This article is written by “Khushi Rastogi“ and further updated by “Advocate Devshree Dangi.” This article is dedicated to exploring different forms of marriage that exist within Islam and also the annular understanding of marriage. Additionally, it elaborates more on the legal redress that Muslim women can access to annul their marriage, besides highlighting some landmark Supreme Court decisions. This article analyses various landmark judgements in great detail with a view to understanding the Court’s commitment to Muslim women’s rights.
Table of Contents
Marriage under Islam is a matrimonial relation and an institution that legalises the sexual activities between a male and female for the object of procreation of kids, promotion of love, mutual support, and creation of families, which are considered essential units in a society. Just like Hinduism, Islam is also a strong advocate of marriage. However, the Muslim conception of marriage differs from the Hindu conception, according to which marriage is not a mere civil contract but a sacrament. According to many philosophers, marriage in Islam is a religious duty. Everyone must marry in order to fulfil one’s desire for the legal procreation of kids.
Muslim law has been derived from various codified and uncodified sources, like the Quran, Ijma, Qiyas, customs, Urf, precedents, equity, and various legislation. There are four major Sunni schools of thought: Hanifa, Hambali, Maliki, and Shafi. These four schools recognise each other’s validity, and they have interacted in legal debate over the centuries. In India, the Hanifa school of Islamic law is dominant.
Marriages among Muslims, for instance, are not just wedding ceremonies but formal contracts known as Nikah, where the details of the marriage and other aspects are well negotiated and said in the presence of an Imam. These contracts consist of an offer and acceptance commonly referred to as Ijab and Qabul by either the spouses or their guardians willingly. Mahr is a sum of money that the groom has to pay to the bride, helping to express respect and hope on the groom’s side. Even though the Nikah may be conducted in secret, witnesses are mandatory, usually two males who are Muslims. Marriages that are recognized in Islamic law include other types other than the known “Sahih” (valid) marriage. Although many will disagree with the policy, polygamy permits a man to have up to four wives, but only on the condition that he can provide for all of them. Additionally, Muta or temporary marriage, is legal only among some Shia sects, while Sunnis do not admit it. Lastly, divorce in Islamic marriages is permitted, but it is preferred to seek a solution in order to save the marriage.
Marriage under Muslim law cannot be seen as alien to the culture within which it is practised, as it has developed and matured over several centuries. It is important to note that the problems associated with Muslim marriages are not a peculiar notion. They are based on traditions that have been followed for centuries to the present day, where particular emphasis is placed on the fact that marriage is one of the most sacred unions in humane society, along with any religious affiliations that a person may have.
In pre-Islamic Arab society, women’s rights were highly suppressed in the socio-legal context, particularly to suit male dominated or patriarchal systems. Child marriage was also prevalent, and it was open to contract marriage with any woman without any restrictions. Moreover, marriages were allowed with some of the relatives but not with close relatives, that is, with the mother, sister, or any close family member. Intermarriages with other relatives were also permissible to some extent, but not with everyone.
Divorce was quite simple and seemed like a masculine affair, and men had the exclusive privilege to end a marriage without the consent of the woman. While men enjoyed their limited rights and owned property, and some passed over inheritance, women did not have any rights at all and were considered to be the property of their male kinsmen.
The change in the status and rights of women occurred with the emergence of Islam and with the help of the Islamic prophet, the Prophet Muhammad. Islam treats women with honour and esteem, is de jure equal with men in many civil law matters, and is more or less equal in legal rights and roles. In Sharia, marriage, or ‘Nikah‘, is equivalent to a civil contract that acknowledges the personality and identity of women even in their married lives. The objective of this contract is to eliminate forceful consent, legally address procreation, and offer stability and honour in the union of matrimony.
The term ‘Nikah’ literally translates to the marriage of the sexes and has the connotation of a civil contract that shall seek to legitimise the relationship and maintain order in society. In addition to empowering women, it becomes the husband’s duty to respect his wife with a ‘Mahr’ (dower), a symbolic and mandatory payment proving due respect to the woman.
The injunctions found in Islamic law regarding the encouragement of marriage can be startling when compared with other religions that allow, and sometimes encourage, their clergy not to marry, like the Roman Catholic Church. Marriage is one of the most significant pillars of Islam, and it is considered the utmost necessity for producing a harmonious society and seeking happiness in personal life, while celibacy is not approved by any Islamic law. The change that Islam introduced further acknowledged marriage as one of the main pillars of society’s structure and also upheld the fact of women’s equality and dignity in this context.
Marriage, referred to as Nikah in the Islamic context, is a recognised civil as well as religious ceremony in Islamic religion. One must address these biological necessities, like sexual activity and forming stable relationships, as these processes are considered essential for the functioning of societies. Thus, Islam is one of the religions that encourages everyone, including religious leaders, to get married. Regarding its beliefs, it posits that marriage is necessary to fulfil social roles and reduce the erosion of values. Consequently, religious leaders are also expected to get married due to the understanding that even for the clergy, it is good to marry and embrace it as a necessity in the provision of the needs of society and in the technicalities of reducing moral decay. Similar to any contractual relationship, mutual consent is also critical in Muslim marriages. It helps that both the bride and the groom must consent to the marriage willingly without any pressure exerted on them. This makes sure that the marriage in which the two individuals are entering is one of mutual respect, and that enhances respect for marriage structure. Equally important are the witnesses. They act as evidence of the ceremony that protects the rights of the couple, especially the wife. The witnesses prevent the fabrication of evidence and uphold the law and sanctity of a marriage contract. It is crucial for an Islamic marriage contract to be entered into with the free consent of the parties involved after legal capacity emancipation and with witnesses, resulting in a legal, fair, and moral contract. It is important for the parties to a marriage to satisfy each other’s needs emotionally and sexually, but within the frameworks of the given relationship, not act based on mere instinct. Another factor is the dissolution of the above-mentioned union because it is only through marriage that the children are given legal entities for their proper growth within a good framework of a family.
