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In 2017, Courts viewed talaq al- ba’in or triple talaq as a form of divorce which is no longer valid and one which cannot be practiced by husbands in India.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