There are four conditions essential to pronounce a valid Talaq.
i. Husband should have attained the age of majority.
ii. Husband should be sane or of sound mind.
iii. Husband should act of his free will.
iv. There must be distinct intention to dissolve the marriage tie.
v. A boy who is minor and a person who is insane cannot give divorce even through their respective guardians. In case of an insane person the Judge can make a decree to dissolve the tie.
Divorce when effective
In Talaq-ul-Bida or Bain Talaq, the divorce takes effect forthwith, immediately. Whereas in case of Talaq-us-Sunna or Rajai Talaq, divorce takes effect after stipulated time and does not take effect immediately inasmuch as there is a waiting time for it to take effect.
The apex Court in one another latest case was called upon to consider the case under Section 125 of Cr. P.C. for maintenance by wife. The Husband in his Written Statement before the Family Court vaguely made certain generalized accusation against his wife. It was stated that wife was sharp, shrewed, and mischievous and had brought disgrace to the family.
Therefore, he had given Talaq but no particulars of alleged Talaq were given. Except examining him, husband did not lead evidence in proof of Talaq. In an affidavit in some other case before the civil court, the husband had made such a statement but the said affidavit was not found on the record of the Family Court. However, the Family Court accepted the contention of the husband that he had given Talaq to his wife the apex Court head that merely taking a plea in the Written Statements that he had given Talaq to his wife would not have the effect of Talaq. Talaq to be effective, it is necessary to have 'pronounced' in the manner lay down under the Personal Law. 'Pronounced' means to 'proclaim' or to 'utter formally.' The plea in the Written Statement or some affidavit filed in some civil Court does not amount to pronouncing the Talaq.
The Ahsan form of Talaq is effective on the expiration of third period of Iddat. The Hasan form of Talaq is effective on third pronouncement.
Talaq-ul-Bidat, is effective from the moment the Talaq is pronounced or the execution of the Writing, or the "Talaq - Nama" or the Bill of Divorcement. The Full Bench of the Bombay High Court has held that the Bill of Divorcement by itself cannot dissolve - marriage because it is necessary that the divorce should have been given for sufficient cause. It must have been evidenced before the witnesses who are Muslims and if it is before non-Muslims then it is invalid in law.
The full bench also held that the wife is not deemed to have been divorced (at least) from the date of Written Statement in which husband takes the plea that he had already given Talaq to his wife on earlier date to the filing of the Written Statement. The ruling of the full bench thus indicates that if husband has already given Talaq on earlier date, he must prove the factum of that divorce by leading evidence before the Court. The full bench thus is not in favour of Court taking it to be granted that Husband must have given divorce, if not from the earlier date at least from the date of his statement in the Written Statement.
Dissolution by judicial process
It is reported that a man from the Ansar accused his wife of adultery. The Prophet thereupon asked them both to take an oath; then he ordered them to be separated from each other. A charge of adultery preferred by husband against his wife can only be proved by - direct testimony of four witnesses. The method of leveling false accusation of adultery upon wife is called Lian. It is said by Lian, Law protects not only the interest of Husband but also of Wife.
The procedure of Lian (false charge of adultery) may be described thus: A husband accuses his wife of adultery but he is unable to prove the allegation. The wife in such case is entitled to file a Suit for dissolution of marriage. In India, a regular civil suit will have to be filed. At a hearing, the Husband has two alternatives (1) he may formally retract the charge of adultery in which case, the wife will not get the Divorce. But if the husband does not retract the charge (2) he is called upon to take oath and accuse his wife of adultery.
This is followed by the Oath of innocence made by the wife. After this, the Kazi/Quazi, now the Courts, pronounce that the Marriage is dissolved. The essence of Lian is the persistence by the husband and unproved allegation of unchastely on the part
of the wife.
A Muslim husband charged his wife with bigamy and adultery in a criminal Court, but did not lead any evidence to prove the charges. The wife was acquitted. Thereupon, the wife filed a suit for divorce on the ground that the husband and falsely charged her with bigamy and adultery. The Husband loved his wife and his charges of bigamy and adultery were out of jealousy. Husband did not desire that there should be a Divorce. It was held that the husband had retracted his charge and on his doing so, the Court had no power but to dismiss the wife's suit." However, in another case, it was held ] that after the close of the evidence or before the commencement of the hearing, the Husband cannot retract his charge of adultery. As such, it is evident that the retraction must be bonafide and not merely a device to defeat the wife's suit. The retraction should also be unconditional.
While the classical jurists agreed that it was possible for the wife to obtain dissolution, these jurists could not agree upon the ground of dissolution or as to the procedure to be followed. The law, as such, denied 'the Muslim Women, the rights of dissolution available to them under Quran. After a great deal of public agitation, an Act under the Dissolution of Muslim Marriage Act, VIII of 1939 came to be passed and ever since it has been hailed as one of the most progressive enactments passed by the legislature. It achieved two objects: (1) it restored to Muslim wives an important right accorded to them by the Quran and (2) it treated all Muslims alike, as the Act applied to every Muslim to whatever school of law he belonged.
