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Old Monday, November 02, 2009
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Default Dissolution of Marriage

Dissolution of Marriage

1. Introduction
Divorce is called in Arabic as Talaq ( ). In its primitive sense the word
The holy Prophet (PBUH) is reported to have said:
“ With Allah, the most detestable of all things permitted is Divorce.”
A.A. Fyzee:
“The reforms of Prophet Muhammad (PBUH) marked a new department in the history of Eastern legislation. He restrained the power of divorce possessed by the husbands; he gave to the women the right of obtaining a separation on reasonable grounds; and towards the end of his life he went so far as practically to forbid its exercise by the men without the intervention of arbiters or a judge.”
Case Law Definition (divorce):
AIR 1932 Oudh 34
It is the freedom from the bondage of the marriage.

2. Classification:
a By the death of spouse:
The death of the husband or the wife operates in law as dissolution of marriage. When the wife dies, the husband may remarry immediately, but the widow has to wait for a certain period before she can remarry. This period is called idda’.
b Talaq:
The word talaq is usually rendered as repudiation. It comes from a root (tallaqa) which means to release (an animal) from a tether. In law, it signifies the absolute power that the husband possesses of divorcing his wife at all times.
The divorce operates from the time of pronouncement of talaq. The presence of the wife is not necessary; nor need notice be given to her. In Hanafi law, no special form is necessary whereas Ithna’ Ashari law insist on a strict formula being used.
In Ithna’ Ashari law, the pronouncement of talaq, in the Arabic tongue, must be uttered orally in the presence and hearing of two male witnesses who are Muslims of approved probity.


3. Types of Talaq
There are two types of Talaq:
i. Talaqu’ s-Sunna (Approved Form)
o Ahsan Form
The ahsan form consists of one single pronouncement in a period of tuhr, followed by abstinence from sexual intercourse during idda’.
Where the parties have been away from each other for a long time, or where wife is old and beyond the age of menstruation, the condition of tuhr, is unnecessary.
A pronouncement of made in the ahsan form is revocable during ‘idda. This period is three months from the date of the declaration or, if the woman is pregnant, until delivery. The husband may revoke the divorce at any time during the ‘idda. Such revocation may be by express words or by conduct. The divorce is revoked under Hanafi as well as Ithna’ Ashari law.
After the expiration of the ‘idda the divorce becomes irrevocable. A Muslim wife, after divorce, is entitled to maintenance during the ‘idda and so also her child, in certain circumstances.
o Hasan Form
The hasan is also an approved form, but less approved than the first ahsan. It consists of three successive pronouncements during three consecutive periods of purity (tuhr). Each of these pronouncements should have been made at a time when no intercourse has taken place during that particular period of purity.
The husband pronounce talaq on his wife for the first time during a period when wife is free from her menstrual courses. The husband and wife had not come together during this period of purity. This is the first talaq.
He resumes cohabitation or revokes this first talaq in this period of purity. Thereafter, in the following period of purity, at a time when no intercourse has taken place, husband pronounces the second talaq.
This talaq is again revoked by express words or by conduct, and the third period of purity is entered into. In this period, no intercourse having taken place, husband for the third time pronounces the formula of divorce.
The third pronouncement operates in law as a final and irrevocable dissolution of the marital tie. The marriage is dissolved; sexual intercourse becomes unlawful; ‘idda becomes incumbent; remarriage between the parties becomes impossible unless wife lawfully marries another husband, and that other husband lawfully divorces here after the marriage has been actually consummated.
The Ithna ‘Ashari and the Fatimid schools, however, do not recognize the remaining two forms and thus preserve the ancient conventions of the times of the Lawgiver.
The second is a form in which the Holy Prophet (PBUH) tried to put an end to a barbarous pre-Islamic practice. This practice was to divorce a wife and take her back several times in order to ill-treat her.
ii. Talaqu’l - Bid’a (Disapproved Forms)
Following are the disapproved forms of Talaq.
o The triple declation:
In this form three pronouncements are made in a single tuhr, either in one sentence, e.g. ‘I divorce thee triply or thrice; or in three sentences, ‘ I drivorce thee, I drivorce thee’. Such a talaq is lawful, although sinful, in Hanafi law; but in Ithna ‘Ashari and the Fatimid laws it is not permissible. This called at-talaqu’l-ba’in, irrevocable divorce.
o The Single, irrevocable declaration:
Another form of the disapproved divorce is a single, irrevocable pronouncement made either during the period of tuhr or even otherwise. This form is also called at-talaqu bain and may be given in writing. Such a bill of divorcement comes into operation immediately and serves the marital tie. This form is not recognized by the Ithna ‘Ashari or the Fatimid school.
o Option of Puberty
If a Muslim minor has been married during minority by a guardian, the minor has the right on attaining majority to repudiate such marriage.
This is called khiyar al-bulugh, the option of puberty. Such a minor may be given in marriage either by the father or grandfather or by any other guardian.
In case of a girl married during minority, she is entitled to dissolution of her marriage if she proves the following facts. According to Dissolution of Muslim Marriages Act of 1939, section 2(vii):
Firstly, that she was given in marriage by her father or other guardian.
Secondly, that the marriage took place before she attained the age of 15.
Thirdly, that she repudiates the marriage before she attained the age of 18.
Fourthly, that the marriage has not been consummated. Consummation of marriage before the age of puberty does not deprive the wife of her option.
The right of repudiation is lost first, on consummation. It has been held, however, that a wife’s right is not determined by mere consummation if she was ignorant of her right according to Tyabji.
Secondly, the right is also lost in the case of a female if on attaining puberty and on being informed of the right, she does not repudiate the marriage within a reasonable time. By the statute, the wife must exercise the option before she attains the age of 18.
o Talaq under compulsion or under the influence of intoxication
By a peculiar rule of Hanafi law, as distinguished from the Fatimid, Ithna ‘Ashari or Shafe’I law, a divorce pronounced under compulsion or under the influence of intoxication is valid and effective.
According to A.A. Fyzee:
“The rule appears to be unjust, and should be abolished.”
o Ila’
In Ila’ the husband swears not to have intercourse with the wife and abstains for four months or more. The husband may revoke the oath by resumption of marital life. After the expiry of the period of four months, in Hanafi law the marriage is dissolved without legal process, but in Itha ‘ Ashari and Shafi’I law, legal proceedings are necessary.
o Zihar
In Zihar, the husband swears that to him the wife is like ‘the back of his mother’. If he intends to revoke this declaration, he has to pay money by way of expiation, or fast for a certain period. After the oath has been taken, the wife has the right to go to the court and obtain divorce or restitution of conjugal right on expiation.
o Khul’ and Mubara’a
The Fatawa ‘Alamgiri lays down:
“ The woman can release herself form the tie by giving up some property in return in consideration of which the husband is to give her a khula, and when they have done this a talak ul-bain would take place.”
The word khul’ means leterally ‘to take off clothes’ and thence, ‘to lay down one’s authority over a wife’; and the word mubara denotes the act of ‘ freeing one another mutually.’
One of the earliest instances raising a case of khul’ is Moonshee Buzul-ul-Reheem v. Luteefut-oon-Nissa, where their Lordships of the Privy Council says:
“ It appears that by the Muhammad Law divorce may be made in either of thow forms: Talak or khula.”
Form
In Hanafi law, the husband proposes dissolution, and the wife accepts it at the same meeting. The proposal and acceptance need not be in any particular form. The contract itself dissolves the marriage and operates as a single talaq-i-bain, and its operation is not postponed until the execution of the khu’-nama. In Ithna ‘Ashari law, as is to be expected, certain forms are to be strictly followed and witnesses are required.

