Muslim-Law notesdivorfce.docx

renaissance ----------- ### Divorce renaissance ----------- \-\-\--LaCwollege\-\-\-- \< \> J  renaissance ----------- a. **By** la , 1 a, an\_ zihar. b. **By** \_ - eez, han. c. **By ment-** khula and mubarat. 1. **Talaaq:** Talaaq in its pr...

renaissance ----------- ### Divorce renaissance ----------- \-\-\--LaCwollege\-\-\-- \< \> J  renaissance ----------- a. **By** la , 1 a, an\_ zihar. b. **By** \_ - eez, han. c. **By ment-** khula and mubarat. 1. **Talaaq:** Talaaq in its pr ·· m ans dismission. In its literal meaning, it means \"setting free\", \"letting lo se\", or: t ·n a \' esorrestraint\'\'. In Muslim Law it means freedom from the bondage o m rriag\_ m any other bondage. In legal sense it means dissolution of marriage by h b nd ing) propriate words. In other words talaaq is repudiation of marriage by the u · an m accordance with the procedure laid down by the law. The following verse is i pport of the husband\'s authority to pronounce unilateral divorce is often cited: \"Men are maintainers of women, because Allah has made some of them to excel others and because they spend out of their property (on their maintenance and dower). When the husband exercises his right to pronounce divorce, technically this is known as talaaq. The most remarkable feature of Muslim law of talaaq is that all the schools of the Sunnis and the Shias recognize it differing only in some details. In Muslim world, so widespread has been the talaaq that even the Imams practiced it The absolute power of a Muslim husband of divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in modern India. All that is necessary is that the husband should pronounce talaaq; how he does it, when he does it, or in what he does it is not very essential. In **Hannefa v. Pathummal,** Khalid, J., termed this as \"monstrosity\'\'. Among the Sunnis, talaaq may be express, implied, contingent constructive or even delegated. The Shias recognize only the express and the delegated forms of talaaq. ID) ========================== renaissance ----------- **Class-LL.B HONS.** II **SEM. Sub\"ect- Muslim Law** i. **Talaaq-e-ahasan** (Most approved) ii. **Talaaq-e-hasan** (Less approved). i. **The ahasan talaaq:** consists of a single pronouncement of divorce made in the period of tuhr (purity, between two menstruations), or at any time, if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period if iddat. The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce and does not apply to talaaq in writing. Similarly, this requirement is not applicable when the wife has passed the age of menstruation or the parties have been away from each other for a long time, or when the marriage has renaissance ----------- ii. **The hasan talaaq:** In this the husband is required to pronounce the formula of talaaq three time during three successive tuhrs. If the wife has crossed the age of mens1·on, the pronouncement of it may be made after the interval of a month or thirty days betwee ccessive pronouncements. When the last pronouncement is made, the talaaq, becomes a I cable. It is necessary that each of the three pronouncements should be made at a i e e o i ercourse has taken place during the period of tuhr. Example: W, a wife, is havin er p · f urity and no sexual intercourse has taken place. At this time, her husband, 1ce s\--ffi1aaq, on her. This is the first pronouncement by express words. Then again, **h** s e the next period of purity, and before he indulges in sexual intercourse, he mak s s c&d nouncement. He again revokes it. Again 2. **Ila:** esig s a a uslim husband can re u · is r · y two other modes, that are, Ila 3. **Zihar:** In this mode the u compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. T and would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete. After the expiry of fourth month the wife has following rights: i. She may go to the court to get a decree of judicial divorce ii. She may ask the court to grant the decree of restitution of conjugal rights. i. The husband observes fast for a period of two months, or, ii. He provides food at least sixty people, or, iii. He frees a slave. renaissance ----------- 1. **Khula-** The word khula, in its original sense means \"to draw\" or \"dig up\" or \"to take off\' such as taking off one\'s clothes or garments. It is said that the spouses are like clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of each other. In law it is said is said to signify an agreement between the spouses for dissolving a connubial union in lieu of compensation paid by the wife to her husband out of her property. Although consideration for Khula is essential, the actual release of the dower or delivery of property constituting the consideration is not a condition precedent lidity of the khula. Once the husband gives his consent, it results in an irrevocable d e husband has no power of cancelling the \'khul\' on the ground that th s· as not been paid. The consideration can be anything, usually it is o of it. But it may be any property though not illusory. In muba · eature is that both the parties desire divorce. Thus, the proposal may e =p,v de. 2. **Mubarat** - In mubarat both, the husba happy to get rid of each other. i. Talaaq-i-tafweez ii. Lian iii. By Diss 1. **Talaaq-i-ta** renaissance ----------- 2. **Lian:** If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an allegation o· 1delity against her, then what the husband says in response to the bad behaviour of the · e09n at be used by the wife as a false charge of adultery and no divorce is to be grante n I.:1 is was held in the case of Nurjahan v. Kazim Ali by the Calcutta High Court. 3. **Dissolution of Muslim Marriages Act 1939:** iii. That the husband has been sentenced to imprisonment for a period of seven years or upwards: the wife\'s right of judicial divorce on this ground begins from the date on which the sentence becomes final. Therefore, the decree can be passed in her favour only after the expiry of the date for appeal by the husband or after the appeal by the husband has been dismissed by the final court iv. That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years: the Act does define \'marital obligations of the husband\'. There are several marital obligations of the husband under Muslim law. But for the purpose of this clause husband\'s failure to perform only those conjugal obligations may be taken into account which are not included in any of the clauses of Section 2 of this Act. v. That the husband was impotent at the time of the marriage and continues to be so: for getting a decree of divorce on this ground, the wife has to prove that the husband was impotent at the time of the marriage and continues to be impotent till the filing of the suit. Before passing a decree of divorce of divorce on this ground, the court is bound to give to the husband one year to improve his potency provided he makes an application for it. If the husband does not give such application, the court shall pass the decree without delay. In Gul Mohd. Khan v. Hasina the wife filed a suit for dissolution of marriage on the ground of ID) === renaissance ----------- vi. If the husband has been insane for a period of two years or is suffering from leprosy or a virulent veneral disease: the husband\'s insanity must be for two or more years immediately preceding the presentation of the suit. But this act does not specify that the unsoundness of mind must be curable or incurable. Leprosy may be white or black or cause the skin to wither away. It may be curable or incurable. Veneral disease is a disease of the sex organs. The Act provides that this disease must be of incurable nature. It may be of any duration. Moreover even if this disease has been infected to the husband by the wife herself, she is entitled to get divorce on this ground. - vii)That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of I li en years, provided that the marriage has not been consummated; a. Habitually assaults her or makes her life miserable by o c amount to physical ill treatment, or b. Associates with women of ill-repute or leads an· a s· o c. Attempts to force her to lead an immoral life or d. Disposes of her property or prevents her x si g l&r I rights over it, or e. Obstructs her in the observan of h -ouesson or practice, or f. If he has more than one wive s e e equitably in accordance wi Holy Quran. a. non-payment of maintenance by the husband even if the failure has resulted due to the conduct of the wife, b. where there is total irreconcilability between the spouses.