Concept of Talaq (Dissolution of Marriage) under Muslim Law

 

Q. 3.  Define the concept of Divorce under Muslim Law? What are the different modes of Talaq recognised under Muslim Law? Describe the procedure of pronouncing a different kind of Talaq. When does Talaq become irrevocable?

OR

Explain the different kinds of Talaq and distinguish between Sunni and Shia law of Talaq.

 

Ans. Prior to Islam, divorce among the ancient Arabs was an easy and frequent occurrence. A divorce by Talaq is the mere arbitrary act of the husband who may repudiate his wife for his own pleasure. An Arab husband had absolute power to divorce his wife without cause.

Prophet Mohammed restrained the power of divorce possessed by the husband. He is reported to have said that "with Allah, the most detestable of all things permitted is divorce".

The Koran, though it gave a certain countenance to the old custom of divorce, restrained the power of divorce possessed by husbands.

Divorce in Islam (Necessity of Divorce)

Marriage is a blessing, and when this relationship is established it is meant to subsist and be lasting. It is through this relationship that God grants children. Divorce terminates marital relationships and leads to several problems in the family. Divorce in itself is, therefore, an undesirable act. The prophet showed his dislike toward divorce. Ameer Ali says, "He (Prophet) restrained the power of divorce possessed by the husbands; he gave to the women the right of obtaining a separation on reasonable grounds, and towards the end of his life he went so far as practically to forbid its exercise by the men without the intervention of arbiters or a Judge. He pronounced 'talaq to be the most detestable before the Almighty God of all permitted things."

Definition of divorce

 

The word 'talag' is usually meant 'repudiation'. Literally, it means 'the taking off of any tie or restraint. It comes from a root 'Tellaqu' which means to release (an animal) from a tether'; whence to repudiate the wife, or free her from the bondage of marriage. In law, it signifies the absolute power which the husband possesses of divorcing his wife at all times. Thus, talaq means the repudiation of the wife by the husband in the exercise of his absolute power conferred on him by law.

Section 1 of Law of Divorce (composed by All India Muslim Personal Law Board in 'Compendium of Islamic Laws) says "Talaq literally means to remove a restriction. In the terminology of Shariat, talaq means to put an end to the marriage, with immediate or deferred effect, by using any of the special words meant for it - whether those words are used by the husband himself or by his representative, or by 'qazi' who in a certain situation is regarded by the Shariat as the husband's deputy and is empowered to pronounce divorce on his behalf without his consent."

 

Conditions for the effectiveness of talaq

 

The Law of Divorce (composed by All India Muslim Personal Law Board in Compendium of Islamic Laws) provides in its Chapter 2 thus:

 

"a) The man pronouncing a talaq should be sane and adult and should have pronounced talag while he was awake and conscious. Therefore, a talaq pronounced by a person who is a minor, insane, imbecile, overwhelmed, delirious, unconscious or asleep, will not be effective.

 

b) For the effectiveness of talaq it is, in principle, necessary that The man pronouncing it should be in his senses. This demands that a talaq pronounced in an inebriated conditions should not be effective. However, if a person has unlawfully consumed an intoxicant by his own liking and habit, his talaq will become effective by way of punishment. But if a person has consumed any intoxicant as a treatment, or under compulsion or strong pressure, or in ignorance, and pronounces talaq in that state, it will not be effective.

c) If a person consumes something which in fact is not intoxicating but because of its unsuitability for his system he gets inebriated a talaq pronounced in such condition will not be effective

d) It is also necessary that in the sentence used for talaq the divorce must have been related to the wife, either expressly or by necessary implication

 

e) It is further necessary that the woman divorced should be a proper object of talaq ie, she must be either married to the man or observing for him iddat of a revocation or irrevocation tailing other than a triple talaq.

