Open Access Research Article
UNRAVELING SHADOWS: THE DARK SIDE OF MUSLIM DIVORCE AND MAINTENANCE
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Article Details
UNRAVELING
SHADOWS: THE DARK SIDE OF MUSLIM DIVORCE AND MAINTENANCE
AUTHORED BY
- CHANDAN KUMAR
Third year
BBA L.L.B
SYMBIOSIS
LAW SCHOOL NAGPUR
ABSTRACT
Divorce is
a formal breakup of marriage that has far-reaching consequences for both the
individuals involved and society as a whole. Divorce is seen as a necessary
evil under Muslim law, to be avoided as much as possible yet permitted in
specific circumstances. Divorce jurisprudence in Muslim law is founded on the
core sources of the Quran and Sunnah, as well as secondary sources of jurists'
consensus (ijma) and analogy (qiyas). According A research conducted by
national bureau of economics department it is claimed that divorce rate is
getting higher and higher in comparison to marriage rate. One of the basic
reasons for the scenario is social norms and expectations which May differ
according to different peoples according to their perspectives which may
include various factors like compatibility and preferences etc. When compared
to different European countries They view divorce as a question of harmony and
compatibility between the parties. They decide to split up and seek their own
happiness and independence if they are not happy together.
Our Country
takes marriage as something a sacred bond between Two individuals and their
bonds are irrevocable till death and After death too. The foundation of Hindu
marriage is the idea of saptapadi, or "seven steps." Around the
sacred fire, which serves as a witness to their union, the bride and groom
exchange seven vows. In the eyes of their families and in accordance with the
Vedic scriptures, they are pronounced married. And on the other hand, Muslim
Marriages Seen to be as CONTRACTS that can be broken under certain
circumstances.
The purpose
of this paper is to examine the numerous types and grounds of divorce, the
rights and obligations of the parties, and the role of the state and the courts
in regulating and adjudicating divorce matters under Muslim law. The study also
examines contemporary issues and innovations in the realm of divorce under
Muslim law, such as the impact of modern legislation, women's agency
recognition, and the harmonisation of Islamic and secular laws.
INTRODUCTION
Divorce is
a formal breakup of marriage that has far-reaching consequences for both the
individuals involved and society as a whole. Divorce is seen as a necessary
evil under Muslim law, to be avoided as much as possible yet permitted in
specific circumstances. Divorce jurisprudence in Muslim law is founded on the
core sources of the Quran and Sunnah, as well as secondary sources of jurists'
consensus (ijma) and analogy (qiyas). According A research conducted by
national bureau of economics department it is claimed that divorce rate is
getting higher and higher in comparison to marriage rate. One of the basic
reasons for the scenario is social norms and expectations which May differ
according to different peoples according to their perspectives which may
include various factors like compatibility and preferences etc. When compared
to different European countries They view divorce as a question of harmony and
compatibility between the parties. They decide to split up and seek their own
happiness and independence if they are not happy together.
Our Country
takes marriage as something a sacred bond between Two individuals and their
bonds are irrevocable till death and After death too. The foundation of Hindu
marriage is the idea of saptapadi, or "seven steps." Around the sacred
fire, which serves as a witness to their union, the bride and groom exchange
seven vows. In the eyes of their families and in accordance with the Vedic
scriptures, they are pronounced married. And on the other hand, Muslim
Marriages Seen to be as CONTRACTS that can be broken under certain
circumstances.
The purpose
of this paper is to examine the numerous types and grounds of divorce, the
rights and obligations of the parties, and the role of the state and the courts
in regulating and adjudicating divorce matters under Muslim law. The study also
examines contemporary issues and innovations in the realm of divorce under
Muslim law, such as the impact of modern legislation, women's agency
recognition, and the harmonisation of Islamic and secular laws.
A strong marriage between the husband
and wife is a requirement for a fulfilling family life. Islam therefore
mandates that a marriage must last and that any breach of the marriage bond
must be avoided. No marriage is initially intended to be dissolved, but terrible
events cause the wedding contract to be violated. Divorce is one method of
achieving such breakup. According to Islamic law, a divorce can be granted
either through the parties' own actions or through a judicial order. Sharia is
an Arabic phrase that signifies "the path to life's source." It
refers to the Islamic legal system based on the Quran, Hadith (sayings and
actions of Prophet Muhammad), Sunna (practice of the Prophet and his
companions), Ijma (jurists' consensus), and Qiyas (analogical reasoning).
