DIVORCE IN MUSLIM LAW: MUTUAL CONSENT INCLUDED ANIL K KHAWARE ADVOCATE

 

Divorce IN Muslim Law: MUTUAL CONSENT INCLUDED

                                                   ANIL K KHAWARE

                                                   ADVOCATE

The basic object of union, such as marriage is to remain together and bound by the oath, solemnity of it or contractual understanding, as the case may be. However, in the event, separation may be felt inevitable, there cannot be a dead end and hence, outlet is necessary and Muslim Law also encapsulates provisions in such an eventualities, including that of divorce by mutual consent. Though, rarely one hears of it, still, it is not a matter of oblivion and is used by Muslim couples, when deemed necessary and expedient. The discussion, herein, shall therefore, pervasively relate to divorce as per Muslim law including that of divorce by mutual consent, amongst Muslim while discussing law and process of divorce in general. The very genesis of divorce, if one looks at, is needed to factor any unforeseen and unfortunate circumstances. When a situation arises when living together is difficult and irretrievable differences between couples makes continuance in matrimony as punishing, then, the process of divorce is set in motion, as there may not be any other plausible option, but to dissolve the marriage itself.

 

It is necessary to cull out the principle i.e the customs of divorce in Islam. It may be added that the divorce is treated with extreme disapproval and it is perceived as undermining the foundation of society. The inevitability, however shall lead to no other option, but to divorce and hence, mechanism to that effect is also rolled out.  As per Muslim law, the unlimited power of divorce by the husband is curtailed and woman is also given the right of obtaining the separation on reasonable grounds. It is contrary to general perception and Dissolution of Muslim Marriage Act 1939, is a pointer.

As regards the mode and manner of divorce, the parties may themselves divorce each other or by a decree of the court of law. Though, divorce is not regarded as a rule of life and in Islam, as is narrated above, it is construed as exception, and in fact, the Prophet is stated to have declared that amongst the permitted activity, divorce is the least preferred and is treated as an evil. The avoidance of divorce, therefore, is a prescription. However, when it is impossible for the couple to live together, then, outlet is accorded to such couple, to separate. The type of divorce including “with mutual consent” is provided for, when ambience of perpetual hatred and disaffection is sought to be avoided. The crux is, thus, that when spouses are unable to live together, for any reason, then, the only plausible option is divorce. If the living together is difficult due to any specific cause or guilt of a party and if parties are unable to live together, then, too, the mechanism of divorce is prescribed.

The procedure of divorce in Muslim law, is vastly different than the conventional system prevailing in India. However, the Muslim law also has a set of procedure and law is codified as well. As regards “divorce by mutual consent”  it has its sanction in Shariat as well for both Shia and Sunni Sect, albeit, with some minor procedural difference.

CUSTOMS & PRINCIPLES

According to Mulla, in his Principles of Mohammaden Law (19th Edition) By M. Hidayatullah and Arshad Hidayatullah, the contract of marriage under Mohammaden law may be dissolved in any one of the following  ways :

(1)     by the husband at his will, without the intervention of a Court;

(2)     by mutual consent of the husband and wife, without the intervention of a Court;

(3)     by a judicial decree at the suit of the husband or wife. However, the wife cannot divorce herself from her husband without his consent, except under a contract whether made before or after marriage, but she may, in some cases, obtain a divorce by judicial decree (Section 307 page 258).

The husband, still has superimposing power to divorce his wife without any reasonable cause and hence, provisioning of Dower up to some extent restricts the use of this power.

In prevailing Muslim law, the divorce through Mutual Consent entails two ways (1) “Khula” and (2)  “Mubarat”.  In both the aforesaid kind of dissolution of marriage, wife does not claim return of dower or some part of any other property. In some case of mutual consent divorce in Muslim Law, the wife needs to pay some amount of the compensation for dissolving the marriage and getting separated, not claiming dower is one such compensation.

Khula: The wife agrees to give the consideration to the husband for separation from the marriage. In this context, it may be added that not mandating the husband to return to the wife is also construed as consideration. It should be re-emphasized that the option to women remains to include a provision to relinquish her dower either entirely or partially. The consent of the husband must be free to enter into a “Khula” and without any influence, force or coercion. Undergoing the period of “iddat” is necessary, though.

“Iddat” has been described in Mulla’s Mohammedan law, as the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death to remain in seclusion, and to abstain from marrying another husband. The abstinence is imposed to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage. When the marriage is dissolved by divorce, the duration of the iddat, if woman is subjected to menstruation, in three course, if she is not so subject, it is three Lunar months”. 

Mubarat:

The word ‘Mubara’at’ means ‘freeing one another mutually’. Mutual divorce takes place in the form of ‘Mubara’at’ when:

(i)          Both spouse consent to ending the marriage.