For the reasons spelt out in the Reasons and Object of the Act, the legislatures then passed the Dissolution of Muslim Marriages Act, 1939. It is applicable to all Muslims in India except Jammu and Kashmir where a parallel enactment under the name of Jammu and Kashmir State Dissolution of Muslim Marriages Act, 1942 is in force.
Talaq is available only to Men and not to Women. The Dissolution of Muslim Marriages Act, therefore, is the remedy available only to Women, although enactment does not spell out so. However, from the grounds of divorce, given in the enactment, it will be crystal clear that the enactment is especially crafted out and drafted only for Women, the Muslim Women.
Dissolution of muslim marriage act
The Dissolution of Muslim Marriages Act, 1939 lays down the following Grounds for Divorce.
i. Whereabouts of husbands are not known for 4 years.
ii. Husband has neglected to provide maintenance of wife for 2 years,
iii. Husband is imprisoned for 7 years or more.
iv. Husband has failed to perform marital obligations for 3 years,
v. Impotency of husband. .
vi. Insanity for 2 years or leprosy or virulent venereal diseases.
vii. Wife was given in marriage by parents/guardian before the age of 15 years.
viii. Treats wife with cruelty.
ix. Any other ground which is recognized under Muslim Law.
The grounds of divorce like (i) Whereabouts not known, (ii) imprisonment, (iii) Impotency, (iv) Insanity and (v) Cruelty are not discussed here but discussed in the discussion of Parsi and Christian divorces in this book.
(a) Failure to provide maintenance
This ground of seeking divorce, by Muslim Women, is unique inasmuch under no other legal system of Law, non-providing maintenance is the ground fro divorce. At the highest, Women - including Muslim Women can seek Maintenance under Section 125 of Code of Criminal Procedure. There is no specific ground for divorce enumerated in the divorce statutes. It is only the Dissolution of Muslim Marriage Act which provides for divorce for non-providing maintenance to his wife.
Thus Muslim Women have two remedies, (1) seeking maintenance under Section 125 of Code of Criminal Procedure and (2) seeking divorce under the Act. It is for her to choose here remedies. But it must clearly be noted that there is no specific bar created for Muslim Woman to give up her one of her two remedies and she is free to avail of both the remedies.
(b) Failure to Perform Marital Obligations
It is difficult to enlist with precision all the duties a husband is required to perform as and by way of his marital obligations and the facts of each case should determine the requirements. There is dearth of Case-Laws and as such, no further discussion is carried on.
(c) Any other ground under Shariat
The Act proceeds to lay down a residuary provision so that the wife may not lose the benefit of any other ground which may have been lost sight of by the legislature. This would cover up Lian, Ila, Zihar, Khula and Mubaraa. The Courts have held that incompatibility of temperaments, dislike or ill-will is not sufficient grounds for obtaining divorce by the wife.
(d) Option of Puberty
The Act does not speak of puberty at all though it deals with the option arising at puberty. Wife will be entitled to divorce, if it is proved by the wife that:
i. She was given in marriage by her father or other guardian.
ii. The marriage took place before she attained the age of 15 years.
iii. She repudiated the marriage before she attained the age of 18 years and that
iv. The marriage has not been consummated.
Consummation of marriage before the age of puberty does not deprived of wife of her option. The mere exercise of option to repudiate does not sever the marital tie. The repudiation must be confirmed by the Court and until that time, the marriage subsists and if one of the spouses dies, the other has the right to inherit from him or her.
(e) Change of Religion
When a Court has to decide a case involving change of marital status due to conversion or apostasy, it must never be over-looked that from the time the rules were formulated in Islamic Jurisprudence, social conditions have changed so completely that a blind adherence to some of the rules, torn out of their proper context, would lead neither to justice nor to a fair appraisal of the system under which they were promulgated. During infancy stage of Islam, the apostasy was taken as a danger to the State and it was nothing short of treason.
The law consequently prescribed the death penalty for the offence but when a woman abandoned Islam, she was to be imprisoned until she returned to the faith. However, the penalty prescribed for apostasy was only those who were born Muslim and not for those who had adopted Islam under compulsion or otherwise. In all the countries, where Muslims inhabit, in modern times, Islamic Law unit's entirety regarding apostates cannot be enforced. It would be absurd that one part of the rule of apostasy under Islamic Law be enforced while the other should be ignored. Thus, the modern society has posed a difficult legal and social problem and so far it has not been found possible to formulate a law of marriage and divorce which would be satisfactory in all respects.
First of all it necessary to take notice distinction, - Apostasy and Conversion.
Apostasy - When one gives up one's religion, say, if a Muslim renounces Islam, it is Apostasy by Muslim. It can be Apostasy either by Husband or Wife.
