The Right of Muslim Women to Initiate Divorce

The right to institute divorce under Muslim law is not an old concept which is a combination of religion, justice and prevalent legal systems. Contrary to general expectations that Muslim women are incompetent to make decisions in marital matters, they in fact have clearly outlined legal rights in circumstances wherein a marriage may be terminated through Khula (mutually consented divorce) or Faskh-e-Nikah (judicial divorce). These rights are Islamic and under the statutes of India, which presents them with a legal framework for ending their marriages.

Understanding the legal rights provided to Muslim women is crucial when one desires to proceed with divorce. Seeking advice from a professional Muslim lawyer can help you know your rights.

Khula: A Quranic Remedy for Women

The concept of Khula finds its roots in the Quran, and it stipulates that a marriage can only be dissolved through mutual consent and with justice. In this process, a wife approaches the court seeking divorce and provides a certain type of consideration normally the Mahr to the husband.

Legal Basis in India

Marriage and divorce matters follow the Muslim Personal Law (Shariat) Application Act, 1937 as well. According to it, Khula is a lawful type of divorce which is started from the side of women. The Act is implemented in the family courts and sets out the rules of the standard of procedural fairness.

Steps Involved in Khula

Step 1: Submission of Application

The wife Writes a petition to the Islamic Council requesting for Khula with the reason for the same. This includes availing the contact information of the husband.

Step 2: Registration of Application

The application is registered, and all the important details regarding the application are noted down on the registers of the Council to ensure the right contact address of the husband.

Step 3: First Alert to Husband

First, the Islamic Council writes the first letter to the husband to inform him the wife wanted a divorce. The wife serves as a reference number and gets a copy of the document.

Step 4: Second Notice

If the husband does not reply within the given time (one month for the UK, two months for elsewhere) a second letter is written to him.

Step 5: Confirmation of the Husband’s Residence

If there is no reply to the second letter with a request to pay alimony, the wife is requested to confirm the husband’s address to avoid misunderstanding.

Step 6: Scholars to be held in different meetings

If the husband makes a response, couple’s sessions with each party together with a scholar are planned for consultation, and the scholar writes a report on the case.

Step 7: Joint Mediation Meeting

An ISC representative convenes a meeting for both parties so as to discuss the case. It enables demarcation and also offers a chance at reconciliation.

Step 8: Final Decision

If a husband agrees on divorce, he will fill a document and an Islamic divorce paper is prepared. In case there is such a refusal, the case goes to the Panel of Scholars for judicial dissolution (Faskh).

Sometimes the filing process is complicated and requires legal assistance to avoid unnecessary delay. A Muslim lawyer can help you get through this process smoothly and efficiently.

Legality of Faskh-e-Nikah

The Act outlines specific grounds for judicial annulment, including:

• The failure by the husband to provide maintenance for a period of two years.

• Cruelty or inhuman treatment.

• Impotency

• The imprisonment of the husband for a period of seven years or more.

• Incompetency in performing the roles expected of either or both of the parties to the marriage.
  
  

Steps for Judicial Annulment

Step 1: Filing the Application

The wife files a petition to the court under the Dissolution of Muslim Marriages Act and declares the grounds for Faskh.

Step 2: Submission of Evidence

The wife has to prove all the allegations she brings against her husband. For instance, Rukhsana who has been deserted by their husband with no support for three years may produce bank statements, witness statements or any other document.

Step 3: Notice to the Husband

The court writes a letter to the husband that he is to reply to the allegations levelled against him.

Step 4: Hearing and Examination

The court hears proceedings, reviews the evidence produced by the parties and the witnesses.

Step 5: Issuance of Decree

If the court is convinced with the wife’s allegations, the marriage is dissolved and the wife is separated from the husband.

This process requires legal assistance. To know your rights and accurate procedure, you should consult a Muslim lawyer.

Legal Status of Muslim Women in India 

India law recognizes and protects the rights of Muslim women who seek divorce by both the personal law and statutory law. Their intended purposes seek to protect equal remedies, financial, and justice for women.

The Dissolution of Muslim Marriages Act, 1939

This Act has a landmark given to protect the rights of Muslim women to seek judicial divorce from their husbands. It enables a woman to apply for rescission of marriage based on certain legal reasons which may not be recognized in traditional Islamic law.

For instance the wife can request for divorce under this Act where the husband has been gone for four years or longer. Likewise, slander or comparable conduct as well as battery or other violence, corporeal or mental, or desertion by the husband, are valid reasons for any dissolution. The Act is indeed a holistic legal solution as it fills voids that may exist between textbook and real-world justice.

In the recognised case of Rahmat Bee v. Abdul Rashid (1953) the court granted divorce to a woman who went to the court seeking for it on grounds of neglect and cruelty by her husband and supported her by asserting her rights under the Act.

