not fault-based in Islam. That is, unlike divorce in other religions, you need not have been harmed by your spouse either through cruelty, adultery or due to some irrecoverable illness in any way for you to want to leave your marriage.

The ways in which a husband can initiate divorce are as follows:

Talaq-e-Ahsan

Stage 1

During the period of Tuhr, in the Ahsan form of divorce, you have to say ‘talaq’ only once.

Stage 2

You can take back this ‘talaq’ during the period of her iddat. For example, you can revoke your talaq by saying the words ‘ I have retained thee’ or ‘I take back my talaq’ or by the act of having sexual intercourse with your wife. In case you could not take back your divorce before the iddat period gets over then the divorce takes place and is irrevocable. Once the divorce takes place you will have to pay maintenance to both your wife and child for their well-being.

Talaq e-Hasan

In the Hasan form of divorce, the husband has to say the word ‘talaq’ in three successive periods of tuhr.

Tuhr

Tuhr, means purity, and refers to the time when your wife is not experiencing menstruation. The wife is not allowed to have sexual intercourse with anyone during this period. You can take back the talaq after every successive period of tuhr.

Process of Divorce

Stage 1

Talaq has to be said by you when your wife’s menstruation period is over. During this period, you are not allowed to have sexual intercourse but if you do, it would mean that you have taken back your decision to divorce your wife. You can revoke your decision through words by saying it or writing it.

Stage 2

Talaq has to be said by you for the second time when your wife experiences menstruation again. At this point also, you can revoke your decision to divorce her through words or conduct.

Stage 3

This is the final Talaq that has to be said by you after your wife stops experiencing menstruation. It cannot be taken back and it is the final talaq, meaning that the divorce is final. After this, the marriage between you and your wife is over and you cannot take back the divorce anymore.

Both the Ahsan and Hasan form of Divorce are practiced and approved by Sunni and Shia Muslims.

 

Wife Wants Divorce for Muslim Marriage

Given below are the provisions for divorce to a marriage under Muslim law, when initiated by the wife. 

Khula

Khula is divorce initiated by the wife. If you want to divorce your husband, you can go to either the court directly or to a Mufti. The Court or the Mufti will ask the husband to be present. And in the presence of the husband the court or mufti will ask the husband if he accepts the offer. Once the husband accepts the offer, the divorce is complete.

Talaq-e-tafwid

Your husband has the power to delegate or transfer his right to divorce, to you or any third person through the contract of marriage (kabi-nama) at the time of the marriage. This agreement lists down important points for such transfer of right.

It usually stipulates the amount of mehr you have to forgo to exercise your right to ask for a divorce.

Wife Approaches Court for Divorce for Muslim Marriage

The provision of going to Court to divorce a spouse, is only available for women. The law allows you to go to the Court to divorce your husband for the following reasons:

Absence of Husband

  • When your husband has been missing for over 4 years.
  • When your husband goes to jail for 7 years or more.
  • When your husband fails to pay maintenance for 2 years.

Illness or Incapacity

  • When your husband is impotent.
  • When your husband is suffering from insanity or an incurable venereal disease.
  • If your marriage took place before the age of 15 years.

Ill-treatment

All these grounds are subject to certain conditions which you should consult a lawyer to understand more.

Mutual Divorce in Muslim Marriage

Mubara’at

Both you and your spouse can end the marriage and divorce each other if you both do not want to continue in the marriage and end all marital obligations.

What is essential in this form of divorce is that both you and your spouse should consent to ending the marriage. This form of divorce is known as Mubara’at.

The word ‘mubara’at’ means ‘freeing one another mutually’. Mutual divorce takes place in the form of ‘Mubara’at’ when:

  • Both husband and wife consent to ending the marriage
  • You (husband) have to say ‘talaq’ once
  • This form of talaq cannot be revoked.

This form of divorce happens after coming to a mutual decision to end the marriage.

If you and your spouse decide to end the marriage, this means that certain duties have to be followed such as:

  • Your wife has to follow the period of iddat after the divorce.
  • Both your wife and children can get maintenance during this period.

If you did divorce your wife using this method, then you cannot remarry her again unless certain conditions are followed.