The legal capacity of the parties is crucial when they enter into a marriage without violating the degree of a prohibited relationship. Though Sunni and Shia laws are segregated, Shia law allows Muta, which is recognised temporarily. Sunni as well as Shia law both strive to promote legal and moral marriages, which need constant work to keep up with the ideal standard.
Marriage in Islamic law has implied or mutual covenants and responsibilities where the husband will provide for the necessaries of his wife and children, whereas the wife is to receive Mahr, or dower. This is also seen in areas such as inheritance and other family responsibilities within society. Based on the above-discussed principles, it will be plausible to state that Islamic marriage aims at fostering a deep bond and affection between the couple and should also be viewed as a means of effective social integration and ethical governance.
Preliminary considerations regarding the important fundamental components or elements of a valid Muslim marriage are:
A valid marriage in Islam is referred to as Nikah, and there are certain important conditions that must be met to provide legal recognition of such marriages. These conditions protect the responsibilities and privileges of both partners within the marriage.
According to Sharia, the marriage process among Muslims begins with the proposal (Ijab) and acceptance (Qubul). An offer can be made by one party, and acceptance by the other has to follow the offer in a single meeting. It is important to note that if a proposal is made in one meeting, followed by its acceptance in another meeting, the given proposal is invalid.
For a marriage to be valid, both parties must meet certain competency criteria:
However, in Khaledur Rahman vs. State of Kerala (2023), it was held that marriages solemnised amongst Muslims under personal law are not excluded from the operation of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). If one of the parties is a minor (below the age of eighteen), that is, he or she is a juvenile, irrespective of whether the marriage is legally valid or not, then the enforcement of the POCSO Act will prevail.
The consent has to be mutual and free and not obtained either by force, fraud, or mistake. Whenever a marriage is contracted under force, coercion, or fraud, the marriage is said to be void.
The dower is also known as the bride price in the sense that it is the gift given by the groom to the bride, which is compulsory and her source of financial security. It should be agreed on before their marriage and is required before they start living together. In this way, the bride or her guardians could take possession of the dower, especially if she is a minor.
Certain legal disabilities can invalidate a marriage under Islamic law, categorised into absolute and relative prohibitions:
Finally, formally, it is not obligatory to register a marriage, but it has legal standing as a document. The need for registration of all marriages has been supported by the Supreme Court of India for proper documentation and protection of rights.
Marriage in Islam is one of the fundamental tenets of the Islamic way of life and has received much attention in Islamic jurisprudential reflections. As obscure as its nature, scholars have sought to divide it into a civil agreement in the civil law framework and a sacramental rite in the Indian law framework.
Marriage among Muslims is a sacred social practice in line with the values upheld within their faith, and it bears a syncretic character, both being a contract and a sacral act. In its inception, Muslim marriage was primarily a civil affair, with consent and capacity being regarded as free, voluntary, and reciprocal, as in the case of any contract. This is observed in issues such as (Ijab) proposal and (Qubul) acceptance, the capacity of the parties involved, and the prenuptial and postnuptial contracts. Prenuptial agreements are contracts prepared and signed before marriage that determine how property and liabilities will be split in the event of a divorce. They also have the ability to handle issues of inheritance and maintenance. A postnuptial agreement, described as one written and signed after marriage, is similar in purpose but allows for more changes based on income or anything since the exchange of ‘I do’. Both, however, are legally binding, but their enforcement depends on the jurisdiction where they are filed.
They help to confirm the free consent in entering the marriage and may be adjusted in accordance with certain circumstances, which is considered to be one of the important characteristics of Islamic law.
But unlike the conventional Western model of marriage, which is based purely on contractualism, Muslim marriage has much more religious and spiritual connotations. The usual rituals that are considered during marriage that are held among certain Muslims involve reciting some passages from the Quran during the rites of marriage, such as Ijab-e-Qubool (saying ‘Qubool’ three times, meaning ‘I accept’ in the presence of the Imam (Islamic leader)) and Dua (a prayer by the Imam for the happy and successful married life of the couple) that symbolised the sanctity of the union. Another rationale provided here accentuates the spiritual aspect, where a marriage is not only viewed as a legal union, but it also means comfort for two individuals.
Therefore, on the one hand, there is the legal aspect of the marriage, which offers the legal specifications and guarantees embodied in the contract, while on the other hand, there are sacramental aspects that enable the marriage to foster a spiritual sort of binding. Muslim marriage is not only the civil contract but also the sacred oath that protects society at large as well as brings success in individual life, making it a complete institute full of the wisdom of Islamic laws.
A Sahih marriage, referring to a marriage according to Islamic law, is an acceptable marriage as per the guidelines set by Islamic law regarding marriage customs and forms. The word “sahih” can be interpreted as “correct” or “valid” in Urdu, while “Nikah” stands for marriage. In order for that marriage to be classified as sahih, there are some basic requirements that must be met. First of all, it should be a voluntary act of two individuals, that is, a man and a woman, based on the contract, where offer and acceptance play a crucial role, and should take place in the presence of witnesses. Also, the man is to bring a marital gift to the woman, which is known as mehr, through which the woman will be secured and acknowledged as the man’s wife. All these elements ensure that the marriage is not void or invalid but remains legal according to Islamic law to fulfil the necessities of legitimacy. Hence, a sahih marriage is one in which all the conditions are strictly followed in order to establish the marriage as lawful according to sharia law. When all the legal requirements are fulfilled and there are no prohibitions affecting the parties, then the marriage is correct, or ‘sahih’. The prohibitions can be permanent as well as temporary; in the case of permanent prohibitions, the marriage will be void, and if the prohibitions are temporary, then the marriage is irregular.
