Divorce Under Muslim Law

Justice V.R. Krishna Iyer in Yusuf Rwthan V. Sowaramma, AIR 1971 Ker 271 once observed regarding Islamic law that "Indeed deeper study of the subject disclosed surprisingly rational, realistic and modern laws of divorce". Under divorce law in India, the entire law on divorce as to Muslims is based on the 'breakdown theory". Quran vehemently declares divorce as worst of all permitted things (abghad-ul-mubahat). Prophet Mohammad warned his people to keep away from it. Islamic law permits extrajudicial divorce particularly where marriage has been irreparably broken down. Where one of the parties is at fault for breakdown but the other party wants to continue with the marriage, a judicial divorce can be sought by the party.  

Dissolution of Muslim Marriage Act, 1939, Muslim Women (Protection of rights on Divorce) Act, 1986 and The Muslim Personal Law (Shariat) Application Act, 1937 govern the matters in relation to Divorce in Muslims.

Considering that marriage under Muslim law is in itself a contract, all kinds of pre-nupital and post-nupital agreements, provided they are proper as per Indian Contract Act, are valid and enforceable.       

The remedy of restitution of conjugal rights under Mohameddan law is also known as "iada-e-huquq-e-zanashoi". Since marriage under Muslim law is a contract, a suit of restitution of conjugal rights is a suit for specific performance of contract. The following grounds may be used for initiating a suit of restitution of conjugal rights. In case the defendant has ceased to cohabit without any lawful excuse such a suit can be filed.

Muslim marriage laws provide for Mahr or Dower which is money or any property promised impliedly or expressly by the husband to be paid or delivered to the wife as a mark of respect for the surrender of her person.

Under Sunni law no marriage is valid without Mahr. Under Shia law, Mahr is mandatory for a valid marriage and Mutta (temporary) marriage is the only exception to Mahr.

Muslim marriage laws dictate that in case dower or mahr is not fixed a wife is still entitled to reasonable amount of dower. Prompt dower or "mahr-imuajjal" is paid immediately on the marriage taking place unless a delay is agreed to. If a husband fails to pay prompt dower the wife can refuse to enter into conjugal domicile with the husband. If prompt dower has not been paid, then the husband has no right to sue his wife for restitution of conjugal rights.

Muslim marriage law dictates that deferred dower is payable on termination of marriage by death or divorce. However if there is an agreement regarding time and payment of deferred dower then, conditions mentioned therein are required to be followed.       

The amount of dower depends upon social status of the parties and the economic conditions of the parties.
Extrajudicial or non-speaking statutory divorce does not need intervention of court and is valid if given according principles of Muslim law. Such divorces are given in the following forms:

  • Khula- Where wife desires to separate from the husband and he agrees to it, it is called Khula
  • Mubarahat- Where both parties decide to separate
  • Talaq-e-Tafweez- Divorce arising out unilateral action of wife vide any specific provision in the marriage wherein such authority was delegated by husband to announce a divorce
  • Talaq as unilateral action of divorce by husband- triple Talaq

Dissolution of Muslim Marriage Act, 1939 deals with judicial divorce of Muslim wives. A Muslim wife can seek divorce under the said Act on any of the following grounds;     

  • Whereabouts of husband not known for four years. However if husband comes back within 6 months of passing of decree of divorce than the decree can set aside
  • Husband failing to maintain wife for more than 2 years
  • Husband sentenced to imprisonment for 7 years or more and such sentence has become final
  • Husband failing to co-habit with wife for 3 years or more
  • Husband impotent at the time of marriage and continues to be so
  • Husband suffering from insanity for two years or more, or is suffering from leprosy or virulent form of venereal disease.
  • Wife repudiating marriage later, after attaining age of 15 years and before attaining age of 18 years, provided marriage has not been consummated
  • Husband treating the wife with cruelty

                          Cruelty is committed in case of following situations;        

  • When the husband obstructs the wife in observance of her religion
  • Husband has more than one wife and does not treat them equally
  • Husband leads an immoral life in company with women of ill-repute
  • Husband makes false charge of adultery on wife