DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY LUCKNOW

FINAL PROJECT
SUBJECT:- FAMILY LAW

TOPIC:-Husbands unilateral power to divorce, a

critique in Muslim Law

SUBMITTED TO: SUBMITTED BY:

Ms. Samreen Hussain Aditya Singh

Asst. Prof. (Law) Roll No. 13
RMLNLU 4th Sem
Sec- A

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 B.A.LL.B
(Hons)
Acknowledgment

A major research project like this is never the work of anyone alone. Apart from the efforts

taken by me, the success of this project depends largely on the encouragement and

guidelines of many other people who have been instrumental in the success. The

contributions of many different people, in their different ways have made this possible.

My deepest thanks toMs.SamreenHussain our subject teacher, without whose valuable

support, guidance and advice this project would have been a distant reality. I would also

like to thank the library staff for working long hours to facilitate us with required material

going a long way in quenching our thirst for education. I would also like to thank my

seniors for guiding me through tough times they themselves have been through, and lastly I

would like to thank my friends for keeping alive the spirit of competition in me.

Thank you.....

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FOCUS OF THE PAPER

The paper aims in studying the concept of Divorce in Islamic Law. In most of the religions
the procedure of divorce is from both sides i.e. it can be initiated by either the husband or the
wife but in practice in Islamic Law one can see the domination of Husbands over the Wives
in respect of Divorce.It can also be gauged by the fact that marriage in Islamic law is called
as civil contract not a sacrament unlike other religions. The condition of the women can only
be thought. It will be tried to see whether the inherited religious ideas are so prominent and
profound embedded that it cannot be sidelined for the sake of other creation of god which is
also human i.e. female gender. An attempt will also be made to see whether their religious
texts also taught about it or it is convention developed custom. An attempt will also be made
to see whether it is also in confirmation with the spirit of their religious texts.

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INTRODUCTION

In Islam, there are separate rules for divorce for men and women under the terms of Islamic
law (sharia). When a man has initiated a divorce, the procedure is called Talaq. When a
woman has initiated a divorce it is called Khula. Talaq is easily obtained, while obtaining
Khula is quite difficult. The Muslim husband may initiate the divorce process by
pronouncing the talaq, the formula of repudiation, three times. The first two times the talaq
is pronounced, it may be withdrawn. But the third time it is pronounced, the divorce is
irrevocable. There are a range of systems specifying the requisite formalities to complete an
irrevocable divorce, i.e., whether some period of time must elapse between each
pronouncement of talaq, whether there must be mediation, or the need for witnesses.:
Marriage under Islam is a civil contract, not a sacrament, in the sense that those who are
once joined in wed-lock can never be separated. It may be controlled, and under certain
circumstances, dissolved by the will of the parties concerned. Public declaration is no doubt
necessary, but it is not a condition of the validity of the marriage. Nor is any religious
ceremony deemed absolutely essential. There has been different modes of dissolution of
Muslim marriage.
Marriage under Islam is a civil contract, not a sacrament, in the sense that those who are
once joined in wed-lock can never be separated. It may be controlled, and under certain
circumstances, dissolved by the will of the parties concerned. Public declaration is no doubt
necessary, but it is not a condition of the validity of the marriage. Nor is any religious
ceremony deemed absolutely essential."1 More than a century ago, the Privy Council
observed in MoonsheeBuzloorRuheem v Shumsoonnissa Begum2 that the matrimonial
law of the Mohammedans, like that of every ancient community, favours the stronger sex
where the husband can dissolve the tie at his will. About the law of divorce by Talak, the
Privy Council observed in another century-old case in MoonsheeBuzul-Ul-Raheem v
Luteefut-Oon-Nissa3 held that a divorce by Talaqis the mere arbitrary act of the husband
who may repudiate his wife at his own pleasure, with or without any cause. That the law on
the point has stood unchanged during all these hundred years would be confirmed from any
recent treatise 4on Muslim Law or any recent decision. Particular reference may be made to
1The Religion of Islam by Ahmad A. Galwash, p. 104

2 (1867) 11 MIA 551 (610)

3 1861) 8 MIA 397 (395)