A marriage that is void ab initio creates no rights or obligations, and the children born out of such marriages are illegitimate. A marriage forbidden by the rules of blood relationship, affinity, or fosterage is void. Similarly, a marriage with the wife of another or a divorced wife during the Iddah period is also void.
A Batil marriage, or void marriage, refers to a marriage that, from its inception, did not possess the legal formalities that make a marriage valid and is without legal recognition. There are numerous situations in civil legislation that can bring a marriage into non-existence. These include consanguineous marriages, which are marriages between close relatives such as siblings, parents and children, uncles and nieces, and aunt and nephew marriages because of the genetic and social relationship between the couples. Marriages unlawful through affinity are those relational through marriage that separate or avoid because of their violation of social taboos, like marrying a stepchild or the siblings of a spouse. Although under Islamic law a man could not marry her natural mother or sister, there are three other types of forbidden relationships under Sunni laws, one of them being marriage with a foster mother or foster sister with reference to the relationship created by the act of breastfeeding. Also, marriage is declared void under Sharia law if a woman is involved in going through Iddah, which is the waiting period after the dissolution of marriage. It is impossible to marry a person who is already married to someone else, as it would lead to bigamy and would not allow any alterations to the first marriage contract.
Due to a lack of formality or the existence of an impediment that can be rectified, a marriage becomes irregular. However, this irregularity is not permanent in nature and can be removed. Thus, the marriage itself is not unlawful. It can be made valid once the prohibitions are rectified. Marriage in such circumstances or with the following prohibitions is called ‘Fasid’.
Muta, literally meaning ‘enjoyment,’ is a practice of marriage in which the couple is wed for a limited duration only. This type of marriage was common in the past in Arabia and is not accepted by several laws practised in India or by the Hanafi, Maliki, Shafi, Jafari, and Hanbali schools of the subjects of Muslim law except for the Itha Asar Shia School. But the practice and institution of muta marriage are no longer practised or supported in India to a large extent.
The notion of Muta marriage can be evidently seen in our country. In India, temporary marriage is not recognized, although there are a few who contract Muta marriage, but such marriages are not enforceable in court. In a Hyderabad case, it was held that there is no difference between a muta for an unspecified period and a muta for life; a permanent nikah marriage for life can be contracted by the use of the word muta, and the specification of the period for which a muta marriage is contracted alone makes a marriage a temporary marriage for the period specified.
The practice of temporary “Muta” marriage is widespread in modern times and often arranged by Imams and other Islamic leaders in Europe, America (including the Shia parts of Dearborn, Michigan), and the Middle East. It is commonly the destitute widows and orphaned girls that are within the clutches of temporary marriage who are often sold to old men. For the women, there is no desire or pleasure that drives them into such misery; it is the extreme means to pay the rent and feed themselves and their children. As a result, this arrangement has received widespread criticism from various countries as it implies the legalisation of prostitution.
Registration of marriage among Muslims is compulsory and mandatory, as a Muslim marriage is treated as a civil contract. According to Section 3 of the Muslim Marriages Registration Act 1981, “Every marriage contracted between Muslims after the commencement of this Act shall be registered, as hereinafter provided, within thirty days from the conclusion of the Nikah Ceremony.” A nikahnama is a type of legal document in Muslim marriages that contains the essential conditions and details of the marriage.
According to this Act, a Nikahnama contains:
For many years, the law provided that where a Muslim marriage has been contracted, the man has a greater right to divorce than the wife. He can even start the process of divorce and simply declare words that indicate that he wants to divorce her (Talaq). Other ways, like Ila and Zihar, serve the same purpose with additional but less formal procedures.
On the contrary, wives throughout history had almost no choices at their disposal, though the example above also clearly proves this point. They could only seek a divorce if the husband permitted it (through delegation) or if both parties agreed to separate by observing the Islamic legal procedure of Khula or Mubarat. Before 1939, there were not many ways to have a legal separation; the wife could not prove, in court, that her husband’s adultery was false, or the husband was deemed mentally incapacitated or impotent, thereby unable to procreate.
Fortunately, however, the country saw the enactment of a statute that enhanced women’s rights through the Dissolution of Muslim Marriage Act of 1939. Today, an Islamic wife can file for khula with reference to several additional grounds that were previously prohibited here.
There are two categories of divorce under Muslim law:
The extra-judicial mode of divorce can further be divided into 3 subdivisions:
There are two main legal frameworks that govern divorce in Muslim marriages in India:
Talaq (tah-lak) in Islamic law means divorce or the process of dissolution of marriage by the decision of the husband. Thus, it remains a unilateral decision, and the wife does not have to agree for the divorce to take place. This is where it presented the condition that Muslim women had little control over their decision-making in cases of divorce.
One of the issues concerning the dissolution of marriage was caused by triple talaq, when three words of talaq were pronounced at the same sitting and immediately became effective in dissolving the marriage. The practice of obtaining a divorce through this method was received relatively negatively due to various pressing issues, such as possible misuse and the absence of procedural fairness.
Nevertheless, the legal context changed in 2017. A commendable judgement of the Supreme Court declared instant triple talaq unconstitutional; therefore, those divorced through this method have no lawful divorce. It was a goal for the purpose of reducing the issues of gender inequality and the lack of protection for women within Muslim marriages.
This is regarded as the most preferable form, performed while on the woman’s menstrual purity (tuhr) with the intention of continuing to live together within the period of Iddah. They can revoke it during this period of suspension.
