Muslim Marriage & Divorce

 

Muslim Marriage and Divorce 

What are the different types of divorces?

Under Muslim personal law, there are different kind of divorce – Typically, as a woman, you have the option to initiate a divorce through Khula (a form of consensual divorce) or approach the courts to dissolve your marriage under a specific law, the Dissolution of Muslim Marriages Act, 1939.

As a husband, you are not required to approach the courts to dissolve your marriage. You can dissolve your marriage through talak. There are also different types of talak:

• Talak ahsan - This is when your husband makes a single pronouncement of divorce during tuhr (period between menstrual cycles). During the following iddat period, your husband cannot engage in sexual intercourse with you. You cannot retract the divorce after the iddat period.
• Talak hasan – This is when your husband makes three pronouncements during three tuhrs one after the other.
• Talak-ul-bidaat or talak-i-badai – This is when your husband makes three pronouncements in a single sentence or a single pronouncement clearly stating his intention to dissolve your marriage irrevocably. This form of divorce is not allowed for Shia Muslims.

Sometimes, it is possible that both husband and wife agree that they need to dissolve their marriage. They can dissolve their marriage through Mubaraa.

How can I obtain divorce by mutual consent?

Under Muslim law, divorce by mutual consent is possible through Khula and Mubaraa. A khula divorce is initiated by the woman – she proposes to her husband that the marriage be dissolved. The husband will usually have to agree, however, he can negotiate the amount of mehr that the wife will pay him. As a muslim woman, you may pay back the mehr amount or property and obtain a divorce by signing a khulanama. Your husband will have a legal right to claim the mehr if you do not pay him but failure to pay does not invalidate the divorce.

A mubaraa divorce is when both parties agree to dissolve the marriage. Please remember as a woman, you will have to follow the iddat period.

Have you been given the right of divorce by your husband through an agreement?

If your husband has given you through agreement (usually a kabbinnama) his right of divorce, you can exercise it depending on the terms of the agreement – this form of divorce is usually known as talak-e-tafwiz. For example, courts have held that where such a right was passed on without any conditions, you can exercise the right at your option. If in the agreement, your husband had given you the right in the event that something happens, you can exercise the right if such events occur.

How do I initiate divorce proceedings?

Certain types of divorce like talak, khula and mubaraa can be obtained without going to a court. As a woman who wants to dissolve your marriage (without the consent of your husband), you can apply to a family court in your area. This right has been provided under a specific law called the Dissolution of Muslim Marriages Act, 1939. This Act lays down various grounds on which a woman can seek divorce. If there is a family court in your district, you should approach this court. If there is no family court, you should approach the district court.

Other than the reasons laid out in the Dissolution of Muslim Marriages Act, 1939 under which you can file for a divorce, if your husband has made a false accusation of adultery, you can file an application before the court for dissolution of marriage. However, if he takes back his accusation, you do not have the right.

Can I get married to my wife again after obtaining a divorce?

While you are allowed to get married to your wife again even after a divorce, your wife may have to observe halala before getting married to you again. This basically means that your wife will have to marry another man who will have to divorce her out of his own free will and only then can you both marry again. If the divorce was through three pronouncements (as in talak hasan and talak-i-badai), your divorce is irrevocable from the time you were done with the pronouncements – in such cases you will have to observe halala before you get married again. A court has held recently that in case of a khula divorce (divorce by mutual consent) or talak ahsan, observing nikah halala is not mandatory.

Once I have obtained a divorce, what should I know?

As a woman whose marriage has been dissolved, please remember that your husband has to immediately pay you any dower remaining to be paid. If you did not have sexual intercourse with your husband even once, you can get only half of the dower amount which was agreed to. Further if your marriage has not been consummated, you can immediately get married to another person.

If your marriage has been consummated, you can get married to another person after your iddat is over. You have the right to inherit from each other only until the iddat period is over – after this, the divorce becomes irrevocable.

