14 Marriage and Divorce Laws (Muslim Personal Laws)

Meher Dev

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Learning Aims:

By the end of this chapter participants should be able to:

  • Understand laws governing the marriage and divorce of Muslims.
  • Understand the difference between laws applicable to Muslim men and Muslim women.
  • Differentiate between codified Muslim Personal Laws and uncodified Muslim Personal Laws.

Introduction to Muslim Personal Laws:

In the early years of British rule in India, there was a policy of non-interference in religion and thus with the laws of Muslims. A manifestation of such non-interference is The Hastings Plan of 1772 and Art.

xxiii of Regulation II of 1772 that established a hierarchy of civil and criminal courts that applied laws of Quran to Muslims ‘in all suits regarding inheritance, marriage, caste and other religious usages or institutions’. The Hasting Plan of 1772 provided for Maulvis (Muslim Priests) to help and advise the courts on matters of Muslim Personal Laws. Muslims, therefore, continued to follow their uncodified personal laws that governed marriage and divorce.

Towards the end of the colonial era, in the 1930s, the ulema demanded the passing of a law that codified Muslim Personal Laws/the Sharia and made it applicable to all Muslims. The prime reason for this demand was to replace the application of customary practices which were often given priority to by colonial courts with the application of Muslim Personal Law/Sharia. Thus, the British enacted The Muslim Personal Law (Shariat) Application Act of 1937 so that Muslims are governed by only Muslim Personal Laws and not with customary practices that may be prevalent in the regions where they immigrated.

In 1939, there was another demand by the ulema as the ulema was troubled by the practice of women being allowed to dissolve marriage only on the grounds of apostasy. It was in this context that The Dissolution of Muslim Marriages Act 1939 was enacted laying down a list of reasonable grounds for women to seek dissolution of marriage.

Post partition and the independence of India in 1947, Hindu Personal Laws were modified and codified in the 1950s through The Hindu Code Bills. Muslim Personal Laws were however left untouched due to sensitivities around Islam being a minority religion. As a result, Muslim Personal Laws as they stand today are piecemeal and disjointed unlike the comprehensive codification of Hindu Personal Laws.

Even after independence, when courts have tried to interpret Muslim Personal Laws be it in the landmark Shah Bano case or the recent Triple Talaq case, the act of courts has often been seen as an intrusion by some members of the Muslim community and often pressure has been created on the legislature to enact laws overriding the interpretation of courts.

In the famous Shah Bano case, the Supreme Court of India ruled in favour of a 65-year-old Muslim woman who had been divorced after 45 years of marriage by her husband. It held that the woman was entitled to maintenance beyond the iddat period (three months after divorce). The Supreme Court chose to base its ruling not on un-codified Muslim Personal Laws that did not require a husband to pay maintenance beyond the iddat period, but on Section 125 of Code of Criminal Procedure, 1973 (herein after Cr.P.C.), a secular law, which states that when a husband has manifestly sufficient means, the court may request the husband to pay a sum of Indian Rupees. 500 a month to a wife.

The Government of India responded to the controversy by overruling the Shah Bano case. The Rajiv Gandhi Government in response to the outcry by members of the Muslim community against the Shah Bano case, passed The Muslim Women (Protection of Rights on Divorce) Act 1986. This law provided for a reasonable maintenance to be made within only the iddat period.

Remember that

  • Unlike the elaborate form of codification of Hindu Personal Laws, Muslim Personal Laws are codified to a limited extent.
  • The Muslim Personal Law (Shariat) Application Act of 1937 and The Dissolution of Muslim Marriages Act 1939 are pre-independence legislations and are legally binding and enforceable till date.

Application, Meaning & Sources of Muslim Personal Laws/Sharia

 

Let us now have a closer look at the application, meaning and sources of Muslim Personal Laws/Sharia.

By virtue of Section 2 of The Muslim Personal Law (Shariat) Application Act 1937, all Muslims in India (except those in Jammu Kashmir) are governed by Muslim Personal Laws/Sharia in the matters of “intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments)”.

The Muslim Personal Law (Shariat) Application Act 1937 does not define “Muslim Personal Laws”. Tahir Mahmood, an expert on Muslim Personal Laws, refers to Muslim Personal Laws as the “Shariat”, and so does the legislation itself. Mulla, another leading expert on Muslim Personal Laws, defines Sharia to mean the “Commands of God”. Sharia literally means “the clear, well-trodden path to water” which is to be followed by Muslims.

