What are types of Divorce under Muslim Law?

Modes of Talak (Divorce)

Divorce in Muslim law is referred to as Talak, and there are several modes through which a divorce can be pronounced, depending on the sect and circumstances. The two main sects, Sunnis and Shias, recognize different forms of divorce. Sunnis recognize various forms of talak, including express, implied, contingent, constructive, and delegated forms, while Shias primarily acknowledge express and delegated divorces.

1. Express Divorce

When clear and unequivocal words are used to pronounce divorce, it is considered express. This form of talak can either be talak-ul-sunnat (approved and revocable) or talak-ul-biddat (unapproved and irrevocable).

a) Talak-ul-Sunnat

Sanctioned by sunnat (traditions of the Prophet), this is also called Talak-ul-Raje. It has two variations: ahsan (most approved) and hasan (approved).

• Ahsan Talak: A single pronouncement of divorce (e.g., "I divorce you") is made during a tuhr (a period between menstruations when cohabitation is possible), followed by abstinence from sexual relations during the iddat (waiting period of approximately 90 days). If the wife is past the age of menstruation, the couple has been separated for a long time, or the marriage was not consummated, the waiting period does not apply. The advantage of ahsan talak is that it allows for revocation before the completion of the iddat, thus offering time for reconciliation. Revocation can occur either through resumption of marital relations or by saying, "I have retained thee." If no revocation is made, the divorce becomes irrevocable after the iddat period ends.
• Hasan Talak: This involves three pronouncements of divorce made during successive tuhrs, without sexual relations during any of these periods. If no revocation occurs after the first or second pronouncement, the third pronouncement renders the divorce irrevocable, regardless of the iddat.

b) Talak-ul-Biddat

This form of talak, although legally valid, is considered sinful or irregular, as it immediately dissolves the marriage without any opportunity for reconciliation. It was never approved by the Prophet.

• Triple Talak: This involves three pronouncements made in one tuhr either in a single sentence ("I divorce thee thrice") or in three separate sentences ("I divorce thee, I divorce thee, I divorce thee"). The divorce becomes irrevocable immediately, without the need to observe the iddat period, making it a talak-i-bain (irrevocable divorce). This form is criticized for its irreversibility and is seen as "good in law but bad in theology." Despite this, it remains a common form of divorce in India. The Supreme Court, in Shayara Bano v. Union of India[1], in a majority judgment rendered on 22nd August, 2017, set aside the practice of divorce by pronouncing instant Triple Talaq as violative of Article 14 of the Indian Constitution[2].
• Single Irrevocable Declaration: This involves a single pronouncement during a tuhr that clearly indicates the intention to irrevocably dissolve the marriage (e.g., "I divorce thee irrevocably" or "I had divorced thee in talak-ul-biddat"). The word "bain" (irrevocable) confirms the finality of the divorce.

2. Implied and Contingent Divorce

In cases where the words used are unclear, divorce can still be implied if the intent to divorce is established. For example, phrases like "I give up all relations with you" or "I have released thee from being my wife" may constitute implied divorce if the husband's intention is proven. If a husband pronounces divorce contingent on the occurrence of a future event (e.g., "If I fail to pay maintenance within a specified time, it will result in talak"), it is called contingent talak.

For instance, in Hamad Ali v. Imtiazan[3], when a wife insisted on going to her father's house against her husband's wishes, and he responded, "Thou art my cousin, my paternal uncle's daughter, if thou Foest," the wife’s action of leaving constituted the contingent event, resulting in an implied divorce. Shia law, however, does not recognize contingent divorce.

3. Delegated Divorce (Talak-i-Tafweez)

Although the power to pronounce divorce primarily rests with the husband, he may delegate this power to the wife or a third party, either conditionally or unconditionally, for a specific period or permanently. The person with the delegated authority can then pronounce the divorce on behalf of the husband. A permanent delegation can be revoked, but a temporary delegation cannot. Notably, even after delegating his power, the husband is not barred from pronouncing talak himself.

For example, if a husband says, "Choose thyself" or "Choose a repudiation," and the wife responds with, "I choose" or "I have chosen talak," it would be sufficient for the divorce to take effect. However, if the husband only says "Choose" and the wife replies "I have chosen," it would not be enough to constitute talak.

Talak by tafweez, while seemingly a divorce initiated by the wife, is considered a divorce by the husband in law, as the authority exercised by the wife is delegated from the husband. Delegated divorce is a powerful tool for Muslim wives, allowing them to obtain freedom without court intervention. It is becoming increasingly common in India.

Delegation of the power to divorce can be made either before or after the marriage, and once delegated, it cannot be revoked by the husband. In Md Khan v. Shahmai[4], a husband had delegated the right of divorce to his wife under a pre-marriage arrangement. When he left the house without fulfilling his financial obligations, the wife exercised her right to divorce herself, and the court upheld the validity of the divorce.

Delegated divorce can also be contingent upon certain events, such as the husband failing to pay maintenance or taking a second wife. However, the wife must actively choose to exercise this right. Simply meeting the condition does not automatically dissolve the marriage, she has the option to divorce but cannot be compelled to do so.

For instance, in Hamidoolla v. Faizunnissa[5] and Moharam Ali v. Ayesha[6], it was held that post-marriage agreements allowing a wife the right to divorce herself under specific conditions, such as non-payment of maintenance or the husband taking a second wife, are valid and reasonable. Similarly, if a wife is granted the right to divorce herself under certain conditions (e.g., breach of conduct or mistreatment), she may choose to exercise that right, but she is not obligated to do so.