 

The capacity of a Muslim to divorce his wife

 

Any Muslim male

(i)                  who is of sound mind; and

(ii)                 who has attained puberty may divorce his wife whenever he so desires without assigning any reason, at his mere whim or caprice. Under Shia law, free will and intention are essential for valid talaq which is not necessary under Sunni Law

 

Talaq.-Before Shamim Ara v. State of U.P., [AIR 2002 S 3551] a Muslim husband had unlimited power of effecting Tela without assigning any reason. But in Shamim Ara's case the Supreme Court observed that law, as ordained by Holy Quran, is

(i) that Talaq must be for a reasonable cause, and

(ii) that it must be preceded by an attempt of a reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, Talaq may be affected. [Kausarbi K. Mulla v. State of Maharashtra, AIR 2007 (NOC) 419 Bombay.]

Talaqnama (Divorce in writing)

A talaq communicated in writing is valid in Hanafi law but not valid in Shia Law. A talaq under the Shia law must be pronounced orally in the presence of two competent witnesses. Under Shia law a talaq communicated in writing is not valid unless the husband is physically incapable of pronouncing it orally. Under Shia law written divorce is exceptional.

The Sunnis hold that a talaq may be affected by writing as well as words. The talaqnama may embody the record of the fact of talaq by signing and executing in the presence of the quzi or of the wife's father or other witnesses.

Capacity for pronouncing Talaq.-The only essential condition for pronouncing Talaq by a Muslim husband is that he must have attained the age of puberty and must be of sound mind at that time "In view of the position of Muslim Law it cannot be said that Talaq namah (The deed of Talaq) was not sufficient to dissolve the marital relations [Abdul Wahid v. Smt. Raisa Bi, 1108(NOC) (MP)}  

In Iqbal Bano v. State of U.P., [(2007) 6 S.C.C. 785], the Apex Court held that the conclusion that in view of the statement in the written statement about an alleged divorce 30 years back by utterance of the words Talaq, Talaq, Talaq three times is sufficient in law is not sustainable. A mere plea in the written statement of a divorce having been pronounced sometimes in the past cannot by itself be treated as effectuating Talaq on the date of delivery of the copy of the written statement to the wife. The husband ought to have adduced evidence and proved the pronouncement of Talaq at the claimed earlier date and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed.

Classification of dissolution of marriage:

(A)   By the death of a spouse.

(B)   By the act of the parties.

(1)    By the Husband

(a)    Talaqe,(Repudiation)

(b)   Ila (vow of continence)

(c)    Zihar (Injuries Assimilation)

(2)    By the wife’s---

 (d) Talaq-e-Tajwid (Delegated Divorce)

(3)    By common consent,

(a)    Khula (redemption)

(b)   Mubara’at (Mutual feelings)

(4)    By judicial process

(a)    Lian (mutual Imprication)

(b)   Faskh (Judicial Rescission)

 

(A) By the Death of Spouse

The death of the husband or the wife operates in law as dissolution of marriage. When the wife dies, the husband may remarry immediately, but the widow has to wait for a certain period before she can remarry. This period is called iddat and the iddat of death is four months and ten days from the death of her husband, and if on the expiration of this period she is pregnant until she is delivered the child.

 

(B) By the Act of Parties

By the husband

 

 (A) Talaq-ul-Sunnat (Revocable Talaq)-This form of Talaq is revocable, hence it is regarded as an approved form of Talaq. This form of Talaq was approved by the Prophet. Both Shia and Sunni schools recognize this form. It is again divided into (i) Talaq Ahsan and (ii) Talaq Hasan.

 

(i) Talaq Ahsan.-This consists of a single pronouncement of divorce made during a tuhr (period of purity) followed by abstinence from sexual intercourse for the period of Iddat. The main requirements of a Talaq Ahsan are:

(i) Formula of Talaq must be pronounced only once by the husband.

(ii) If the marriage has been consummated, the pronouncement must be made during the period of purity (tuhr) of the wife

(iii) After such pronouncement, the husband should abstain from sexual intercourse during her period of purity and Iddat.

(iv) Where the marriage has not been consummated or the parties have been away from each other for a long time it may be pronounced even if the wife is in her menstruation.

(v) When the wife is not subject to menstruation the pronouncement may be made even after sexual intercourse.