(ii)        The husband have to say ‘talaq’ once

(iii)       This form of talaq, cannot be revoked.

This form of divorce happens when after coming to a mutual decision to end the marriage.

Certain duties are also prescribed:

(i)    The wife has to follow the period of iddat after the divorce.

(ii)   Both wife and children can get maintenance during this period.

The husband cannot re-marry his wife again, unless some conditions are completed.   

As per “Mubarat” if both wife and husband are not keen to live together anymore and seek separation as early as possible by way of dissolution of marriage. The same could be as under:

(i)     Either of the partners can make offer of separation.

(ii)    The other spouse has to accept the offer of divorce .

(iii)  As soon as acceptance by the other spouse, it becomes operative.

(iv)   The caveat, though, is that iddat period (3 months) as prescribed has to be completed, before the divorce is considered complete and approved.

According to the holy Quran; the basis of Mubarat is Surah – al – Baqrah “ if there is danger in Mubarat, just as with all forms of divorce, to which the parties might act hastily, then repent, and again wish to separate. To prevent such capricious action repeatedly, a limit is prescribed. Two divorces (with attempted reconciliation in between) are allowed. After that the parties must definitely make up their minds, either to dissolve their union permanently or to live together in mutual love and forbearance”.

If the husband is the one, who makes the initial offer of a Mubarat, his offer may not be retracted. It is up to the wife, then, to either accept or reject this offer. This is, primarily, because this offer by the husband is deemed equivalent to an oath of repudiation, which becomes effective immediately when the wife signifies her acceptance of the offer. On the other hand, if the wife makes the initial offer of a Mubarat, she may retract her offer at any time before acceptance by the husband. Since Mubarat requires consent of both parties to the marriage contract, the agreement to divorce may be voidable if either or both the parties lacked the necessary intent or have been induced into acceptance by fraud or duress.

While in the Khula divorce, the request proceeds from the wife to be released and the husband agrees for certain consideration, usually the Mahr, in Mubarat apparently both are happy at the prospect of being rid of each other. No formal form is insisted on for Mubarat by the Sunnis. However, Shia, insists on some formats or documentation.  The offer may come from either side. When both the parties enter into Mubarat all mutual rights and obligations come to an end.

At first in the Indian sub – continent the form of Khula talaq and Mubarat were not recognised as form of a valid talaq according to law. It was in the case of Mst. Umar Bibi v Muhammad Din AIR 1945 Lah. 51 that the concept of Mubarat was recognised and brought in the fore front.

In the case of Mst. Sayeeda Khanam v. Muhammad Sami PLD 1952 (WP) Lah 113 (FB), it was decided that “incompatibility of temperaments, aversion or dislike cannot form a ground for a wife to seek dissolution of her marriage at the hands of a Qazi or court, but is to be dealt with under the powers possessed by the husband and the wife under Muslim law, as parties to the marriage contract”. This case defined khula as dissolution of a marriage by agreement between the parties for a consideration paid or to be paid by the wife to the husband. It was necessarily a case of Mubarat.

Divorce by consent: it has been confirmed that, the divorce of Mubarat should be affiliated from both the sides, if the husband refuses to divorce his wife then the concept of Mubarat would fail, and it would be Zulm done by the husband on her wife. In such cases, the Qazi (kazi) present at the courts would have their final say.

On what grounds can Mubarat be claimed by the spouses: if the spouses develop extreme, intense dislike for each other, in one case it was confirmed that the spouses wanted to spit on each other’s faces. Such dislike between the spouses should prove to be a reasonable ground for the spouses to get divorce by mutual consent.

EXCERPTS OF A RECENT JUDGMENT:

Mariyam Akhter & Anr vs Wazir Mohd  HIGH COURT OF JAMMU AND KASHMIR AT JAMMU Cr Rev No. 51 OF 2005 AND Cr M P No. 15 OF 2005 (decided on 14 October, 2010)   

It is incumbent on the part of Muslim husband to maintain his wife so long as she is loyal and faithful to him and obeys his reasonable orders. But once she is divorced, she is entitled to maintenance as per law being in force in India, i.e., Muslim Women (Protection of Rights on Divorce) Act, 1986.

In the above background, it is to be considered that under what circumstances a Muslim married woman can be divorced and what are the essential conditions for causing divorce and procedure to be followed to effect a valid divorce.

A talaq may be effected

(i) Orally (by spoken words) or

(ii) by a written document called a talaqnama.

So far oral talaq is concerned, no particular form of words is prescribed for effecting a talaq. If the words are express (saheeh) or well understood as implying divorce, no proof of intention is required. If words are ambiguous (kinayat), the intention must be proved. It is not necessary that talaq should be pronounced in presence of the wife or even addressed to her.

