{"id":168,"date":"2019-08-30T12:30:35","date_gmt":"2019-08-30T12:30:35","guid":{"rendered":"http:\/\/hrdp05.epgpbooks.inflibnet.ac.in\/?post_type=chapter&#038;p=168"},"modified":"2019-09-04T04:41:29","modified_gmt":"2019-09-04T04:41:29","slug":"marriage-and-divorce-laws-muslim-personal-laws","status":"publish","type":"chapter","link":"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/chapter\/marriage-and-divorce-laws-muslim-personal-laws\/","title":{"rendered":"Marriage and Divorce Laws (Muslim Personal Laws)"},"content":{"raw":"<div><span style=\"float: right\"><a href=\"https:\/\/youtu.be\/cX3MOuVk2zc\" target=\"_blank\" rel=\"noopener\"><img class=\"\" src=\"http:\/\/epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/2018\/11\/download.png\" alt=\"epgp books\" width=\"55\" height=\"55\" \/><\/a>\r\n<\/span><\/div>\r\n<p class=\"no-indent\" style=\"text-align: justify\"><strong>Learning Aims:<\/strong><\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">By the end of this chapter participants should be able to:<\/p>\r\n\r\n<ul>\r\n \t<li>Understand laws governing the marriage and divorce of Muslims.<\/li>\r\n \t<li>Understand the difference between laws applicable to Muslim men and Muslim women.<\/li>\r\n \t<li>Differentiate between codified Muslim Personal Laws and uncodified Muslim Personal Laws.<\/li>\r\n<\/ul>\r\n<p class=\"no-indent\" style=\"text-align: justify\"><strong>Introduction to Muslim Personal Laws<\/strong>:<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\"><img class=\"aligncenter size-full wp-image-173\" src=\"http:\/\/hrdp05.epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-37.png\" alt=\"\" width=\"445\" height=\"351\" \/><\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">xxiii of Regulation II of 1772 that established a hierarchy of civil and criminal courts that applied laws of Quran to Muslims \u2018in all suits regarding inheritance, marriage, caste and other religious usages or institutions\u2019. The Hasting Plan of 1772 provided for <em>Maulvis<\/em> (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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">Towards the end of the colonial era, in the 1930s, the <em>ulema<\/em> demanded the passing of a law that codified Muslim Personal Laws\/the <em>Sharia<\/em> 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\/<em>Sharia<\/em>. Thus, the British enacted The Muslim Personal Law <em>(Shariat)<\/em> 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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">In 1939, there was another demand by the <em>ulema<\/em> as the <em>ulema<\/em> 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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\r\n<p style=\"text-align: justify\">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.<\/p>\r\n<img class=\"aligncenter size-full wp-image-174\" src=\"http:\/\/hrdp05.epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-38.png\" alt=\"\" width=\"1023\" height=\"659\" \/>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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 <em>iddat<\/em> 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 <em>iddat<\/em> 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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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 <em>iddat<\/em> period.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\"><strong><em>Remember that<\/em><\/strong><\/p>\r\n\r\n<ul>\r\n \t<li style=\"text-align: justify\">Unlike the elaborate form of codification of Hindu Personal Laws, Muslim Personal Laws are codified to a limited extent.<\/li>\r\n \t<li style=\"text-align: justify\">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.<\/li>\r\n<\/ul>\r\nApplication, Meaning &amp; Sources of Muslim Personal Laws\/<em>Sharia<\/em>\r\n\r\n&nbsp;\r\n\r\n<img class=\"aligncenter size-full wp-image-175\" src=\"http:\/\/hrdp05.epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-39.png\" alt=\"\" width=\"446\" height=\"226\" \/>\r\n<p class=\"no-indent\" style=\"text-align: justify\">Let us now have a closer look at the application, meaning and sources of Muslim Personal Laws\/<em>Sharia<\/em>.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">By virtue of Section 2 of The Muslim Personal Law <em>(Shariat)<\/em> Application Act 1937, all Muslims in India (except those in Jammu Kashmir) are governed by Muslim Personal Laws\/<em>Sharia<\/em> in the matters of \u201c<em>intestate succession, special property of females, including personal property inherited or obtained<\/em> <em>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)\u201d.<\/em><\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">The Muslim Personal Law <em>(Shariat)<\/em> Application Act 1937 does not define \u201cMuslim Personal Laws\u201d. Tahir Mahmood, an expert on Muslim Personal Laws, refers to Muslim Personal Laws as the \u201cShariat\u201d, and so does the legislation itself. Mulla, another leading expert on Muslim Personal Laws, defines Sharia to mean the \u201cCommands of God\u201d. Sharia literally means \u201cthe clear, well-trodden path to water\u201d which is to be followed by Muslims.