This form of divorce is regarded as the most considered. A single pronouncement of divorce is made during the period of tuhr (the period of purity between two menstrual cycles), followed by abstinence from sexual intercourse during the period of iddah. Here, the husband does not have sexual relations with his wife but permits her to complete the period of iddat. This stage of the procedure is temporary and requires both parties to abstain from each other; however, they are allowed to inherit from each other. Here, the divorce can be revoked at any time before the completion of Iddah, thus preventing hasty and unreasonable divorces.
Hedaya also supports this type of divorce since it is the best that is recommended and approved since it was approved by the companions of the Prophet. The husband also has a right to rescind the divorce during the time of the iddat, which ranges from three months to the delivery of the child if the wife is pregnant. This school of thought explains that in the case of Ahsan talaq, divorce can be granted even if it is during the wife’s menstrual period, provided the marriage has not been consummated.
The condition of Tuhr does not relate to the situation when the husband and wife live separately, the wife has reached menopausal age, or in cases of written talaq. This form of talaq can only be done through the act of intimacy during the iddat period or by expressing words. In this case, if the iddat period has elapsed and it has not been reverted, then the talaq is considered to be complete and the man can no longer revert it back.
In the Hasan method of talaq, a man says talaq three times in continuation during the period of Tuhr, or the period of purity, when the wife is not menstruating. The first and second utterances are rescissible, while the third one confirms the divorce and makes it non-rescissible. This is because, as already mentioned, each pronouncement within this method takes place during the Tuhr with no contact between the couple at all. To put the matter simply, the husband utters talaq during Tuhr, withdraws it orally or by sexual intercourse, and does this during the subsequent Tuhr as well. Otherwise, if he pronounces talaq for the third time during the Tuhr, it is irrevocable. If the wife does not have menstruation, then a period of 30 days should elapse before the next mention. This method was introduced in order to give protection to the women by not allowing the husbands to keep on divorcing and taking back their wives time and again without any penalty for their continuous and indefinite ill-treatment of wives. The matter of divorce was limited to three attempts as an effort to control those who would like to misuse it. It is important that pronouncements are made when no intercourse takes place during any period of Tuhr. The marriage is dissolved irrevocably, regardless of the period of Iddah.
It is a form of Islamic divorce that is instant in nature. It allows any Muslim man to legally divorce his wife by stating the word “Talaq” three times in oral, written, or, more recently, electronic form. This is prevalent among the Muslims in India, especially among the adherents of the Hanafi school of Islam. This is also known as “Triple Talaq” and has been a subject of debate and controversy.
This practice is in contrast with talaq-us-sunnat, where the process is more gradual and does not permit non-reversible repudiation. Talaq-ul-Biddat does not have any relation to days of Tuhr or non-intercourse, and therefore it is a less desirable method of divorce and not taken in high regard. It has been criticised on the grounds that there is a tendency to misuse it and that it doesn’t have room for any form of reconciliation at all. This practice is repealed in many nations, including India, because it is unconscionable and wives suffer many difficulties due to triple talaq.
In the case of Shayara Bano vs. Union of India and Ors. (2017), it was submitted that “this practice of Talaq-e-bidat (unilateral triple-talaq), which practically treats women like chattel, is neither harmonious with modern principles of human rights and gender equality nor an integral part of Islamic faith, according to various noted scholars. Muslim women are subjected to such gross practices that treat them as chattels, thereby violating their fundamental rights enshrined in Articles 14, 15, 21, and 25 of the Constitution of India. The practice also wreaks havoc on the lives of many divorced women and their children, especially those belonging to the weaker economic sections of society.”
There have been many cases in the High Court and the Supreme Court where the Court invalidated the instant triple talaq. In Shamim Ara vs. State of U.P. (2002), the Court observed that:
The correct law of Talaq as ordained in the Holy Quran is that:
The Supreme Court in August 2017 declared triple talaq “unconstitutional.”. The Indian Government introduced a bill called the Muslim Women (Protection of Rights on Marriage) Bill, 2017 and presented it in Parliament, which was passed on December 28, 2017 by the Lok Sabha, but it did not pass in the Rajya Sabha. The bill makes the moment triple (Talaq-e-bidat) in any structure spoken, recorded as a hard copy, or by electronic methods, for example, email, SMS, and WhatsApp, unlawful and void, with as long as three years of imprisonment for the husband. However, one of the principle conflicts against the proposed enactment has consistently been its acknowledgment of a common offence as a cognisable and non-bailable offence. After some time, an ordinance with similar provisions was introduced in Parliament and became the Muslim Women (Protection of Rights on Marriage) Act, 2019. It declared the triple Talaq unconstitutional and made this practice an offence in India.
Ila is a situation where a husband takes an oath in the name of Allah that he will not have any sexual relations with his wife and leaves her to observe Iddah when she has not attained the period of puberty and is of sound mind or below the age of majority. This vow results in waiting time and Iddah, which the wife has to undergo. If the husband returns to sexual intercourse during the above mentioned Iddat period, then the vow of Ila is null and void. Ila is actually not a divorce but rather paying the wife for a specific time without her presence in the household, and it is rather interesting to focus on the fact that this practice is not typical for India.
Zihar is a pre-Islamic practice considered a way to divorce without formally expressing it. It is a process where the husband is a rational adult over eighteen years old who acts and states that his wife is similar to a close relative, for example, a mother or a sister. In this way, he speaks the truth that his wife is forbidden to him, just as the mentioned relatives are forbidden. Simply put, this act of the husband is considered sin in Islamic law. The wife then also has the right to deny him conjugal access for sexual intercourse until he goes through the motions of purging himself for the wrong that he has committed. This penance may be in the form of fasting, feeding the poor, or any other act that may be allowed under the Shariah, also known as Kaffara. Zihar is a measure through which the wife is accorded an opportunity to reclaim her honour and privacy against the husband’s inappropriateness.