Dictionaries define Muslim Personal Laws/Sharia to mean “a body of canonical law based on the Koran that lays down certain duties and penalties for Muslims” and “Islamic canonical law based on the teachings of the Koran and the traditions of the Prophet (Hadith and Sunna), prescribing both religious and secular duties and sometimes retributive penalties for lawbreaking. It has generally been supplemented by legislation adapted to the conditions of the day, though the manner in which it should be applied in modern states is a subject of dispute between Muslim traditionalists and reformists”.

The primary sources of Muslim Personal Laws are the Holy Quran, traditions of the Prophet (Hadis), and the general consensus of opinion amongst the ulema (Ijma).

Marriage

 

Marriage is more commonly referred as a “nikah” by Muslims. According to sources of Muslim Personal Laws, marriage is “a contract” for procreation and legalising of children. Muslims enter into a marriage contract called the “nikah nama” at the time of their marriage.

The general pre requisites essential for entering into any valid contract are proposal and acceptance by valid consent. These are also essential for entering into a valid nikah nama. The prospective husband and wife are free to add covenants to the nikah nama provided such covenants are in consonance with Muslim Personal Laws that is in consonance with the holy Quran and the sayings and doings of the Prophet. It is important to note that marriages of Muslims are not governed by any codified legislation but purely by the nikah nama and principles of Muslim Personal Laws.

Certain rights arise out marriage. The wife becomes entitled to maintenance by her husband, rights of inheritance are established, and the husband and wife can legally consummate.

Divorce under uncodified Muslim Personal Laws: Talaq by Men, Khula by Women and Mubarat by Mutual Consent Under un-codified Muslim Personal Laws, divorce is of primarily three types:

  • Talaq, which comprises of modes of divorce at the instance of the husband. Talaq itself is of three types. These are Talaq-i-Ahsan and Talaq-i-Hasan, both of which are approved by the Quran and Hadith and the third type which is Talaq-i-Bidat, which is argued by certain scholars and advocates in the Triple Talaq case that it is neither recognized by the Quran nor the Hadith.
  • Khula, which is divorce at the instance of the wife.
  • Mubarat, which is divorce by mutual consent.

Talaq by Men:

Talaq-i-Ahsan is a single pronouncement of talaq by the husband followed by a period of abstinence for the iddat period. The iddat period is equivalent to three months, i.e. three menstrual cycles in case the wife is menstruating or three lunar months in case she is not. If there is a resumption of cohabitation or intimacy within that period, the divorce is revoked. If there is no resumption, then the divorce becomes final on expiry of iddat/three months.

Talaq-i-Hasan arises if, after the first pronouncement as above, there is a resumption of cohabitation within that month or a revocation. The first talaq is thereby revoked. Yet, after such intimacy, if during the second month there has been no intimacy the husband may pronounce another “talaq.” For the divorce to attain finality this is not sufficient, a further month has to pass, and a third talaq has to be pronounced whether during or after the iddat. If the third talaq is not pronounced or there is a resumption of cohabitation before the third talaq is pronounced, whether during or after iddat/three months, the divorce does not come into force. However, if the third talaq is pronounced the divorce is irrevocable.

Talaq-i-Bidat is a form of talaq which is considered by certain scholars and Muslims as contrary to Quranic prescriptions. This practice is recognized by Sunni schools of Islam – most prominently, the Hanafi school. Even the Hanafi school considers it as a sinful form of divorce and seek to justify it on the ground that “it is bad in theology but good in law.”

Talaq-i-bidat is also of two kinds: uttered in one definitive talaq pronouncement such as “I talaq you irrevocably” or three simultaneous pronouncements, i.e. “talaq, talaq, talaq” at one Go. In both cases, the divorce is said to be effected instantaneously and irrevocably. Both the types of talaq-i-bidat are colloquially referred to as triple talaq.

It is pertinent to note that the Supreme Court, in a case as far back as 1997, refused to entertain writ petitions to declare Muslim Personal Laws which enable a Muslim male to give unilateral talaq to his wife without her consent and without resort to judicial process of courts, as void, offending Articles 13, 14, and 15 of the Constitution by stating that such cases: “…involve issues of State policies with which the Court will not ordinarily have any concern. Further, we find that when similar attempts were made, of course by others, on earlier occasions this Court held that the remedy lies somewhere else and not by knocking at the doors of the courts.”

