PROJECTONTalaq and Parentage Determined under Muslim LawSubmitted for the partial fulfilment of the requirement for the 3rd semester of BA.LL.B. course ofUttarakhand Technical University

Submitted To:- Submitted By:- Mrs. Nidhi Aarushi Pandit Faculty of Family Law B.A.LL.B(2nd Year) Batch: - 2011-2016

Siddhartha Law College, DehradunAcknowledgement

I owe a great many thanks to agreat many people who helped and supported me during the writing of this project. My deepest thanks to my teacher Mrs. Nidhi mam for guiding and correcting various documents of mine with attention and care. She has taken pain to gothrough it and make necessary correction as and when needed.I express my thanks tothe Principal of, [Siddhartha law college, Dehradun], Mr. Gorane forextending his support. I would also thank my Institution, my faculty members and my friends without whom this project would havebeen a distant reality. I also extend my heartfelt thanks to my family and well wishers.

INTRODUCTION

Among almost all the nations of antiquity, divorce was regarded as a natural corollary or marital rights. Romans, Hebrews, Israelies etc all had divorce in one or the other form.Even though the provisions of divorce was recognised in all religions. Islam is perhaps the first religion in the world which has expressly recognised the termination of marriage by way of divorce. In England divorce was introduced only hundred years back. In India among Hindus, it was allowed only by Hindu Marriage Act, 1955. Before the passing of this Act divorce was not recognised by Hindu Law.Divorce among the ancient Arabs was easy and of frequent occurrence. Infact, this tendency has been persisted to some extent, in Islamic Law in spite of the fact that Prophet showed his dislike to it. It was regarded by the Prophet to be most hateful before the Almighty God of all permitted things; for it prevented conjugal happiness and interfered with the proper bringing up of children. Under the Muslim Law a marriage is dissolved either by the death of the husband or wife, or by divorce. After the death of a wife, the husband may remarry immediately. But the widow cannot remarry before a certain specified period called Iddat expires.Generally, both the parties to the marriage contract have an opinion for divorce, but the husbands right in this respect is much greater than that of the wife.The husband can dissolve the marriage tie at his will. A divorce can also take place by mutual agreement.But the wife cannot divorce herself from her husband without his consent. She can of course purchase her divorce from her husband and can have the marriage dissolved by Tafweez (delegation).Marriage may also be dissolved by judicial decree under the Dissolution of Muslim Marriage Act, 1939.Divorce is one of the mode of dissolution of the marriage tie of thehusband 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 vexed question in Islamic law. Talaq or divorce is regarded by HolyProphet(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.Definition of TalaqIt is a reflection of the authority which the husband has over his wife at all times, pursuant toMuslim law.It is theexerciseof absolute power of pronouncing unilateral divorce of the husband. When its proceeds from the husband it is called Talaq.[footnoteRef:2] [2: file:///D:/Define%20Divorce.%20what%20are%20different%20modes%20of%20Divorce%20and%20what%20are%20its%20various%20kinds..htm]

Literally, the word "divorce" (talaq) means to abandon a thing or get rid of a thing. When an animal tied with a string is untied it is called talaq. If the tied with a string she camel is untied, the Arabs mention this state as: talaqa al-naqata talaqan (The she-camel has been released). Imam Sarakhsi has used the words "Izalatu'l-qayd" (release from confinement) to convey the meaning of the word "divorce" (talaq).In Moonshee Buzloor Rahim v. Laleefutoon nisa, it was said that under muslim law talaq is a mere arbitrary act of a Muslim husband who may repudiate his wife at his own pleasure with or without cause. He can pronounce the talaq at any time. It is not necessary for him to obtain the prior approval of his wife for the dissolution of his marriage. Number of pronouncements of "divorce" (talaq)An adult, of sound mind, married person has the right to pronounce "divorce" (talaq) to his wife during the marital life three times. For two times the husband has the right to revoke the pronouncement and can continue the usual marital relationship. But when he gives the talaq exercising his third time right, then the spouses (zaujayn) do not remain husband and wife. The Holy Quran says: A divorce is permissible twice, after that the parties should either hold together on equitable terms, or separate with kindness.