<\/p>\r\n<img class=\"aligncenter size-full wp-image-176\" src=\"http:\/\/hrdp05.epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-40.png\" alt=\"\" width=\"800\" height=\"443\" \/>\r\n<p class=\"no-indent\" style=\"text-align: justify\">Dictionaries define Muslim Personal Laws\/Sharia to mean \u201c<em>a body of canonical law based on the Koran<\/em> <em>that lays down certain duties and penalties for Muslims<\/em>\u201d and \u201c<em>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\u00a0<\/em><em>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<\/em>\u201d.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">The primary sources of Muslim Personal Laws are the Holy Quran, traditions of the Prophet (<em>Hadis),<\/em> and the general consensus of opinion amongst the <em>ulema<\/em> (<em>Ijma)<\/em>.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\"><strong>Marriage<\/strong><\/p>\r\n&nbsp;\r\n\r\n<img class=\"aligncenter size-full wp-image-177\" src=\"http:\/\/hrdp05.epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-41.png\" alt=\"\" width=\"848\" height=\"451\" \/>\r\n<p class=\"no-indent\" style=\"text-align: justify\">Marriage is more commonly referred as a \u201cnikah\u201d by Muslims. According to sources of Muslim Personal Laws, marriage is \u201ca contract\u201d for procreation and legalising of children. Muslims enter into a marriage contract called the \u201cnikah nama\u201d at the time of their marriage.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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 <em>nikah nama<\/em>. The prospective husband and wife are free to add covenants to the <em>nikah nama<\/em> 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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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:<\/p>\r\n\r\n<ul>\r\n \t<li style=\"text-align: justify\"><em>Talaq<\/em>, which comprises of modes of divorce at the instance of the husband. Talaq itself is of three types. These are <em>Talaq-i-Ahsan<\/em> and <em>Talaq-i-Hasan<\/em>, both of which are approved by the Quran and Hadith and the third type which is <em>Talaq-i-Bidat<\/em>, which is argued by certain scholars and advocates in the Triple Talaq case that it is neither recognized by the Quran nor the Hadith.<\/li>\r\n \t<li style=\"text-align: justify\"><em>Khula<\/em>, which is divorce at the instance of the wife.<\/li>\r\n \t<li style=\"text-align: justify\"><em>Mubarat<\/em>, which is divorce by mutual consent.<\/li>\r\n<\/ul>\r\n<strong>Talaq by Men:<\/strong>\r\n<p class=\"no-indent\" style=\"text-align: justify\"><em>Talaq-i-Ahsan <\/em>is a single pronouncement of<em> talaq <\/em>by the husband followed by a period of abstinence for the <em>iddat<\/em> period. The <em>iddat<\/em> 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 <em>iddat<\/em>\/three months.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\"><em>Talaq-i-Hasan <\/em>arises if, after the first pronouncement as above, there is a resumption of cohabitation within that month or a revocation. The first <em>talaq<\/em> is thereby revoked. Yet, after such intimacy, if during the second month there has been no intimacy the husband may pronounce another <em>\u201ctalaq.\u201d<\/em> For the divorce to attain finality this is not sufficient, a further month has to pass, and a third <em>talaq<\/em> has to be pronounced whether during or after the <em>iddat<\/em>. If the third <em>talaq<\/em> is not pronounced or there is a resumption of cohabitation before the third <em>talaq<\/em> is pronounced, whether during or after <em>iddat<\/em>\/three months, the divorce does not come into force. However, if the third <em>talaq<\/em> is pronounced the divorce is irrevocable.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\"><em>Talaq-i-Bidat <\/em>is a form of<em> talaq <\/em>which is considered by certain scholars and Muslims as contrary to Quranic prescriptions. This practice is recognized by <em>Sunni<\/em> schools of Islam - most prominently, the <em>Hanafi <\/em>school. Even the<em> Hanafi <\/em>school considers it as a sinful form of divorce and seek to justify it on the ground that \u201cit is bad in theology but good in law.\u201d<\/p>\r\n<img class=\"aligncenter size-full wp-image-178\" src=\"http:\/\/hrdp05.epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-42.png\" alt=\"\" width=\"1103\" height=\"564\" \/>\r\n<p class=\"no-indent\" style=\"text-align: justify\"><em>Talaq-i-bidat <\/em>is also of two kinds: uttered in one definitive<em> talaq <\/em>pronouncement such as \u201cI talaq you irrevocably\u201d or three simultaneous pronouncements, i.e. \u201ctalaq, talaq, talaq\u201d at one Go. In both cases, the divorce is said to be effected instantaneously and irrevocably. Both the types of <em>talaq-i-bidat <\/em>are colloquially referred to as triple talaq.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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 <em>talaq<\/em> 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: \u201c\u2026<em>involve issues of State policies with which<\/em> <em>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.\u201d<\/em><\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\"><strong>Khula by Women:<\/strong><\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\"><em>Khula <\/em>has three primary elements:<\/p>\r\n\r\n<ul>\r\n \t<li style=\"text-align: justify\">It is an offer of divorce from the Muslim wife,<\/li>\r\n \t<li style=\"text-align: justify\">Such offer is accompanied by some form of consideration \u2013 often the wife gives the dower given to her or promised to her at the time of marriage as consideration,<\/li>\r\n \t<li style=\"text-align: justify\">The offer has to be accepted by the husband.