Process of Divorce and Consequences
1. Introduction:
Divorce is one of the modes of dissolution of the marriage tie of the husband and wife. it is the right of the husband and the wife. it is the right of the husband to dissolve the marriage. divorce is a vexing question in Islamic law. Talaq or divorce is regarded by the Holy Prophet (P. B. U. H) to be the most detestable before Allah of all the permitted things for it prevents conjugal happiness and proper upbringing of children.
2. Meaning:
Divorce means dissuasion or rejection.
3. Definition:
I. General definition:
It is the exercise of absolute power of pronouncing unilateral divorce of the husband. when its proceeds from the husband it is called Talaq.
II. Case's law definition:
It is the freedom from the bondage of the marriage.
4. Forms of Divorce:
Under Hanif’s:
Under hanif’s Talaq may be either oral or written.
Under Shia:
Oral pronouncement must be coupled with two male witnesses.
5. Capacity for Divorce:
A Muslim of sound mind, who has attained puberty may dissolve his marriage.
6. Who cannot pronounce Divorce:
- A Minor
- Unsound Person
7. Nature:
A Muslim husband has the right to pronounce divorce without any cause.
8. Divorce under compulsion:
Under Sunni law:
Divorce pronounced under compulsion is valid.
Under Shia law:
Divorce pronounced under compulsion or intoxication is not valid.
9. Ways of Divorce:
Following are the ways of divorce.
- By the husband at his will without the intervention of a court.
- By the mutual consent of the husband and the wife without intervention of the court.
- By the court.
10. Modes of dissolution of marriage:
Following are the different modes of the dissolution of the marriage.
- Apostasy
- Death of either party.
- Divorce.
- Option of repudiation or puberty.
- Cancellation of an irregular marriage.
12. Legal consequences:
The legal consequences of the divorce are as under:
- Sexual intercourse becomes unlawful.
- Iddat becomes incumbent.
- Remarriage between the same parties becomes impossible until the wife lawfully marries another person and is lawfully divorced by him after the consummation of the marriage.
- Dower becomes immediately payable.
- Right to contract another marriage.
- Mutual right of inheritance ceases.
13. Procedure:
I. Notice:
- Notice to the chairman:
- The husband shall send a notice to the chairman.
- Notice to the wife:
- A copy of the notice shall be sent to the wife.
- Form of notice:
- Notice shall be in writing.
Purpose of notice:
The purpose of the notice is to inform about the dissolution of the marriage.
Time for giving notice:
Notice shall be given at the time when the husband has pronounced divorce.
II. Reconciliation between the parties:
The chairman is required to bring about reconciliation between the parties for this purpose he is to give notice to the parties to nominate their representatives. however, he cannot compel any person to appear before him.
III. Effectiveness of divorce:
Divorce would not become effective unless and until the period of ninety days has elapsed with effect from the date of receipt of notice of divorce by the chairman of the union council and by the wife.
14. Divorce to pregnant woman:
Divorce to pregnant woman shall be effected by the delivery of the child:
15. Re-marriage of the same parties:
Nothing shall debar a wife whose marriage has been terminated by Talaq effective from remarriage of the same husband without an intervening marriage with a third person unless such termination is for the time so effective.
16. Revocation of divorce:
The husband can revoke the divorce before the expiry of ninety days.
17. Punishment:
Whoever contravenes the provision shall be punishable with simple imprisonment for a term which may extend to one year or with a fine which may extend to five thousand rupees or with both.
18. Commencement of iddat:
(i) In case of divorce:
In case of divorce, the period of iddat commences from the date of divorce. if the marriage was consummated. Women do have not to observe the period of Iddat. if marriage was not consummated in such case she can marry immediately after the Divorce.
(ii) In case of death:
The period of iddat commences from the date of death of her husband. She is bound to observe the period of iddat whether the marriage was consummated or not.
19. Conclusion:
To conclude I can say that, divorce is a mode of dissolution of the marriage. a husband can divorce her wife without assigning any reason. it is an extra-judicial power of the husband to dissolve the marriage.