Sharia covers all elements of human behaviour and governs both personal and
social activities. Sharia is not a static legal code, but rather a dynamic and
adaptable system that responds to changing conditions and surroundings. Sharia
attempts to offer Muslims with moral and ethical guidance based on God's
almighty will. Talaq is an Arabic phrase that refers to the unilateral
termination of a marriage by the husband. It literally means "to
separate" or "to release". The husband has the right to terminate
the marital contract by pronouncing talaq, either verbally or in writing,
without the wife's justification or approval. Talaq is a legal procedure that
dissolves the marriage connection and releases the spouses from their shared
obligations. Sharia is an Islamic legal system that imposes its ideas on women
without their consent. It restricts women’s the right to divorce their husbands
unless they pay a ransom or suffer physical harm. This type of divorce is known
as KHULA, which means "to release”. A marriage is declared null and void if either partner dies.
A bereaved husband is free to remarry. But In case of women there are some
restrictions to remarry immediately. Iddat is a period of waiting for a Muslim woman following the
end of her previous marriage before she can remarry. The length of iddat
depends on the cause of dissolution, like as divorce, death, or annulment. If
the spouse dies, the widow must observe iddat for four lunar months and ten
days, during which she must avoid from wearing adornments, leaving her
residence, or entertaining marriage proposals. Iddat is used to determine the
paternity of any kid conceived before the husband's death, to grieve the loss
of the marriage, and to enable for reconciliation or inheritance concerns. After
completing iddat, the widow is free to marry anybody she wants, except those
who are prohibited by Islamic law. Iddat is based on Quranic injunctions and
Prophet Muhammad's Sunnah, and it is required for all Muslim women, regardless
of their school of thought " However, divorce hasn't been viewed as a
general law of life, regardless of how it affects relationships. Divorce is
regarded as an exception to the status of marriage in Islam. In addition to the husband's
unilateral power to divorce his wife by talaq, the Dissolution of Muslim
Marriage Act of 1939 recognises the option of judicial divorce. This statute
allows a Muslim woman to seek divorce from a court of law for a variety of
grounds, including cruelty, desertion, impotency, insanity, apostasy, or non-payment
of maintenance. Judicial divorce is a remedy for a wife who is dissatisfied
with her husband's behaviour or neglect. Talaq, on the other hand, is the husband's discretionary
ability to terminate his marriage without cause or intervention. However, some
criteria and constraints are imposed by Muslim law on the exercise of this
power, such as the husband's sanity, maturity, and free consent. Talaq
proclaimed by a minor, a lunatic, or a compelled individual is null and void.
Similarly, Muslim law does not recognise talaq uttered in intoxication, wrath,
or jest. These rules apply to all schools of Islamic law, whether Sunni, Shia,
Hanafi, or Shafi. They are founded on the values of justice, equity, and
morality.
|
BY
DIVORCE
|
BY
DEATH OF SPOUSE
|
BY HUSBAND – TALAQ, LIA, ZIHAR
BY WIFE – TALAQ-E[1]-TAFWIZ
MUTUAL CONSENT- KHULA, MUBARAT
JUDICIAL PROCESS- LIAN, FASK
TALAQ ARE CLASSIFIED INTO TWO TYPES-
i-
TALAQ-UL-SUNNAT-
AHSAN AND HASAN
ii-
TALAQ-UL-BIDDAT-
ORAL DIVORCE (TRIPLE TALAQ)
MODES OF DIVORCE-
Now, we will look at each mode in
depth and explain how it affects the marital contract. However, before we
begin, we must first establish the necessary circumstances for a legal talaq,
which are related to the husband's capacity. The husband must be mentally
stable, mature, and free of duress or compulsion. He must also explain why he
wants to divorce his wife, as talaq without a reason is frowned upon and
considered wicked. A
guardian cannot pronounce talaq on behalf of a minor, who must wait until the
age of majority before exercising his talaq prerogative. Another requirement is
the husband's consent, which means he must do it voluntarily and without undue
persuasion, fraud, or intoxication. According to the Shia, Sunni, and Shafi
schools of Muslim law, talaq declared under such conditions is invalid and
insufficient for divorce. However, the Hanafi school of thought argues that
talaq is irrevocable and enforceable, even if it is spoken under duress or in
jest. As a result, the legitimacy of talaq is determined by the husband's
capacity and agreement, as well as the school of thought he adheres to.