4 Mulla's Mohammadan Law, 18th Ed., pp. 308, 319.

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the celebrated decision of the Supreme Court in Shah Bano Begum5where a unanimous
five-Judge Bench has again observed that undoubtedly, the Muslim husband enjoys the
privilege of being able to discard his wife whenever he chooses to do so, for reasons good,
bad or indifferent. Indeed, for no reason at all. In ZoharaKhatoon,6different modes of
dissolution of Muslim marriage has been described which are as hereunder:

Under the Mohammadan law there are three distinct modes in which a Muslim marriage can
be dissolved and the relationship of the husband and the wife terminated so as to result in an
irrevocable divorce.

1. Where the husband unilaterally gives a divorce according to any of the forms
approved by the Mohammadan law, viz. Talaqulashan, which consists of a single
pronouncement of divorce during tuhr(period between menstruations) followed by
abstinence from sexual intercourse for the period of iddat.

2. By an agreement between the husband and the wife whereby a wife obtains divorce
by relinquishing either her entire or part of dower. This mode of divorce is called
Khula or Mubarat. This form of divorce is initiated by the wife and comes into
existence if the husband gives consent to the agreement and releases her from the
marriage tie.

3. By obtaining a decree from a civil court for dissolution of marriage under s. 2 of the
Act of 1939 which also amounts to divorce (under the law) obtained by the wife.

The expression Divorce has been defined7 as under:--

Divorce: The legal separation of man and wife effected by the judgment or
decree of a Court and either totally dissolving the marriage relation or
suspending its effects so far as concerns the cohabitation of the parties.
5(1985)2 SCC 556

6AIR 1981 SC 1243

7Black's Law Dictionary Vth edition

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The Privy Council also in MoonsheeBuzul-Ul-Raheem v Luteefut-Oon-Nissa8, while
discussing about extrajudicial divorce under the Muslim Law, pointed out that under the
Mohammadan Law, divorce may be made in either of two forms Talakor Khoola .The
Shariat Act of 1937, however, while mandating application of Muslim Law in all questions
relating to dissolution of Muslim marriages, has specifically mentioned Talak, Ila, Zihar,
Lian, Khula and Mubaratas different modes of dissolution of marriage under the Muslim
Law. While these may be the different modes of divorce, judicial as well as extrajudicial,
death of either of the spouses also dissolves the marriage. In fact death of either of the
spouses dissolves the marriage by operation of law pure and simple, while in all other modes
of dissolution, including those by judicial process, some acts of either or both parties are
necessary.

But it is very much prevalent in the Islamic law the use of only the first form of talaq i.e.
unilateral power of the husband to give divorce.

Fyzee has classified the different modes of divorce under two beds-

1. By the act of parties and

2. By judicial process and has sub-classified the first head under three sub-heads
namely,

By the Husband,

By the Wife and

By Common Consent.

Under the first sub-head, i.e., By the Husband, he has grouped Talaq, Ilaand Zihar; under the
second sub-bead, i.e., By the Wife, he has placed Talak-e-Tafwid; and under the third sub-
bead, i.e., By common consent, he has included Khulaand Mubarat. Under the second head
(B), namely, By Judicial Process, Fyzee bas specified Lianand Faskh.

Many books on Muslim Law is of the fact that there is no such thing as the divorce by wife
as they consider Khula or Khoola under the category of divorce by Mutual Consent of the
husband as well as the wife.

But looking into the historical background of Islamic Law we can see that the prophet has
always maintained equality for both the sex i.e. men and women, so saying that there is no
power for divorce in the hands of the wife will not be correct.

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TRUE ISLAMIC LAW

Islamic Law is more sinned against than sinning, as pointed out by Justice Krishna Iyer in a
felicitous manner in A. Yousuf v SowrammaThe learned Judge observed that since
infallibility is not an attribute of the judiciary, the view has been ventured by Muslim jurists
that the Indo-Anglian judicial exposition of the Islamic law of divorce has not exactly been
just to the Holy Prophet or the Holy Book. The Islamic law gives to the man primarily the
faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders
the married life unhappy; but in the absence of serious reasons, no man can justify a divorce,
either in the eye of religion or the law. If he abandons his wife or puts her away in simple
caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests
on him who repudiates his wife capriciously.