 

Talaq pronounced in the Ahsan form may be revoked during the period of Iddat. Such revocation may be made by express language or may be inferred from the conduct of the husband. Sexual intercourse with the wife is a clear example of implied revocation.

This form of divorce is regarded as the best form because there is a chance of reconciliation between the parties during the period of Iddat. After the expiry of the period of Iddat, divorce becomes irrevocable.

 

(ii) Talaq Hasan.-This consists of three pronouncements made during successive tuhrs (period of purity), no intercourse taking place during any of these three tuhrs.

 

The chief requirements of Talaq Hasan are:

 

(i) There must be three successive pronouncements of the formula of divorce.

(ii) In the case of a menstruating wife, the first pronouncement should be made during a period of tuhr or purity, the second during the next tuhr and the third during the succeeding tuhr.

(iii) In the case of a non-menstruating wife, the pronouncement should be made during the successive 30 days.

(iv) No sexual intercourse should take place during these three periods of tuhr.

 

This is also a proper form of Talaq, but less proper than Talaq Ahsan. This Talaq is revocable before the third pronouncement but becomes irrevocable immediately after the third pronouncement.

 

Talaq-ul-Biddat or Talaq-i-Biddat.-It is a sinful form of divorce recognized only under Sunni Law. It is the irregular mode of Talaq introduced by Omeyyads in order to escape the strictness of aw. This consists of two modes:

(i)                  Three pronouncements made during a single tuhr either in on sentence. e.g., "I divorce thee thrice" or in three separate sentences .g., "I divorce thee, I divorce thee, I divorce thee."

When they become irrevocable

 

(ii)                A single pronouncement made during a tuhr clearly indicating an intention to dissolve the marriage irrevocably, e.g., "I divorce thee irrevocably".

Talaq-ul-Biddat form is recognized only in Sunni Law and not in Shia Law.

 

The distinction between Sunni and Shia Law of Talaq

Under Sunni Law, Talaq is easier to be given than under Shia Law, the basis of which lies in the fact that the Shias do not want that men should be so liberal and frequent in pronouncing Talaq. The following differences may be marked between the two:

 

1. According to Sunnis 'Talaq' may be offered in writing but the Shias do not recognize Talaq in writing unless the husband is physically incapable of pronouncing it. However, in Shamim Ara v. State of U.P. (AIR 2002 SC 3551) the Supreme Court has observed that the words of Talaq must be pronounced. Therefore Talaq in writing is not valid in view of this decision, whether the parties are Shia or Sunni.

 

2. Under Sunni Law, no witnesses are required at the time of pronouncing Talaq, while under Shia Law, the presence of two male witnesses is necessary.

 

3. Under Shia Law, 'intention' is a necessary ingredient which is not so under Sunni Law. Hence, a Talaq pronounced under intoxication or compulsion or in jest is invalid under Shia Law, because under such circumstances man does not do what he intends, but in Sunni Law even such Talaqs are valid and effective. In view of Shamim Ara decision, Talaq without reasonable cause is not valid.

 

4. Sunni Law recognizes Talaq-ul-Sunnat and Talaq-ul-Biddat, both, whereas Shia Law recognizes Talaq-ul-Sunnat only,

 

Revocation and Irrevocation of talaq

 

Revocable talaq

 

If talaq is given and later reconciled with the wife, the husband continues the marital relationship normally, it is called the revocation of talaq. The talaq e-Ahasan can be revoked before the expiry of iddar period and talaq e-Hasan can be revoked before the third pronouncement.

 

A talaq as long as it remains revocable, may be revoked by the husband even if the wife is not willing, by express intention through words or by conduct. The husband may retain the wife. Revocable talaq is called talaq-e-Rajai because of the word 'Rajai' which means revocation.

 

If the husband is not in a position to convey his intention for revoking the talaq directly to the wife by words or conduct, he may convey his intention of such revocation within a stipulated period, to the wife through an agent.

 

A revocation by an unauthorized agent would become valid if the husband ratifies the revocation later on.

