Muslim Divorce Law and Process
Islamic law regards matrimony as a social and legal agreement between a man and a woman. In Islam, getting married is a Sunnah act that is highly advised, with the ideal age being whenever the parties feel emotionally and financially prepared.
Muslim divorce law is predicated on preserving marriage as opposed to abolishing it. However, there are times when this evil becomes necessary because it is preferable to let a couple to divorce rather than force them to live together in a hostile and unloving environment when they are unable to continue their partnership with affection and love for one another. Divorce is one way to break a marriage. In Islamic law, a couple’s incapacity to cohabitate is the primary reason for divorce, not any particular fault or offense committed by one of the parties.
Legal Dissolution of Marriage or Divorce in Islam:
A marriage is terminated in accordance with Muslim law either by divorce or the passing of the husband or wife. Husbands are free to be married again right away after their wives pass away. On the other hand, if the husband passes away, the wife is not allowed to get married again until the 90-day Iddat period has passed.
Extra judicial divorce
Extra judicial divorce occurs when both parties agree to it and it is dependent on their will. Wife and husband are granted distinct rights. In general, a woman’s right to file for divorce is far less than that of her husband; nevertheless, the Dissolution of Muslim Marriage Act of 1939 grants certain rights to the wife.
The components of an extrajudicial divorce are as follows:
- Mutual Agreement: Khula and Mubarak;
- Husband: Talaq, Ila, and Zihar;
- Wife: Talaq-i-tafweez, Lian.
TALAQ implies freedom—not from other forms of bondage, but from the bondage of marriage under Islamic law. Legally speaking, it refers to the husband employing the proper phrases to dissolve the marriage. In other words, talaq is the husband’s rejection of the marriage in line with the legal process.
In contemporary India, a Muslim husband is recognized for his absolute right to unilaterally divorce his wife, giving no explanation, acting literally at his whim, even in jest or while intoxicated, without going through the legal system, and even when the wife is not present.
The husband only needs to utter the talaq; it doesn’t really matter how, when, or what he says. A valid talaq doesn’t need the husband to follow any particular formula or use any specific term. Any statement that makes it apparent that the husband wants to end the marriage is adequate. It is not required to be made in front of the witnesses.
This is regarded as following the dictates of the prophet Muhammad. There are two variations available: Ahasan: This type of divorce is declared once during the tuhr (purity, the time between two menstruations) or whenever the woman is not having her period. The husband is required to refrain from sexual activity during the month of Ramadan. Resuming sexual relations before the iddat period is up will also result in the divorce being revoked. Hasan: In this case, the husband must repeat the talaq three times over the course of three consecutive tuhrs. The talaq becomes final and irrevocable at the time of the final declaration.
The Supreme Court invalidated the practice of instantaneous divorce, often known as triple talaq. Ila: In Ila, the husband swears not to engage in sexual relations with his wife. There is no consummation for four months after this oath is taken. When the fourth month passes, the marriage ends permanently. On the other hand, Ila is canceled and the marriage does not end if the husband returns to cohabitation within four months.
In this method, the husband makes comparisons between his wife and a lady in his forbidden relationship, such as his sister or mother. The husband would claim that his wife is now his sister or mother. Following such a comparison, the husband and wife separate for a duration of four months. When the allotted time has passed, Zihar is finished. The wife has the following rights once the fourth month has passed: • She can ask the court to grant her a decree of judicial divorce; • She can go to court to receive a decree of restitution of conjugal rights.
=> Per Wife
A Muslim woman cannot end her marriage i.e give a muslim divorce, without her husband’s approval, according to traditional Sharia law. The Muslim husband may assign his authority to file for divorce to his spouse or to another individual. He can assign authority totally, subject to restrictions, indefinitely, or temporarily. A temporary delegation of power cannot be revoked, whereas a permanent delegation of power can.
It should be noted that even in the event of a contingency, whether or not the power is to be exercised depends upon the wife; she may choose to exercise it or not. This delegation must be made clearly in favor of the person to whom the power is delegated, and the purpose of delegation must be stated. Divorce is not always the outcome of a contingency event occurring.