The learned author, Ahmad A. Galwash notices, the Pagan Arab, before the time of the
Prophet, was absolutely free to repudiate his wife whenever it suited his whim, but when the
Prophet came He declared divorce to be the most disliked of lawful things in the sight of
God. He was indeed never tired of expressing his abhorrence of divorce.

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 God created not anything on the face of the earth which he loved more than
the act of manumission (of slaves) nor did He create anything on the face of
the earth which he detested more than the act of divorce.

Commentators on the Quran have rightly observed (and this tallies with the law now
administered in some Muslim countries like Iraq) that the husband must satisfy the court
about the reasons for divorce. However, Muslim law, as applied in India, has taken a course
contrary to the spirit of what the Prophet or the Holy Quran laid down and the same
misconception vitiates the law dealing with the wife's right to divorce.

It is clear, then, that Islam discourages divorce in principle, and permits it only when it has
become altogether impossible for the parties, to live together in peace and harmony. It
avoids, therefore, greater evil by choosing the lesser one, and opens a way for the parties to
seek agreeable companions and, thus, to accommodate themselves more comfortably in their
new homes. It has to be examined whether the Islamic law allows the wife to claim divorce
when she finds the yoke difficult to tolerate for such is marriage without love iscrueler than
any divorce whatever. Before the advent of Islam, neither the Jews nor the Arabs recognized
the right of divorce for women: and it was the Holy Quran that, for the first time in the
history of Arabia, gave this great privilege to women.

Maulana Muhammad Ali in his book The Holy Quran says that:

Divorce is one of the institutions of Islam regarding which much

misconception prevails, so much so that even the Islamic law as administered
in the courts, is not free from these misconceptions. The Islamic law has
many points of advantage as compared with both the Jewish and Christian
laws as formulated in Deut. and Matt. The Chief feature of improvement is
that the wife can claim a divorce according to the Islamic law, neither Moses
nor Christ (nor Manu, may I add) conferring that right on the woman,

The Prophet, however, warned

Of all things which have been permitted divorce is the most hated by
Allah9.

9 AD. 13:3

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Dealing with divorce, the Holy Quran says:

And women have rights similar to those against them in a just

manner ..................

This statement, Muslim doctors of law assert, was a revolutionising one' for the Arabs of
those days and almost equated women with men:

He said "if a woman be prejudiced by a marriage, let it be broken off.

Asma, one of the wives of the Holy Prophet, asked for divorce before he went to her, and the
Prophet released her as she had desired. Yusuf Ali, in his commentary on the Holy Quran,
says:

While the sanctity of marriage is the essential basis of family life, the
incompatibility of individuals and the weaknesses of human nature require
certain outlets and safeguards if that sanctity is not to be made into a fetish at
the expense of human life.

In a significant verse from the Quran

And if you fear a breach between husband and wife, send a judge out of his
family, and a judge out of her family: if they are desirous of agreement, God
will effect a reconciliation between them; for God is knowing and apprised of
all.

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DIVORCE IN ISLAMIC LAW

According to the Quran there is a waiting period involved between the three times a man can
declare the divorce. This is order to cool down and resolve disputes and also be able to
determine if a child is being born.

From Quran 65:1

O Prophet, when you divorce women, divorce them for their waiting period
and keep count of the waiting period, and fear Allah, your Lord. Do not turn
them out of their houses, nor should they leave unless they are committing a
clear immorality. And those are the limits Allah. And whoever transgresses
the limits of Allah has certainly wronged himself. You know not; perhaps
Allah will bring about after that a matter.

Which can be explained as

O Prophet, when you [Muslims] divorce women, divorce them for [the
commencement of] their waiting period and keep count of the waiting period,

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 and fear Allah, your Lord. Do not turn them out of their [husbands'] houses,
nor should they [themselves] leave [during that period] unless they are
committing a clear immorality. And those are the limits [set by] Allah. And
whoever transgresses the limits of Allah has certainly wronged himself. You
know not; perhaps Allah will bring about after that a [different] matter.

