What is the procedure for granting divorce under Mohammedan Law? Whether a wife can give divorce to her husband under the Mohammedan Law?

Question: What is the procedure for granting divorce under Mohammedan Law? Whether a wife can give divorce to her husband under the Mohammedan Law? [Punj JS 1995(II)]

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Answer

In Muslim Law, it is said that “With Allah, the most detestable of all permitted things is divorce.”

Despite this precept of the Prophet, in modern India, divorce in its uninhibited form is recognized in Muslim personal law. According to the aforementioned quotation from a hadith(source from Islamic scripture), divorce as a practice is included in the category of permissible acts, and while divorce was considered to be the most despicable of the permissible things, it has been observed by Islamic scholars that “…yet this despicable thing has existed in abundance.”

In Muslim law, divorce or dissolution of marriage takes place either on the death of either party to the marriage or at the instance of one of the parties or both parties. It may be noted that in contrast to Hindu law, death dissolves a marriage under Muslim law.

In Muslim law, divorce may be studied under the following three heads:

1. Unilateral divorce

At the instance of the husband: A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words, which signify his intention to disown the wife, is sufficient. Generally, this is done by talaq. But he may also divorce from Ila and Zihar which differ from talaq only in form, not in substance.

At the instance of the wife: The wife may do so by the practices of talaq-i-tafweez and lian. In the case of talaq-e-tafweez, the wife does not divorce her husband- and she cannot do this under Muslim Law- but divorces herself on behalf of her husband under his power delegated to her by him.

Under the Muslim Law, when under the contract, the wife is empowered to divorce herself in specific contingencies which she exercises at the happening to any of them, the divorce will take effect to the same extent as if it has been pronounced by the husband. It does not require any declaration from a Court of law.

In Manjila Bibi v. Noor Hossain, AIR 1992 Cal 93, the petitioner was married to the defendant Noor Hossain. The husband delegated his power to divorce his wife, and the same was entered into a Kabinnama, which was executed. When she was ill-treated by her husband, she dissolved the marriage by virtue of the authority delegated to her by her husband before the Muslim Marriage Registrar. The husband refused to pay the maintenance and dower to the wife when claimed by her under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

The Court held that the power to give divorce, which primarily belongs to the husband, may be delegated to his wife either absolutely or conditionally. Since this is not prohibited by the personal law of the parties, therefore, it is quite open for her to divorce herself. The Court further held that the wife in the instant case was very much a divorced woman when she dissolved her marriage by virtue of authority delegated to her and executed a divorce deed before the Muslim Marriage Registrar and Kazi, and it cannot be said that the marriage was still subsisting as no specified contingencies had taken place.

2. Divorce by mutual consent or mutual agreement

A wife cannot divorce the husband of her own accord. She can divorce the husband only when the husband has delegated such a right to her or under an agreement. Thus, dissolution of marriage by mutual agreement may be done by the practices of khula and mubarat.

Khula or redemption literally means “to lay down”. In law, it means laying down his right and authority over his wife by a husband. In Mst. Bilquis Ikram v. Najmal Ikram, (1959) 2 W.P. p.321 it was said that under the Muslim Law, the wife is entitled to Khula as of right if she satisfies the conscience of the Court that it will otherwise mean forcing her into a hateful union.

3. Judicial divorce

Judicial divorce is the right of the wife to give divorce under the Dissolution of Muslims. The first two heads are known as extra-judicial divorce, while the last head is judicial divorce. This is based on whether conventional legal or judicial means are utilized for divorce or whether personal law practices are utilized for divorce to be affected. It is clear from the above heads of divorce under Muslim Law that even a wife can give divorce to her husband under Mohammedan Law.

The Prophet Mohammad is reported to have said, “if a woman is prejudiced by marriage, let it be broken off.”

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