Dissolution of Marriage and Divorce Types

Dissolution of Marriage:

Dissolution of marriage takes place on any of the following grounds: –

1. Apostasy (of either party)
2. Death
3. Option of Puberty
4. Divorce

Apostasy:

It is the renunciation of religious faith when a Muslim renounces his faith it is called apostasy ( Ridd). The person is called an apostate (Murtad). As per pure Islamic Law, a male apostate is liable to death, and a female is subjected to life imprisonment.

As far as marriage is concerned, such conversion to another religion automatically dissolves it. If the wife converts to Islam in a country where Islam is the law of the land, her marriage will stand automatically dissolved and she will not have to undergo a period of iddat.

Death:

Marriage is dissolved on the death of either party under Islamic Law, unlike Hindu Law. However, a widow has to observe a compulsory period of iddat(4 months 10 days) after the death of her husband, before entering into another marriage tie.

Option of Puberty:

This option is used by a person whose marriage was performed during his/her minority by the guardian and on attaining puberty he/she wants to repudiate that contract.

This option is further classified into ‘option of repudiation’ and ‘option of puberty’. In the former case, a minor is given into marriage ties by a guardian other than the father or grandfather.

There are two requirements for exercising the option of puberty: –

1. The option should be exercised immediately upon attaining puberty.
2. The marriage should have not been consummated.

However, the law gives exceptions to the above requirements, as this option is extended till the time a girl comes to know of her marriage and consummation must be with the consent of the wife, as without consent, the right is not lost.

Divorce:

Divorce is the exercise of the right of pronouncing unilateral breakage of the marriage tie by the husband, at any time during the subsistence of a valid marriage. The terms divorce and talaq are often treated as synonymous.

The term talaq is also sometimes used in the more comprehensive sense comprising all separations of wife from husband for causes originating in the husband. Both Sunni and Shia Laws recognize the authority of the husband to pronounce talaq(divorce). The technical meaning of talaq is ‘freedom from the bondage of marriage’.

When we talk about separation it can be in any of these ways: –

1. By the husband at his will, without the intervention of the court;
2. By the mutual consent of spouses, without the intervention of the court;
3. Through a judicial decree at the suit of the husband (on a personal note there is no need for a husband to apply to a court for dissolution) or wife.

Explanation:

This power given to the husband should never be used arbitrarily the Quran specifically fixes the period in which this right can be exercised, this period is known as “tuhr”. Its benefit is that the doors of reconciliation remain open between the parties.

The wife cannot divorce herself from her husband without his consent. When the divorce proceeds from the husband it is called “Talaq”; when it is affected by mutual consent it is called “Khula or Mubaraat” according to the terms of the contract between the parties.

However, Talaq is permitted only when the wife by her conduct or her words does injury to the husband or happens to be impious and it is wajib (obligatory) when the husband cannot fulfil his duties, as when he is impotent or a eunuch.

Capacity for Pronouncing Talaq:

The following persons have the capacity to pronounce divorce: –

1. Sound Mind (Aaqil)
2. Major (Baligh)

So, divorce pronounced by a minor or insane is void ab initio. Also, divorce pronounced under threat, intoxication, in jest, or by a deaf or dumb person is valid. A talaq pronounced under compulsion is invalid under Shia Law.

Procedure/steps for Pronouncing Divorce(Talaq):

Sharia has prescribed the correct manner for the pronouncement of divorce. This may be understood as under: –

If the husband pronounces divorce expressly i.e. “I divorce you”, it must be pronounced in tuhr, and the wife is allowed to fulfil three periods, during which no sexual activity will take place.

In such a case husband can retake the wife before the expiry of that period and upon the expiry of that period, the wife is free to marry again anybody she likes. But she cannot remarry the same husband without going through an intervening marriage tie with a third person known as “halala”.

Some jurists prefer that two witnesses must be present at the time of pronouncing divorce just to avoid any future dispute as to announcement, it should be noted that under Shia Law presence of witnesses is necessary.

The mode of pronouncing divorce, it can be classified into the following: –

1. Reversible (Revocable)
2. Irreversible (Irrevocable)

If a husband wants to dissolve his marriage tie for good, Sharia asks him to follow the following divorce steps:

He has to pronounce divorce expressly in tuhr, then wait for two subsequent tuhrs or he can pronounce three separate divorces in three successive tuhrs, this is known as “Talaq-e-Sunnat”. For a better understanding of this sort of talaq(divorce), let us discuss it in a bit of detail: –

Talaq-us-Sunnat:

According to Imam Malik, Shafai, and Hunble, it is the correct manner of giving divorce and in it, one pronouncement is made and the wife is left to complete her prescribed waiting period. As per Imam Hunble:

“The Sunnah divorce is one. Then the wife is left to complete three menstrual periods.”

The Hanafi jurists divide this sort of talaq into two heads: –

1. Talaq-e-Ahsan
2. Talaq-e-Hasan

Talaq-e-Ahsan:

It is called the best procedure and is the same as prescribed by the other three Imams stated above. The following are the requirements of Ahsan Talaq:

1. Marriage must be consummated
2. A single pronouncement of Talaq must be made
3. Such pronouncement must be made during tuhr
4. There must be no sexual activity during the next tuhrs
5. There must be no sexual activity during the period of iddat.