 

In Marium v. Mohd. Shamst Alam, [AIR 1979 All. 257], the facts were, that the suit was filed by the wife during the period of iddat and the husband pleaded that he revoked the talaq after one week when it was pronounced. The wife pleaded that the only manner of revocation is either by the resumption of sexual intercourse or "by the pronouncement of specific words of revocation in the presence of two witnesses". The Court has held that there is no authority where the revocation takes place through pronouncing specific words of revocation before two witnesses and there is no reason to disbelieve the husband who in addition went to fetch his wife. The Court consequently dismissed the wife's claim.

 

The Law of Divorce (complied by All India Muslim Personal Law Board in Compendium of Islamic Laws') provides thus:

"Rule of revocable talaq”

 

In a revocable talaq the husband can take back the wife during 'iddar' without her consent and without a remarriage, but after the expiry of iddat she will become irrevocably divorced and can be lawfully taken back only by a fresh marriage. [Section 17].

 

Mode of revocation

 

The revocation may be either by conduct-e.g. if the husband has had coitus, kissing and caressing with the wife or by spoken words eg. if the husband says that he has taken back his wife and informs her of the same. Revocation by words is preferable in the presence of witnesses (two men or a man and two women). [Section 18].

 

Irrevocable talaq

 

Talaq will become irrevocable under the following circumstances:

 

When the marriage is not consummated, divorce may be affected by a single pronouncement of talaq and it becomes irrevocable as soon as it is pronounced.

 

A talaq in the hasan mode becomes irrevocable and complete on the expiration of the period of iddat. The period of iddar prescribed by Muslim law is 90 days.

 

A talaq in the hasan mode, becomes irrevocable and complete on the third pronouncement, irrespective of the iddat.

 

A talaq in the badat mode, becomes irrevocable immediately it is pronounced, irrespective of the iddat. As the talaq becomes irrevocable at once, it is called talak-i-bain, that is, irrevocable talaq.

 

A talak-ul-biddat becomes irrevocable (bain) immediately on its pronouncement or the execution of the talaqnama or the writing of divorce, irrespective of the iddat.

 

In the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce (talaq-i-bain), and takes effect immediately on its execution.

 

 

lla

According to Mulla, Divorce by ila is a species of constructive divorce which is effected by abstinence from sexual intercourse for a period of not less then four months pursuant to a vow.  According to Shafei law, the fulfillment of such a vow does not per se operate as a divorce, but gives the wife the right to demand a judicial divorce.

Thus, where a husband who has attained puberty and is of sound mind, swears by God that he will not have sexual intercourse with his wife for a period of four months or more, he is said to make ila, and its effect will be that of a single irrevocable talak.

 

If the husband was to say to his wife, "I swear by God that I shall not approach thee", it is a valid ila.

 

1. The husband must be of a sound mind and must have attained puberty, 2. He must swear by God or take a vow,

 

3. That he will not have sexual intercourse with his wife for four months or more. According to the Shia and Shafei schools, the wife is entitled to apply to court for restitution of conjugal rights and on her doing so, the husband has two alternatives

 

(i) divorce her, or

 

(ii) resume sexual intercourse with her, and on his refusing to do either, the court has the power to dissolve the marriage.

 

Ila may be cancelled by

 

(i) the husband resuming sexual intercourse within the period of four months; or

 

(ii) a verbal retraction thereof.

 

Zihar

 

(1) The husband must be sane and adult.

 

(2) He must compare his wife to his mother or any other female within prohibited degrees.

 

(3) Then, the wife has the right to (a) refuse to have sexual intercourse with him till he has expiated himself by penances prescribed by law such as

 

(i) freeing a slave;

 

(ii) fasting for two months;

(iii) feeding sixty poor persons;

(b) apply to the court for an order requiring him either to perform a penance or to give her a regular divorce.

 

Legal effects of Zihar

 

The declaration zihar does not of itself terminate the marriage tie, nor is the claim of the wife for the restitution of conjugal rights lost, even if expiation has not been done.