Shia and Sunni Muslims have different rules for performing an Islamic divorce. Sunni
practice requires no witnesses, and allows a husband to end a relationship by saying the one,
two or triple talaq. Sunnis also believe it to be wrong and against various Hadiths but accept
it as final, especially Hanafischools of jurisprudence, if a man did utter it, i.e. the triple talaq
in one go. The view on acceptability of this varies amongst the four Sunni groups of Islamic
schools of jurisprudence. In all Sunni schools of jurisprudence, each talaq utterance should
be followed by a waiting period of three menstrual periods for women or three month
(iddat), when the couple are supposed to try to reconcile with the help of mediators from
each family, until the third and final talaq.

It is also possible for a woman to petition a qadi (judge of Muslim jurisprudence) for a
divorce under certain conditions. The circumstances which are regarded as acceptable vary
amongst the four Sunni groups of Islamic schools of jurisprudence.

Shia scholars view the triple talaq (in one sitting or at one time) as a pagan pre-Islamic
custom, forbidden by Muhammad, but reinstated by Umar ibn al-Khattab, and thus sinful
(haram). Shia practice requires two witnesses, followed by a waiting period (iddat) when the
couple are supposed to try to reconcile with the help of mediators from each family. If the
couple breaks the waiting period, the divorce is voided. Since Shia view Islamic divorce as a
procedure stemming from a conflict rather than a decision, they do not use the procedure to
end a temporary marriage. The Shias annul the temporary marriage at the end of the period,
without any divorce being involved, since its duration was predetermined at the outset, and
there is not necessarily a conflict to resolve.

Such a temporary marriage is not permitted in Sunni Islam, and is regarded as sinful and not
even considered a marriage. However, Sunnis accept that it was permitted in the early days
of Islam but subsequently prohibited in various hadith.

After the waiting period is over, the couple is divorced and the husband is no longer
responsible for the wife's expenses, but remains responsible for the maintenance of the
children, until they are weaned.

If we take a closer look than maybe we may be able to understand that under Islamic Law,
husbands unilateral power to divorce in seen only in talaq and not in khula (another kind of
divorce practised by the followers of Islam).

TALAQ

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The Muslim husband may initiate the divorce process by pronouncing the talaq, the formula
of repudiation, three times. The first two times the talaq is pronounced, it may be withdrawn.
But the third time it is pronounced, the divorce is irrevocable. There are a range of systems
specifying the requisite formalities to complete an irrevocable divorce, i.e., whether some
period of time must elapse between each pronouncement of talaq, whether there must be
mediation, or the need for witnesses. According to the Quran which is the book on which
Islam is based, there is a waiting period. In countries where polygyny is permitted, there is
no waiting period before the husband can remarry. The wife must usually wait three months
after the third talaq has been spoken before remarrying (this period is known as iddat).

The talaq is endorsed by several scholars of the Sunni theology. It consists of the husband
saying the phrase "I divorce you" (in Arabic, talaq) to his wife, three times.

Shia and Sunni have different rules to engage a talaq. The talaq has three steps:

Initiation

This is the stage where the talaq process is initiated.

According to most Sunni scholars it consists of the husband saying talaq once in the
presence of his wife.

According to most Shia scholars it is making a public announcement that you are
starting the divorce process.

The Triple Talaq is not mentioned in the Quran. The procedure is legal, according to
the Sunnah.

Reconciliation

According to Sunni and Shia jurisprudence, the couple is supposed to try to reconcile
during the waiting period, with the help of mediators from each family. If the couple
breaks the waiting period by engaging in sexual intercourse, they are deemed to have
been reconciled and the divorce is voided.

Completion

After the completion of the talaq procedure, the couple are divorced, the husband is
no longer responsible for the wife's expenses and she becomes non-mahramfor him
and so they must observe the hijaab rules.

Shia scholars understand that when the waiting period (iddat) is over, the talaq
procedure is completed. Two witnesses are required to witness the completion of
the talaq.