ILA- Ila is a Quranic manner of divorce that permits the
husband to stop his marriage by pledging not to have sexual relations with his
wife for at least four months. If he keeps his oath, the marriage is
automatically annulled. If he breaks his vows, he must make amends and continue
marital duties. Ila is derived from the Quranic passage 2:226-227, which also
grants the wife the right to divorce if the husband's oath causes her harm.
Various schools of Islamic jurisprudence have distinct interpretations and
restrictions about Ila. Ila is a defunct way of divorce in modern times, and it
is illegal in some Muslim nations.
In BIBI REHANA V.S. IQTIDAR -UDDI
case, a husband was compelled to marry a woman against his choice. In front of
his wife and her family, he swore he would never have sexual intercourse with
her. He stated that this was a genuine form of Ila divorce, which is a type of
divorce in Islam in which the husband refrains from having sexual relations
with his wife for four months. However, the court dismissed his claim, stating
that he had failed to prove that he had adhered to the four-month abstinence
period. As a result, the court determined that there was no divorce in the Ila
form.
ZIHAR- Zihar is a type of divorce in
which the husband compares his wife to a woman who is not legal for him to
marry, such as his mother or sister. This is a serious and unjust offence, and
the husband must conduct penance before resuming his marital relationship with
his wife. Penance consists of either liberating a slave, fasting for two
months, or feeding sixty persons in need. Zihar does not annul the marriage,
but if the husband continues to offend, the wife has the right to seek legal
divorce or return of conjugal rights. Zihar was a pre-Islamic custom that the
Quran changed in Surah 58, verses 1-4, to discourage and regulate. Zihar is an outmoded way of divorce
in modern times, and it is illegal in several Muslim nations.
TALAQ-E-TAFWIZ- In Islamic law, a
husband may assign his power to divorce his wife to her or to a third party
through a process known as talaq-e-tafwiz. This allows the wife to start the
divorce process without going through a courtroom. Nonetheless, the family
structure and society at large are severely harmed by this practice. Some are
mentioned below-
i-
The
wife is at risk of being abused and used by the third person to whom the
husband assigns his right to divorce under talaq-e-tafwiz.
ii-
For
insignificant reasons like boredom, animosity, or unhappiness, Talaq-e-tafwiz
promotes a lady to file for divorce from her spouse. This may lead to the
disintegration of the family and the disappearance of the moral and social
ideals necessary for a peaceful community.
The Kerala High Court ruled on April
9, 2021, in the matter of X v. Y and related petitions, which is one recent
instance involving talaq-e-tafwiz. The primary question in this case concerned
whether Muslim women might use extrajudicial divorce procedures like
talaq-e-tafwiz following the 1939 Dissolution of Muslim Marriages Act. The
court determined that the 1939 Act did not repeal the personal law rules that
permitted Muslim women to end their marriages through various extrajudicial
divorce procedures, overturning a 49-year-old ruling that had denied them this
ability. The court also
thoroughly examined the idea and legality of talaq-e-tafwiz, noting that it is
a type of delegated divorce in which the husband, subject to specific
restrictions, gives his right to divorce his wife to her or a third party. In
light of the Quran and Sunnah, the court stated that talaq-e-tafwiz is a law
that empowers Muslim women and for tifies
the family unit. The court referred to the Hamidoollah v. Feizunnisa case,
which established the guidelines for the application of talaq-e-tafwiz and
confirmed its legitimacy. The court also cited a number of academic studies and
legal precedents from other nations that acknowledged talaq-e-tafwiz as an
acceptable Islamic method of divorce. The court concluded that Muslim women have the right to use
talaq-e-tafwiz as a legitimate and enforceable type of divorce under Muslim
personal law without having to appear in court. The court further ordered the
Family Courts to follow the law it had announced in order to resolve any
outstanding talaq-e-tafwiz cases. This historic ruling upholds Muslim women's
rights and dignity with regard to marriage and divorce.