The ground for dissolution of marriage in Islam used to be primarily in the hands of the husband through a process known as Talaq. But marriages involving Muslim women are salvageable since wives can apply for divorce power in two ways: delegated or by consent. Here’s a detailed breakdown of these options:
Talaq-e-tafweez allows a wife to give her husband a notice of divorce in certain circumstances that have first been agreed upon and discussed by both parties. Basically, this kind of marriage is Talaq barter, where the husband gives up his right to pronounce Talaq to his wife when they make an agreement before or during the marriage. Here’s a closer look:
As for any other customary right granted to the wife with respect to marital dwelling, the agreement defines conditions under which the wife can exercise this right. These conditions can vary widely, such as:
This is because in certain circumstances that have been agreed upon by both partners, the wife is also empowered to utter Talaq, which frees her from the marriage contract. Significantly, such a right cannot be withdrawn by the husband after it has been bestowed.
Talaq-e-tafweez allows some level of control for the wife, especially in the event that she wishes to improve her marital status. It enables them to escape a union perceived as burdensome without having to afford the husband’s approval.
Previously, Muslim law had no legal provision that enabled the parties to apply for a talaq with the mutual consent of both husband and wife. This meant women could only seek an annulment, and they were few; if at all, they could find one if they were willing to end their marriage with the consent of the husband. However, the position changed with the passing of the Dissolution of Muslim Marriage Act in 1939. This Act provided legal rationales by which the wife could seek a divorce, which included the option of dissolving the marriage mutually with her husband.
Khula constitutes a form of divorce that depends only on the mutual agreement of the partners. At this stage, the couple decides to annul the marriage and may even discuss the payment of some amount. The wife might bring back the amount given to her as Mahr or some other amount for the husband to agree and grant the divorce. This method is non-confrontational, and both partners have the right to make decisions concerning their separation.
Khula, on the other hand, is a type of divorce where the wife seeks the husband’s action by returning the dowry. However, unlike Talaq-e-Tafweez, which is a form of divorce instituted by the husband, Khula allows the wife to approach her husband honestly and with some sort of dowry.
The nature and degree of compensation can differ depending on the marriage contract signed by the spouses. This could be in the form of money, where the wife repays the dower or other valuables given during marriage, or by relinquishing some rights that the partners enjoy during the marriage setup.
There are differences in prejudice between Shia and Sunni legal schools regarding the permanent nature of the process of Khula (wife-initiated divorce). According to Shia law, once the husband accepts the offer made by the wife in Khula, the dissolution of marriage is permanent. This is consistent with the strict contractual perspective, where the acceptance of the consideration by the husband puts an end to the marital relationship. On the other hand, Sunni law gives the husband more rights on this issue. Thus, while he agreed to the Khula, the husband has the right to withdraw his agreement within the Iddah period and return the compensation given to the wife. This is a mechanism similar to the right of redemption, implying that a party may reconsider his/her actions within a prescribed period of time. Therefore, Sunni Khula is by far less rigid than the definitive retention of Shia Khula.
The only difference between Mubarat and Khula is that the husband does not make any payment to prize money to secure a decree of Mubarat. One or both of the spouses come to the mutual decision of ending the marriage without going through any form of financial trading.
Therefore, Mubarat is a dignified method that allows the parties to end an unworkable marriage by mutual consent.
Personal laws in India cover marriage, divorce, and succession and are regulated according to the religious persuasion of the parties involved. This leads to complications and possibly prejudice. For instance, there are provisions in Hindu law that are apparently different from the provisions in Muslim law, and the rights of inheritance can also be very variable depending on religion.
The Uniform Civil Code (UCC) suggests a significant change by proposing one civil code that would apply to all Indians, irrespective of their religion. This UCC would regulate issues concerning marriage and divorce, inheritance, adoption, and maintenance. The supporters argue that when implemented, the UCC would help realise a cultural shift and make society fairer. It could:
However, tackling this issue is not easy, and the management sought to implement a UCC. It is quite important to ensure equality by providing an equal amount of work, while also being careful not to offend people with different religious views. As to the opponents of the UCC, some worry that the attempt to create a uniform law may result in prejudice against various traditions.
What is far more unusual is that Goa already has a live example of it. The civil law is derived from Portuguese law and remains in practice today for all Goan citizens without the distinction of religion. This shows that it is possible to operate a UCC within the framework of Indian laws.
Recently, Uttarakhand became the first Indian state to pass a comprehensive UCC bill, which was passed on 7th February 2024, and became the Uniform Civil Code of Uttarakhand, 2024, creating a potential model for further reform at the country level. That is why, even though the outcomes of the Uttarakhand UCC are not clear yet, they might be used for further successful implementation across the country. With the national execution of the UCC still a subject of discussion, these developments in Goa and Uttarakhand give an idea of the likelihood of the UCC in India’s legal structure.
The Uttarakhand UCC has been made applicable to all the citizens of Uttarakhand, irrespective of their religion, to have standardised rules and laws in affairs like marriage, divorce, succession, and live-in relationships.
The Uttarakhand UCC lays down various grounds that could lead to the dissolution of a marriage. These grounds include:
The UCC recognises divorce by consent. However, it sets a condition that a divorce petition cannot be filed immediately but after a marriage of one year. However, the court can allow a petition before one year of marriage in some special circumstances. It also provided for post-divorce issues that included alimony, custody of children, and the right to divorce and be remarried, which must be obtained after getting the divorce decree.
The Uttarakhand UCC brings about a profound shift as, for the first time, live-in relationships are recognized in Uttarakhand. This can be seen as giving some legal protection to a couple who decides to live together without getting formally married. The code also regulates live-in relationships and mandates the submission of statements by the partners of live-in relationships. When registered, the child born out of a live-in relationship is acknowledged as legitimate, and therefore legal rights such as inheritance rights shall be accorded to him. However, the UCC doesn’t confer on a live-in partner the same rights as legally married partners, for instance, co-ownership of a property or an automatic statutory right to inherit the partner’s property in the event of death.