 

The following legal consequences emerge from  zihar—

(i)                  Sexual intercourse becomes unlawful

 

(ii)                Husband is rendered liable to expiation by penance

 

(iii)               The wife can claim jadicial divorce or claim restitution of conjugal rights after insisting that husband performs penance

 

Acceding to Mulla, Zihar is a form of inchoate divorce If the husband compares his wife to his mother of any other female within prohibited degrees, the wife has a right to refuse herself to him until he has performed penance. In default of expiation by penance, the wife has the right to apply for a judicial divorce. Cases of zihar are unknown in India and it has been doubted by textbook writers whether the wife's right under zihar would be enforced by courts in India. But the law of zihar has now received statutory recognition is section 2 of the Shariat Act, 1937.

 

According to Syed Amir Ali, zihar would become incumbent on the husband only if the comparison or 'assimilation' was intended disrespectfully The Hedaya says, "If he declares that in making the comparison, his intention was only to show respect to his wife then no expiation would be necessary"

 

The Shia law insists on the presence of two witnesses when any injurious assimilation is made to the wife. Muta marriage which admits no other sort of divorce, may be dissolved by zihar.

 

II. Divorce By the wife

 

Talak-e-tafwid (Delegated divorce)

 

The power to give a divorce is vested in the husband in Muslim law. However, a husband can delegate such power to his wife or to a third party either absolutely or conditionally. Such talaq may be for a particular period or permanently. It is called "delegation of power to divorce" (talak-e-tefwid or Tafweez)

 

In this system, the person so authorised by a Muslim husband may pronounce the talaq (divorce) accordingly. In case the power of delegation was temporary, it is irrevocable, but if it is permanent it may be revoked.

 

As per Bailee, a husband may

 

(a) in person repudiate his wife, or

 

(b) delegate the power of repudiation to third party, even to their own wife. An example of such type of divorce is that when a man has said to his wife, "choose thyself today" or "this month" or "an year", she may exercise the option at any time within the given period. Shiaties also follow this practice

 

This form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain her freedom without the intervention of any court and is now beginning to be fairly common in India. The authority to pronounce divorce upon herself may be given by the husband under an agreement made either at the time of the marriage or any time after it. An agreement that under certain specified conditions, the wife can pronounce divorce upon herself is valid, provided

 

(1)    that the option is not unconditional and absolute,

(2)    and the conditions are reasonable and not opposed to public policy.

 

If the rights of pronouncing divorce has been delegated to the wife, she may exercise it if the husband fails to fulfil the stipulated condition or upon the happening of the stipulated event.

III. Divorce By common consent

 

Khula.-Some times, the divorce of a spouse takes place with the mutual consent of both the parties. The word 'khula' literally means 'to take off cloths' and thence to lay down one's authority over a wife'. Prior to Islam, the wife had no right to ask for a divorce. Such a right was conferred antes her only through Koranic legislation. It has been written in 'fatava-i-Aalmgiri' that when married parties disagree and they are apprehensive, they cannot observe the bounds prescribed by the 'divine-laws, ie. when the duties imposed on the spouse on account of the conjugal relations cannot be performed, the wife can release herself from the tie of her marriage by giving up some property in return. In consideration of it, the husband has also to give her a khula. This practice is adopted in the case of Talak-ul-bain. This form of divorce has been recognised in section 28 of the Special Marriage Act, 1954 (43 of 1954).

 

Essential Conditions of Khula.-The following are the essential conditions for khula:

1. Common consent of the husband and the wife.

2. Some 'return' or consideration (iwaz) from the wife to husband, if she desires to separate her from husband through such divorce.

 

The specialty of divorce by "khula" is that

(a) wife begs from her husband to release her from the tie of marriage,

(b) such request is made for a certain consideration which is usually a part or the whole of the mahr.

 

In Moonshee Bugu-ul-Raheem v. Lutteful-oon-Nissa, (1861) 8 Moo 1A 379, (395), it has, been held by Privy Council that the terms of the bargain in khula are a matter of arrangement between the husband and wife and the wife may as the consideration release her dyn-Mehr and other rights as make any other agreement for the benefit of the husband. In Pakistan, in the case of Balqis Fatima v. Najim-ul ikram, (1954) 2WP321: 59, Tah 566. it has been held that the wife was entitled to khula as a right on the restoration of what she had received in consideration of marriage if the judge apprehends that the parties will not be able to live amicably together. In Khurshid Bibi v. Mohammad Assim, PLO 1967 SC 97, it has been held by the Supreme Court of Pakistan that under Muslim law, the wife is entitled to khula as a right, if she satisfies the conscience of the court, that it will otherwise mean forcing her into a hateful union.

