Muslim Marriage & Talaq

Marriage is a sacred institution in Islam. Celibacy and bachelorhood are discouraged in Islam and it says marriage completes the faith of a Muslim but still, marriage is a contract between husband and wife therefore it could be broken. The followings are the Islamic ways of granting a divorce.

Mutual Consent divorce - Here both husband and wife mutually decide to get separated.
Khulla - This is initiated by the wife. In Islam, a wife cant grants a divorce but can only seek divorce. The power to grant a divorce is only available to the husband. If the husband agrees divorce is finalized otherwise wife can approach Sharia Court and later other courts.
Talaq e Hasan - Husband pronounces Talaq for once and waits for 30 days period. In these 30 days, arbitration or reconciliation can happen by elders or well-wishers otherwise husband can pronounce Talaq again and wait for another 30 days. After the 90 days is over since the first pronunciation Talaq is final and the Husband cant revoke this.
Talaq e Ahsan - This is the purest form of Talaq and here Husband pronounces Talaq for once and waits for 90 days. If there is no reconsideration in 90 days, Talaq is final and cant be revoked.
Talaq e Biddat - This is the most controversion form of Talaq and it was introduced later. Here Husband can pronounce Talaq 3 times and this is over. This is called an instant triple talaq. Here is no scope of reconciliations or arbitration.

Shayara Bano VS Union of India, 2017

Here Shayara Bano along with 4 other women approached the supreme court asking to save their fundamental rights. Supreme court set up a constitutional bench of 5 judges. 2 Judges said this cant be banned and parliament has to make a law to abolish this. As religion isn’t part of logic but faith. Justice Kurian Joseph said this form of Talaq is unIslamic since there is no scope of reconciliation and arbitration. Supreme court put a stay on triple talaq. Hence Instant triple talaq was set aside and it means even if the husband pronounces triple talaq marriage was still valid. But even after the 2017 verdict government found that there are multiple violations of supreme court orders. A need for law was felt to punish those involved in triple talaq.

The Muslim Women (Protection of Rights on Marriage) Bill, 2019 was passed in parliament. This is an Act of the Parliament of India criminalizing triple talaq.

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2019

[Dated 31st July, 2019.]

Ministry of Law and Justice(Legislative Department)

The following Act of Parliament received the assent of the President on the 31st July, 2019, and is hereby published for general information:-

An Act to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.

Be it enacted by Parliament in the Seventieth Year of the Republic of India as follows:-

CHAPTER I

Preliminary

(1)This Act may be called the Muslim Women (Protection of Rights on Marriage) Act, 2019.

(2) It shall extend to the whole of India except the State of Jammu and Kashmir.

(3) It shall be deemed to have come into force on the 19th day of September, 2018.
In this Act, unless the context otherwise requires,-

(a) “electronic form” shall have the same meaning as assigned to it in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000);

(b) “Magistrate” means a Judicial Magistrate of the first class exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974), in the area where the married Muslim woman resides; and

(c) “talaq” means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.

CHAPTER II

Declaration of Talaq to be Void and Illegal

Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.
Any Muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.

CHAPTER III

Protection of Rights of Married Muslim Women

Without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance, for her and dependent children, as may be determined by the Magistrate.
Notwithstanding anything contained in any other law for the time being in force, a married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) an offence punishable under this Act shall be cognizable, if information relating to the commission of the offence is given to an officer in charge of a police station by the married Muslim woman upon whom talaq is pronounced or any person related to her by blood or marriage;

(b) an offence punishable under this Act shall be compoundable, at the instance of the married Muslim woman upon whom talaq is pronounced with the permission of the Magistrate, on such terms and conditions as he may determine;

(c) no person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person.
(1) The Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019 (Ord. 4 of 2019) is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019 (Ord. 4 of 2019), shall be deemed to have been done or taken under the provisions of this Act.

Marriage in Islam is considered to be a social contract. The husband and wife and the respective families enter into an agreement whereby the husband’s family pays money known as the dower(mehr). Muslim Marriage or Nikah is held as a legal civil contract between a man and a woman carried out on the basis of ijab-o-qabool. Ijab is a proposal from one party and Qubool is acceptance from other.

As stated by Justice Mahmood, “Marriage (nikah) according to the Mahomedan law is not a sacrament but a civil contract. All rights and obligations it create arise immediately and, are not dependent on any condition precedent such as the payment of dower by husband to a wife”.[1]

As per Dr. Jung, “Marriage though essentially a contract is also a devotional act; its object is right of enjoyment and procreation of children and regulation of social life in the interest of society”. [2]

Ashabah says: “Marriage is a contract underlying a permanent relationship based on mutual consent on the part of a man and woman.”

In Shoharat Singh v. Jafri Begum, the court stated that nikah(marriage) under the Muslim law is a religious ceremony. [3]

Marriage in Islam is not merely a civil contract devoid of all religious and spiritual values. Along with its secular aspects (muamalat) it also partakes of the elements of a sacred union of two souls meant for spiritual ends (Ibadat).