As regards talaq in writing, talaq can be effected by a written document called talaqnama. It is required that such type of deed may be executed in presence of the Kazi or of the wife’s father or of the other witnesses. The deed is said to be in the customary form if it is properly superscribed and addressed so as to show the name of the writer and the person addressed. If it is in customary form it is called manifest, provided that, it can be easily read and comprehended. If the deed is in customary form and manifest the intention to divorce is presumed. Otherwise, the intention to divorce must be proved. {Mullas Principles of Mohammedan Law (supra) (Section 310  page 259)}.

There are two kinds of talaq as recognized under HanafIs Mohammedan Law namely:

(i)                  Talaq-us-sunnat and

(ii)                Talaq-ul-bidat or

(iii)              Talaq-ul-badai.

“Talaq-us-Sunnat” is effected in accordance with the rules laid down in the traditions, i.e., Prophet Sunnat headed down by him or by his principle disciples. On the other hand, the Talaq-Ul-Bidat is heretical or irregular mode of divorce which was introduced in 2nd Century of Mohammedan era. In this kind of talaq, as a matter of fact, there is capricious and irregular power of divorce ,which was, in the beginning, left to the husband, was strongly disapproved by the Prophet.

Talaq-us-sunnat is either Talaq Ashan or Talaq Hasan. The mode of giving this talaq may be discussed as under:-

(1) Talaq ashan, which consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat.

(2). Talaq hasan that consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the three tuhrs. And

(3) Talaq-ul bidaat or talaq-i-badai which consists of three pronouncements made during a single tuhr either in one sentence, e.g., I divorce thee thrice, - or in a separate sentences, e.g., I divorce thee, I divorce thee, I divorce thee.

The above proposition of law as regards divorce or talaq primarily emerged from the text of Holy Quran, which is the primary source of Muslim law on the relationship between the husband and the wife as well as pronouncement of divorce by the husband against the wife.

The mode and procedure to effect a valid divorce has been mandated in the Holy Quran. The Holy Quran ordains in clear and un-equivocal terms for re-conciliation to effect a valid divorce in Sura Nisa

In this regard Verses Nos. 128 to 130, being relevant, may be quoted as under:-

128. If a wife fears Cruelty or desertion On her husbands part, There is no blame on them, if they arrange an amicable settlement Between themselves;

And such settlement is based; Even though Men’s souls are swayed by greed.

In 2002 by amendment of the Code of Civil Procedure, 1908, Section 89 has been incorporated providing for settlement of the disputes, outside the Court by adopting primarily four methods, namely,

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat, or

(d) mediation, which are popularly coined as alternative dispute resolution(ADR) mechanism.

So it is evident that the process of reconciliation has to be given priority as well as importance in the present days. In view of above, it is essential that a dissolution of Muslim marriage by way of divorce or talaq must be based on reconciliation as mandated by Quranic text followed by commentaries on the topic by the various eminent legal personalities.

S.145 of the Indian Evidence Act. There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence, if it fulfills the requirements of S.21 of the Evidence Act: in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former, there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore: in the latter case the Court cannot be invited to disbelieve a witness on the strength of prior contradictory statement, unless, it has been put to him, as required by S.145 of the Evidence Act, this distinction has been clearly brought out in the ruling in Bharat Singhs case (1966) 1 SCR 606; 615- 16=(AIR 1966 SC 405).

Marriage being regarded as a civil contract and as such not indissoluble, the Islamic law naturally recognises the right in both the parties, to dissolve the contract under certain given circumstances. Divorce, then, is a natural corollary to the conception of marriage as a contract. It is clear, then, that Islam discourages divorce in principle, and permits it only when it has become altogether impossible for the parties, to live together in peace and harmony. It avoids, therefore, greater evil by choosing the lesser one, and opens a way for the parties to seek agreeable companions and, thus, to accommodate themselves more comfortably in their new homes. Dr. Galwash, as observed by this Court, concluded that divorce is permissible in Islam in cases of extreme emergency.

The Gauhati High Court in a case of Jiauddin Ahmed v. Mrs. Anwara Begum, reported as (1981) 1 Gauhati Law Reports 358, authored by Bahorul Islam, J (the then), following A. Yusuf Rawthers case, categorically held that a talaq could not be exercised at a caprice and whim of the husband and an attempt of reconciliation was a condition precedent to divorce.

Admissions are substantive evidence by themselves, in view of Sections 17 & 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. Te opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under S.145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.