 

Mubara'at. The term mubara'at denotes "the act of freeing of another mutually". In such a divorce spouse feel happy at the prospects of getting rid of each other. In the divorce of mubara'at, the offer for the dissolution of marriage may proceed from wife or it may proceed from the husband. However once it is accepted, the dissolution of marriage is deemed complete and operates as a talak-i-bain.

 

Legal effect of Khula and mubara'at.-The legal effect of khula and mubara'at is that, once it is completed, the divorce between a spouse becomes irrevocable. A marital life, thereafter, cannot be resumed. A form called re-marriage is then necessary. If iddat is incumbent on the wife in absence agreement to contrary, she and her children are entitled for maintenance during such period.

The distinction between Khula and Mubarat

 

1. Khula is a "redemption" of the contract of marriage, while Mubarat is a "mutual release" from it.

2. In Khula the offer is made by the wife and its acceptance is made by the husband. In Mubarat any of the two may make an, offer and the other accepts it.

3. In Khula, a "consideration" passes from the wife to the husband, in Mubarat the question of consideration does not arise.

4. In Khula, the aversion is on the side of the wife, while in Mubarat there is mutual aversion.

Both Khula and Mubarat require the observance of Iddat. It is the husband who can effect the divorce and it is not possible for Qazi or a Court to give a divorce even by Khula, that is by directing the wife to pay some compensation to the husband in lieu of a decree for divorce in her favour. Husband's consent is essential.

(C) Dissolution by Judicial Process Lian (Mutual Imprecation)

 

Lin is testimony confirmed by oath and accompanied with imprecation Under the pure Mohammedan law, if a man charges his wife with adultery, be may be called upon on the sp of the wile, either to retract the charge or to conform it by oath coupled with an imprecation in these terms: "The curse of God be upon him if he was liar when he cast at her the charge of adultery the wife must then be called upon either to admit the truth of the imputation or to deny it on oath coupled with an imprecation in these words "The wrath of God be upon me if he be a true speaker in the charge of adultery which he has cast upon me If she takes the oath, the Kazi must believe her, and pronounce a separation between the parties. The husband had to be given every opportunity to retract the charge as the offence of making a tale accusation of adultery was severely punishable but now there is no obligation on the courts in India to give the husband an opportunity to retract the charge

 

Features of Lian

 

1. The husband (adult and sane) charges his wife (adult and sane) of adultery or denies the paternity of her child

 

2. Such charge or denial is false. If the charge of adultery is proved to be true, the wife's suit for divorce fails.

3. Such a false charge does not ipo facto dissolve the marriage. It only gives an opportunity to the wife to move the court to dissolve the marriage. The marriage continues till the decree of dissolution is passed. 4. She must file a regular suit for the dissolution of marriage Mere application is not enough

No such suit will lie if the marriage was irregular.

5. The separation due to lian is irrevocable.

 

Retraction of charge.-The Muslim law permits the man to retract the charge Social conscience views with extreme disapprobation any attempt to break up a home and the principle of retraction gives the husband a locus poenitentiaet before the marriage is dissolved Its object is to establish a cardinal relationship between husband and wife.

 

The retraction must be (1) bona fide and not a mere device for defeating suit for dissolution,

 (ii) must be unconditional and must be made at or before the commencement of the hearing and not after the close of evidence.

 

Faskh

 

The word fasth' means 'annulment or abrogation Fashk comes from the root meaning of which is to annul' (a deed) or to rescind (a bargain). A wife under fashk can give an application to Kazi for annulment of her marriage. Fitzgerald defined it in these words. The dissolution or recession of the contract of marriage by judicial decree." The law of fashk is founded upon the Quranic injunctions Ameer Ali said that the power of Kazi (or a Judge) to pronounce a divorce is founded on the express words of Prophet himself who once said that "If a woman is prejudiced by a marriage, let it be broken off .

