JAHFER SADIQ E. A. Vs. MARWA

JUDGEMENT

(1.) Talaq-e- ahsan and talaq-e- hasan - two approved forms of divorce in Muslim Personal Law of India vis-a-vis talaq-e-bidat - another form declared as unconstitutional by the Apex Court in Shayara Bano v. Union of India, 2017 KHC 6574. are examined on the touchstone of the Muslim Women (Protection of Rights on Marriage) Act, 2019 in this Crl. M.C filed under Sec. 482 of Cr.P.C. Prelude

(2.) The Muslim Personal Law administered in India recognises outof-court divorce at the instance of both wife and husband, as well as divorce through court at the instance of the wife. The former is regulated by uncodified Muslim Personal Law, as is clear from the terms used in Sec. 2 of the Muslim Personal Law (Shariat) Application Act, 1937. Embodying the Islamic claw of faskh, the Dissolution of Muslim Marriage, Act, 1939 provides divorce through court at the instance of the wife on fault-based grounds. Apart from the above modes of divorce, the Muslim Personal Law also recognises divorce by mutual consent without the intervention of the court.

(3.) Extra-judicial divorce at the instance of the husband, in Muslim law, takes the form of talaq and extra-judicial divorce at the instance of the wife takes the form of either talaq-e-tafwiz or khula. A Muslim wife can at the time of her marriage reserve in marriage deed a right for herself to dissolve the marital tie in specified circumstances. This is called tafwiz-e-talaq (delegated divorce). A Muslim wife may obtain a release from the marital contract by giving up her settled dower; such a divorce is consequently called khula. When a divorce is effected by mutual consent, it is called mubara'at which operates as a release and discharge on both sides.