Types of DivorceThere are FOUR main types of Divorce and dissolution of marriage under the Penang Islamic Family Law Enactment 1. Pronounce Talaq in CourtThe Court will ask the husband to pronounce talaq in court. Normally the Court will advice one but the husband may pronounce up to 3 talaq. If it is one or two talaq, the divorce remains reconcilable within the period of iddah. (not necessarily 3 months, i.e the completion of 3 menstruation period of the wife). For 3 talaq, the divorce becomes final upon pronouncement and reconciliation within or after iddah period is not allowed unless the wife legally remarries and then divorce someone else.2. Divorce by Redemption (tebus talaq)This type of divorce is initiated by the wife. The wife offers to return her mahr or pay her husband an agreed sum in return for her husband agreeing to pronouncing a divorce.3. Taliq DivorceThis is where if the wife can prove to Court through witnesses and oath that her husband has broken the conditions of marriages (i.e. has not provided maintenance, desertion or domestic violence). If the judge is satisfied that the conditions of the marriage has been broken that Court will then grant you the divorce.4. Fasakh (Dissolution of marriage by order from the Court)In order to apply for fasakh youll need to prove either one of these conditions:-(a) your husband has treated you cruelly (e.g. abused you physically and mentally; forced you into immoral behaviour, obstructed your religious obligations; associated with prostitutes, mistreated your property oraccording to Syariah law treated you unequally compared to his other wife/wives);(b) he has failed to provide maintenance;(c) he has been sent to prison for more than 3 years;(d) he has left home and not contactable for at least one year;(e) he is impotent or has refused sexual intercourse after at least 4 months of marriage, or at least 1 year;(f) he has been insane for at least 2 years;(g) he is suffering from leprosy, or a sexually transmitted disease; or(h) your consent to the marriage was been given by force, mistake or unsound mind.(i) any other ground allowed by Hukum SyaraDIVORCE BY HUSBAND/WIFE

A Husband may divorce in the following manner-Talaq: Which is release from the marriage tie immediately or eventually.Ila: where a husband of sound mind takes a vow that he will abstain from all relationship from his wife.Ingredients of Ila1. The husband must be of sound mind and must have attained majority.2. He swears by God or takes a vow.3. That he will not have sexual intercourse with his wife.4. In pursuance of the vow he abstains from sexual intercourse with his wife .According to Ithna Ashari and Sahfei School, the wife is entitled to apply to the court for passing a decree dissolving the marriage. In Sunni Law, Legal proceedings are not required. In Bibi Rehana v. Iqtidar-uddin, after the marriage ceremony was over, the parents of the boy pushed him into a room where his wife was waiting for him. It appears from the facts of the case that the husband was not interested in the marriage. Immediately, after entering into the room he took a vow in the presence of his wife that he would never have sexual intercourse with her. Soon after giving this statement he came out of the reason and repeated the vow in the presence of his mother and his mothers sister. His father then came out of another room and he once more repeated the room and he once more repeated that vow. The court refused to accept the version of the husband. The court said that the husband has failed to establish that there had been a divorce in the Ila form.Zihar: where husband sane and adult compares his wife to his mother or any other female within the prohibited degrees.Ingredients of Zihar1. Husband must be sane and adult.2. He compares his wife to his mother or any other female within prohibited degrees.3. Then the wife has a right:--a) To refuse to have sexual intercourse with him till he has expiated himself from penance prescribed by law, such asi. Freeing a slave;ii. Fasting, for two months;iii. Feeding, sixty poor persons;b) To apply to the court for an order requiring him either to perform a penance or to decree her a regular divorce.A wife may divorce in the following manner-Talaqetafwiz: talaq by the wife under the husbands delegated power.

DIVORCE BY JUDICIAL DECREE UNDER DISSOLUTION OF THE MUSLIM MARRIAGE ACT,1939

Following are the grounds on which a marriage may be dissolved under the Marriage Act.Lian: Where the wife is charged with adultery and the charge is false. She can file a regular suit for dissolution of marriage as a mere application to the court is not the proper procedure.Fask: The cancellation, abolition, revocation, annulment. Before the passing of the dissolution of Marriage Act, Muslim women could only apply for the dissolution of their marriage under the doctrine of Fask.WOMANS RIGHT TO DIVORCE UNDER THE DISSOLUTION OF MUSLIM MARRIAGE ACT. 1939A Muslim woman may file for divorce on the following grounds- That the whereabouts of the husband have not been known for a period of 4 years That the husband has neglected or has failed to provide for her maintenance for a period of two years. That the husband has been sentenced to imprisonment for a period of seven years or upwards. That the husband has failed to fulfill his marital obligation for a period of three years. That the husband has been insane for two years or is suffering from leprosy or a virulent form of venereal disease. That the husband was impotent at the time of marriage and continues to be so. The women, having being given in marriage by her father or other guardian before she has attained the age of 15 years, repudiated the marriage before attaining the age of 18.The Supreme Court in is landmark judgment in Shamim Ara v. State of U.P., has tried to clarify the Islamic Law of divorce as applied in India.

