3. Divorce as per the Muslim Marriage dissolution Act, 1959, that is, as per the court’s intervention. 1.
Divorce According to Muslim Law: Khula/Mubarat and Talaq: According to the traditional Muslim law, divorce can be obtained directly in two ways without the intervention of the civil court. They are: (a) Khula /Mubarat and (b) Talaq. (A) Khula or Kohl and Mubarat: Husband and wife can obtain divorce by mutual consent either by ‘Khula’ or by ‘Mubarat’. Difference betwefen Khula and Mubarat is simple: In Khula divorce is initiated at the instance of the wife. In Mubarat, since both the parties’ desire separation, the initiative may come either from the wife or from the husband. (B) Talaq: Talaq represents one of the ways according to which a Muslim husband can give divorce to his wife as per the Muslim law without intervention of the court. In talaq, the husband has the right to dismiss his wife by repeating the dismissal formula thrice.
The talaq may be affected either orally by making some pronouncements or in writing by presenting ‘talaqnama’. Talaq may be given in any one of the following three ways: (i) Talaq-e-Ahsan: This involves a single pronouncement of talaq followed by a period of conjugal abstinence till the completion of ‘iddat’. (ii) Talaq-e-Hasan: This consists of three pronouncements of ‘Talaq’ made during three – successive menstrual periods and no sexual contact has taken place between the spouses during these months.
(iii) Talaq-ul-Bidat: Here, talaq, pronouncement takes place in any one of the following ways. (a) in a single sentence, for example,” I divorce thee thrice” or in three separate sentences: “I divorce thee, I divorce thee, I divorce thee” (b) in a single but clear pronouncement such as, “I divorce thee irrevocably”. In the first two types cited above, there is a chance for re-establishing the martial ties but not in the third form. 2. Divorce as Recognised by Shariah Act, 1937: The Shariah Act, 1937 provides for three forms of divorce. They are mentioned below. (i) Ilia: If the husband swears by God to abstain from sexual relations with his wife for a period of four months or more, or for a specified period, he is said to make ilia. If he sticks on to his words, then marriage gets dissolved.
(ii) Zihar: In this type the husband of sound mind declared in the presence of two witnesses that his wife is like the back of his mother to him. Though marriage is not dissolved with this, it gives scope for the wife to go to court on this ground. (iii) Lian: In this type the husband accuses his wife of being guilty of adultery. This, however, gives an opportunity for the wife to go to court insisting on her husband either to withdraw such an allegation or prove the same. 3. Provisions for Divorce as per the Dissolution of Muslim Marriage Act, 1939: The Dissolution of Muslim Marriage Act, 1939 passed during the British period entitled a Muslim woman to seek the dissolution of her marriage on the following grounds: (i) whereabouts of husband not known for 4 years.
(ii) failure of husband to provide for her maintenance for 2 years. (iii) imprisonment of husband for 7 years or more. (iv) impotency of husband since the time of marriage. (v) failure of husband to fulfill martial obligations for 3 years. (vi) insanity of husband for a period 2 years and husband’s incurable diseases like leprosy, venereal diseases, etc. (vii) husband’s physical and mental cruelty. (viii) marriage being thirsted upon her before she attained IS years, [but in this, the wife has to seek divorce before she completes 18th year]. (ix) any other valid ground which the Muslim law permits.