Saturday, 29 January 2022

DISSOLUTION OF MARRIAGE UNDER MUSLIM LAW BY KETAKI VIRKAR

 DISSOLUTION OF MARRIAGE UNDER MUSLIM LAWS

Ketaki Virkar


Marriage is a contractual partnership between two parties according to Muslim law. Under Muslim Marriage, all of the necessary elements for a contract are present. Marriage is the only requirement for divorce in Muslim law.

If a person wants "divorce" in Muslim law, he will be subject to the rules of the Dissolution of Muslim Marriage Act, 1939. "Talaq" proceedings, on the other hand, are controlled by Muslim Personal Laws.


TAALAQ :


Talaaq signifies dismission in its most basic sense. It literally means "to set free," "to let go," or to be rid of any "chains or restraints." In Muslim law, it refers to freedom from the shackles of marriage. In a legal sense, it refers to the husband's use of suitable language to dissolve the marriage.

• The express talaaq, falls into two categories:

1. Talaaq-ul-sunnat (For Shias & Sunnis) - Ahasan & Hasan

􏰀 The Ahsan consists of a single declaration of divorce made during the period of tuhr (purity, between two menstruations) or at any time if the wife is free of menstruation, followed by abstention from sexual intercourse during the iddat period.

􏰀 In this case, the husband must say the talaaq phrase three times in three consecutive tuhrs. If the wife has reached menstrual age, the pronouncement may be made after a month or thirty days has passed between the previous announcements. The talaaq becomes permanent and irreversible when the last pronouncement is made. Each of the three announcements must be made at a moment when no intercourse has occurred within the tuhr period.


2. Talaaq-i-biddat ( For Sunnis only) – Written Talaaq & Triple Talaaq

􏰀 This type of divorce is frowned upon. Because of its irreversibility, it is considered heretical.

􏰀 Written Taalaq is a single irrevocable statement of divorce made in a period of tuhr or otherwise.

􏰀 a triple proclamation of Talaaq made in a period of purity, either in one sentence or in three.


ILA & ZIHAR


􏰀 In Ila, the husband swears never to have sexual relations with his wife. After this oath, there is a four-month period of no consummation. The marriage is irreversibly dissolved at the end of the fourth month.

􏰀 In Zihar, the husband compares his wife to a female from his prohibited family, such as his mother or sister. The husband would compare his wife to his mother or sibling as of the present day. After such a comparison, the husband decides to live apart from his wife for four months. Zihar is complete when the time limit expires.


DIVORCE BY WIFE – TALAQ-E-TAFWIZ


• Both the Shias and the Sunnis acknowledge talaaq-i-tafweez, or delegated divorce.

• A lawful agreement between the parties to a marriage in which the wife is free to divorce her husband in certain circumstances is valid.

• An agreement like this might be made before or after marriage. The delegation of divorce power to the wife might be permanent or temporary, i.e. for a set period of time.

• However, the requirement must not be contrary to public policy and must be reasonable.

• Such legal concepts and techniques assist women in avoiding undesirable situations such as their husband's bigamous marriage.

• In the hands of a Muslim woman, it is a powerful weapon for obtaining freedom without the interference of the courts.


DIVORCE BY MUTUAL CONSENT


Although divorce by mutual consent was not recognised by Muslim law, it became available to Muslim women after the passage of the Dissolution of Muslim Marriages Act in 1939.

1. Khula is a divorce by mutual consent and at the request of a wife, in which she agrees to offer her husband some consideration. It's essentially a "redemption" of the marriage contract.

2. Mubarat denotes mutual dissolution of the marital ties. The most important factor is that both couples must agree to the dissolution of the marriage.


DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939


Lian might simply be defined as a husband's false accusation of infidelity against his wife. When a husband falsely accuses his wife of infidelity, she can sue him and seek a divorce under the Act on the identical grounds by bringing a standard suit for dissolution of marriage.

􏰀 According to the Quran, husband and wife have a responsibility to respect each other, and obey each other's requests. If they discover that they can no longer live as husband and wife, they can contact a qazi, who, after a thorough assessment, may decide to end their marriage. The Dissolution of Muslim Marriage Act of 1939, Section 2, lays out the grounds on which a Muslim wife might get a divorce decree.


CONCLUSION 


When two people marry, they may not know each other as well as they did after living together. Then, if the two are incompatible, living apart is the best option. Under Muslim law, triple taalaq was declared unlawful after the famous 2017 Supreme Court ruling.


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