KHULA

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 Khula is the right of a woman in Islam to seek a divorce or separation from her
husband. A Muslim woman may petition a qadi, or in non-Islamic areas an Islamic
community panel, to grant her divorce if the husband refuses. The waiting period
(iddat) of a woman who seeks a divorce is one menstrual cycle or one month if she is
post-menopause, i.e. ceased menstruating. This is to ensure she is not pregnant. If the
woman is pregnant, then the waiting period is until she gives birth.

Women's right to initiate divorce is very limited compared with that of men.
According to sharia law, there are two reasons for a wife to be divorced: when she
can prove that the husband did not have intercourse with her for more than two
months or if the husband does not provide her with what she needs for living such as
food and shelter. While men can divorce their spouses easily, women face legal and
financial obstacles. For example, in many cases the woman must repay her dowry
and marriage expenses. In general she also has to forfeit child custody, if the child is
older than seven years. Even if she gets child custody, she has to give it to the father,
when the child reaches the age of seven.

In Mulla's Principles of Mahomedan Law10 in reference to a Pakistani decision.

In an important recent judgment the Pakistan Supreme Court in KhurshidBibi

v. Mohd. Amin,11has endorsed the Lahore High Court's view in Mat. Balqis
Fatima v. Najmul-Ikram12that under 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.

In a recent judgment of Lucknow Shia Sharia Court in Iltija Begum v. MehmoodRizwi,13the

wife wanted divorce from her husband on grounds of cruelty (the reasons stated were that
her husband started visiting brothel and started drinking). The Lucknow Shia Sharia Court
granted her divorce on these grounds.

10 16th Edn

11PLD 1967 SC 97

12 (1959) 2 (WP) p. 321 (1959 Lah 566)

132011

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In yet another case of Pakistan MunshiFuzlur Rahim v. Shamsunissa14, the court said that -

If wife is agreeing to give consideration for the divorce, the Divorce must be
given by her husband.

The court also recognised Khula as a valid form of Divorce.

In Mazharul Islam v. Abdul Ghani15, wifes right to divorce was recognised as a valid form
of divorce.

Through the texts and the Judgments cited, one can say that womens right to divorce is
recognised as a valid form of divorce. So we can see that in Islamic Law, the husbands
unilateral power to divorce is not completely true. There have been instances that wife have
given divorce to their husbands.

CONCLUSION AND TEST OF THE HYPOTHESIS

14Lahore High Court 1921

15AIR 1925 Cal 322

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Even in the instant case the woman had her hands tied while the sword of divorce could slit
her throat any time at the whim of her husband. The tool of talaq gave her husband
undisputed power. Such discrimination and inequality hoarsely expressed in the form of
unilateral talaq is abominable when seen in light of the progressive times of the 21st century.
Many of the books does not consider Khula as a form of divorce given by the women but
looks it in the category of Mutual consent. But looking at the history of Islamic Law and that
of Prophet Mohammad one can distinctively say that he was not a man of that stature who
would distinguish between a male and a female and would have propagated for sexual
discrimination in the institution of marriage. Also seeing the practicality of the Islamic Law
one can deny this fact that in Islamic Law, husbands have the unilateral power to divorce.

Looking into the Historical background of the Islamic law, one can shatter the premise of
Husbands unilateral power to Divorce but seeing the practice propagated in the present era,
one can say that it is true. Looking at the Academic perspective, one can disregard this
sentence by going in accordance with the Judiciary one will have to accept the concept.

The hypothesis stands correct as it is against the constitutional provisions as well as against
the spirit of the religion.

BIBLIOGRAPHY

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 (1) M. Hidayatullah& Arshad Hidayatullah.
Principles of Mohammedan Law.

Nagpur: Lexis NexisButterworthsWadhwa,

Nineteenth Edition, 1990.

(2) Kusum.
Family Law Lectures.

New Delhi: Lexis NexisButterworths,

Second Edition, 2008.

(3) Asaf A.A. Fyzee.

Outlines of Mohammedan Law.

New Delhi: Oxford University Press,

Fourth Edition, 2005.

(4) A.M. Bhattacharjee.

Muslim Law and the Constitution.

Calcutta: Eastern Law House,

Second Edition, 1994.

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