Things to know about Muslim marriage and laws related to it

Muslim marriages are not regulated or governed by any particular codified legislation.

The Muslim personal law(Shariat) application act. 1937 governs Muslim marriages. Apart from dealing with marriages, the act also deals with the maintenance, dower, guardianship, gifts, properties, trusts, etc. while,

The dissolution of Muslim marriages Acts 1939 deals with the dissolution of those marriages.

These acts have their application to the whole of India, where the parties are Muslims.

Features of a Muslim Marriage

The following are the features of Muslim marriages in India:-

• One Muslim marriage rule is that both parties must be Muslims and proclaim their beliefs or religion.
• Each party must be capable of contracting marriage in terms of age, mental ability, and other factors.
• Anything stated in Islamic marriage law will not prevent the bride and groom from marrying each other.
• Having grasped the nature of the contract, the Muslim bride and groom will voluntarily consent to marry each other under this act.

What is Polygamy?

Polygamy allows a person to have more than one spouse and is not recognised in India for all religions except Islam. It allows for limited polygamy up to four spouses but strictly prohibits polyandry.

A muslim man can marry and retain four wives or spouses simultaneously under Muslim personal law. Under Muslim personal law, such a marriage is legitimate and legal. While a male Muslim can have four wives simultaneously, the reverse is untrue for females.

A Muslim woman cannot marry more than one man. She is not permitted to marry more than once. Many Muslim women have condemned polygamy, and the Special Marriage Act tries to end it.

There are even publications available today that focus on and depict the predicament of Muslim women who have fallen victim to the practice of polygamy.

Polygamy is not a criminal offence under Muslim personal law. It is a social ritual that people have followed for ages after centuries.

What is triple talaq in India?

Talaq is an Islamic term for divorce that refers to the dissolution of a marriage when a Muslim man can sever all marital connections with his wife.

According to Muslim law, Triple Talaq means liberty from the marriage connection, either ultimately or immediately. The man quits his marriage by merely pronouncing the word ‘talaq’ three times in one sitting, in any form, more recently even email or text message, without his wife’s agreement. It is known as Triple Talaq, also known as ‘talaq-e-bidat.’

The Muslim personal law (Shariat) Application Act of 1937 legalised and permitted Triple Talaq, which granted a Muslim husband special rights over his wife.

Status of Triple Talaq In India?

The use and significance of triple Talaq in India have been a matter of controversy and discussion. Justice, gender equality, human rights, and secularism are issues raised by those who oppose the practice.

The Government of India and the Supreme Court of India have been active in the issue, which gets linked to the debate in India over a unified civil code (ARTICLE 44).

Triple Talaq is the Muslim Women (Protection of Rights on Marriage) Bill, 2019. The Indian Parliament passed the bill on July 30, 2019, to make instant Triple Talaq a criminal and non-bailable offence and provides for a jail term of three years for a Muslim man who commits the crime.

Muslim Women (Protection of Right to Marriage) Act

The Muslim Women (Protection of Rights on Marriage) Act, 2019, is an Act of the Indian Parliament that prohibits triple Talaq.

The Supreme Court of India, in August 2017, declared triple talaq, which permits Muslim men to divorce their wives instantaneously, is unconstitutional.

The minority position proposed that the Parliament adopt relevant legislation controlling triple talaq in the Muslim community.

The bill got reintroduced and passed by the Lok Sabha and Rajya Sabha in July 2019. As a result, the bill gained the President of India’s ascent.

The act’s objective is to protect Muslim women from unauthorised talaq pronounced by their husbands. In the same month, the bill was later announced as law.

The act took effect retroactively on September 19, 2018.

The Muslim Women (Protection of Rights on Marriage) Bill, 2017

Since the Supreme Court’s August 2017 decision banning triple talaq in India, the government has drafted a bill alleging 100 incidents of immediate triple talaq. The Muslim Women (Protection of Rights on Marriage) Bill, 2017, approved by the Lok Sabha on December 28, 2017.

The law suggested making triple talaq in any form spoken, written, or digital methods like email, SMS, and instant messenger is illegal and invalid. Such acts will include a sentence of up to three years in prison for the husband who goes for triple talaq.

The measure got opposed by Anna Dravida Munnetra Kazhagam, The Communist Party of India (Marxist), the Rashtriya Janata Dal, the All India Majlis-e-Ittehadul Muslimeen, the Biju Janata Dal, and the Indian Union Muslim League, who called it arbitrary and flawed. At the same time, the Indian National Congress backed it.

