Theme: Divorce

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 annul my marriage under Muslim law?

Under Muslim personal laws, if a marriage is conducted by violating certain rules and customs, then they are known as Batil marriages. These kind of marriages can be annulled by going to Court. If you do annul such a marriage, then it would be as if the marriage never took place.

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In 2017, Courts viewed talaq al- ba’in or triple talaq as a form of divorce which is no longer valid and one which cannot be practiced by husbands in India.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

The law on marriage recognizes emotional and marital needs; this includes many legal obligations such as owning property, taking care of your children, etc. When you end your marriage, the marital relationship comes to an end. Some legal obligations may continue to exist.

Marital Relationship

The law understands a marital relationship to include:

  • Emotional Support
  • Sexual Relationship
  • Children and Domestic Responsibilities
  • Financial Support

Legal Obligations

You and your spouse have certain legal obligations throughout your marriage. Some of these obligations may continue even after a divorce takes place.

Examples of these legal obligations are:

Alimony or Maintenance

  • The Court may sometimes ask you to pay money to your spouse and this is a legal obligation you will have to incur after divorce. This is known as maintenance.

Parental Responsibility

  • The Court may decide who will have custody of your children and how to take care of them financially.

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.