KHULA- In Islam, a woman can dissolve
her marriage by a process called khula, which involves giving up some of her
rights or returning the dower, or mahr, to her husband. Khula is not the same as talaq, which
is a husband-initiated divorce. In order to acquire khula, a woman must go to a
court or a religious authority and give a good reason such as cruelty,
abandonment, or adultery for wanting a divorce. Before awarding the divorce,
the husband has the option to accept or reject the motion, and the court may
also attempt to bring the pair back together. In exchange for the breakup of the marriage, the woman
must return the dower or give up part of her rights if the divorce is approved.
Khula has certain legal ramifications, including the loss of inheritance
rights, the termination of marital rights and obligations, and the necessity of
adhering to an iddat (waiting period) before being married again. A Muslim woman has the legal right to
file for divorce from her spouse, but the procedure is not straightforward. It
includes a lot of legal, social, and religious obstacles and needs the
husband's or the court's approval. As a result, it is uncommon for Muslim women
in India to exercise their right to khula, and many of them struggle to do so.
For further explanation some problems are described below-
i.
Misuse- Khula can be abused, just like any other legal
privilege. Even when they're hesitant, some women may feel pressure from their
families or from society norms to file for divorce.
ii.
Social Stigma- Divorced women may experience social
shame in some societies, which may be exacerbated if they obtained the divorce
through khula.
iii.
Uncertainty around finances- In many cases,
particularly when they lack access to money or childcare, khula can put women
in a precarious financial situation.
MUBARAT- In Islam, mubarat is a kind
of divorce where the husband and woman agree to it mutually. It indicates that
they are both content to part ways with one another and have decided to
dissolve their union. Either of them may start a mubarat; neither one needs to
give a cause or explanation in advance. The only requirement is that they both
have real divorce desires. In contrast to khula divorce, which ends a marriage by mutual consent in
which the wife gives something back to the husband, like the dower (mahr) or
part of her rights, mubarat divorce does not need any payment from either party
and becomes final as soon as both parties give their assent. A couple that files for divorce by
mubarat forfeits their inheritance rights, terminates their marital
responsibilities, and must wait a certain amount of time (iddat) before getting
remarried. The divorced spouses can only get married again after first
divorcing their previous partner since mubarat cannot be reversed. Although mubarat permits divorce by
mutual consent between two Muslims, only few Indian Muslims actually do
so, and many who do run into difficulties. They must contend with ignorance,
guilt, social [2]and
familial pressure, and legal challenges. Mubarat has various facets, including
social, religious, and legal ones. It is difficult and complex.
FASK- In Islam, a woman might request
a fask, which is a sort of divorce authorised by a religious figure like a
Qazi. Fask refers to the revocation, annulment, abolition, or cancellation of
the marriage contract. When the husband declines to offer talaq or when there
are good reasons to end the marriage—such as irregularity, option, forbidden
degrees, or conversion—the wife may request fask. Khula, a divorce by consent
in which the wife must make some sort of payment to the husband in exchange for
the husband's rights, such as returning the dower or giving up part of her
rights, is not the same as fask. Fask is also distinct from mubarat, which is a
mutually agreed-upon divorce in which neither party is compelled to pay the
other any money. When a
marriage is dissolved by Fask, the parties forfeit their inheritance share,
terminate their marital responsibilities, and must wait a certain amount of
time (iddat) before being married again. The divorced spouses can only remarry
if they first married and divorce someone else because Fask cannot be undone.
LIAN- In Islam, if a husband unjustly
accuses his wife of infidelity, the court may give lian, a sort of divorce. In
order to prove her innocence, the wife may swear an oath based on the Quran and
file a complaint for dissolution of marriage under the Muslim Dissolution of
Marriage Act, 1939. To substantiate his charge, the husband must also swear an
oath based on the Quran. If he doesn't, or if the court determines that his
allegations are untrue, lian will divorce the marriage. A couple that files for divorce via
lian forfeits their inheritance rights, ends their marital responsibilities,
and must wait a certain amount of time (iddat) before getting remarried. The
divorced spouses can only remarry if they first married and divorce someone
else because Lian cannot be undone. But in India, Muslim women who want to employ this method
find it uncommon and difficult. The obstacles they must go beyond are
ignorance, guilt, social and familial pressure, and legal difficulties. Lian is
therefore a multifaceted, challenging process with social, religious, and legal
aspects.