Muslim Divorce if Husband Is Impotent

Under Muslim law, you can file for divorce if you find out that your husband is impotent or even if you knew throughout your marriage that your husband was impotent. In this situation your husband can do either of the following:

  • Accept in front of the Court that he is indeed impotent.
  • Deny the impotency allegation in Court and prove that he is free from any physical defect of impotency.
  • File an application to the Court to give him one year to medically fix the problem. If after a year, he is not impotent, then the Court cannot grant a divorce in your favor.

Cruel Behavior and Muslim Marriage Law

There are provisions on cruel behavior under the Muslim marriage law. Cruelty is any conduct or behavior which causes harassment in the mind of the spouse. Under the Muslim law, cruelty is specifically understood as when your husband:

  • Habitually assaults you or physically abuses you.
  • Has sexual intercourse with other women.
  • Forces you to lead an immoral life.
  • Disposes of your property and prevents you from exercising your legal rights over it.
  • Obstructs you from practicing your religion.
  • In a scenario where he has more than one wife and does not treat you equally as compared to the other wives.

Iddat After Divorce in Muslim Marriages

The Iddat period after divorce in a Muslim marriage is a period of time where the wife is not allowed to marry anyone else or have sexual intercourse with anyone. Only women have to follow the Iddat period under the Muslim Law.

If you have been divorced by your husband then the Iddat period is:

  • Three months from the date your husband says the word ‘talaq’.
  • If you are pregnant during this iddat period, then until the date of delivery.

Your husband can always change his mind during the iddat period and take back his talaq, after which, you will be a married couple again.

Mehr/Dower in a Muslim Marriage

During a Muslim marriage ceremony, a sum of money or property will be decided to be paid to you by your husband, known as mehr or dower. Traditionally mehr is understood as an amount reserved for the wife for when she needs it the most, that is either after divorce or death of the husband.

Even if no specific amount is fixed at the time of the marriage, legally you have a right to mehr. It can either be paid in full at the time of marriage or in parts, i.e. half at the time of marriage and the rest upon divorce or death of your husband.

Once your divorce is final, and your iddat period has been completed, if you haven’t received your mehr amount from your husband then your husband has to give it to you.

Maintenance for Woman under Muslim Marriage Law

Under Muslim Marriage law, maintenance is paid by your husband to you and your children after the divorce has taken place. You do not have to pay maintenance to your husband as under Muslim law, only a man has to pay and take care of the woman after the divorce.

You can go to the Court to ask your husband to pay you maintenance. Courts determine the sum of maintenance based on the financial capacities of the husband.

Maintenance for Wife

In Muslim law, you have a right to get maintenance from your husband till:

  • Your Iddat period for divorce is over.
  • After your iddat period until you remarry.
  • You can also ask for more maintenance if the amount you are receiving is insufficient based on circumstances.

You cannot get maintenance from your husband if he has died. However, you have options of getting maintenance from:

  • Any relatives who may inherit your wealth and property.
  • Your children.
  • Your parents.
  • State Wakf Board.

Along with your maintenance, you are entitled to get the mehr amount mentioned in your nikahnama. This mehr is given either on divorce or on death of your husband.

Remarrying Your Divorced Wife in Muslim Marriage Law

If your husband wants to remarry you after a divorce then also you have to observe a period of iddat, which is different from the iddat time period if your husband dies. In a situation where your husband wants to marry you again after divorcing you, then he has to wait till the following happens:

  • You have to follow the iddat period.
  • After the iddat period is over, you have to marry another man.
  • You and the other man have to live together and consummate the marriage. As per the law, your marriage is considered to be consummated when you have sexual intercourse with your husband.
  • The other man has to divorce you.
  • You have to follow the iddat period after a divorce.
  • After the iddat period is over, you can remarry your husband again.

Remarriage under Muslim Marriage Law

For Men

  • If your wife dies or you have divorced her (validly) you can immediately remarry another woman.
  • If you want to remarry your wife after divorcing her you have to follow certain procedures.

For Women

  • If your husband has died or you are no longer married to him through valid procedures of divorce and you want to marry another man then you have to follow certain conditions:

Iddat

  • The wife cannot remarry immediately but has to wait for a certain period known as ‘iddat’.
  • It is the period during which a Muslim woman cannot marry another man or have sexual intercourse with anyone.
  • When your husband dies, you will have to observe an iddat period of four months and ten days from the date of your husband’s death.
  • When you divorce your husband (and he doesn’t die) then the iddat period is three months from the date your husband says the word ‘talaq’.

If you are pregnant during this iddat period, then after your child has been born your iddat period will begin.