<\/li>\r\n<\/ul>\r\n<p class=\"no-indent\"><strong>Mubarat by Mutual Consent:<\/strong><\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\"><em>Mubarat <\/em>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. \u00a0On acceptance of the offer accompanied with an equal desire of the wife\/husband to seek a divorce, such divorce by mutual consent becomes effective.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">Divorce under codified Muslim Personal Laws: <em>The Dissolution of Muslim Marriages Act 1939<\/em>: Grounds, Renunciation of Islam<\/p>\r\n<img class=\"aligncenter size-full wp-image-179\" src=\"http:\/\/hrdp05.epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-43.png\" alt=\"\" width=\"648\" height=\"301\" \/>\r\n<p class=\"no-indent\" style=\"text-align: justify\">The Dissolution of Muslim Marriages Act 1939 was enacted \u201c<em>to consolidate and clarify the provisions<\/em> <em>of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to\u00a0<\/em><em>remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie<\/em>.\u201d<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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:<\/p>\r\n\r\n<ul>\r\n \t<li>\u00a0Husband\u2019s where abouts if unknown for 4 years;<\/li>\r\n \t<li style=\"text-align: justify\">\u00a0Husband has neglected\/failed to provide maintenance to his wife for 2 years;<\/li>\r\n \t<li style=\"text-align: justify\">\u00a0Husband has been sentenced to imprisonment for 7 years or upwards;<\/li>\r\n \t<li style=\"text-align: justify\">\u00a0Husband has failed to perform, without reasonable cause his marital obligations for 3 years;<\/li>\r\n \t<li style=\"text-align: justify\">\u00a0Husband was impotent at the time of the marriage and continues to be so;<\/li>\r\n \t<li style=\"text-align: justify\">\u00a0Husband has been insane for a period of 2 years or is suffering from leprosy or a virulent venereal disease;<\/li>\r\n \t<li style=\"text-align: justify\">\u00a0She 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;<\/li>\r\n \t<li style=\"text-align: justify\">\u00a0Husband treats her with cruelty, that is to say.\u2014\r\n<ul>\r\n \t<li>\u00a0Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or<\/li>\r\n \t<li>\u00a0Associates with women of evil repute or leads an infamous life, or<\/li>\r\n \t<li>\u00a0Attempts to force her to lead an immoral life, or<\/li>\r\n \t<li>\u00a0Disposes of her property or prevents her exercising her legal rights over it, or<\/li>\r\n \t<li>\u00a0Obstructs her in the observance of her religious profession or practice, or<\/li>\r\n \t<li>\u00a0If he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;<\/li>\r\n<\/ul>\r\n<\/li>\r\n \t<li style=\"text-align: justify\">\u00a0Or any other ground which is recognised as valid for the dissolution of marriages under Muslim law.<\/li>\r\n<\/ul>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">Rights of a Muslim Woman Arising at\/after Divorce: The Muslim Women (Protection of Rights on Divorce) Act 1986 : <em>Object of enactment, Legal rights of maintenance<\/em><\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\"><strong>The object of enactment:<\/strong><\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">The Muslim Women (Protection of Rights on Divorce) Act 1986 was enacted \u201c<em>to protect the rights of<\/em> <em>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.<\/em>\u201d<em> \u00a0<\/em>The Muslim Women (Protection of Rights on Divorce) Act 1986 applies to the post-divorce rights of Muslim women.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">The Act was introduced in the aftermath of the controversy following the judgment in the Shah Bano case (<em>Mohd. Ahmed Khan v Shah Bano Begum and Ors).<\/em> 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\u2019s obligation to maintain his wife extended beyond the <em>iddat<\/em> 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 \u201c<em>to specify the rights which<\/em> <em>a divorced Muslim wife is entitled to at the time of divorce and to protect her interests<\/em>.\u201d<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\"><strong>Legal rights of maintenance:<\/strong><\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">By virtue of Section 3 of The Muslim Women (Protection of Rights on Divorce) Act 1986, a divorced Muslim woman is entitled to:<\/p>\r\n\r\n<ul>\r\n \t<li style=\"text-align: justify\">Reasonable and fair provision and maintenance to be made within <em>iddat<\/em> period,<\/li>\r\n \t<li style=\"text-align: justify\">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,<\/li>\r\n \t<li style=\"text-align: justify\">An amount equal to the sum of <em>mahr<\/em> or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law, and<\/li>\r\n \t<li style=\"text-align: justify\">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.<\/li>\r\n<\/ul>\r\n<p class=\"no-indent\" style=\"text-align: justify\">The Muslim Women (Protection of Rights on Divorce) Act 1986 provides that apart from the <em>mahr<\/em> 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 \u201ca reasonable and fair provision and maintenance\u201d payable within the <em>iddat<\/em> period by her former husband.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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 <em>iddat<\/em> 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 \u201c<em>such reasonable and fair provision and maintenance to the divorced woman as he may determine<\/em> <em>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<\/em>.