This article on ‘Analysis of Matrimonial Remedies under Islamic Law‘ was written by an intern at Legal Upanishad.
Introduction:
Marriage is considered to be a sacred bond between two persons and this concept is followed by almost every religion in the world. Every religion has different types of rituals and practices which are followed during and after marriage. Sometimes a marriage fails to work, in such cases remedies are provided that help in either patching up or finally leading to the dissolution of the marriage, for which different procedures are laid down that need to be followed. Islamic law also lays down systematic rules and procedures through which a marriage is conducted and in case it fails, provides provisions for its remedies.
Marriage Under Islamic Law:
In Islam, marriage is known as ‘nikah’ which is an Arabic word whose meaning is ‘the union of two parties’. Under Islamic law marriage is considered to be a civil contract entered between two parties and that contract should not be broken because the Prophet says that divorce is an evil practice and is the worst. A marriage under Islamic law is fulfilled when the wife accepts, ‘qubool’ as it is said under the Muslim law, the proposal of the husband and as consideration, the husband has to provide the wife with a dower, ‘Mehr’ as it is said under Muslim law. Irrespective of this, marriage under Muslim law is considered to be a sacred bond that should be respected.
The parties to the marriage in Muslim law must be of sound mind, that is, the person must give the consent to the marriage in a sound state of mind, secondly, the person must have attained the age of majority which is 15 years and above for women and 17 years and above for men under their law and thirdly, the parties to the marriage should be both Muslims in case of Shia Muslims and for Sunni’s a Muslim boy can marry a non-Muslim girl. So, the essential things to fulfill an Islamic marriage are;
- a) free consent of both the parties,
- b) consideration or Mehr,
- c) acceptance of proposal or qubool, and
- d) witnesses.
There are three types of marriages laid down under the Mohamedan Law, they are;
- a) Sahih or valid marriage;
- b) Batil or void marriage; and
- c) Fasid or irregular marriage.
An irregular marriage is such a kind of marriage where some rituals were not followed while conducting the marriage but they can be rectified after the marriage and then the marriage obtains the status of a valid marriage.
Divorce Under Islamic Law:
In unfortunate circumstances, divorce becomes the only option for the well-being of the parties of the marriage. Muslim law, as a whole, is not a codified law but certain legislations prevail like the Dissolution of Muslim Marriages Act, 1939 which, from the name itself can be understood, deals solely with the dissolution of Muslim marriages in India.
Divorce in Islamic law is known as Talaq and it can be given by both husband and wife there is also the option for a mutual agreement for dissolving a marriage. In some forms, a period known as iddat needs to be completed to obtain a divorce. The iddat is a period when the wife has to be in seclusion and abstain from marrying another person after the marriage has been dissolved through a divorce or by the death of the husband. The period for iddat is different in different circumstances.
During the period of iddat the wife has to be maintained by the husband, the husband cannot marry, until the iddat period is complete, if he has four wives including the divorced wife, also, the wife becomes entitled to deferred dower in this period and if the prompt dower was not paid before then it becomes payable immediately in this period, to the wife. The following are the classification of divorce under Islamic law:
By Husband:
- Talaq-i-Sunnat – This form of divorce is considered to be based on the principles laid down by Prophet. This form can be further divided into two categories, they are;
- Talaq-i-Ahsan, in this form the talaq is pronounced between two menstrual cycles, and the parties, do not indulge in sexual intercourse during the iddat period. In this form of divorce, the parties can revoke the talaq before the iddat period is completed. The main principle behind this form is to prevent the parties from taking hasty decisions about the divorce; and
- Talaq-i-Hasan, in this form there is a pronouncement of talaq three times during three successive periods, the period being the time between two menstrual cycles. In this case, the talaq becomes irrevocable irrespective of the period of iddat.
- Talaq-i-Biddat – This form of divorce is also known as ‘triple talaq’ and is considered to be the instant form of divorce where the husband can divorce his wife by pronouncing the term ‘talaq’ three times, successively, orally, or by writing The most famous case related to this form of divorce is the case of Shah Bano V. The Union of India, where the Apex Court stated that this practice is not only in derogation of the principles of Islamic law, where a woman’s right and dignity is to be respected but also harms the modern societal principles. The Supreme Court of India made this form of divorce to be void and unconstitutional because it violates Articles 14, 15, 21, and 25 of the Constitution of India.
- Besides the above two forms, there are two more types which are known as constructive divorce. One of them is known as Ila where the husband takes an oath to not indulge in sexual intercourse with his wife for a period of four months and on expiry of that period successfully the marriage is dissolved irrevocably. The other one is known as Zihar where the husband compares his wife with someone in his prohibited relationship like a mother or sister. He then abstains from cohabitation for a period of four upon completion of which the zihar is completed.
By Wife:
- Talaq-i-Tafwiz – In this method of divorce the husband delegates his power of divorce to his wife permanently or temporarily. The purpose of this delegation and to whom it is being delegated must be distinctively stated in the pre-nuptial agreements.
- Lian – In this case, the wife gets the right to divorce her husband if her husband brings up false charges of adultery and unchastity against the wife, degrading her dignity.
- Dissolution of Muslim Marriages Act, 1939 – Vide section 2 of this Act, a Muslim wife has got the right to divorce his husband on the following grounds; a) the husband treats her with cruelty, b) the husband was impotent at the time of the marriage, c) the whereabouts of the husband is not known for more than four years, d) the husband has without reasonable causes failed to fulfill his marital obligations for three years, e) the husband has not been able to provide maintenance to his wife for a period of two years, f) the girl who was put into marriage by her guardian was below the age of fifteen years can revoke the marriage before she attains the age of 18 years but the marriage must not be consummated during this period, g) the husband is suffering from virulent diseases or leprosy or he is of unsound mind for two years and upwards, h) the husband has been sentenced to jail for a period of more than 7 years.
These are the forms in which a Muslim marriage can be dissolved.
Conclusion and Suggestion:
Similar to other religions, Muslim law also has a proper set of guidelines for marriage and its dissolution. The prevalence of divorce among Muslims is not new it has been there before the modern era of the world came into existence. The main problem that the Muslim law faces is that it is not a codified law and most of its provisions are the same as it was when the law came into existence. The laws were modern for the time when they came into existence but the law cannot stand still, it needs to change with changing circumstances, which has been the problem in the case of Islamic law, mainly in India.
In this era of equality, the Muslim law still gives superior power to the Muslim man which they often misuse. Slowly but steadily this scene is changing in India like the infamous ‘triple talaq’ practice finally came to an end and it can only be hoped that the situation becomes better in the upcoming days.
REFERENCES:
- Prusty Neelam, 2020, Marriage, Restitution of Conjugal Rights and Maintenance of Wives Under Muslim Law, iPleaders, https://blog.ipleaders.in/marriage-restitution-of-conjugal-rights-and-maintenance-of-wives-under-muslim-law/
- Gupta Setu, The Concept of Divorce Under Muslim Law, Legal Services India, https://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html
- Sanjyot C, Matrimonial Remedy of Restitution of Conjugal Rights Under Muslim Law, Share Your Essays, https://www.shareyouressays.com/knowledge/matrimonial-remedy-of-restitution-of-conjugal-rights-under-muslim-law/117656