Muslim Women (Protection of Rights on Divorce) Act, 1986

This legislation was meant to clear issues on divorced Muslim women’s rights especially on issues to do with maintenance. A divorced Muslim woman is entitled to:

• Adequate feed and shelter during the iddat period which is the period of waiting observed after breaking the marriage contract.

• Provision of money from her husband so that she is provided for well.

• Claims to her dowry or mehr.

The Act came into force in India after the Shah Bano case of 1985 which ruled the Constitutional Bench of the Supreme Court that divorced Muslim women can claim maintenance under Section 125 of CrPC. But the latter legislation tried to maintain the rights of the community in religious rights and in the rights of justice.

For instance, assuming Salma avails Faskh-e-Nikah to get rid of her husband and failed to get purported maintenance by her former husband then she can seek her legal rights under this Act. The courts may come in and enforce the above stated rights.

Family Courts Act, 1984

Family Courts were in place for better and smooth dealing of family issues including divorce petitions than a trials court or a district court. These courts are intended to try cases and grant redress expeditiously.

For instance, if Zainab seeks dissolution of marriage under the Dissolution of Muslim Marriages Act, she may assuage to the family court, which basically deals with such derived matters as being a civil court. These courts often support a sample of mediation, which decreases the psychological pressure on all the parties engaged into the conflict.

The Protection of Women from Domestic Violence Act, 2005

While this Act is not exclusive to the Muslim woman, it provides added protection for all women who have been victims of domestic abuse. A Muslim woman who wants a divorce because of cruelty can report herself under this Act to be granted protection orders and/or residence orders and or-money payment orders.

For instance, when Nafisa is being harassed by her husband during the process of seeking a divorce, she can seek an order for protection from the court while claiming for interim maintenance for her and the children.

Provisions Under Bhartiya Nagrika Suraksha Sanhita, 2023

According to the previous Section 125 of the Criminal Procedure Code, all women, irrespective of religion, can claim maintenance if their husbands neglect or refuse to maintain them. This Section was, at first sight, inconsistent with personal law, but the courts have since explained that it is a secular provision to provide relief against beggary. This provision is now provided under the Bharatiya Nyay Suraksha Sanhita, 2023. This Act replaced the older Criminal Procedure Code, but the maintenance provision under Section 125 is now available under Section 144 of the Bharatiya Nyay Suraksha Sanhita, 2023.

For instance, in the Daniel Latifi vs. Union of India (2001), the Hon’ble Supreme Court of India has ruled that the maintenance provided under the Muslim Women (Protection of Rights on Divorce) Act must be read with Section 125 of the CrPC, fair and reasonable.

Triple Talaq and The Muslim Women (Protection of Rights on Marriage) Act, 2019

The repeal of Triple Talaq (divorce) was a revolutionary move for Muslim women in India. Quashed by the Supreme Court in the case of Shayara Bano vs. Union of India (2017), it was then made a criminal offence by passing the Muslim Women (Protection of Rights on Marriage) Act, 2019. The Triple Talaq Act does not allow the declaration of Triple Talaq and safeguards women against unfair and unbiased divorce.

For instance, Amina a woman was divorced through Triple Talaq then she can complain under this Act which results in Penal provisions for the husband that he can be imprisoned. This enhances her position given that enhanced process to be followed in dissolution of marriage is followed.

Civil Legal Aid and Support Systems

Muslim women seeking divorce can access legal aid through:

• State Commissions for Women that involve offering consultation as well as legal assistance.

• Judicial Social Institutions, which specifies the provision of Legal aid to women from the financially weaker sector.

• Non-governmental organisations and advocacy organisations which raise awareness among women, and help them deal with the legal system.

For instance, if a woman living in a rural area has some legal problems, then groups such as the All India Muslim Women’s Personal Law Board come in to help.

Conclusion

Due to personal law along with statutory protection, the minority women in India have stronger instruments to claim their rights. These protections are modern concepts that dispute the rights of justice as well as equality but also have deep religious roots. By offering knowledge on these laws and ensuring women get access to such laws society can help to create balance on marital relationships.

Is it permissible for a woman to divorce her husband against his wishes?

She can file for Khula (divorce by mutual consent) or Faskh (judicial divorce) without his permission but that will be through legal or Islamic channels.

What are the opportunities for Muslim women after being divorced?

She has rights for mehr, maintenance during the iddat period and even financial maintenance under laws such as BNSS or Muslim Women (Protection of Rights on Marriage) Act, 2019.

Is Triple Talaq is legal in India?

No, Triple Talaq is invalid and criminal under the provisions of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Is it legal for a Muslim woman to ask for divorce because of the issue of Domestic Violence?

Yes, she can get a divorce under Islamic law or according to the Dissolution of Muslim Marriage Act and she can approach the women's protection law under the Domestic Violence Act.

In what ways do Family Courts help Muslim women in divorce cases?

Family Courts facilitate the swift efficient and compassionate hearing and determination of cases that can involve mediation or furnish legal representation.