\u201d<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">In cases where the relatives are unable to maintain the woman, the court may direct the State <em>Wakf<\/em> 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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">The Supreme Court of India in <em>Danial Latifi v. Union of India<\/em> authoritatively laid down the post-divorce maintenance rights of Muslim women. It was held that the expressions \u2018reasonable and fair provision\u2019 and \u2018maintenance\u2019 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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">The Court stated that the word \u2018provisions\u2019 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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">The Court thus reasoned that a Muslim husband\u2019s liability to pay maintenance is not confined to the <em>iddat <\/em>period. A reasonable and fair provision extending beyond the<em> iddat <\/em>period must be made by the husband within the <em>iddat<\/em> 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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">Thus, as the law stands today, a Muslim husband\u2019s liability to provide reasonable and fair provision and maintenance to his divorced wife extends beyond the <em>iddat<\/em> period, and he must realize his obligation within the <em>iddat<\/em> period.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\"><strong>Conclusion:<\/strong><\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\r\n<p class=\"no-indent\" style=\"text-align: justify\">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<strong>.<\/strong><\/p>\r\n\r\n<table>\r\n<tbody>\r\n<tr>\r\n<td><strong>you can view video on Marriage and Divorce Laws (Muslim Personal Laws)<\/strong><\/td>\r\n<td><a href=\"https:\/\/youtu.be\/cX3MOuVk2zc\" target=\"_blank\" rel=\"noopener\"><img class=\"alignnone wp-image-120\" src=\"http:\/\/epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/2018\/11\/download.png\" alt=\"\" width=\"46\" height=\"46\" \/><\/a><\/td>\r\n<\/tr>\r\n<\/tbody>\r\n<\/table>\r\n<strong>Reference<\/strong>\r\n<ul>\r\n \t<li style=\"text-align: justify\">\u00a0Tahir Mahmood, Muslim Law in India and Abroad, 2 ed., Universal Law Publishing \u2013 Lexis Nexis (2016).<\/li>\r\n \t<li style=\"text-align: justify\">\u00a0M Bhattacharjee, Matrimonial Laws and the Constitution, 2ed., Eastern Law House (2017).<\/li>\r\n \t<li style=\"text-align: justify\">\u00a0Triple Talaq and Personal Laws \u2013 Immune from Constitutional Checks?, The Invisible Lawyer.<\/li>\r\n \t<li style=\"text-align: justify\">\u00a0Flavia Agnes, In Conversation: Gender Rights Lawyer Flavia Agnes on Why Triple Talaq Shouldn\u2019t\u00a0Be Banned, <span style=\"text-align: initial;font-size: 1em\">The Better India.<\/span><\/li>\r\n \t<li style=\"text-align: justify\">\u00a0End triple talaq: Will government answer Muslim women's war cry?, NDTV.<\/li>\r\n<\/ul>\r\n&nbsp;","rendered":"<div><span style=\"float: right\"><a href=\"https:\/\/youtu.be\/cX3MOuVk2zc\" target=\"_blank\" rel=\"noopener\"><img loading=\"lazy\" decoding=\"async\" class=\"\" src=\"http:\/\/epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/2018\/11\/download.png\" alt=\"epgp books\" width=\"55\" height=\"55\" \/><\/a><br \/>\n<\/span><\/div>\n<p class=\"no-indent\" style=\"text-align: justify\"><strong>Learning Aims:<\/strong><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">By the end of this chapter participants should be able to:<\/p>\n<ul>\n<li>Understand laws governing the marriage and divorce of Muslims.<\/li>\n<li>Understand the difference between laws applicable to Muslim men and Muslim women.<\/li>\n<li>Differentiate between codified Muslim Personal Laws and uncodified Muslim Personal Laws.<\/li>\n<\/ul>\n<p class=\"no-indent\" style=\"text-align: justify\"><strong>Introduction to Muslim Personal Laws<\/strong>:<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\"><img loading=\"lazy\" decoding=\"async\" class=\"aligncenter size-full wp-image-173\" src=\"http:\/\/hrdp05.epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-37.png\" alt=\"\" width=\"445\" height=\"351\" srcset=\"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-37.png 445w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-37-300x237.png 300w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-37-65x51.png 65w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-37-225x177.png 225w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-37-350x276.png 350w\" sizes=\"auto, (max-width: 445px) 100vw, 445px\" \/><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">xxiii of Regulation II of 1772 that established a hierarchy of civil and criminal courts that applied laws of Quran to Muslims \u2018in all suits regarding inheritance, marriage, caste and other religious usages or institutions\u2019. The Hasting Plan of 1772 provided for <em>Maulvis<\/em> (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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">Towards the end of the colonial era, in the 1930s, the <em>ulema<\/em> demanded the passing of a law that codified Muslim Personal Laws\/the <em>Sharia<\/em> 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\/<em>Sharia<\/em>. Thus, the British enacted The Muslim Personal Law <em>(Shariat)<\/em> 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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">In 1939, there was another demand by the <em>ulema<\/em> as the <em>ulema<\/em> 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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\n<p style=\"text-align: justify\">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.