The Muslim Women (Protection of Rights on Marriage) Bill, 2018

Dissolution of marriage in India

Following the Supreme Court’s Triple Talaq Judgment, numerous viewpoints and long hours of arguments were shown on television regarding Muslim Divorce Law in India. But there was one thing lacking from the entire episode: what remedy was made available to those Muslim husbands who wanted to divorce their wives?

Apart from the remedy available to only Muslim women to file for divorce, which applies the Dissolution of the Muslim Marriage Act, there was no express provision available for Muslim husbands.

The Hon’ble Court decided in Shamin ara vs State of Uttar Pradesh & Others, AIR 2002 SC 3551, that talaq, in whatever form, must be justified and must be preceded by attempts at reconciliation by arbiters chosen from both wives’ families.

The court stated that a divorce by the husband is a talaq and that it can be done orally or in writing. The oral form of talaq can take three forms: ‘Talaq-e-ahsan,’ ‘Talaq-e-hasan,’ and ‘Talaq-e-biddat,’ the last of which is currently unconstitutional according to a recent ruling.

The first two forms are conditioned and get considered to be more civilised. Still, there are conditions antecedent to resorting to any of these forms. And it is not that the spouse is free to resort to any of these modes at any moment and without stating any reasons.

Later, the Muslim Women (Protection of Rights on Marriage) Bill (2018) got introduced to safeguard Muslim women’s rights. The Lok Sabha passed the bill in 2018 and 2019. However, it expired after not being passed by the Rajya Sabha.

On September 19, 2018, the government issued The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018, recognising that the practice of quick triple talaq has remained unabated despite the 2017 legal order.

An ordinance proposed in the Indian parliament expires if either the Parliament does not approve it within six weeks of reassembly or if both chambers adopt rejecting resolutions. As a result, Union Law Minister Ravi Shankar Prasad proposed a new law in the Lok Sabha titled The Muslim Women (Protection of Rights on Marriage) Bill, 2018.

The Muslim Women (Protection of Rights on Marriage) Bill, 2019

Because the triple talaq ordinance of 2018 was set to expire on 22 January 2019 and because the Muslim Women (Protection of Rights on Marriage) Bill, 2018, was unable to be passed, the government reissued the ordinance on 10 January 2019.

The president signed the 2019 ordinance on January 12, 2019.

The Muslim Women (Protection of Rights on Marriage) Bill, 2019

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019, was repealed on July 31, 2019, after both houses of the legislature, the Lok Sabha and the Rajya Sabha, passed it. The President of India announced it in the official gazette. The Act gets broken down into eight sections.

Dissolution of marriage in India

Following the Supreme Court’s Triple Talaq Judgment, numerous viewpoints and long hours of arguments were shown on television regarding Muslim Divorce Law in India. But there was one thing lacking from the entire episode: what remedy was made available to those Muslim husbands who wanted to divorce their wives?

Apart from the remedy available to only Muslim women to file for divorce, which applies the Dissolution of the Muslim Marriage Act, there was no express provision available for Muslim husbands.

The Hon’ble Court decided in Shamin ara vs State of Uttar Pradesh & Others, AIR 2002 SC 3551, that talaq, in whatever form, must be justified and must be preceded by attempts at reconciliation by arbiters chosen from both wives’ families.

The court stated that a divorce by the husband is a talaq and that it can be done orally or in writing. The oral form of talaq can take three forms: ‘Talaq-e-ahsan,’ ‘Talaq-e-hasan,’ and ‘Talaq-e-biddat,’ the last of which is currently unconstitutional according to a recent ruling.

The first two forms are conditioned and get considered to be more civilised. Still, there are conditions antecedent to resorting to any of these forms. And it is not that the spouse is free to resort to any of these modes at any moment and without stating any reasons.