4. Constructive Divorce

• Ila (Vow of Continence) – In some instances, the conduct of the husband can result in repudiation, even if he does not directly use the term "talak" or any equivalent expression with the intent to dissolve the marriage. For example, if a husband vows to abstain from relations with his wife and acts accordingly by refraining from her company, including sexual relations, for four months, this is known as "Ila." An example of this would be if the husband says, "I swear by God that I shall not approach thee," which constitutes a valid Ila under Hanafi law. The legal effect of this conduct, according to Hanafi (Sunni) interpretation, is a single irrevocable divorce (talak). However, the husband may retract his vow by resuming relations with his wife within the four-month period. On the other hand, Shafei and Shia interpretations hold that Ila does not lead directly to a divorce but instead grants the wife the right to seek judicial divorce or restitution of conjugal rights. The custom of Ila is largely obsolete today.
• Zihar (Unlawful Comparison/ Injurious Assimilation) – Zihar is a form of incomplete or inchoate divorce, where the husband compares his wife to a woman within a prohibited degree of relationship, such as his mother or sister, as a means of expressing dissatisfaction. This comparison, for example, might be framed as, "From today, you are like my mother." Under such circumstances, the wife gains the right to refuse cohabitation with her husband until he performs a prescribed penance. If the husband refuses to perform the penance within four months, the wife acquires the right to seek judicial divorce or restitution of conjugal rights. Though Zihar is recognized under the Shariat Act of 1937, it is an uncommon practice in India.
• Lian or Laan (Implication/ Prayer for Evil) – In cases where a husband falsely accuses his wife of adultery, the wife is entitled to sue for dissolution of marriage. If the accusation is proven false, she can obtain a decree of divorce. If, however, the accusation is proven true, no such decree will be granted. The mere accusation of adultery does not automatically dissolve the marriage, but it provides the wife with the right to initiate divorce proceedings. Importantly, the marriage is not dissolved if the husband retracts the charge before the conclusion of evidence. The judicial separation due to Lian is irrevocable, but the wife must file a regular suit to dissolve the marriage.

5. Divorce at Wife's Instance (Khula)

The term khula means "to put off" and refers to a divorce initiated by the wife in exchange for consideration (typically financial) to release herself from the marriage. In a khula divorce, the wife proposes to the husband to relinquish his marital rights in return for an agreed-upon compensation, which may include relinquishment of her dower or other benefits. Once the husband accepts the proposal, the marriage is dissolved irrevocably (talak-i-bain). Under Sunni law, the dissolution occurs immediately upon acceptance of the proposal, even if the payment of consideration is delayed. Failure by the wife to pay the consideration does not invalidate the divorce, but the husband may sue for its recovery.

It is worth noting that while the wife can retract her proposal for khula before the husband accepts it, once accepted by the husband, he cannot revoke the divorce. Under Shia law, however, the wife has the right to reclaim the consideration during the waiting period (iddat), which allows the husband to revoke the divorce.

Khula is often described as a 'divorce by mutual consent,' though some legal scholars suggest that it is fundamentally a divorce initiated by the husband since his acceptance of the wife's proposal is necessary. The Pakistan Supreme Court in Khurshid Bibi v Mohd Amin[7] has ruled that a wife has the right to khula if she can prove that remaining in the marriage would force her into an intolerable union.

For khula to be valid, both the husband and wife must be of sound mind and of legal age (puberty). The offer and acceptance must be made freely, without coercion. While under Sunni law, the presence of witnesses is not required, Shia law mandates that the offer and acceptance occur in the presence of two competent witnesses. Furthermore, under Shia law, a wife may revoke a khula during the iddat.

6. Divorce by Mutual Consent (Mubara'at)

The concept of mubara'at involves both the husband and wife mutually agreeing to dissolve the marriage, typically due to mutual dissatisfaction. Unlike khula, where the desire to separate originates primarily from the wife, mubara'at involves mutual aversion and agreement for separation. Either spouse can propose the dissolution, and once the offer is accepted by the other party, the marriage is irrevocably dissolved (talak-i-bain), similar to khula.

Under mubara'at, the wife is often required to give up her dower, though this is not obligatory. Since both parties equally seek separation, there is no requirement for either to compensate the other. Like other forms of divorce under Islamic law, the wife must observe the waiting period (iddat) following the divorce, and all mutual rights and obligations between the spouses cease, except for the husband's duty to maintain the wife during the iddat and his children by her. The Shariat Act of 1937 recognizes both khula and mubara'at.

7. Judicial Divorce Under Muslim Law

Modern Muslim law grants husbands unilateral power over divorce but limits the wife’s right to divorce. The Dissolution of Muslim Marriages Act, 1939 was introduced to clarify and consolidate a woman's right to seek judicial divorce on specific grounds.

Grounds for Divorce Under the 1939 Act[8]

1. Absence of Husband for four years.
2. Failure to Provide Maintenance for two years.
3. Imprisonment of the husband for seven or more years.
4. Failure to Perform Marital Obligations for three years.
5. Impotence of the husband at the time of marriage.
6. Insanity, Leprosy, or Venereal Disease of the husband.
7. Repudiation of Marriage (Option of Puberty) by a wife married before 15.
8. Cruelty, including physical/mental abuse, immoral acts, or deprivation of rights.
9. Other Valid Grounds like Ila, Zihar, Khula, and Mubara'at.

This Act empowers women to seek divorce on various legal grounds, balancing Islamic principles with social justice.

[1] AIR 2017 SC 4609.

[2] Article 14 of the Indian Constitution.

[3] (1880) ILR 2 ALL 71.

[4] AIR 1972 J & K 8.

[5] (1882) ILR 8 CAL 327.

[6] AIR 1916 CALCUTTA 761.

[7] PLD 1967 SC 121.

[8] The Dissolution of Muslim Marriages Act, 1939, s. 2.