Talaq-e-Hasan:

It is the pronouncement of talaq in three successive tuhrs and is opposed to talaq-e-bidda. The following are the requirements for Talaq-e-Hasan:

1. Marriage must be consummated
2. Three pronouncements of Talaq must be made during three successive tuhrs
3. There must be no sexual activity during all three successive tuhrs
4. It becomes irrevocable on the third pronouncement.

In addition to Talaq-e-Sunnah one more procedure, as opposed to the procedure prescribed by Sunnah, for the pronouncement of divorce is recognized, known as “Talaq-e-Bidda”.

Talaq-e-Bidda:

It is recognized only under Sunni Law as Shia Law does not recognize it. All schools allow its revocation; that is, a husband who has suddenly and under inexplicable circumstances pronounced the formula against his wife, may revoke any time before the three tuhrs have expired.

When the power of recantation is lost, the separation becomes bain; whilst it continues, the talaq is simply Rajai. It is good in law though bad in theology. In such a form of pronouncement, three simultaneous pronouncements are made in one sitting or at once. So, it has two forms: –

1. Single irrevocable Talaq (I divorce you thrice or three times)
2. Triple irrevocable Talaq (I divorce you, I divorce you, I divorce you)

In this form of talaq, pronouncement can be made at any time.

Other forms of Divorce:

There are many other forms of divorce such as: –

Dissolution of Marriage by Agreement/Khula/Mubarat:

It is the dissolution of marriage by mutual agreement between spouses. Such mutual agreement must be made at the same meeting in express words.

Dissolution of marriage by agreement may take place either by “Khula” or by “Mubarat”. A divorce by Khula is the divorce with the consent and at the instance of the wife, in which she agrees to give consideration for her release.

But in Mubarat the offer is mutual and also known as collaborative divorce. Under Shia law, it must be in the same meeting and expressed in the Arabic language.

Illa:

The husband swears that he will abstain from sexual intercourse for four months or more. After the expiry of four months, the dissolution of the marriage automatically happens without any legal process under Hanafi Law.

According to Shafai Law, the fulfillment of such a vow does not per se operate as a divorce but gives the wife the right to demand a judicial divorce. Before the expiry of 4 months, illa can be revoked either by resuming sexual intercourse or by express words.

Under Shia Law, illa can only be made after the consummation of marriage, and Ismaili law affirms that illa can be made only during a period when there was no sexual intercourse.

Zihar:

The husband compares his wife within the degrees of prohibited relationship. Here wife acquires the right to ask for judicial divorce or penance from the husband. Under Shia law, it must be made before two competent witnesses, during tuhr, coupled with abstinence from sexual intercourse.

Lian:

Lian literally means, ‘mutual cursing’ or imprecation’. Here her husband charges his wife with adultery(Zina). The wife becomes entitled to sue petition for dissolution of marriage through court (Qazi). The Qazi will call both parties to take an oath(husband confirming his charge and wife denying the charge). This procedure is Lian.

Under Shia law, it is only allowed when the husband has no evidence to offer except his own, while under Sunni Law he can do so even when he has corroborated testimony.

Dissolution of marriage by lian is not available to a minor or insane or deaf and dumb person under Shia Law. Under Sunni Law dumbness of either party is a disqualification, but blindness and deafness are no disqualifications.

In case of denial of a child, lian would arise. The wife must be a Muslim and not a Jew or Christian who is married to a Muslim and the charge should be made by the husband himself as he cannot make a charge through an agent or representative.

Talaq-e-Tafveez(do-it-yourself divorce):

It is the delegation of the right(do-it-yourself divorce) to pronounce divorce to a wife or another person by the husband. This may be done either absolutely or conditionally and either for a particular period or permanently.

Such delegation must be expressly made and can never be implied. The delegation of this right to the wife does not bar the husband from independently using his right to pronounce divorce(talaq).

An agreement is made between the spouses even before or after the marriage, by which it is provided that the wife can divorce herself, she may exercise this power conferred on her at any time and such power cannot be repudiated.

This form of delegated divorce is probably the foremost potent weapon in the hands of a Muslim wife to get her freedom without the intervention of any court. In Pakistan, column number 18 of Nikkah Nama deals with this right of talaq-e-tafweez(do-it-yourself divorce).

Judicial Divorce:

In Pakistan wife has the right to seek a judicial divorce from her husband on many grounds such as cruelty, failure to provide maintenance, keeping an additional wife without permission, impotency, and insanity of the husband.

Iddat:

Iddat is the period following the dissolution of marriage either by death or divorce, during which it is incumbent upon a woman not to enter into another marriage tie.

However, a distinction must be drawn between the iddat to be observed following the death of the husband. The main reason for this waiting period is to be sure about the pregnancy and parentage of the child (if any).

A divorced wife is required to observe the period of iddat for three months, as per the Holy Quran:

“And the divorced woman shall wait for three menstrual periods”.

However, if the marriage was irregular and no sexual intercourse took place there is no need to observe iddat in case of divorce. In case of Husband is dead wife has to observe iddat irrespective of consummation. The period of iddat in the case of talaq is 90 days, while in the case of the death of the husband, it is 4 months and 10 days.

Comparison between Shia and Sunni Law:

Shia Law	Sunni Law
Two witnesses are required at the time of divorce	No witness required
No concept of Halala under Shia Law	The concept is recognized
Talaq-e-Biddat is not recognized	Such a talaq is disliked but valid
Oral talaq is incumbent upon the husband unless he is physically incapable of an oral pronouncement	Talaq may be given either orally or in writing and a man is not required to give any type of written notice to the wife.