Another definition by Ameer Ali states that, ““Marriage is an institution ordained for the protection of society, and in order that human beings may guard themselves from foulness and unchastity.”

Abdur Rahim defined Muslim marriage as,” “The Muhammadan jurists regard the institution of marriage as partaking both of the nature of ibadat or devotional acts and muamalat or dealing among men”. He used the two ingenious words ibadat and muamalat and summarized the whole concept of Muslim marriage in one single sentence.

Thus, Marriage according to the Muslim law, is a contract for the purposes of legislation of intercourse, procreation of children, and regulation of social life in the interest of society by creating,

  (i) The rights and duties between the parties themselves, and

  (ii) Between each of them and children born from the union.

Essentials of Valid Marriage under Muslim Law

Capacity to Marry

Every Muslim of sound mind and has attained puberty may enter into a contract of marriage. A person presumed to have attained the age of puberty on the completion of 15 years. The marriage between two Muslims who have attained puberty is valid. Here is also stated that minor and lunatic who have not attained puberty can enter into valid contract in marriage by their guardians.
Proposal and Acceptance

For the valid Muslim marriage proposal and acceptance should be expressed and accepted at the same meeting. Neither writing or no religious ceremony is needed. Under the Sunni law the proposal and acceptance must be made in the presence of two male Muslims of sound mind who have attained puberty or by one male and female witness who are of sound mind and adult. It should be noted that absence of witness doesn’t make the marriage void make it voidable. (except in Shia law -witnesses are not necessary).
Free Consent

The consent of parties for marriage should be free and must not be influenced by any sort of force, coercion, or undue influence. If there is no free consent than Muslim marriage is void. Free consent in case of adult person not only essential for a valid marriage but is absolute necessary. Where marriage of a Shafei girl, who has attained puberty was performed by her father against her consent, the court held their marriage as void.
No Legal Disability Legal disability means the existence of certain circumstances under which marriage is not permitted. The prohibitions are classified as –
1. Absolute incapacity or prohibition – it arises from consanguinity, affinity, and fosterage.
2. Relative incapacity or prohibition - it springs from the cases which render the marriage invalid only so long as the cause which create the bar exist. The moment it is removed, the incapacity ends and the marriage becomes valid and binding. For example, a man is prohibited from marrying more than four wives at a time, his marriage with the fifth will be invalid until he divorces one of them. Following are the cases of relative incapacity –
  1. Unlawful conjunction
  2. Polygamy, or marrying a fifth wife
  3. Absence of proper witness
  4. Differences of religion
3. Prohibitory incapacity or prohibition – it arises in the following cases:
  1. Polyandry – it means having more than one husband. It is forbidden in Muslim law and a married woman cannot marry second time as long as the first marriage subsists.
  2. Muslim woman marrying a non-Muslim – a marriage of a Muslim female with a non-Muslim made whether he be a Christian, or a Jew or an Idolator or a fire worshipper is irregular under Sunni law and void under Shia law.
4. Directory incapacity or prohibition – it may arise from the following:
  1. Marrying a woman enceinte – it is unlawful to marry a woman who is already pregnant by her former husband. (Ameer Ali)
  2. Prohibition of divorce – when the marriage is dissolved by the pronouncements of divorce three times reunion is prohibited except after the lawful marriage of the woman with another and then it is being dissolved after consummation.
  3. Marriage during pilgrimage -under Shia law, marriage during pilgrimage is void.
  4. Marriage with a sickman – Marriage with a sickman suffering from disease which is likely to be fatal is invalid, however if he recovers and the marriage is consummated it is valid.

Kinds of Marriage under Muslim Laws –

1. Valid marriage or the Sahih Marriage

The basic rules are followed, like the parties are competent, free consent is present, and offer and acceptance is duly made and accepted.

Legal effects of Valid Marriage –

The co habitation of parties become lawful and not immoral;
The children born to lawfully wedded couple are legitimate;
For the couple mutual rights of inheritance arise;
The wife can claim dower and has a right to maintenance and the obligation to observe Iddat is bestowed upon her;
Prohibited relations are created due to marriage;
Prohibition of marriage due to affinity
After the dissolution of the marriage, the widow or the divorced wife is under an obligation to observe the Iddat, during which she cannot remarry.

2. Void or Batil Marriage

It is void marriage since the beginning. A marriage in violation of absolute prohibitions or polyandry is a void marriage. Shia law provides a few additional grounds like marriage during a pilgrimage or marriage with a non-Muslim or a woman observing Iddat.

Legal effects of Void Marriage -

No mutual rights or obligations are created;
Children born are illegitimate and wife has no right over dower or maintenance;
The parties can as per their wish as no legal marriage exists in the law.

3. Irregular Marriage or Fasid Marriage

The marriages made in violation of rules are known as Fasid marriages. Example of such marriages is affinity, fosterage, etc.