In khul’ the wife makes some compensation to the husband or gives up a portion of her mahr; but this is not absolutely necessary. The Egyptian code of Hanafi Law, Art. 275, based upon the classical authorities, lays down: ‘ A khul’ repudiation can validly take place before or after consummation by the wife.
Abu Hanifa holds that, in the absence of agreement, mahr is deemed to be relinquished by the wife both by khul’ and by mubara’a.
Imam Abu Yusuf lay down that mahr is deemed to relinquish by mubara’a, but not by khul’.
Imam Muhammad holds that mahr is deemed to be relinquished neither by khul’ nor by mubara’a.
Khul’ and mubara’a operate as a single, irrevocable divorce. Therefore, marital life cannot be resumed by mere reconciliation; a formal remarriage is necessary.
In either case, ‘idda is incumbent on the wife, and in the absence of agreement.
4. Dissolution by judicial process
i Li’an (Mutual Imprecation)
Divorce by mutual imprecation is mentioned in the Quran and is supported by the traditions of the Holy Prophet (PBUH). It is reported that a man from the Ansar accused his wife of adultery. The Holy Prophet (PBUH) thereupon asked them both to take an oath; then he ordered them to be separated from each other.
The procedure of Li’an may be described briefly as follows:
A husband accuses his wife of adultery, but is unable to prove the allegation. The wife in such cases is entitled to file a suit for dissolution of marriage.
At the hearing of the suit, the husband has two alternatives:
a He may formally retract the charge.
b The husband may, however, not retract and, if he persists in his attitude, he is called upon to make certain oaths. This is followed by oaths of innocence made by the wife. After these mutual imprecations, the judge pronounces that the marriage is dissolved.
c No appeal can be filed against the decree of the court on this ground i.e. lian.
5. Judicial Rescission
a Faskh
The word Faskh means annulment or abrogation. Hence it refers to the power of the Muslim Qazi to annul a marriage on the application of the wife. The law of faskh is founded upon the Quranic injunction.
Abdullah Yusuf:
“The act, applies to every Muslim, to whatever school of law he belongs.”
b The Dissolution of Muslim Marriages Act 1939:
Section 2 lays down that even a single ground mentioned in the
i. Missing Husband
The wife is entitled to obtain in a decree for the dissolution of her marriage if the whereabouts of the husbands have not been known for a period of four years; but a decree passed on this ground will not take effect for a period of six months form the date of such decree, and if the husband appears either in person or through an authorized agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the court must set aside the decree.
ii. Failure of maintain
If the husband has neglected or has failed to provide for the wife’s maintenance for a period of two years, Section 2(ii) has been the cause of a difference of judicial opinion.
In Fazal Mahmud v. Ummatur Rahim, a Peshawar case, it was held that the section does not abrogate the general principles of Islamic law; therefore, before a husband can be said to have neglected or failed to provide maintenance, it must be shown that the husband was under as legal duty to provide such maintenance.
Where the wife refuses to reside with her husband or fails to discharge her marital obligations, without any reasonable cause, she can not claim maintenance, and therefore she is not entitled to divorce.
The Singh High Court has taken a different view. In Nur Bibi v. Pir Bux (AIR 1950) Sindh 8., it was laid down that where a husband has failed to provide maintenance for his wife for a period of two years immediately preceding the suits, the wife would be entitled to a dissolution of her marriage under section 2(ii) of the Act, in spite of the fact that on account of her conduct in refusing to live with her husband, she would not have been entitled to enforce any claim for maintenance against the husband in respect of the period during which the husband has failed to maintain her.
The true rule appears to be:
o that the failure to maintain under the statute need not be willful; mere inability due to, for instance, to poverty or even other causes, is sufficient.
o That the wife, willfully refusing to stay with the husband, would be out of court if she proceeded under the section.
In Shafii law, apart from ‘inability to maintain’, as such, ‘neglect or failure to maintain’ is a good ground for the wife to dissolve her marriage.