Recently, the practice of unilateral triple talaq has again been challenged as being violative of the fundamental rights of women before the Supreme Court of India. The case was originally brought by women who have been divorced by means of triple talaq conveyed to them by a letter or through WhatsApp message or similar means. The Supreme Court ruled in August 2017 that the practice of triple talaq is unconstitutional. The court held that such practice violates the right to equality of Muslim women as it vests in Muslim men a unilateral right to divorce.

Khula by Women:

Khula has three primary elements:

  • It is an offer of divorce from the Muslim wife,
  • Such offer is accompanied by some form of consideration – often the wife gives the dower given to her or promised to her at the time of marriage as consideration,
  • The offer has to be accepted by the husband.

Mubarat by Mutual Consent:

Mubarat which is divorce by mutual consent of the husband and wife is a more progressive and liberal form of divorce. Both husband and wife have an equal say in the process of divorce. The offer of divorce can be made by the wife or the husband.  On acceptance of the offer accompanied with an equal desire of the wife/husband to seek a divorce, such divorce by mutual consent becomes effective.

Divorce under codified Muslim Personal Laws: The Dissolution of Muslim Marriages Act 1939: Grounds, Renunciation of Islam

The Dissolution of Muslim Marriages Act 1939 was enacted “to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie.”

Section 2 of The Dissolution of Muslim Marriages Act 1939 lays down the following grounds on which a Muslim woman can file for a decree of divorce:

  •  Husband’s where abouts if unknown for 4 years;
  •  Husband has neglected/failed to provide maintenance to his wife for 2 years;
  •  Husband has been sentenced to imprisonment for 7 years or upwards;
  •  Husband has failed to perform, without reasonable cause his marital obligations for 3 years;
  •  Husband was impotent at the time of the marriage and continues to be so;
  •  Husband has been insane for a period of 2 years or is suffering from leprosy or a virulent venereal disease;
  •  She having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated;
  •  Husband treats her with cruelty, that is to say.—
    •  Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
    •  Associates with women of evil repute or leads an infamous life, or
    •  Attempts to force her to lead an immoral life, or
    •  Disposes of her property or prevents her exercising her legal rights over it, or
    •  Obstructs her in the observance of her religious profession or practice, or
    •  If he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;
  •  Or any other ground which is recognised as valid for the dissolution of marriages under Muslim law.

The Dissolution of Muslim Marriages Act 1939 states the legal effect of conversion to another faith; the renunciation of Islam by a married Muslim woman and conversion to a faith other than Islam does not by itself operate to dissolve her marriage. Further, by virtue of Section 5 of The Dissolution of Muslim Marriages Act 1939, a Muslim woman does not have to forgo of her dower for dissolution of her marriage.

Rights of a Muslim Woman Arising at/after Divorce: The Muslim Women (Protection of Rights on Divorce) Act 1986 : Object of enactment, Legal rights of maintenance

The object of enactment:

The Muslim Women (Protection of Rights on Divorce) Act 1986 was enacted “to protect the rights of Muslim women who have been divorced by, or have obtained a divorce from, their husbands and to provide for matters connected therewith or incidental thereto.”  The Muslim Women (Protection of Rights on Divorce) Act 1986 applies to the post-divorce rights of Muslim women.

The Act was introduced in the aftermath of the controversy following the judgment in the Shah Bano case (Mohd. Ahmed Khan v Shah Bano Begum and Ors). The Supreme Court in the Shah Bano case had opined that Muslim women could apply for maintenance under S.125 Cr.P.C, 1973, and under this provision, the Muslim husband’s obligation to maintain his wife extended beyond the iddat period. The Muslim Women (Protection of Rights on Divorce) Act 1986 was enacted in 1986, following protests led by Muslim religious leaders who characterized the decision as an attack on their religion. The Statement of Objects and Reasons of the Bill leading to the Act stated that the Bill was “to specify the rights which a divorced Muslim wife is entitled to at the time of divorce and to protect her interests.”