<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" class=\"aligncenter size-full wp-image-174\" src=\"http:\/\/hrdp05.epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-38.png\" alt=\"\" width=\"1023\" height=\"659\" srcset=\"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-38.png 1023w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-38-300x193.png 300w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-38-768x495.png 768w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-38-65x42.png 65w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-38-225x145.png 225w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-38-350x225.png 350w\" sizes=\"auto, (max-width: 1023px) 100vw, 1023px\" \/><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">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 <em>iddat<\/em> 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 <em>iddat<\/em> 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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">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 <em>iddat<\/em> period.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\"><strong><em>Remember that<\/em><\/strong><\/p>\n<ul>\n<li style=\"text-align: justify\">Unlike the elaborate form of codification of Hindu Personal Laws, Muslim Personal Laws are codified to a limited extent.<\/li>\n<li style=\"text-align: justify\">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.<\/li>\n<\/ul>\n<p>Application, Meaning &amp; Sources of Muslim Personal Laws\/<em>Sharia<\/em><\/p>\n<p>&nbsp;<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" class=\"aligncenter size-full wp-image-175\" src=\"http:\/\/hrdp05.epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-39.png\" alt=\"\" width=\"446\" height=\"226\" srcset=\"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-39.png 446w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-39-300x152.png 300w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-39-65x33.png 65w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-39-225x114.png 225w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-39-350x177.png 350w\" sizes=\"auto, (max-width: 446px) 100vw, 446px\" \/><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">Let us now have a closer look at the application, meaning and sources of Muslim Personal Laws\/<em>Sharia<\/em>.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">By virtue of Section 2 of The Muslim Personal Law <em>(Shariat)<\/em> Application Act 1937, all Muslims in India (except those in Jammu Kashmir) are governed by Muslim Personal Laws\/<em>Sharia<\/em> in the matters of \u201c<em>intestate succession, special property of females, including personal property inherited or obtained<\/em> <em>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)\u201d.<\/em><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">The Muslim Personal Law <em>(Shariat)<\/em> Application Act 1937 does not define \u201cMuslim Personal Laws\u201d. Tahir Mahmood, an expert on Muslim Personal Laws, refers to Muslim Personal Laws as the \u201cShariat\u201d, and so does the legislation itself. Mulla, another leading expert on Muslim Personal Laws, defines Sharia to mean the \u201cCommands of God\u201d. Sharia literally means \u201cthe clear, well-trodden path to water\u201d which is to be followed by Muslims.<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" class=\"aligncenter size-full wp-image-176\" src=\"http:\/\/hrdp05.epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-40.png\" alt=\"\" width=\"800\" height=\"443\" srcset=\"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-40.png 800w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-40-300x166.png 300w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-40-768x425.png 768w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-40-65x36.png 65w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-40-225x125.png 225w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-40-350x194.png 350w\" sizes=\"auto, (max-width: 800px) 100vw, 800px\" \/><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">Dictionaries define Muslim Personal Laws\/Sharia to mean \u201c<em>a body of canonical law based on the Koran<\/em> <em>that lays down certain duties and penalties for Muslims<\/em>\u201d and \u201c<em>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\u00a0<\/em><em>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<\/em>\u201d.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">The primary sources of Muslim Personal Laws are the Holy Quran, traditions of the Prophet (<em>Hadis),<\/em> and the general consensus of opinion amongst the <em>ulema<\/em> (<em>Ijma)<\/em>.