 

There was however a great controversy between the various schools of Muslim law with regard to (a) the grounds of dissolution of marriage, or (b) as to the procedure to be followed Sunny Hanafi school did not recognise the right of dissolution of marriage of a Muslim woman After a great controversy on this point, the Dissolution of Muslim Marriage Act, 1939 (8 of 1919) was past This Act achieved the following two objects:-

1. It restored the Muslim wives rights as already given to them by the Shariat; and

2. It treated all Muslims alike. The effect to this provision was that the Dissolution of Muslim Marriage Act was made applicable to all Muslims belonging to any of the schools.

Option of Puberty.-

'Option of Puberty'. (Khyar-ul-bulugh).

Meaning and Nature.-"Option of puberty is the right of a minor boy or girl, whose marriage has been contracted through a guardian, to repudiate or confirm the marriage on attaining puberty." Under certain circumstances, a minor Muslim girl (or boy) contracted in marriage by the guardian for marriage has the option of repudiating the marriage on attaining puberty. This is known as the option of puberty. The marriage is valid until repudiation.

In Abdul Karim v. Amina Bai, (1935), the Bombay High Court held that the option of repudiation given to the wife is based on principles repeatedly emphasized in the Quran. It is one of the safeguards by which Islam alleviates the incidence of pre-Islamic institutions pressing harshly against women and children.

For the sake of convenience and better understanding we may divide a man's life into three stages:

 

1. Saghir i.e., the first stage when the boy or the girl is below seven years of age. In this stage, the marriage is void ab initio. The question of his consent or his opinion does not arise. In no circumstances can a marriage in this stage be recognized. A person below this age cannot himself or herself contract a marriage nor his or her marriage can be contracted by his or her marriage guardians.

 

2. Sarir, i.e., the second stage when his or her age is above seven years but below 15 years. In this stage though he can be married, his consent for marriage is not recognised and has no validity. In this stage he can be validly married by his marriage-guardians. He cannot marry on his own free consent without the intervention of guardian.

 

3. Bulugh i.e., the third stage when he or she is above 15 years of age and becomes major. It is now when he or she can enter into contract for marriage on his or her own free consent.

 

If he or she has been married by his or her guardian in the second stage, he or she now acquires right either to ratify or to repudiate the marriage contracted by his or her guardians. Thus, we see that the right of option originates in the second stage but availed in the stage when such a person attains the age of fifteen years.

 

Old Law on Option of Puberty.- If the minor had been married by the father or grandfather, the marriage was regarded to be valid and binding on the minor who could annul it on the attainment of puberty except in very special circumstances

Grounds of the option to repudiate.-In the case of marriage of minor contracted by the father or grandfather, it could not be repudiated except

1. when the father or grandfather acted negligently or wickedly, or

2. when the marriage was to the manifest disadvantage of the minor.

 

Marriage of a minor may be contracted by his or her father or father's father. Marriage of a minor contracted by persons other than father or father's father is ineffective under Shia Law, unles it is ratified by such minor on attaining puberty.

Illustration. A Shia girl, who was a minor, was married to grossly a Sunni by her father and on her attaining puberty she considered the marriage repugnant to her religious feelings and disadvantageous to herself. It was held that she must be allowed the option to repudiate it. [Aziz Bano v. Mohammad, 47  All. 832].

 

In case of marriage through other guardian (and not through  father or father's father) the minor might, on attaining  puberty, repudiate it without giving any ground or he or she may  ratify it.

 

Under Shia Law a marriage contracted by persons other than  father or grandfather is not recognized and such a person is termed as Fazuli for this purpose.

 

Time of Option

 

By the female.-1. In case she was aware of the marriage she was to exercise this right immediately on attaining puberty. Any unreasonable delay would deprive her right of option.

2. Among the Sunnis, if the girl had no knowledge of her marriage she retained her right:

(a) Until she became aware of the marriage.