If a husband falsely accuses his wife of adultery or lack of chastity, this is considered character assassination, and the woman is entitled to file for divorce on these grounds. Lian is the name given to this type of divorce.
=> By Mutual
Even in situations where her husband is not at fault, a Muslim woman has the right to file for divorce if she does not want to remain with him. The husband’s only option after accepting and being impacted by a Khula is to sue the wife for it, as he cannot revoke it on the grounds that consideration has not been paid.
MUBARAT (mutual muslim divorce in Bangladesh)
As per Divorce law in Islam, Mubarat is an additional method of ending a marital agreement. It represents a mutual release from the marital claims, i.e the process of a mutual divorce in Bangladesh. In Mubarat, the dislike is reciprocal and both parties want to go their separate ways. As a result, there must be a mutual consent component. In this type of divorce, the offer may come from the husband or the wife. An acceptance of an offer mubarat results in an irreversible divorce (talaq-ul-bain), necessitating iddat.
Dissolution as per Muslim Marriages Act 1939:
Section 2 of the Act states that, as per Muslim Divorce Law and Process a woman who is married under Muslim law has the right to file for divorce on any one or more of the following grounds, including:-
- That the husband’s whereabouts have been unknown for four years: in the event that the husband disappears for four years, the wife may ask for the dissolution of their marriage. If the wife or any other individual who is supposed to be acquainted with the husband cannot find him, the husband is considered missing.
According to Section 3, a wife filing for divorce on this basis must include the names and addresses of every individual who would have been the husband’s legitimate heirs in the event of his death.
All of these people receive notifications from the court asking them to come before it and provide any information they may have regarding the missing husband. In the event that no one is aware, the court issues an order to that effect, which is only going to take effect after six months. The court will set aside the decree and the marriage will not be dissolved if the husband reappears before the expiration date.
- The wife has the right to file for divorce on the grounds that her husband neglected or failed to provide for her maintenance for a period of two years. It is a legal requirement for a husband to support his wife. Either by neglecting her or by lacking the resources to do so, a husband may not be able to support his wife. In all scenarios, the outcome would remain the same.
The wife’s fulfillment of her matrimonial duties affects the husband’s duty to support her. Because her own actions disentitle her from maintenance under Muslim law, the woman cannot obtain a judicial divorce based on her husband’s inability to provide for her if she lives apart without a good reason.
- That the husband has been given a jail sentence of at least seven years; in this case, the wife is entitled to a judicial divorce as of the day the sentence is made final.
- That the husband has neglected to fulfill his marital duties for a duration of three years without a valid explanation. The term “marital obligations of the husband” is defined by the Act. However, only those marital obligations that are not covered by any of the clauses in Section 2 of this Act may be considered for the purposes of this section in the event that the husband fails to fulfill them.
- That the husband was and is impotent: in order to get a divorce judgment on this basis, the wife must demonstrate that the husband was impotent both before and during the marriage and that he will remain impotent until the lawsuit is filed.
In the event that the husband requests it, the court must let him a year to strengthen his case before awarding a divorce order on this basis. In the event that the husband does not file such an application, the decree will be quickly issued by the court.
- If the husband has had leprosy or another severe venereal illness for more than two years, or if he has been insane for two years or longer, the husband’s insanity must have lasted for two years or longer prior to the suit’s presentation.
However, this act does not stipulate that the mental illness must be incurable or treatable. Leprosy can cause the skin to turn white or black or to deteriorate. You could be able to cure it or not. A illness of the sex organs is venereal disease. According to the Act, this illness must be terminal. It can last for any amount of time. Furthermore, the wife is entitled to a divorce on this basis even if it was she who first exposed her husband to the illness.
- That she renounced her marriage before becoming eighteen years old, if it had not been completed, having been given in marriage by her father or another guardian before becoming fifteen;
- The husband abuses her, for example, by abusing her frequently, making her life miserable, living a notorious life, trying to force her to lead an immoral life, disposing of her property or preventing her from exercising her legal rights over it, interfering with her ability to practice her religion, or, if he has multiple wives, treating them unfairly in violation of the Holy Quran’s teachings.
