Muslim divorce in India: talaq, khula, mubarat and the 1939 Act

Law

Muslim personal law, applied by the Shariat Act, 1937, with the 1939, 1986 and 2019 Acts on top.

Triple talaq

Void and an offence since 2019, in any form, including WhatsApp and SMS.

Wife's routes

Khula, mubarat, tafweez, or a court decree under the 1939 Act.

Money

Mehr, iddat maintenance, a fair provision for the future, and Section 144 BNSS (old Section 125 CrPC).

A marriage between two Muslims performed as a nikah is governed by Muslim personal law, which Indian courts apply under the Muslim Personal Law (Shariat) Application Act, 1937. Parliament has added three statutes: the Dissolution of Muslim Marriages Act, 1939, which gives a wife the right to a court decree; the Muslim Women (Protection of Rights on Divorce) Act, 1986, on money after divorce; and the Muslim Women (Protection of Rights on Marriage) Act, 2019, which made instant triple talaq void and punishable. A marriage registered under the Special Marriage Act, including an interfaith one, is dissolved under that Act instead, as explained in divorce in India.

Talaq by the husband

Two forms of talaq remain valid in India. In talaq-e-ahsan the husband pronounces a single talaq during a period between the wife's menstrual cycles and abstains from her through the iddat; he can revoke it during the iddat, and if he does not, the marriage ends when the iddat ends. In talaq-e-hasan he pronounces talaq three times, once in each of three successive such periods; the marriage ends with the third.

Indian courts do not accept a talaq merely because the husband says, years later in a written statement, that he gave one. In Shamim Ara v. State of U.P. (2002) the Supreme Court held that a talaq must be actually pronounced, for a reasonable cause, and preceded by an attempt at reconciliation through representatives of both families. A husband who relies on a talaq has to prove each of those.

Triple talaq is void

Talaq-e-biddat, three pronouncements at once that end the marriage instantly and irrevocably, was set aside by the Supreme Court in Shayara Bano v. Union of India (2017). The Muslim Women (Protection of Rights on Marriage) Act, 2019 then provided that:

• any pronouncement of talaq-e-biddat, spoken, written, in electronic form or in any other manner, is void and illegal (Section 3); the marriage continues;
• the husband can be punished with imprisonment up to three years and a fine (Section 4);
• the wife is entitled to a subsistence allowance for herself and her dependent children, and to custody of her minor children, as the Magistrate decides (Sections 5 and 6);
• the offence is cognizable when the wife or a relative reports it, can be compounded only at her instance with the Magistrate's permission, and bail can be granted only after hearing her (Section 7).

A wife who has been given triple talaq is therefore still married. She can treat the marriage as continuing, or seek its dissolution by one of the routes below.

Divorce at the wife's instance

Khula

A divorce sought by the wife, usually in exchange for giving up her mehr or returning something she received. It is commonly done through a khulanama signed by both spouses, or through a qazi or a darul qaza. Courts are not uniform on whether the husband's consent is needed; where he refuses or disputes it, the safe route is a decree under the 1939 Act.

Mubarat

A divorce by mutual agreement, where both spouses want to separate. It is the nearest equivalent to mutual consent, and is best recorded in a deed with the terms on mehr, maintenance, articles and children, signed before witnesses.

Talaq-e-tafweez

The husband can delegate his right of talaq to the wife, often through a condition in the nikahnama or a later agreement. If the condition occurs, such as a second marriage or failure to maintain, she can pronounce the divorce herself. Read the nikahnama before deciding on a route.

A court decree under the 1939 Act

Section 2 of the Dissolution of Muslim Marriages Act, 1939 lets a wife obtain a decree from the court on any of these grounds:

• the husband's whereabouts have not been known for four years;
• he has neglected or failed to provide her maintenance for two years;
• he has been sentenced to imprisonment for seven years or more, once the sentence is final;
• he has failed, without reasonable cause, to perform his marital obligations for three years;
• he was impotent at the time of the marriage and remains so;
• he has been insane for two years, or suffers from a virulent venereal disease;
• she was given in marriage before fifteen, repudiated it before eighteen, and the marriage was not consummated;
• cruelty, which includes habitual assault or conduct that makes her life miserable even without physical violence, associating with women of ill repute, trying to force her into an immoral life, disposing of her property or obstructing her rights over it, obstructing her religious practice, and failing to treat her equitably with another wife;
• any other ground recognised as valid for dissolution under Muslim law.

The petition is filed in the Family Court. The marriage is not dissolved merely because the wife renounces Islam (Section 4), and a decree does not affect her right to mehr (Section 5). The grounds under the other Acts are compared in grounds for divorce in India.

Iddat and remarriage

After a divorce the wife observes iddat: three menstrual cycles, or three lunar months if she does not menstruate, or until delivery if she is pregnant. She cannot remarry during it. The husband must maintain her for the iddat period.

Mehr, maintenance and the provision for her future

Any unpaid mehr, prompt or deferred, becomes payable on divorce, and the wife can sue for it. Under Section 3 of the 1986 Act she is also entitled to a reasonable and fair provision and maintenance, to be made and paid within the iddat period, and to the return of the gifts and property given to her before, at or after the marriage. In Danial Latifi v. Union of India (2001) the Supreme Court read this to mean a provision that covers her future, not only the iddat months.

She can also claim maintenance from the Magistrate under Section 144 of the Bharatiya Nagarik Suraksha Sanhita (Section 125 of the old Code). In Mohd. Abdul Samad v. State of Telangana (2024) the Supreme Court held that the 1986 Act does not take that right away. A wife divorced by triple talaq has, in addition, the subsistence allowance under the 2019 Act. More on money claims in a wife's rights in divorce.

Children

Under Muslim law the mother has the right of hizanat, custody of young children, traditionally up to seven for a son and until puberty for a daughter under the Hanafi school, while the father remains the guardian of their property. Courts decide disputes under the Guardians and Wards Act, 1890, where the welfare of the child comes first and the personal-law rule is one factor among others. The father's duty to maintain the children continues after the divorce.

Proof: the practical problem

Talaq, khula and mubarat take effect without a court, which is why they are so often disputed later, when one spouse wants to remarry, claim maintenance, change a passport or answer a criminal complaint. What holds up is a written record made at the time: the deed or notice, the date, the names and signatures of witnesses and arbitrators, and proof that it was sent to and received by the other spouse. Where the status is disputed, the Family Court can declare it (Section 7, Family Courts Act).

Read next

• Divorce in India: the law, the process and how long it takes
• A wife's rights in a divorce in India
• Grounds for divorce in India under each law
• Divorce lawyer in Ghaziabad: the Family Court at RDC

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