Legal rights of maintenance:

By virtue of Section 3 of The Muslim Women (Protection of Rights on Divorce) Act 1986, a divorced Muslim woman is entitled to:

  • Reasonable and fair provision and maintenance to be made within iddat period,
  • Where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children,
  • An amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law, and
  • All the properties were given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

The Muslim Women (Protection of Rights on Divorce) Act 1986 provides that apart from the mahr and the properties given to the divorced woman before or at the time of the marriage by her family or husband or friends, she shall also be entitled to “a reasonable and fair provision and maintenance” payable within the iddat period by her former husband.

The Muslim Women (Protection of Rights on Divorce) Act 1986 also provides that in cases where the woman has not remarried and is unable to maintain herself after the iddat period, the court may direct her relatives to pay reasonable and fair maintenance to the woman. On an application made by the woman for payment of the provision and maintenance, the court may direct the former husband to pay “such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband.”

In cases where the relatives are unable to maintain the woman, the court may direct the State Wakf Board to maintain the woman. State Wakf Boards are constituted by State Governments under The Wakf Act 1955, and it consists of Muslim members. The State Wakf Boards are responsible for managing and administering properties of the wakf which may include mosques, kabarsthan, orphanages, dargas etc., and to use the income thereof for advancing the objects for which such wakfs were created.

The Supreme Court of India in Danial Latifi v. Union of India authoritatively laid down the post-divorce maintenance rights of Muslim women. It was held that the expressions ‘reasonable and fair provision’ and ‘maintenance’ as under Section 3(1)(a) of The Muslim Women (Protection of Rights on Divorce) Act 1986 covers different things, and that the husband is liable to make reasonable and fair provision for the future of the divorced wife which included her maintenance as well.

The Court stated that the word ‘provisions’ indicates that something is provided in advance for meeting some needs and that at the time of divorce, the Muslim husband is required to contemplate the future needs of his wife and make preparatory arrangements in advance for meetings those needs.

The Court thus reasoned that a Muslim husband’s liability to pay maintenance is not confined to the iddat period. A reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1). Comparing Section 3 of The Muslim Women (Protection of Rights on Divorce) Act 1986 to the secular law of Section 125 Cr.P.C 1973 and seeing that the purpose of Section 125 is to prevent vagrancy and destitution, the Court held that the purpose and object of Section 125 Cr.P.C 1973 is fulfilled by the provisions of The Muslim Women (Protection of Rights on Divorce) Act 1986.

The Court was of the opinion that The Muslim Women (Protection of Rights on Divorce) Act 1986 codifies what was stated in the Shah Bano case. By these interpretations of the legislation, the Supreme Court of India ruled that The Muslim Women (Protection of Rights on Divorce) Act 1986 is constitutional and does not violate fundamental rights of women.

Thus, as the law stands today, a Muslim husband’s liability to provide reasonable and fair provision and maintenance to his divorced wife extends beyond the iddat period, and he must realize his obligation within the iddat period.

It is pertinent to note, at the first date of hearing of the application for maintenance before the Court, a Muslim couple can opt to be governed by the secular law of maintenance of Section 125 of the Cr.P.C 1973.

Conclusion:

So we have seen how from a policy of non-interference in religion and Muslim Personal Laws, there was a change in attitude and legislations such as The Application of Muslim Personal Law (Shariat) Act 1937 , The Dissolution of Muslim Marriages Act 1939 and The Muslim Women (Protection of Rights on Divorce) Act 1986 were enacted based on demands from the Muslim community.

Alongside the Legislature, the Supreme Court of India in the triple talaq case of August 2017, also has taken an active role by adjudicating on the constitutional validity of the practice of triple talaq and setting such practice aside based on the demands of Muslim women.

you can view video on Marriage and Divorce Laws (Muslim Personal Laws)

Reference

  •  Tahir Mahmood, Muslim Law in India and Abroad, 2 ed., Universal Law Publishing – Lexis Nexis (2016).
  •  M Bhattacharjee, Matrimonial Laws and the Constitution, 2ed., Eastern Law House (2017).
  •  Triple Talaq and Personal Laws – Immune from Constitutional Checks?, The Invisible Lawyer.
  •  Flavia Agnes, In Conversation: Gender Rights Lawyer Flavia Agnes on Why Triple Talaq Shouldn’t Be Banned, The Better India.
  •  End triple talaq: Will government answer Muslim women’s war cry?, NDTV.