Legal effects of Fasid Marriage -

Children can inherit the property.
After consummation only wife can claim the dower.
The wife does not have to observe Iddat if marriage is not consummated.

4. Muta or Temporary Marriage

The Shia law only recognizes Muta marriage. It is a unique form of marriage done for a particular time with consideration as a pre-requisite. This type of marriage is not approved by Sunni law. No witnesses are required for Muta marriage. The marriage automatically dissolves at the end of the stated period.

A male Shia Muslim may contract Muta marriage with a Muslim, Christian, or Jewish woman or with a fire worshipper but nor with a woman following any other religion. However, a Shia woman cannot contract Muta marriage with a non-Muslim.

Conditions and Essentials for Muta Marriage –

The period of cohabitation should be fixed.
And the dower should be fixed.
The children born out of such marriage are legitimate and have the right to inherit the properties of both the parents.
Divorce is not recognized under Muta marriage.

Conclusion –

Marriage is a social need and an emotional bonding between two souls. Unlike Hindu marriage where the marriage is sacrament, Muslim marriage implies a particular contract used for the purpose of legalising children. Apart from being a social contract it is also a social and religious institution.

Marriage is the tradition of the prophet as well as present. In Anis Begam case, it has been held to be a religious sacrament.[5]. The purpose of marriage in Islamic culture is to preserve the religion through the creation of family. It provides the one security and the peace of mind.

Divorce Under Muslim Law

Generally, Muslim law focus on subsistence of marriage but in unfortunate and unavoidable circumstances the marriage is broken.

Marriage under the Muslim law is dissolved either by death of husband or wife, or by divorce. In Islamic law after the death of the wife, the husband may remarry immediately but the widow cannot remarry until specified period Iddat expires.

Before 1939, it was almost impossible for Muslim wife to divorce her husband. Now under the Muslim marriage act 1939 there are several grounds laid for divorce. There are two grounds –

1.Judicial Divorce

Judicial divorce is a formal by the intervention of court. The court separates them according to established custom or law. In such cases, divorce does not depend on the will and pleasure of the husband.

As per the Dissolution of Muslim Marriage Act, 1939 the legislature has made provisions for the divorce on the application of wife.

In Ms. Jordan Diengdeg v. S.S Chopra [6], the court observed that the grounds for divorce shall be the following and the wife can claim for the judicial separation in following situations -

If the husband is missing and the whereabouts of the husband are not known for more than 4 years.
If the husband does not maintain his wife and ignore his needs for a period of two years or more.
If the husband is convicted for an offence and punished with the minimum imprisonment of more than 7 years, the wife can claim judicial separation.
If the husband fails to take care of the mental and physical needs of the wife and fails to take care of his children for 3 years or more.
If the husband is Impotent wife can claim for judicial separation.
If the husband suffers from insanity, leprosy or virulent venereal diseases.
Repudiation of marriage by the husband.
Any act of cruelty upon wife by the husband.

If the court is satisfied with the grounds the spouses can get the judicial separation. Section 5 clearly states that wife has right to obtain dower from her husband upon the dissolution or marriage.

2. Extra Judicial Divorce

1. Talaq by husband -In Islam the husband can divorce his wife by repudiating the marriage. This form is called a talaq. Every Muslim man of sound mind can legally divorce his wife anytime by merely pronouncing the same.

2. Talak-i-tafweez (By wife)- It is a delegated form of divorce and is recognized among both Shia law and Sunni law. Muslim law permits the husband to delegate its power of giving talaq to his wife or any third person. In this form of talaq Muslim wife can obtain divorce without the intervention of court.

3. By mutual agreement – 1. Mubarat - Mubarat, a form of dissolution of marriage contract. In this form of divorce mutual consent is present and offer may be either be made from husband’s side or the wife. When the offer is accepted by the other party, the divorce becomes irrevocable. Iddat is necessary in this mode of divorce.

2. Khula – it is the right of divorce purchased by wife from her husband. The wife gives or agrees to give certain consideration to the husband for her release. For this condition to be fulfilled there must be offer from the wife and accepted by husband.

Under Shia law, husband cannot revoke divorce once accepted while the wife has been given the power to reclaim the consideration during the Iddat period.

Child Custody under Muslim law

The first and foremost right of the custody of children belongs to the mother. She cannot be deprived of her right as long as she is not guilty. This right is known as right of hizanat.

Notes

[1] Abdul Kadir v. Salima, 1886.

[2] Rahim, Abdur, The Principles of Mohammedan Jurisprudence Lahor, p. 227 (1958) (ed.)

[3] Shoharat Singh v. Jafri Begum, (1915) 17 BOMLR 13

[4] Tahir Mahmood: Dissuasive precepts in Muslim Family Law” A.L. Journal, Vol. II (1965) p. 126.

[5] Anis Begam v. Mohd. Istafa, (1933) 55 All, 743.

[6] Ms. Jordan Diengdeg v. S.S Chopra, AIR1935, SC 935