Besides, the factors that influenced the promotion of the UCC mean that the legislation can affect social and legal change in Uttarakhand:
Earlier, marriage, divorce, and inheritance were regulated by a large number of religious laws. Thus, based on these religious principles, it had some limitations to this system without offending most of the religious beliefs. The religious laws were also discrete across the communities; hence, there was a contradiction in many issues, such as marriage age, valid marriages, permissible reasons for annulment or divorce, and inheritance. This lack of uniformity could be confusing, especially where the couple belongs to different religions. In the same respect, some of the religious laws contradicted women’s rights by discriminating against them in succession to the leadership, and inheritance rights favoured sonship rather than daughters.
The Uttarakhand UCC ousts this compilation of religious laws with a common code that will be binding on all the citizens of Uttarakhand. It creates order and reduces the confusion as to how marriage, divorce, and inheritance ought to be conducted. This means that most of the legal procedures are made easier, and the uncertainty that was associated with religious laws is done away with. Thus, the UCC also protects gender equality because both males and females receive equal rights. This does away with the gender bias that some religious laws contain and the rights of women, where they are given their fair share of property and an equal voice in marital and inheritance matters. Additionally, on the aspect of marriages, divorce, and inheritance, the UCC makes it easier, especially for inter-religion marriages, by standardising the procedures regardless of one’s religion.
This case involved a 62-year-old woman, Shah Bano, who was a Muslim and was divorced by her husband, Mohd Ahmed Khan, in 1978. She filed an application under Section 125 of the Criminal Procedure Code (CrPC) for maintenance, which allows wives, children, and parents who cannot support themselves to claim maintenance. Mohd Ahmed Khan further argued that he honoured all his responsibilities according to Sharia by providing Mehr with a one-time payment for her living expenses during the Iddah period.
The Supreme Court noted that Section 125 CrPC would be available to any citizen regardless of his religion, and the purpose of this provision is to prevent the country from being overburdened with destitutes and vagrants. The Court further held that if a divorced woman is unable to maintain herself, she has the right to receive maintenance from her husband after the period of Iddah. While deciding the case, the Court said that the provision for maintenance under Section 125 CrPC stands above the personal laws, and in this case, it offers a more beneficial claim. The judgement also wanted a Uniform Civil Code to be implemented to handle such cases where personal and secular laws are in conflict.
In this case, several petitions were lodged by Hindu women who were deserted by their husbands who had converted to Islam or who had contracted marriages with other women without divorcing their Hindu wives. Sarala Mudgal, the first petitioner, argued that after converting to Islam, the husband was able to legally marry another woman while still being constitutionally and contractually married to her. This practice was a violation of the Hindu Marriage Act, 1955, which does not allow polygamy. This was an allegation made by the respondents.
The Supreme Court stated that nullification of a Hindu marriage under Hindu law remained an impossibility despite converting to Islam. Thus, a second wedding after converting to be a Muslim but without annulling the first wedding under the Hindu Marriage Act is unlawful. The Court concluded that the change of religion with the purpose of entering a second marriage constitutes one of the misuses of the law, is unjust, and infringes on the rights to equality. The judgement also stressed the adherence to the Uniform Civil Code to offer equality to all persons.
In this case, Noor Saba Khatoon, after being divorced by her husband, Mohd Quasim, filed an application under Section 125 of the CrPC claiming maintenance for herself and her minor children. Shah Bano Begum also claimed that her former husband neglected his duties and obligations towards her and the children by not supporting them financially. In the same regard, she was actively involved in taking care of the children and yet accused him of not contributing. In response, Mohd Ahmed Khan relied on the Islamic personal law, which, in his view, set a mechanical time for a father’s duty towards his kids in terms of financial support. He insisted that this timeframe had already passed.
The judgement of the Supreme Court in this case underlined the rights and responsibilities in relation to child support within marriage among Muslims in India. The Court ruled that since Section 125 CrPC is a law of the nation and is secular in nature, it applies to everyone, including Muslim citizens, hence overriding the religious personal laws. This decision meant concern for minor children and thus laid down a legal duty on Muslim fathers to provide for their children, notwithstanding the religious laws of the Muslim religion. It went further to establish that this obligation continues until the children are of age or become independent.
In this case, Lily Thomas was married to a Hindu man under the Hindu Marriage Act; her husband later converted to Islam and then married another woman. Lily Thomas contested the second marriage as unlawful, arguing that her marriage under the Hindu Marriage Act to her husband did not become null and void because of his conversion.
The main issue that was considered in the case was the connection between apostasy as a freedom of religion and divorce in Hindu marriage. Key legal issues emerged:
The judgement given by the Supreme Court in Lily Thomas’s case was a precedent setting verdict in favour of women regarding their rights within the Hindu community. The Court was clear in submitting that conversion to Islam does not annul a marriage, which is valid under Hindu law. Accordingly, the subsequent marriage that was contracted by Lily’s husband was officially regarded as bigamous because the first marriage that both Lily and her husband contracted under the HMA remained legally valid. This judgement was valuable as it stated that such bigamous marriages would be unlawful as per the Indian Penal Code, 1860. This decision made by the Supreme Court was able to effectively address a situation that could be turned into a loophole by Hindu men just to avoid the legal responsibilities and rights of their spouses.
In this case, the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, was challenged. The Act dismissed post-separation maintenance for the divorced Muslim from her former husband for the Iddah period, which would take about three months. It was submitted by Daniel Latifi for the group of Muslim women, stating that it does not allow equality under Article 14 and eliminates the right to life under Article 21.