•On any other basis that the Muslim Family Laws Ordinance, 1961 recognizes as appropriate for the dissolution of a marriage
According to section 7 of the Muslim Family Law Ordinance, a man who wants to divorce his wife must notify the Chairman in writing as soon as possible after the talaq is declared in any way, and he must also provide a copy of this notice to the wife. The Chairman will form an Arbitration Council to mediate a reconciliation between the parties within 30 days of receiving notification under sub-section (1).
The Arbitration Council will then take all necessary actions to facilitate the reconciliation. It is further stated that nothing shall prevent a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third party, unless such termination is for the third time so effective.
However, if the wife is pregnant at the time talaq is pronounced, talaq shall not be effective until the period of 90 days or the pregnancy, whichever is later. Furthermore, according to section 8, a talaq carried out by a wife exercising a power granted to her by her husband is referred to as talaq by tafweez and is applicable in the same way as outlined in section 7 of the relevant Act.
Divorce registration in Bangladesh:
When an application is submitted to him for registration, a Marriage Registrar has the authority to record a divorce finalized under Muslim law within his jurisdiction. The person or people who have divorced must apply orally for the divorce to be registered. Additionally, the Marriage Registrar will not register a divorce of the Talaq-i-tafweez type unless they can produce a document registered under the Registration Act, 1908 (XVI of 1908), which documents the husband’s delegation of the wife’s power to divorce, or an attested copy of an entry in the marriage register proving that such delegation has been made. In Bangladesh, registration is currently required by law.
Maintenance of Wife: In most cases, if a wife’s husband files for divorce, she is entitled to maintain her dower, or mahr, which includes any additional property included in the marriage contract as well as the original gift. In addition, she receives child support until the child reaches the age of weaning, at which point the parents or the courts will decide who gets custody of the child. Muslim personal law acknowledges a wife’s right to maintenance during a marriage, but after a divorce, maintenance is only awarded for ninety days starting from the date of formal notice—or, if the wife was expecting a child, until the child is born. Spousal maintenance may be provided for a set period of time (which may need to be extended), such as until the youngest kid turns 18, or for the rest of their lives, such as until one or both of them pass away. If such maintenance has been arranged, it may even continue after the payer passes away.
Legal Muslim Divorce in Bangladesh:
It is crucial to retain legal counsel to assist with the divorce or dissolution of marriage processes for individuals who have few other options. To obtain a legal divorce and make sure the marriage is ended without breaking any laws, a legal representative may look into an Act or other law that might be applicable in the particular case.
Is the signature of the notice recipient necessary to finalize the divorce decree?
According to the Family Ordinance Act, 1961, an individual divorce does not require the signature of the other party. For instance, if a wife serves her husband with a divorce notice, her husband does not need to sign it, and the divorce will be finalized three (3) months after the date the notice was sent.
Is a wife who files for divorce from her husband entitled to dower money?
A common misconception is that a wife forfeits her dower in the event of a divorce. The right of a wife is mahr, or dower. Who serves the divorce notification doesn’t matter.
Is it legal for a Muslim woman to file for divorce?
Either the wife or the husband may file for divorce in Islam in Bangladesh. If a Muslim woman is satisfied that her husband is not happy with her and that they are unable to fulfill their married duties, she may file for divorce in Bangladesh. If the husband has granted her permission to end the marriage, she can do so on her own.
During a muslim divorce, is it possible for a wife to claim any property owned by her husband?
Even if a woman has contributed to the marital property, she is not entitled to any rights over it in Bangladesh; rather, she is entitled to support for a three-month period known as the iddat period.
How is a Muslim divorce carried out?
A wife will initially recite Talaq if she wishes to file for divorce from her spouse. Following that, the wife will send her husband a copy of the Talaq, or divorce notification, and another copy to the Ward Councilor or Chairman of the Union. The divorce will become final after ninety days, or at the end of the wife’s pregnancy if she is currently carrying a child. During these ninety days, there is a mechanism for attempts at conciliation between the two sides.