TALAQ- UL- SUNNAT- In Muslim law,
talaq-ul-Sunnat is a divorce procedure based on the Prophet Muhammad's customs.
Another name for it is Talaq-ul-Raje, which translates to "reversible
divorce." Before the divorce is finalised, it gives the couple the chance
to work things out and make concessions. Regarded as the recognised method of
divorce, talaq-ul-Sunnat is acknowledged by both Sunni and Shia Muslims.
Talaq-ul-Sunnat comes in two
varieties: Ahsan and Hasan.
Ahsan signifies the ideal or most appropriate
type of divorce. In this kind, when they haven't had any sex, during her time
of purity (Tuhr), the husband grants his wife a solitary talaq, or divorce.
Following that, the woman observes a three-menstrual cycle waiting period
(Iddat) or, if she is pregnant, until the kid is delivered. The husband has the
option to retract the talaq and carry on with the marriage throughout this
time. If he doesn't revoke it, the Iddat's revised version of the divorce
becomes official.
Hasan refers to a just or morally
acceptable divorce. This kind involves the husband giving his wife three talaqs
during three consecutive times of chastity, s[3]eparated
by no sexual activity. The third talaq, which finalises the divorce, is irreversible,
although the first and second are reversible. After every talaq, the woman is
required to follow Iddat.
TALAQ-UL-BIDDAT OR TRIPLE TALAQ- While
Talaq-ul-Biddat is an invention or departure from the Prophet's custom. Another
name for talaq-ul-biddat is triple talaq, or instant divorce. This kind entails
the husband saying three talaqs in a row or in a single statement, such "I
divorce you three times." This means that there is no chance of
reconciliation or Iddat, making the divorce final and unchangeable. Most Muslim
scholars view talaq-ul-biddat as an immoral and unacceptable type of divorce,
and many Muslim nations forbid or prohibit it. at the 1985 Shah Bano case, Talaq-ul-Biddat was
contested at India's Supreme Court. Shah Bano was a Muslim woman whose husband
used Talaq-ul-Biddat to obtain a divorce. In accordance with Section 125 of the
Code of Criminal Procedure, which is applicable to all citizens regardless of
religion, she filed a maintenance petition. In addition to granting her the
right to maintenance, the Supreme Court urged the government to create a civil
law that applies to all Indians. However, several Muslim organisations opposed this decision,
claiming that it went against their religious freedom and personal laws. This
caused controversy and resentment. Then, in 1986, the government introduced the
Muslim Women (Protection of Rights on Marriage) Act, nullifying the ruling of
the Supreme Court and depriving Muslim women of their Section 125 right to
maintenance. The Act further declared the validity and efficacy of
Talaq-ul-Biddat.
Triple talaq, or instantaneous
divorce under Muslim law, was contested in the historic Shayara Bano case
before the Indian Supreme Court. By speaking the word "talaq" three
times in one sitting, a Muslim man can divorce his wife under the doctrine of
triple talaq, leaving no room for negotiation or reconciliation. Shayara Bano,
a Muslim lady who was divorced by her husband in 2016 through triple talaq,
filed the complaint. In an attempt to bring polygamy, triple talaq, and
nikah-halala to an end, she petitioned the Supreme Court, arguing that they
violate the basic rights of women guaranteed by Articles 14, 15, 21, and 25 of
the Indian Constitution. On
August 22, 2017, the Supreme Court handed down a landmark decision after
hearing the case in 2017. The court decided that triple talaq violated both the
Indian Constitution and Islamic precepts and was arbitrary and unreasonable.
The court further declared that triple talaq infringed upon Muslim women's
fundamental rights, including nondiscrimination, equality, and dignity. By a vote of 3:2, the court ruled
that triple talaq was unlawful. Chief Justice Jagdish Singh Khehar and Justice
S. Abdul Nazeer were the minority judges, while Justices Rohinton Fali Nariman,
Uday Lalit, and Kurian Joseph made up the majority.
