Divorce (Talaq) Under Muslim Law
Divorce under Muslim law can take several forms:
Talaq by the Husband:
- Talaq-e-Ahsan: The most approved form. The husband pronounces a single talaq during the wife's tuhr (period of purity), followed by a period of abstinence during the iddat period. If the iddat expires without revocation, the divorce becomes final.
- Talaq-e-Hasan: Three successive pronouncements of talaq during three consecutive periods of purity. If no revocation occurs, the divorce becomes final after the third pronouncement.
- Talaq-ul-Biddat (Triple Talaq): The pronouncement of three talaqs at once. This form has been declared unconstitutional and void by the Supreme Court in Shayara Bano v. Union of India (2017), and criminalized by the Muslim Women (Protection of Rights on Marriage) Act, 2019.
Talaq-e-Tafweez: The husband delegates his power of divorce to the wife, who can then pronounce talaq upon herself.
Khula: Divorce at the instance of the wife, with the husband's consent, where the wife agrees to forgo her Mehr or pays some consideration.
Mubarat: Divorce by mutual consent.
Judicial Divorce: Under the Dissolution of Muslim Marriages Act, 1939, a Muslim woman can seek divorce on grounds including cruelty, desertion, failure to maintain, impotence, insanity, and repudiation of marriage (option of puberty).
Maintenance Under Muslim Law
Maintenance under Muslim law is a complex area:
During Marriage: The husband is obligated to maintain his wife during the subsistence of the marriage.
During Iddat: The husband must maintain the wife during the iddat period following divorce.
Beyond Iddat: The obligation to maintain beyond iddat has been the subject of significant litigation. In Mohd. Ahmed Khan v. Shah Bano Begum (1985), the Supreme Court held that Section 125 CrPC applies to Muslim women and that a divorced Muslim woman is entitled to maintenance beyond the iddat period. The Muslim Women (Protection of Rights on Divorce) Act, 1986, was subsequently enacted, providing that the former husband is liable only during the iddat period, after which the woman's relatives and the Wakf Board bear the responsibility.
However, the Supreme Court in Danial Latifi v. Union of India (2001) interpreted the 1986 Act to mean that the former husband must make reasonable and fair provision for the future of the divorced wife within the iddat period — effectively a lump sum settlement. In Shabana Bano v. Imran Khan (2010), the Supreme Court held that a divorced Muslim woman can claim maintenance under Section 125 CrPC even after the iddat period if she has not remarried.
Advocate Shaw navigates this complex jurisprudence to secure maintenance for his clients.
Succession Under Muslim Law
Muslim law of inheritance is based on the Quran and the Hadith. Key principles:
No Concept of Joint Family: Unlike Hindu law, Muslim law does not recognize the concept of a joint family or coparcenary. Each heir has a specified share.
Classes of Heirs:
- Sharers (Quranic Heirs): Heirs whose shares are specified in the Quran — husband, wife, father, mother, daughter, son's daughter, full sister, consanguine sister, uterine sister, and uterine brother.
- Residuaries (Agnatic Heirs): Heirs who take the residue after the sharers have taken their shares. Sons, grandsons, father (as residuary), full brother, and paternal uncles.
- Distant Kindred (Uterine Heirs): Female agnates and cognates who inherit in the absence of sharers and residuaries.
One-Third Rule: A Muslim can bequeath only up to one-third of their property by will. The remaining two-thirds must devolve according to the law of inheritance.
No Primogeniture: Unlike some Western systems, Muslim law does not give preference to the eldest son.
Differences Between Sunni and Shia: The Sunni and Shia schools of Muslim law differ in matters of inheritance. Advocate Shaw is familiar with both schools.