iii. Imprisonment of husband
If the husband is sentenced to imprisonment for a period of seven years or more, no decree can be passed until the sentence has become final.
iv. Failure to perform marital obligation
If the husband fails to perform without reasonable cause, his marital obligations for a period of three years.
v. Impotence
It must be proved that the husband was important at the time of marriage, and that he continues to be so; but before passing a decree on this ground, the court is bound, on application by the husband, but not otherwise, to make an order requiring the husband to satisfy the court within a period of one year from the date of such order that he has ceased to be impotent. If the husband satisfied the court, within a year, that he is no longer impotent, no decree can be passed.
A.A. Fyzee:
“ After this probationary year, if the incapacity of the husband continued, the marriage would be dissolved.”
The two chief differences are:
Firstly, that the ignorance of the wife regarding the impotency of her husband needs not to be proved. She can obtain a divorce even if she knew of it.
Secondly, that the adjournment of the case for one year is not essential. It is only on the application of the husband that an adjournment may be obtained. If no such application is made, the decree dissolving the marriage can be passed without delay.
Thirdly, under the statute, the onus is thrown on the husband to prove that he is free from the physical defect of impotence.
vi. Insanity, leprosy, venereal disease
If the husband (i) has been insane for a period of two years, or (ii) is suffering from leprosy or (iii) a virulent venereal disease.
vii. Cruelty
If the husband treats the wife with cruelty, which means that he:
o habitually assaults her or makes her life miserable by cruelty or bad conduct even if such conduct does not amount to physical ill treatment.
o Or associates with women of evil repute or leads an infamous life
o Or attempts to force her to lead an immoral life
o Or disposes of her property or prevents her from exercising her practice legal rights over it
o Or obstructs her in the observance of her religious profession or practice
o Of if he, having more wives than one, does not treat her equitably in accordance with the Quranic injunctions.
These rules may be found in Abdul Rahman’s (Institutes of Mussalman Law) and another book on Fiqh, Ruddul-Muhtar.
Incompatibility of temperaments, dislike or ill will, are not sufficient grounds under the Muhammadan law for obtaining dissolution. In a learned and exhaustive judgment Sayeeda Khanam v, Muhammad Sami (PLD 1959 (WP) Lahore 113, F.B), Cornelius C.J. discussed this question authoritatively and dealt with the nature of incompatibility; divorce and khul; meaning of shiqaq, citing iv. 34,35.
In Balqis Fatima v. Najm-ul-Ikram Qureshi (PLD 1959 (WP) Lahore 566) in which the facts were strongly in favour of the wife, the Maliki view that in a fit case the arbitrator (hakams) had the power to dissolve the marriage was adopted and the law molded more in consonance with the spirit of the Quran, as interpreted in modern times.
The wife is entitled to dissolution of marriage on restoration of what she received in consideration of marriage if the judge apprehends that parties will not observe the limits of God.
viii. Apostasy, Conversion
A Muslim may renounce Islam, and this is known as apostasy (ridda); or a non-Muslim may embrace Islam and this is called conversion. According to the general principles of Islamic law, a person who embraces Islam is immediately governed by Islamic law. But a man who renounces Islam suffers greatly under civil as well as criminal law.
If a Muslim husband who renounces Islam is an apostate and as such his marriage with his Muslim wife is dissolved ipso facto (by the fact).
According to Syed Ameer Ali, when a Muslim married couple abandon Islam and adopt another faith, their marriage is not dissolved but remains intact.