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\"><strong>Marriage<\/strong><\/p>\n<p>&nbsp;<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" class=\"aligncenter size-full wp-image-177\" src=\"http:\/\/hrdp05.epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-41.png\" alt=\"\" width=\"848\" height=\"451\" srcset=\"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-41.png 848w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-41-300x160.png 300w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-41-768x408.png 768w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-41-65x35.png 65w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-41-225x120.png 225w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-41-350x186.png 350w\" sizes=\"auto, (max-width: 848px) 100vw, 848px\" \/><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">Marriage is more commonly referred as a \u201cnikah\u201d by Muslims. According to sources of Muslim Personal Laws, marriage is \u201ca contract\u201d for procreation and legalising of children. Muslims enter into a marriage contract called the \u201cnikah nama\u201d at the time of their marriage.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">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 <em>nikah nama<\/em>. The prospective husband and wife are free to add covenants to the <em>nikah nama<\/em> 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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">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:<\/p>\n<ul>\n<li style=\"text-align: justify\"><em>Talaq<\/em>, which comprises of modes of divorce at the instance of the husband. Talaq itself is of three types. These are <em>Talaq-i-Ahsan<\/em> and <em>Talaq-i-Hasan<\/em>, both of which are approved by the Quran and Hadith and the third type which is <em>Talaq-i-Bidat<\/em>, which is argued by certain scholars and advocates in the Triple Talaq case that it is neither recognized by the Quran nor the Hadith.<\/li>\n<li style=\"text-align: justify\"><em>Khula<\/em>, which is divorce at the instance of the wife.<\/li>\n<li style=\"text-align: justify\"><em>Mubarat<\/em>, which is divorce by mutual consent.<\/li>\n<\/ul>\n<p><strong>Talaq by Men:<\/strong><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\"><em>Talaq-i-Ahsan <\/em>is a single pronouncement of<em> talaq <\/em>by the husband followed by a period of abstinence for the <em>iddat<\/em> period. The <em>iddat<\/em> 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 <em>iddat<\/em>\/three months.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\"><em>Talaq-i-Hasan <\/em>arises if, after the first pronouncement as above, there is a resumption of cohabitation within that month or a revocation. The first <em>talaq<\/em> is thereby revoked. Yet, after such intimacy, if during the second month there has been no intimacy the husband may pronounce another <em>\u201ctalaq.\u201d<\/em> For the divorce to attain finality this is not sufficient, a further month has to pass, and a third <em>talaq<\/em> has to be pronounced whether during or after the <em>iddat<\/em>. If the third <em>talaq<\/em> is not pronounced or there is a resumption of cohabitation before the third <em>talaq<\/em> is pronounced, whether during or after <em>iddat<\/em>\/three months, the divorce does not come into force. However, if the third <em>talaq<\/em> is pronounced the divorce is irrevocable.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\"><em>Talaq-i-Bidat <\/em>is a form of<em> talaq <\/em>which is considered by certain scholars and Muslims as contrary to Quranic prescriptions. This practice is recognized by <em>Sunni<\/em> schools of Islam &#8211; most prominently, the <em>Hanafi <\/em>school. Even the<em> Hanafi <\/em>school considers it as a sinful form of divorce and seek to justify it on the ground that \u201cit is bad in theology but good in law.\u201d<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" class=\"aligncenter size-full wp-image-178\" src=\"http:\/\/hrdp05.epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-42.png\" alt=\"\" width=\"1103\" height=\"564\" srcset=\"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-42.png 1103w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-42-300x153.png 300w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-42-768x393.png 768w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-42-1024x524.png 1024w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-42-65x33.png 65w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-42-225x115.png 225w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-42-350x179.png 350w\" sizes=\"auto, (max-width: 1103px) 100vw, 1103px\" \/><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\"><em>Talaq-i-bidat <\/em>is also of two kinds: uttered in one definitive<em> talaq <\/em>pronouncement such as \u201cI talaq you irrevocably\u201d or three simultaneous pronouncements, i.e. \u201ctalaq, talaq, talaq\u201d at one Go. In both cases, the divorce is said to be effected instantaneously and irrevocably. Both the types of <em>talaq-i-bidat <\/em>are colloquially referred to as triple talaq.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">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 <em>talaq<\/em> 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: \u201c\u2026<em>involve issues of State policies with which<\/em> <em>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.\u201d<\/em><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\"><strong>Khula by Women:<\/strong><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\"><em>Khula <\/em>has three primary elements:<\/p>\n<ul>\n<li style=\"text-align: justify\">It is an offer of divorce from the Muslim wife,<\/li>\n<li style=\"text-align: justify\">Such offer is accompanied by some form of consideration \u2013 often the wife gives the dower given to her or promised to her at the time of marriage as consideration,<\/li>\n<li style=\"text-align: justify\">The offer has to be accepted by the husband.