Following the ruling, the Muslim
Women (Protection of Rights on Marriage) Act was passed in 2019, making triple
talaq a crime with a maximum three-year prison sentence. In the event of a
divorce, the Act also granted Muslim women the ability to request child custody
and support. The
government stated that the Act was required to safeguard Muslim women's welfare
and dignity since they were frequently the targets of abrupt and arbitrary
divorces from their husbands. The government started a number of awareness initiatives to inform Muslim
women of the new legislation prohibiting instant triple talaq as well as their
rights. The government
established grievance centres all around the nation to help and support Muslim
women who are having marital problems. These centres were founded in compliance [4]with
the Muslim Women (Protection of Rights on Marriage) Act to assist couples
seeking a divorce through counselling and mediation.[5]
The Act was criticised, meanwhile, by
some who claimed that it interfered with Muslims' personal law and religious
freedom and would make matters worse for Muslim women, who would have to cope
with the legal fallout from their husbands' detention. A few others questioned
the necessity of enacting a new legislation specifically addressing triple
talaq in light of the fact that laws already addressed domestic abuse and
violence against women.
Despite the criticism, the Act was
hailed by many as a historic and progressive step towards ensuring gender
justice and equality for Muslim women in India. The Act was also seen as a
reflection of the constitutional values of secularism, democracy, and human
rights that India upholds as a nation. The Act also inspired other countries,
such as Pakistan and Bangladesh, to reconsider their laws on triple talaq and
to protect the rights of Muslim women. The Shayara Bano case and the Muslim
Women (Protection of Rights on Marriage) Act have thus marked a significant and
positive change in the legal and social status of Muslim women in India and
beyond.
MAINTANANCE UNDER MUSLIM LAW
Under Muslim law, the maintenance
scenario is a complicated and contentious subject that has been discussed and
contested in a number of courts and legislative bodies. The amount a husband
pays his wife and family to meet their basic needs—such as food, clothes,
shelter, education, and other necessities—is known as maintenance (nafaqa)
under Muslim law. During the marriage, the wife's claim to maintenance is unrestricted;
but, following a divorce, it is restricted. Only during the iddat period, which
occurs three menstrual cycles or three lunar months following the divorce, is
the husband required to support his wife. After that, without a prenuptial
agreement or a court ruling, the wife has no further right to maintenance from
her husband. This rule's justification is that the husband is solely
accountable for the wife while she is within his marital jurisdiction. The wife
is released from his control and he is no longer required to provide for her
after the marriage is dissolved. In addition to preventing confusion or
disputes over inheritance or remarriage, the purpose of the iddat period is to
determine the paternity of any kid that may be conceived during the marriage.
In order to show the wife kindness and respect throughout the iddat time and to
make up for her loss of marital status, the husband is obligated to provide
maintenance. This provision, however, is unfair and unjust to the divorced
lady, who can experience hardship and impoverishment following the end of the
iddat period. She might not have a source of income or personal belongings, nor
any friends or family who could be able or willing to help her. In addition,
she can experience prejudice and social shame as a divorced woman, and she
might have trouble finding a compatible companion for another marriage. In the
event that she has any children, she might also have to raise them alone,
without the husband's help. In contrast, the husband is free to enjoy his
riches and independence and can marry again as often as he pleases without
having to pay alimony to his previous spouse.
A person who has the resources to
provide a monthly allowance for the maintenance of their spouse, children, or
parents who are unable to sustain themselves may be ordered by a magistrate
under Section 125 of the Code of Criminal Procedure (CRPC). This section aims
to protect the dependents of such individuals from homelessness and poverty
while guaranteeing them a minimal quality of life. This part is applicable to
everyone, regardless of personal law or religion. In the historic Shah Bano v.
Mohammad Ahmed Khan case, the Supreme Court overturned this aspect of Muslim
law and ruled that a Muslim woman may continue to receive maintenance from her
husband under Section 125 of the Criminal Procedure Code, 1973, even after the
iddat period, until she remarries or passes away. The court also noted that the
modern ideas of social justice and gender equality are at odds with the Muslim
law of upkeep. The Muslim community, who perceived this ruling as meddling with
their right to personal law and religious freedom, was quite vocal in their
disagreement and condemnation of the ruling. Consequently, the Muslim Women
(Protection of Rights on Divorce) Act, 1986 was passed by the Parliament,
overturning the Shah Bano decision and limiting a Muslim woman's ability to
demand maintenance from her husband to the iddat period or until she obtains a
reasonable and equitable provision and maintenance from her spouse.