Ways by which Muslim Husband can dissolve their marriage

TALAQ-E-AHSAN

• The term ‘talaq-e-ahsan’ refers to a single ‘talaq’ by the spouse, followed by a time of abstinence. The abstinence phase gets referred to as ‘iddat.’ The ‘iddat’ lasts ninety days, which is three menstrual cycles or three lunar months.
• The divorce decree gets considered annulled if the couple resumes cohabitation or intimacy within the ‘iddat’ time. As a result, the ‘talaq-e-ahsan’ is revocable. If there is no return of cohabitation or intimacy during the ‘iddat’ time, the divorce becomes permanent and irreversible once the ‘iddat’ term has expired.
• It is irreversible since the pair get prohibited from resuming their marital relationship until they sign a new ‘nikah’ (marriage) with a new ‘mahr’.
• However, after the third ‘talaq’, the pair cannot remarry unless the wife first marries someone else. Then the couple can remarry when her marriage with the other person gets dissolved (either via ‘talaq’ – divorce, or death).

TALAQ-E-HASAN

• ‘Talaq-e-hasan’ is pronounced similarly to ‘talaq-e-ahsan.’ Instead of a single statement, three consecutive pronouncements are made here. If there is a return of cohabitation within one month following the initial divorce decree, the divorce decree gets considered revoked.
• After the first month has expired, the same method must be followed (during which marital ties have not resumed). The word ‘Talaq’ is spoken once more.
• If there is a return of cohabitation within one month of the second pronouncement of talaq, the divorce decree gets considered annulled.
• It is important to note that the spouse can cancel the first and second declarations. If he does so, either explicitly or by resuming marital relations, the husband’s stated talaq becomes useless, as if no talaq ever got expressed.
• The third ‘talaq’ gets communicated to the wife is irreversible. As a result, if no revocation gets made after the first and second declarations, and the husband makes the third statement during the third ‘tuhr’ (time of purity), the ‘talaq’ becomes irrevocable, and the marriage gets dissolved.
• The wife must adhere to the required ‘iddat’ (the following a divorce during which a woman cannot remarry). Its goal is to guarantee that any offspring’s male father is readily identifiable).
• Once the third ‘iddat,’ the husband and wife cannot remarry unless the wife first marries someone else, and the pair can only remarry after her marriage with another person has been annulled.

  The difference between ‘talaq-e-Ahsan and ‘talaq-e-hasan’ is that the former has a single ‘talaq’ pronouncement followed by abstinence whilst the latter has three ‘talaq’ declarations interspersed with abstinence.

Provisions by which Muslim woman can divorce their husbands

KHULA

A Muslim woman can divorce through a process known as Khula, in which she chooses to end her marriage. Wife-initiated Talaq is the term for this process. According to Ulemas, Khula can only get practised when the husband agrees to the wife’s request, notably the Hanafi School.

TALAQ-E-TAFWEEZ

A legal agreement between the parties to a marriage in which the wife is free to divorce her husband in certain circumstances is valid. This arrangement is possible before or after the Talaq, which the married woman initiates.

Case Laws

Ahmedabad Women Action Group (AWAG) v. Union of India (AIR (1997) 3 SCC 573

The court held in this case that Muslims in India are governed by their personal laws, regardless of the period. Court held that the interference by the court would lead to several undesirable outcomes, as the adjudication of personal laws was beyond the jurisdiction of the courts. So, the petition got dismissed.

Danial Latifi and another v. Union of India (2001) 7 SCC 740

This case challenged the application of section 125 of CrPC on Muslim women. The issue raised was whether this section violates articles 14 and 21 of the constitution of India?

The Court opined that the concerned legislation did not violate Articles 14 and 21 of the Indian constitution.

Shamim Ara v. State of U.P. (MANU/SC/0850/2002)

The Supreme Court stated that the mere plea of a Talaq would not corroborate the same. The Quranic procedures of obtaining a Talaq need to get fulfilled, i.e., Talaq has to get pronounced in the Quranic injunction.

CONCLUSION

Muslim personal laws depict the nature of muslim marriages as a civil contract rather than a sacrament.

A marriage under Mohammedan laws is significant among Muslim scholars as they consider it a relation formed to satisfy each other’s desires.

The introduction of The Dissolution of the Muslim Marriages Act 1939 provides Muslim women with an opportunity to protect themselves against the unnatural and prohibited practices of the male counterpart for exploitative practices against them.

The Muslim Personal Law (Shariat) application act derives its significance from the Quran, a primary and uncodified source of muslim personal law in Mohammedan laws.

So, the Muslim marriage laws render marriage a civil transaction between two people to meet their demands and desires. The courts cannot interfere with the personal laws of any religion unless the act or practice is found to be violative of fundamental rights or arbitrary in nature.