ix. Wife renounces Islam
o the mere renunciation of Islam by a Muslim wife does not by itself dissolve her marriage.
o The above rule does not apply to a woman converted to Islam from some other faith who re-embraces her former faith.
o The act of 1939 gives a remedy, the statute provides that apostasy by itself does not dissolve the marriage, unless it is that a woman re-embraces her former faith.
x. Wife embraces Islam
o The conversion of a non-Muslim wife to Islam does not ipso facto dissolve her marriage with her husband, and the ancient procedure of ‘offering Islam’ to the husband and on his refusal obtaining a dissolution of marriage as laid down in the text.
o It was held inter alia (among other things) that, immediately upon the conversion of Madad Bibi to Islam, her marriage with her hindu husband was dissolved and her marriage to Baqar Shah was lawful; wherefore her children by him were legitimate (Faiz Ali Shah v. Ghulam Akbar Shah, PLD 1952, Azad Jammu and Kashmir, 32).
6. Effects of Dissolution
i. Matrimonial intercourse
After the dissolution is effective, matrimonial intercourse between the parties becomes unlawful. Nevertheless, the parties may, in certain circumstances, lawfully remarry.
ii. Remarriage, reconciliation.
A divorced couple can not always remarry.
iii. Fresh marriage
where the marriage was consummated, the wife has to wait till the expiration of her ‘idda in order to be able to remarry. The husband if he has four wives, must wait until the completion of the divorced wife’s ‘idda.
Where the marriage was not consummated, the parties can remarry immediately, without waiting for the expiry of the ‘idda.
iv. Dower
If the marriage was consummated, the whole dower is immediately due; if not, half the dower is payable.
v. Maintenance
The husband has to provide maintenance to the wife during ‘idda.
vi. Inheritance
So long as the divorce is revocable one spouse can inherit from the other; but when the divorce becomes irrevocable, the rights of inheritance terminate inter se.

7. Procedure of Talaq (Divorce)
a. Notice
The husband will send notice:
i. to the Chairman
ii. to the wife
b. Form of Notice
Notice shall be in writing.
c. Purpose of Notice
The purpose of notice is to inform about the dissolution of marriage.
d. Time for granting Notice
Notice shall be given at the time when the husband has pronounced divorce.

e. Reconciliation between the parties
The chairman is required to bring about reconciliation between the parties for this purpose he is to give notice to the parties to nominate their representatives. However, he can not compel any person to appear before him.
f. Effectiveness of Divorce
Divorce would not become effective unless and until period of ninety days has elapsed with effect from the date of receipt of notice of divorce by the chairman of the union council and by the wife. The expiry of 90 days is an essential.
g. Divorce to pregnant woman
Divorce to pregnant woman shall be affected by the delivery of the child.
h. Remarriage of the same parties
Nothing shall debar a wife whose marriage has been terminated by Talaq effective from remarriage the same husband, without an intervening marriage with a third person, unless such termination is for the time so effective.
i. Revocation of Divorce
The husband can revoke the divorce before the expiry of ninety days.
j. Punishment
Whoever contravenes the provisions shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both.
k. Commencement of Iddat
Iddat means waiting period. The most approved definition of iddat is the term by the completion of which a new marriage is rendered lawful. The observance of iddat is necessary where cohabitation has taken place.
Prof. N.J. Coulson:
“Idda is a period of waiting imposed upon a wife after the termination of her marriage.”
i. In case of divorce
o If consummation of marriage has taken place and the marriage is dissolved by divorce, the duration of iddat is three courses, or if the woman is pregnant, till delivery.
o Woman has not to observe the period of iddat if marriage was not consummated. In such case, she can marry immediately after the divorce.

ii. In case of death of husband
o The period of iddat commences from the date of death of her husband. She is bound to observe the period of iddat for four months and ten days or if the woman is pregnant, till delivery.
o If the marriage was not consummated, iddat has to be observed in the case of death of husband, but not in the case of divorce.
iii. In case of termination of Muta’
On the expiry of the period, where there has been cohabitation, a short ‘idda of two courses is prescribed; however, if there has been no consummation, no ‘idda is necessary.
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