<\/li>\n<\/ul>\n<p class=\"no-indent\"><strong>Mubarat by Mutual Consent:<\/strong><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\"><em>Mubarat <\/em>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. \u00a0On acceptance of the offer accompanied with an equal desire of the wife\/husband to seek a divorce, such divorce by mutual consent becomes effective.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">Divorce under codified Muslim Personal Laws: <em>The Dissolution of Muslim Marriages Act 1939<\/em>: Grounds, Renunciation of Islam<\/p>\n<p><img loading=\"lazy\" decoding=\"async\" class=\"aligncenter size-full wp-image-179\" src=\"http:\/\/hrdp05.epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-43.png\" alt=\"\" width=\"648\" height=\"301\" srcset=\"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-43.png 648w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-43-300x139.png 300w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-43-65x30.png 65w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-43-225x105.png 225w, https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-content\/uploads\/sites\/310\/2019\/08\/Untitled-43-350x163.png 350w\" sizes=\"auto, (max-width: 648px) 100vw, 648px\" \/><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">The Dissolution of Muslim Marriages Act 1939 was enacted \u201c<em>to consolidate and clarify the provisions<\/em> <em>of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to\u00a0<\/em><em>remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie<\/em>.\u201d<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">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:<\/p>\n<ul>\n<li>\u00a0Husband\u2019s where abouts if unknown for 4 years;<\/li>\n<li style=\"text-align: justify\">\u00a0Husband has neglected\/failed to provide maintenance to his wife for 2 years;<\/li>\n<li style=\"text-align: justify\">\u00a0Husband has been sentenced to imprisonment for 7 years or upwards;<\/li>\n<li style=\"text-align: justify\">\u00a0Husband has failed to perform, without reasonable cause his marital obligations for 3 years;<\/li>\n<li style=\"text-align: justify\">\u00a0Husband was impotent at the time of the marriage and continues to be so;<\/li>\n<li style=\"text-align: justify\">\u00a0Husband has been insane for a period of 2 years or is suffering from leprosy or a virulent venereal disease;<\/li>\n<li style=\"text-align: justify\">\u00a0She 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;<\/li>\n<li style=\"text-align: justify\">\u00a0Husband treats her with cruelty, that is to say.\u2014\n<ul>\n<li>\u00a0Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or<\/li>\n<li>\u00a0Associates with women of evil repute or leads an infamous life, or<\/li>\n<li>\u00a0Attempts to force her to lead an immoral life, or<\/li>\n<li>\u00a0Disposes of her property or prevents her exercising her legal rights over it, or<\/li>\n<li>\u00a0Obstructs her in the observance of her religious profession or practice, or<\/li>\n<li>\u00a0If he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;<\/li>\n<\/ul>\n<\/li>\n<li style=\"text-align: justify\">\u00a0Or any other ground which is recognised as valid for the dissolution of marriages under Muslim law.<\/li>\n<\/ul>\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">Rights of a Muslim Woman Arising at\/after Divorce: The Muslim Women (Protection of Rights on Divorce) Act 1986 : <em>Object of enactment, Legal rights of maintenance<\/em><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\"><strong>The object of enactment:<\/strong><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">The Muslim Women (Protection of Rights on Divorce) Act 1986 was enacted \u201c<em>to protect the rights of<\/em> <em>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.<\/em>\u201d<em> \u00a0<\/em>The Muslim Women (Protection of Rights on Divorce) Act 1986 applies to the post-divorce rights of Muslim women.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">The Act was introduced in the aftermath of the controversy following the judgment in the Shah Bano case (<em>Mohd. Ahmed Khan v Shah Bano Begum and Ors).<\/em> 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\u2019s obligation to maintain his wife extended beyond the <em>iddat<\/em> 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 \u201c<em>to specify the rights which<\/em> <em>a divorced Muslim wife is entitled to at the time of divorce and to protect her interests<\/em>.\u201d<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\"><strong>Legal rights of maintenance:<\/strong><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">By virtue of Section 3 of The Muslim Women (Protection of Rights on Divorce) Act 1986, a divorced Muslim woman is entitled to:<\/p>\n<ul>\n<li style=\"text-align: justify\">Reasonable and fair provision and maintenance to be made within <em>iddat<\/em> period,<\/li>\n<li style=\"text-align: justify\">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,<\/li>\n<li style=\"text-align: justify\">An amount equal to the sum of <em>mahr<\/em> or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law, and<\/li>\n<li style=\"text-align: justify\">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.