(b) Until she was acquainted with fact that she had the right to repudiate the marriage.

(c) And she could exercise that right within a reasonable time thereafter. (Bismillah v. Nur Mohammad, 44 All. 61). The essential principle worthy of consideration was that the woman should exercise her option immediately on attaining puberty and seeing the signs thereof, and any sort of delay was to be avoided because of the husband's right of cohabitation.,

3. The option was lost if she, after having attained puberty permitted the marriage to be consummated with her free consent.

 

By the male. A male retained the option until he had ratified the contract by:

(i) Express declaration;

(ii) Payment of dower;

(iii) Cohabitation.

Present Law regarding option of Puberty-Dissolution of Muslim Marriage Act, 1939.-This Act has considerably modified the old law of the Option of Puberty. Prior to this, the marriage contracted by father or grandfather could not be repudiated by the  minor on attaining Puberty except in very special circumstances. But  now this law has been superseded by Section 2 Clause VII of the above Act of 1939.

Section 2, Clause VII reads thus: 'A woman married under Muslim Law shall be entitled to obtain a decree for divorce on the g ground that 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."

 

 

The Dissolution of Muslim Marriages Act, 1939 applies only to a woman married under the Muslim Law, and it does not apply in the case of a Muslim man. Therefore, the old law of Khyar-ul-bulugh (option of Puberty) applies in the case of a Muslim male married during his minority.

 

An analysis of the above clause will clearly explain that all the restrictions on the option of puberty in the case of minor Muslim girl whose marriage has been arranged by the father or  grandfather have been abolished, provided that three conditions are satisfied, namely:

 

1. The marriage took place while she was below the age of fifteen years.

2. She repudiated the marriage before attaining the age of 18 years.

3. The marriage has not been consummated.

Effects of the Dissolution of Muslim Marriage Act, 1939

1. It is no more necessary for a woman married under the Muslim Law to show, as in the old law that the father or grandfather has acted negligently or wickedly.

 

2. It is no more necessary to show that the marriage is to her manifest disadvantage.

 3. It is no more necessary that she should exercise her right of option immediately on attaining puberty without unreasonable delay.

4. The marriage contracted by father or other guardian would be valid and binding till the Court decrees the divorce on the ground laid down in Section 2 (vii).

5. A regular suit has to be filed for the exercise of the option of repudiation and a decree is essential.

7. She must repudiate the marriage before attaining the age c eighteen years.

6. The girl would not lose her right to option if the marriage is consummated before she attains the age of fifteen years. But if the marriage is consummated with her free consent after she attains the age of fifteen years, this option is lost.

Can a divorced couple remarry validly in Muslim law?

 

(i) Where the husband has repudiated his wife by three pronouncements, it is not lawful for him to marry her again until she has married another man, and the latter has divorced her or died after actual consummation of the marriage.

 

(ii) In all other cases, the divorced parties may remarry as if there had been no divorce-either during iddat or after its completion.

 

A divorced couple can remarry but for remarriage, they have to observe certain formalities and procedure. These are as follows

 

(a) The wife should observe iddat.

 

(b) The wife should be lawfully married to another man after observing iddat.

 

(c) Such intervening marriage must be actually consummated.

 

If the marriage has already been consummated, the wife will have to wait till the expiration of the period of iddat to enable her to remarry where the marriage was not consummated, the parties can marry immediately without waiting for expiry of period of iddat.

 

(f) After expiry of iddat, she can remarry her former husband.

 

(e) Wife should observe iddat after such talak.

 

(d) The second husband must then pronounce talak.

 

Q. 4 (a) State the grounds on which a wife married under the Muslim Law can obtain a decree for the dissolution of her marriage under old Muslim law?

Ans Click on the link given below-

Special ground of Divorce for Muslim women

References

 

Muslim Law in India—Tahir Mahmood

Family law S.R Myneni`s

 

: https://www.thedailystar.net/law/2004/01/01/queries.htm

https://blog.ipleaders.in/essentials-of-valid-marriage-under-muslim-law/