CONCLUSION & SUGGESTIONS
Muslim divorce is a complicated and
diverse phenomenon that differs depending on the setting, legal system, and
gender viewpoint. The forms, rights, and difficulties of divorce for Muslim men
and women in India have been the main topics of discussion in this paper's
analysis of the legal, social, and religious facets of Muslim divorce. The
paper has also covered the most recent advancements and modifications to Muslim
family law, including the elimination of triple talaq. According to the study,
Muslim divorce reflects larger concerns about social justice, human dignity,
and gender equality in Muslim societies as well as a subject of personal law.
This research has added to the
body of knowledge on Muslim divorce in a number of ways. First, it has given a
thorough and critical analysis of the roots and practices of Muslim divorce law
in India, both historically and currently, demonstrating the richness and
diversity of the Muslim legal system. Second, it has examined the effects and
implications of significant court rulings and legislative actions that have
influenced Muslim divorce law in India, particularly with regard to the welfare
and rights of Muslim women who have divorced. Thirdly, it has examined the
opportunities and difficulties Muslim men and women encounter during and after
divorce, as well as the sociocultural and religious elements that shape their
views and behaviours towards divorce.
The study does, however, also admit certain shortcomings and gaps in the
literature on Muslim divorce. For example, in order to represent the lived
experiences and viewpoints of Muslim divorcees, the paper has mostly relied on
secondary sources, such as books, articles, reports, and judgements, and has
not done any primary data gathering, such as surveys, interviews, or
observations. Furthermore, the study concentrated on the Indian setting rather
than contrasting and comparing Muslim divorce legislation and practice in other
nations, where various political regimes, legal frameworks, and cultural norms
may have an impact on the results and experiences of Muslim divorce. Furthermore, some new and
controversial issues surrounding Muslim divorce have not been covered in the
paper, including the function of mediation and arbitration, the legality and
enforceability of prenuptial and postnuptial agreements, and the acceptance and
control of novel forms of divorce like online and unilateral divorce by women.
As a result, the paper makes
several recommendations for future lines of inquiry into Muslim divorce. In
order to comprehend the realities and intricacies of Muslim divorce from the
perspectives of the divorcing couples as well as other stakeholders, including
attorneys, judges, social workers, and religious leaders, more empirical and
qualitative research is firstly required. Second, in order to determine the
best practices and models for safeguarding the rights and interests of Muslim
divorcees, more comparative and cross-cultural research is required. These
studies should look at the similarities and differences between Muslim divorce
law and practice in various nations, regions, and communities. Third, in order
to explore the potential and limitations of Islamic family law for promoting a
more progressive and humane vision of Muslim divorce, more critical and
interdisciplinary studies are required. These studies should also address the
new and emerging challenges and opportunities for Muslim divorce in the context
of globalisation, digitalization, and secularisation.
The topic of maintenance for Muslim
women who are divorced has also been covered in the paper, along with the
legislative rules and judicial interpretations that govern the quantity,
timing, and terms of maintenance. In order to give divorced Muslim women with
appropriate and equitable maintenance, the Muslim Women (Protection of Rights
on Marriage) Act of 2019 and section 125 of the Code of Criminal Procedure,
1973 have generated controversy and debate. These issues have been discussed in
this paper. The limitations and difficulties divorced Muslim women encounter
while requesting and receiving maintenance from their ex-husbands have also
been discussed in the paper, as well as the role played by the government and
civil society in enabling and upholding maintenance orders.
REFERENCES-
[1]Dinshah Fardunji Mulla, Principles
of Mahomedan Law (19th ed. 1990)
[2] Dinshah Fardunji Mulla, Principles
of Mahomedan Law (19th ed. 1990)
[3] Mohd. Ahmed Khan v. Shah Bano
Begum, (1985) 2 SCC 556
[4] Dinshah Fardunji Mulla, Principles
of Mahomedan Law (19th ed. 1990)
[5] Shayara Bano v. Union of India,
(2017) 9 SCC 1
[6] Kusum, Maintenance of a Divorced
Muslim Wife: A Critique of the Proposed Law, 22 Journal of the Indian Law Institute
408-413 (1980).
Article Information
UNRAVELING SHADOWS: THE DARK SIDE OF MUSLIM DIVORCE AND MAINTENANCE
Authors: CHANDAN KUMAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/23
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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