Conversion- When one accepts another religion, say a Hindu accepts Islam it is Conversion. It can be Conversion either by Husband or Wife.
Apostasy by both
By reason of Section 4 of the Dissolution of Muslim Marriages Act, 1939 if wife and husband both renounce Islam, their marriage is not dissolved but remains intact.
Apostasy by husband
If a Muslim husband renounces Islam, his marriage with is Muslim wife stands dissolved ipso facto.
Apostasy by wife
According to strict Islamic Law, apostasy by wife also ipso facto dissolves the marriage. However, in India, now, the Dissolution of Muslim Marriages Ac; protects Muslim wives. It is laid down in the Act that apostasy by itself does not dissolve the marriage unless it is a case in which woman re-embraces her former religion. For instance, W a Christian woman embraces Islam and marries a Muslim Husband H. Later on, she re-embraces her former religion Christianity; marriage of W with H is dissolved. However, instead of re- embracing Christianity, if W embraces some other religion, the provisions of the Act would not be attracted and the marriage will not stand dissolved.
Conversion by Husband
A non-Muslim, lawfully married in accordance with his own law, cannot by a mere conversion to Islam, dissolve his own marriage. It was held that if a Christian man married to a Christian Women declares that he got converted to Islam and marry a Muslim woman, the second marriage would be of doubtful validity. Meena Mathur, Sushma Ghose and Geeta Rani, through a social organization by name Kalyani had approached the apex Court with plea that their husbands had changed Hindu religion and had accepted Islam and had contracted another marriage.
Without referring to the landmark case of Skinner vs. Orde, the Hon'ble Supreme Court of India held those matrimonial disputes of apostate and his first wife cannot be decided on the basis of Muslim Personal law. Indeed, it is so very true but it is also equally true that if conversion itself is fraud on law as was held in Skinner vs. Orde, no Court of Law, Justice or Equity can uphold anything on that basis. The Hon'ble Supreme Court of India, in any case, has given a new dimension to matrimonial cases of inter-religion marriages. But if change in religion is without any intent to commit fraud upon law and if change of religion is made honestly, such a change will have the effect of altering the rights incidental to the marriage such as that of divorce.17 In another case, it was held18 that a married Christian domiciled in India, after his conversion to Islam, is governed by the Muslim Law and is entitled to contract a valid marriage with another woman while the first marriage otherwise subsisted. This decision appears to overlook the important principle that previous marriage in accordance with one scheme of personal law cannot be destroyed by mere adoption of another faith by one of the spouses. In any case after apex court ruling in Sarla Mudgal's case this is wholly inapplicable.
Conversion of Wife
The Conversion of a non-Muslim wife to Islam does not ipso facto dissolve her marriage with her husband. In one case, it was held19 that a Zoroastrian (or Christian) wife cannot do away with her marriage by a mere profession of Islam.
Talaq under shia and sunni law
It is necessary that there should be two reliable witnesses present at the time of repudiation to hear the words in which it is pronounced or in the case of dumb person, to see the sign or writing, as the case may be. Not only must the witnesses be present at the time, but they should also understand the nature of the act and hear the distinct wording of the repudiation. It is a further condition under Shia Law that the witnesses should be present together. The (Shia) Law is so strict and throws so many obstacles in the way that if one of the witnesses should be present at one stage and other at another stage of the 'Talaq proceedings', the Talaq would not be valid.
While under Shia Law presence of witnesses is mandatory. Sunni law does not require presence of witnesses. So long as repudiation comes to the knowledge of wife, it is considered sufficient and valid in law. For effecting Talaq, Sunnis allow the use of infinite number of formula - some obvious in their meaning others conveying the intention only. Under Hanafi Law, when the word Talaq or any of its customary synonyms is used, the Talaq is effective even if a man has no intention. A Talaq pronounced in absence of wife is also valid. But so long as it does not come to her knowledge, she is entitled to maintenance. However, after the ruling of the Full Bench of Bombay High Court, [ the earlier rulings will be wholly inapplicable.
Before encroaching upon the subject, it must clearly understood that in India, it is the Sunni Law which will generally be applicable unless it is set up in pleadings that parties are governed by Shia Law. Further, the Hon'ble Supreme Court of India has held that the Talaq to be effective, it is necessary to have it 'pronounced' which means it must have been 'proclaimed' or to 'utter formally'. This ruling of apex Court is very much in conformity with Shia Law. Whereas the Full Bench of the Bombay High Court has held that. (1) Divorce must have been given for 'sufficient cause' (2) Bill of Divorcement by itself does not dissolve the marriage (3) divorce must have been evidenced before the witnesses who are Muslims and if it is before non-Muslims then it is invalid in law.
From the above two rulings, it is crystal clear that whether divorce is under Shia Law or Sunni Law, minimum requirements laid down by these two rulings are mandatory and must be followed - at least in India.