Anonymous
Asked September 12, 2016

Divorce in Muslim Law

  • 1 Answer
  • 337 Views

Hi i am muslim shia guy from hyderabad india but working in dubai i want to give divorce to my wife without going ti india because i am working in dubai.i have 3kids they are living with my wife she is also shia and living in India Hyderabad. What is easy procedure of giving divorce by indian muslim law

Answer 1

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Anina D'Cunha

Under Muslim Personal law, there are two categories of divorce:

  • Extra judicial divorce
  • Judicial divorce
  • Both these forms of divorce are recognized under Indian Law. Extra judicial divorce can be further subdivided:

  • Talaaq, ila, and zihar (can be done by the husband only)
  • Talaaq-i-tafweez, lian (can be done by the wife only)
  • Khula and mubarat (this can be done by mutual agreement)
  • Talaaq

    Talaaq is repudiation of marriage by the husband in accordance with the procedure laid down by the law. Talaaq can be pronounced even in the absence of the wife, this is still recognized in modern India.

    According to Shias, talaaq, must be pronounced orally. Talaaq must also be pronounced in the presence of two witnesses. Further, the words of talaaq must clearly indicate the husband’s intention to dissolve the marriage.

    Ila

    Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are ila and zihar. In ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. According to Shia law, ila does not operate as divorce without order of the court of law.

    Zihar

    As per zihar, the husband would state that from today, the wife is like his mother or sister (prohibited degree of relationship). The husband does not cohabit with his wife for a period of four months, after this comparison has been made by him. Upon the expiry of the said period zihar is complete. According to Shia law, zihar must also be performed in the presence of two witnesses.

    Divorce by mutual agreement

    Khula and Mubarat are two forms of divorce by mutual consent, but it involves the wife parting with her dower or a part of any other property.

    Khula is an agreement between the spouses for dissolving a union, done in lieu of compensation paid by the wife to her husband out of her property. Once the husband gives his consent, it results in an irrevocable divorce.

    The Shia law is strict and requires that both the parties must bona fide find the marital relationship to be tiresome. Under Shia law, the word mubarat should be followed by the word talaaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic. Intention to dissolve the marriage should be clearly expressed. Mubarat is irrevocable.

    Judicial Divorce

    Judicial divorce gives a woman married under Muslim law the entitlement to obtain a decree for divorce, under certain grounds.

    Sources:

    1. Kusum, Family Law Lectures: Family Law I, (2003).

    2. B.R. Verma, Mohammedan Law (2011).

     

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