During the judgement of the case, the Supreme Court declared that the Act was constitutional, but the Court interpreted the Act in a proper way for divorced Muslims. The Court also realised that Iddah maintenance and provision for her to be met by the husband shall be reasonably, fairly, and appropriately sufficient to cater to all the needs and requirements of a divorced woman for the rest of her life if she does not remarry. The judgement also ensured that under the Act, maintenance was not limited to the period of Iddah; in fact, the husband saw himself bound for a reasonable as well as proper amount during the Iddah phase and further.
This judgement relates to the case of a Muslim woman, Khatoon Nisa, who sought maintenance under Section 125 CrPC after having been divorced by her husband. She supported her contention by stating that she rightly deserves to be granted maintenance under Section 125 of the CrPC, even though the requisite law was made through the Muslim Women (Protection of Rights on Divorce) Act, 1986.
The Supreme Court, in a number of decisions, supported the claim of divorced Muslim women to claim maintenance under Section 125 of the CrPC. Thus, the Court pointed out that the Muslim Women (Protection of Rights on Divorce) Act, 1986, does not bar such claims, and Section 125 CrPC still holds maintenance to prevent destitution and vagrancy. The judgement continued to underline the notion that the provisions of the 1986 Act and Section 125 CrPC should be construed in such a manner to safeguard the rights of divorced Muslim women.
In this case, Triple Talaq was uttered by Masroor Ahmed in anger over his wife, who later regretted it and agreed to come back. He went to the court to seek legalisation of the reconciliation without subjecting his wife to the practice of Nikah halala, where a divorced Muslim woman undergoes a new marriage, consummates, and gets another divorce so that she can remarry her previous husband.
The Delhi High Court, while accepting the approval of the Supreme Court, ruled that the triple Talaq that has been uttered in anger is not allowed. According to the Supreme Court, a Talaq that is not based on either prior reflection and/or reasonable grounds does not meet the Shariat test. Therefore, the couple was permitted to reconcile without nikah halala, and this underlined that a proper and reasonable understanding of Talaq is required.
In this case, Shayara Bano filed a writ petition under Article 32 of the Constitution of India to declare the practice of triple Talaq, polygamy, and nikah halala unconstitutional. She argued that the above practices were unconstitutional and prejudiced her self-regard rights. Through the litigation, Shayara Bano was able to assert that triple Talaq was unlawful, being arbitrary and discriminative, and having no legal validity under the Shariah.
Triple Talaq was declared unconstitutional and banned by the Supreme Court of India with a majority of 3:2. It was stated that triple Talaq was arbitrary when it came to aspects of the fundamental rights of Muslim women to equality and non-discrimination as enshrined by the Constitution of India under Articles 14 and 15. Such principles reflect that personal laws cannot go against the Constitution of the country, and any practices that are anti-fundamental rights cannot be sustained. The judgement also brought justice and equal treatment of women on par with men under Muslim laws.
In this case, Sameena Begum filed a petition regarding the constitutionality of polygamy and nikah halala. She said these discriminated Muslim women and gross violations of their rights to equality, dignity, and non-discrimination as provided for by the Constitution. It is against this backdrop that the petitioner prayed for a declaration that these practices were unconstitutional and ought to be outlawed.
The Supreme Court served notice to the Union of India as well as other parties and sought responses on the petition that was filed. The case is pending before the Court of Appeal, and the Apex Court is seized with the constitutional question as to the constitutional allowance of polygamy and nikah halala. The Court’s judgement is expected to look into the balance between personal laws and constitutional rights, with likely legal changes to the laws governing Muslim marriages and divorce.
The legal journey of Muslim women in India seeking freedom from triple talaq and other oppressive Muslim personal laws is a narrative of the dynamism between the Muslim personal laws and the Indian Constitution, which recognises gender equality. The judiciary has also come out more clearly, especially when there is a conflict between the provisions of personal laws and the Constitution, as the Supreme Court has always championed the constitutional provisions over personal laws in their rulings. This perspective has been instrumental in the fight for divorced Muslim women and providing protection to guarantee that obligations to provide maintenance and support are honoured in a fashion that will not leave these women destitute and illustrate further disrespect for their person. Thus, the Court plays a vital role in interpreting and implementing Section 125 CrPC. This provision has a substantive component involving maintenance for the prevention of vagrancy and destitution in society. The courts have clearly made it their priority to ensure that all provisions that are in the interest of society are made available to all classes of citizens without discrimination based on religion.
On matters of gender justice, the judiciary has thus examined and declared unconstitutional practices that are within the personal laws regarding the treatment of Muslim women. On a similar tangent, it has sought to bring practicality to the law by defining maintenance beyond the Iddah period and overruling certain forms of gender prejudice as encapsulated in polygamy, or Nikah halala. These judicial interventions are part of the larger progressive project of establishing and entrenching women’s rights and, overall, reforming the unequal personal laws to reflect constitutional principles of equality and non-discrimination.
Several of these judgements have promoted the cause of a Uniform Civil Code (UCC). The judiciary is seeking the passage of a UCC as an efficient way of founding one law that will ensure that everyone in the country has equal rights as other citizens without discriminating against such equality based on personal laws that provide unfair treatment of women. This call for a UCC is based on a vision of a secular and egalitarian legal system where the equal values of all religions are accepted and justice and equality for people of different religions are protected.
However, delivering justice as per the court directives still raises the question of effective enforcement of such progressive judicial decisions. Practical difficulties include resistance from society and society in general, consisting of patriarchal prejudice and a lack of political will, which makes it difficult for judgements to be implemented. Furthermore, even if legislative measures are taken to address these judgements, for instance, to enact special laws for the maintenance rights of divorced Muslim women that have been held to be constitutional. The process may be insufficient to afford comprehensive protection as intended by the said judgments. These issues remain relevant while seeking to advance the cause of these legal remedies. The reality is that such legal protections may remain on paper. While the affected individuals seem not to benefit from the legal changes that may have been brought about by judicial precedent.