The learned Commentator Yousuf Ali in his Book Translation and Commentary of Holy Quran at note 254 page 90, commenting on the subject of talaqhas observed;-

Islam tried to maintain the married state as far as possible. Especially where children are concerned, but it is against the restriction of the liberty of men and women in such vitally important matters as love and family life. It will check hasty action as far as possible and leave the door to reconciliation open at many stages. Even after divorce a suggestion of reconciliation is made, subject to certain precautions against thoughtless action. A period of waiting (iddat) for three monthly courses is prescribed in order to see if the marriage conditionally dissolved is likely to result in issue. But this is not necessary where the divorced woman is virgin: it is definitely declared that woman and man shall have similar rights against each other.

Yousuf Ali (Supra at note 256 page 90) has further observed:

Where divorce for mutual incompatibility is allowed, there is danger that the parties might act hastly, then repent, and again wish to separate. To prevent such capricious action repeatedly, a limit is prescribed. Two divorce (with a reconciliation between) are allowed after that the parties must unitedly make up their minds , either to dissolve their union permanently or to leave honourable lives together in mutual love and forbearance to hold together or equitable terms, neither party worrying the order nor grumbling nor evading the duties and responsibilities of marriage.Yousuf Ali proceeds:

When the divorce proceeds from the husband, it is called Talaq; when it is effected by mutual consent, it is called Khula or Mubaraat, according to the terms of the contract between the parties.{ (Mullas Principles of Mohammaden Law (supra) (Section 307) By M. Hidayatullah and Arshad Hidayatullah at page 258)}.

Dissolution of Muslim Marriage Act 1939

As per the Dissolution of Muslim Marriage Act 1939, the grounds for decree of dissolution of marriage to a Muslim Women shall be entitled to dissolution of marriage on any one of the following grounds:

(i)           that the whereabouts of the husband have not been known for a period of four years;

(ii)         that the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii)        that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv)        that the husband has failed to perform, without reasonable cause, his marital obligation for a period of three years;

(v)          that the husband was impotent at the time of the marriage and continues to be so;

(vi)        that the husband has been insane for a period of two years or is suffering from a virulent venereal disease.;

(vii)     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 the marriage is not consummated.

(viii)    That the husband treats her with cruelty, that is to say,

(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment, or

(b) Associates with women of evil repute or leads an infamous life, or

(c)  Attempts to force her to lead an immoral life

(d) Dispose of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice it, or

(f)   if he has more wives than one, does not treat her equitably in accordance with the injunctions of Quran,

(ix)       On any other ground which is recognized as valid for the dissolution of marriages under Muslim Law;

(a)          Provided that no decree shall be passed on ground (iii) until the sentence has become final;

(b)          A decree passed on ground (i) shall not take effect for a period of six months from the date of such decree; and if the husband appears either in person or through an authorized agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and

(c)          Before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court, within a period of one year from the date of such order that he has ceased to be impotent’ and if the husband so satisfies the Court within such period, no decree shall be passed on such ground. 

    

Issue of Triple Talaq

The hon’ble Supreme Court has held Triple Talaq as invalid and violative of article 14 of the Constitution in a matter reported as  Shayarabano Vs UOI (2017) 9 SCC 1

The Muslim Women (Protection of Rights On Marriage) Act 2019 was thus enacted and as per section 3 of the Act any pronouncement of Talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal. And as per section 4 the prescribed period of punishment may go up to Three (3) years and could also be liable to fine.

Conclusion:

Having regard to the Quranic mandate, commentaries of the eminent jurists of Mohammedan law as well as the judicial authorities pronounced by the highest and higher Courts, what could be culled out is that divorce in Muslim Law is allowed only for a reasonable cause and, secondly, it must be preceded by an attempt to 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 family. If such reconciliation fails, only then, there can be a valid divorce. Dissolution of Muslim Marriage Act 1939 encapsulates rights to a woman for claiming divorce, apart from the rights available to seek and grant divorce with mutual consent. The Muslim Women (Protection of Rights On Marriage) Act 2019 is yet another safeguard to Muslim women.

In Bia Tahira Vs Ali Hussain, AIR 1979 SC 362 dealing with right to maintenance of a Muslim divorcee is noteworthy. To quote:

“The meaning is derived from values in a given society and its legal system.  Article 15 (3)  has compelling compassionate relevance in the context of Section 125 of Cr.P.C and the benefit of doubt, if any, in statutory interpretation belongs to the ill- used wife and the derelict divorcee. This social perspective granted, the resolution of all the disputes projected is easy. Surely, Parliament, in keeping with Article 15(3) and deliberate by design, made a special provision to help women in distress cast away by divorce. Protection against moral and material abandonment manifest in Article 39 in general and clause (a)(d) & (e) of Article 39 in particular,  is part of social and economic justice, provisioned in Article 38, fulfillment of which is fundamental to the governance of the county. In this backdrop, we must view the printed text of the particular Code. Law is dynamic and its meaning cannot be pedantic”.

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