Published on: May 16, 2017

You’ve made the difficult decision to dissolve your marriage. It is important to understand the different ways in which you get a divorce - it operates differently for men and women.

What are the different types of divorces?

Under Muslim personal law, there are different kind of divorce –

Typically, as a woman, you have the option to initiate a divorce through Khula (a form of consensual divorce) or approach the courts to dissolve your marriage under a specific law, the Dissolution of Muslim Marriages Act, 1939.

As a husband, you are not required to approach the courts to dissolve your marriage. You can dissolve your marriage through talak. There are also different types of talak:

• Talak ahsan - This is when your husband makes a single pronouncement of divorce during tuhr (period between menstrual cycles). During the following iddat period, your husband cannot engage in sexual intercourse with you. You cannot retract the divorce after the iddat period.
• Talak hasan – This is when your husband makes three pronouncements during three tuhrs one after the other.
• Talak-ul-bidaat or talak-i-badai – This is when your husband makes three pronouncements in a single sentence or a single pronouncement clearly stating his intention to dissolve your marriage irrevocably. This form of divorce is not allowed for Shia Muslims.

Sometimes, it is possible that both husband and wife agree that they need to dissolve their marriage. They can dissolve their marriage through Mubaraa.

How can I obtain divorce by mutual consent?

Under Muslim law, divorce by mutual consent is possible through Khula and Mubaraa. A khula divorce is initiated by the woman – she proposes to her husband that the marriage be dissolved. The husband will usually have to agree, however, he can negotiate the amount of mehr that the wife will pay him. As a muslim woman, you may pay back the mehr amount or property and obtain a divorce by signing a khulanama. Your husband will have a legal right to claim the mehr if you do not pay him but failure to pay does not invalidate the divorce.

A mubaraa divorce is when both parties agree to dissolve the marriage. Please remember as a woman, you will have to follow the iddat period.

Have you been given the right of divorce by your husband through an agreement?

If your husband has given you through agreement (usually a kabbinnama) his right of divorce, you can exercise it depending on the terms of the agreement – this form of divorce is usually known as talak-e-tafwiz. For example, courts have held that where such a right was passed on without any conditions, you can exercise the right at your option. If in the agreement, your husband had given you the right in the event that something happens, you can exercise the right if such events occur.

How do I initiate divorce proceedings?

Certain types of divorce like talak, khula and mubaraa can be obtained without going to a court. As a woman who wants to dissolve your marriage (without the consent of your husband), you can apply to a family court in your area. This right has been provided under a specific law called the Dissolution of Muslim Marriages Act, 1939. This Act lays down various grounds on which a woman can seek divorce. If there is a family court in your district, you should approach this court. If there is no family court, you should approach the district court.

Other than the reasons laid out in the Dissolution of Muslim Marriages Act, 1939 under which you can file for a divorce, if your husband has made a false accusation of adultery, you can file an application before the court for dissolution of marriage. However, if he takes back his accusation, you do not have the right.

Can I get married to my wife again after obtaining a divorce?

While you are allowed to get married to your wife again even after a divorce, your wife may have to observe halala before getting married to you again. This basically means that your wife will have to marry another man who will have to divorce her out of his own free will and only then can you both marry again. If the divorce was through three pronouncements (as in talak hasan and talak-i-badai), your divorce is irrevocable from the time you were done with the pronouncements – in such cases you will have to observe halala before you get married again. A court has held recently that in case of a khula divorce (divorce by mutual consent) or talak ahsan, observing nikah halala is not mandatory.

Once I have obtained a divorce, what should I know?

As a woman whose marriage has been dissolved, please remember that your husband has to immediately pay you any dower remaining to be paid. If you did not have sexual intercourse with your husband even once, you can get only half of the dower amount which was agreed to. Further if your marriage has not been consummated, you can immediately get married to another person.

If your marriage has been consummated, you can get married to another person after your iddat is over. You have the right to inherit from each other only until the iddat period is over – after this, the divorce becomes irrevocable.