<\/li>\n<\/ul>\n<p class=\"no-indent\" style=\"text-align: justify\">The Muslim Women (Protection of Rights on Divorce) Act 1986 provides that apart from the <em>mahr<\/em> 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 \u201ca reasonable and fair provision and maintenance\u201d payable within the <em>iddat<\/em> period by her former husband.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">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 <em>iddat<\/em> 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 \u201c<em>such reasonable and fair provision and maintenance to the divorced woman as he may determine<\/em> <em>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<\/em>.\u201d<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">In cases where the relatives are unable to maintain the woman, the court may direct the State <em>Wakf<\/em> 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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">The Supreme Court of India in <em>Danial Latifi v. Union of India<\/em> authoritatively laid down the post-divorce maintenance rights of Muslim women. It was held that the expressions \u2018reasonable and fair provision\u2019 and \u2018maintenance\u2019 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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">The Court stated that the word \u2018provisions\u2019 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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">The Court thus reasoned that a Muslim husband\u2019s liability to pay maintenance is not confined to the <em>iddat <\/em>period. A reasonable and fair provision extending beyond the<em> iddat <\/em>period must be made by the husband within the <em>iddat<\/em> 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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">Thus, as the law stands today, a Muslim husband\u2019s liability to provide reasonable and fair provision and maintenance to his divorced wife extends beyond the <em>iddat<\/em> period, and he must realize his obligation within the <em>iddat<\/em> period.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\"><strong>Conclusion:<\/strong><\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">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.<\/p>\n<p class=\"no-indent\" style=\"text-align: justify\">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<strong>.<\/strong><\/p>\n<table>\n<tbody>\n<tr>\n<td><strong>you can view video on Marriage and Divorce Laws (Muslim Personal Laws)<\/strong><\/td>\n<td><a href=\"https:\/\/youtu.be\/cX3MOuVk2zc\" target=\"_blank\" rel=\"noopener\"><img loading=\"lazy\" decoding=\"async\" class=\"alignnone wp-image-120\" src=\"http:\/\/epgpbooks.inflibnet.ac.in\/wp-content\/uploads\/2018\/11\/download.png\" alt=\"\" width=\"46\" height=\"46\" \/><\/a><\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<p><strong>Reference<\/strong><\/p>\n<ul>\n<li style=\"text-align: justify\">\u00a0Tahir Mahmood, Muslim Law in India and Abroad, 2 ed., Universal Law Publishing \u2013 Lexis Nexis (2016).<\/li>\n<li style=\"text-align: justify\">\u00a0M Bhattacharjee, Matrimonial Laws and the Constitution, 2ed., Eastern Law House (2017).<\/li>\n<li style=\"text-align: justify\">\u00a0Triple Talaq and Personal Laws \u2013 Immune from Constitutional Checks?, The Invisible Lawyer.<\/li>\n<li style=\"text-align: justify\">\u00a0Flavia Agnes, In Conversation: Gender Rights Lawyer Flavia Agnes on Why Triple Talaq Shouldn\u2019t\u00a0Be Banned, <span style=\"text-align: initial;font-size: 1em\">The Better India.<\/span><\/li>\n<li style=\"text-align: justify\">\u00a0End triple talaq: Will government answer Muslim women&#8217;s war cry?, NDTV.<\/li>\n<\/ul>\n<p>&nbsp;<\/p>\n","protected":false},"author":11,"menu_order":14,"template":"","meta":{"pb_show_title":"on","pb_short_title":"","pb_subtitle":"","pb_authors":["meher-dev"],"pb_section_license":""},"chapter-type":[],"contributor":[61],"license":[],"class_list":["post-168","chapter","type-chapter","status-publish","hentry","contributor-meher-dev"],"part":3,"_links":{"self":[{"href":"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-json\/pressbooks\/v2\/chapters\/168","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-json\/pressbooks\/v2\/chapters"}],"about":[{"href":"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-json\/wp\/v2\/types\/chapter"}],"author":[{"embeddable":true,"href":"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-json\/wp\/v2\/users\/11"}],"version-history":[{"count":11,"href":"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-json\/pressbooks\/v2\/chapters\/168\/revisions"}],"predecessor-version":[{"id":559,"href":"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-json\/pressbooks\/v2\/chapters\/168\/revisions\/559"}],"part":[{"href":"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-json\/pressbooks\/v2\/parts\/3"}],"metadata":[{"href":"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-json\/pressbooks\/v2\/chapters\/168\/metadata\/"}],"wp:attachment":[{"href":"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-json\/wp\/v2\/media?parent=168"}],"wp:term":[{"taxonomy":"chapter-type","embeddable":true,"href":"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-json\/pressbooks\/v2\/chapter-type?post=168"},{"taxonomy":"contributor","embeddable":true,"href":"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-json\/wp\/v2\/contributor?post=168"},{"taxonomy":"license","embeddable":true,"href":"https:\/\/ebooks.inflibnet.ac.in\/hrdp05\/wp-json\/wp\/v2\/license?post=168"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}