The judiciary has observed a porous nature of synonymy between religion and freedom while exercising freedom to abridge the basic rights of certain persons. The Courts have exercised restraint while approaching this issue, while at the same time trying to reform the personal laws to be in tune with the Constitution, which does not let go of the sensitivity of religious principles entirely. This subtle approach is especially essential in a civil state like India, which is highly secular but where the legal system must deal with religious, fundamental beliefs, and individual freedom. Analysing the socio-cultural framework and endeavouring to achieve the equilibrium of religious freedom and constitutional guarantees, the judiciary made positive contributions to the development of a more liberal legal system with equal concern for the rights of the citizens and the profile of religious freedom.
Therefore, the discussion covers examples of changes in the law of India regarding the rights of Muslim women, proving that the judiciary plays a significant role in fighting for the rights of vulnerable populations. The Court, therefore, has been effective and progressive in a way since the foundation of constitutional principles throughout the development of gender justice, promoting the Uniform Civil Code, and protecting human rights over religious freedom. Nevertheless, it remains important to continue advocating for the right policies and actions that would help in eventually overcoming the real-life difficulties that exist in how these legal guarantees are to be observed in the correct enforcement of the constitution for the protection of all citizens’ rights.
Therefore, the analysis of Muslim marriages in India offers a unique and interesting example of how religious laws intertwine with social realities and legal reinterpretations. These are legal marriages guided by the principles of Islamic law but influenced by India’s Constitution, which guarantees secularism and focuses on the changing discourses of gender equity. The absence of compulsory registration complicates attempts at data gathering and advocacy for women’s rights. Some issues, like dowry, even though they may not be prevalent or exclusive to Muslim marriage, involve the aspect of financial exploitation.
However, there are some progressive contacts. The recent Supreme Court ruling, which declared triple talaq as unconstitutional, awarded women more strength and influence over the termination of their marriage. Also, the increasing perception and demand of Muslim society as well as the moves towards lobbying for change and fairness for all parties touched by the relations are coming up.
Therefore, it is important for the future of Muslim marriages in India to find a middle ground. One must respect cultural and religious beliefs, but at the same time understand that those principles must change so that a fair environment that meets the rights of both sexes can be established. As Indian Muslims grow more diverse and populous, increased dialogue and awareness and attempts at reinterpreting Islamic law will be instrumental in enabling Muslim marriages to stand as embodiments of love, support, and respect in the future.
The conflicts over the rights of minority women are best dealt with by creating new representative bodies that have special provisions to ensure that women are sufficiently represented. In the Shah Bano case, this would have meant creating a new mechanism to administer Muslim personal law instead of simply recognizing the Muslim Personal Law Board as the legitimate representative of the Muslim community. Creating a new mechanism is more sensitive to the political reality of Muslims in India, which is that they consist of widely dispersed groups characterised by significant differences. It would also make some provision to ensure that Muslim women have some access to the institutions that make the rules that govern their lives.
It would not suffice for a wife to simply ask for a divorce because of frequent arguments and incompatibility alone. While some Shia countries have certain laws against it, the Dissolution of Muslim Marriage Act 1939 has listed specific grounds. On the same note, it should be noted that cruelty is recognised as a crime. In the judgement of “Shamim Ara vs. Mohammad Ismail (2002), the apex Court of India broadened the scope of cruelty and included mental as well as physical cruelties. If these arguments are extreme and thus capable of causing mental or emotional upset, then possibly they can be recognised as cruelty in line with this case.
It is not always true that quarrelling and openly saying “Talaq” three times is enough to invalidate the marriage. It can be noted that, through the process of gradual deviation, the Dissolution of Muslim Marriage Act, 1939, brought formalities for pronouncing Talaq. The Talaq thus may or may not be valid, depending on whether or not the above formalities were observed. However, in 2017, through Shayara Bano vs. Union of India, the Supreme Court established that it is unconstitutional for Muslim men in India to pronounce instant triple Talaq through any means, including oral ones. It will be a wise move to seek legal advice when dealing with such issues concerning the Talaq.
Indeed, bigamy is unlawful in India, so a husband having another marriage is a legal basis on which a Muslim wife can seek divorce as per Section 2 of the Dissolution of Muslim Marriage Act. In the case titled Lily Thomas, Etc. vs. Union of India & Ors. (2002), the Court has set the position that bigamy is a ground open for a wife to seek divorce. If she wants to introduce evidence proving the other marriage, for instance, a marriage certificate, she can proceed with divorce.
Absolutely, Indian courts can arrange for a divorcing Muslim couple to settle a financial dispute themselves. It may therefore encompass communications regarding Mehr (dower), settlement of maintenance, and other properties. In such circumstances, the court can recommend the couple go for mediation, which is third-party-assisted negotiations as to the division of property, maintenance, or any other property. In the case of a dispute regarding Mehr, many times an out-of-court settlement via a mediator can prove to be effective in resolving the issue. However, if the conflict is not resolved through mediation, then they can seek a remedy at the court under the Muslims’ law. It is noteworthy that there are no codified specifications of national procedures in the courts for out of court settlements other than Section 9 of the Family Courts Act, 1984, to guide the courts on how to promote mediation.
Yes, under the Dissolution of Muslim Marriage Act, the wife can seek divorce where the impotency of the husband existed at the time of marriage and at the time of the application. However, it should be appreciated that establishing the plea of impotency may warrant medical examination by a competent doctor, as shall be seen later on in these proposals.
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