TRIPLE DIVORCE

Triple divorce is a recognized but disapproved form of divorce and is considered by the Islamic jurists as an innovation within the fold of Sharia. It commands neither the sanction of Holy Quran nor the approval of the Holy Prophet.[footnoteRef:3] [3: http://www.helplinelaw.com/docs/main.php3?id=DIVM4]

The Allahabad High Court upheld divorce by a muslim husband by citing talaq thrice and that too when his wife was not present there. The husband had arranged for witnesses and communicated to his wife through a letter that she had been divorced after he cited, talaq talaq talaq for her. The Calcutta High court in Fulchan v. Namal Ali, held that presence or absence of wife makes so difference so far as effectiveness of triple divorce is concernedImportant matters related to Divorce application There are THREE main issues to consider in a Divorce. 1. Maintenance for wife and children, 2. Hadanah or Custody of children, 3. Matrimonial Assets and Accomodation Rights

1. Maintenance (For Wife)According to the Hukum Syara, the Court has power to order the husband to pay maintenance to his wife. The Court has the power to also order a collateral to be made with the maintenance.In deciding the amount of maintenance to be ordered, the Court will consider:(a) the earning capacity of the husband; and(b) financial needs of the wife.A wifes right to maintenance may cease when:(a) when the wife dies;(b) when the wife is disobedient (nusyuz); and(c) when the wife remarries. Maintenance for childrenIn Islam, it is the husbands responsibility to maintain the children whether the childrenlives with him or with his wife or any other person. He must provide accommodation,food, clothing, medical treatment and education in accordance to his ability and capacityor pay costs instead. The order for maintenance expires when the child attains eighteen(18) years of age.2. Custody (Hadanah) and Guardianship of ChildrenIn Islam, a mother is given the primary right to the physical custody or hadanah of her child. Under the IFLE, a father has the primary guardianship rights to the child. The guardianship rights mainly refer to decisions about the legal and property rights of the child. In any case, the father will always have the primary responsibility to maintain the child. Rights to guardianship and physical custody may be modified by the Court if the relevant party breach conditions provided by the IFLE.In deciding the guardianship rights, the person must be:-(a) a Muslim(b) a person of sound mind and age;(c) living in a environment suitable for a child; and(d) a person of good behaviour in Islam.3. Matrimonial AssetsMatrimonial assets are assets both parties acquire during marriage. In this situation the Court will normally order a sale of the property and divide the proceeds of the sale between the parties. The Court will also take into consideration the following when making the order:-(a) How much you and your husband contributed in money terms to obtain assets your role as a housewife will also be taken into consideration as a financial contribution.(b) Any loan borrowed by either of you for the benefit of the family is also considered.(c) The needs of the minor children, if any of the marriageHarta SepencarianWhere the asset is acquired by the sole effort of one party only, the Court shall consider the following facts in dividing assets:-(a) The extent of contribution made by the other party who did not acquire the property, to the welfare of the family e.g. keeping the house clean, cooking and generally, looking after and caring for the family; and(b) The needs of the minor children, if any of the marriage.Other PropertyAny property that belongs to the wife before or after marriage is solely the wifes property and the husband can have no claim over the property except to the extent that he has contributed to the improvement of assets.Accommodation RightsA wife has a right to remain in the matrimonial home or be provided with an alternative accommodation by the husband upon divorce. These rights will cease when:(a) period of iddah ceases;(b) you re-marry;(c) if the wife has custody of a child to the marriage, the custody ceases.

Parentage determined under Muslim LawParentage---Maternity---PaternityParentage is the relation of parent to their children. Maternity is a legal relation between mother and child, and paternity is a legal relation between father and child. The term parentage is generally used for the legal relationship which a child has with the parents. These legal relationship are associated with certain rights and duties, such as, mutual rights of inheritance, maintenance and guardianship.when one person is deemed in law to be the father or mother of another, paternity or maternity or the latter is said to be established in the former. Maternity, how established Under Sunni Law, the maternity of a child is established in the woman who gives birth to the child irrespective of whether the birth was the result of a wedlock or zina (adultery). However, under Shia Law, mere birth is not sufficient to establish maternity; it has to be also proved that the birth was a result of lawful marriage. Thus, under Muslim Law, a child born out of a marriage tie is legitimate and enjoys the status of inheritance from father and mother both.Paternity, how establishedThe paternity of a child can only be established by marriage between its parents. The marriage may be valid or irregular but it must not be void. It is established in the husband of the mother of the child.Paternity is established in the person said to be the father by proof or legal presumption that the child was begotten by him on a woman who was at the time of conception his lawful wife or was in good faith and reasonably believed by him to be such or whose marriage being merely irregular and not void ab initio has not at that time been terminated by actual separation.In Gautam Kundu v. State of West Bengal, the petitioner herein disputed the paternity of the child and prayed for blood group test of the child to prove that he was not the father of the child. According to him if that could be established he would not be liable to pay maintenance. That application was dismissed on two grounds.There were other methods in the Evidence Act to disprove the paternity;Moreover it is settled law that medical test cannot be conclusive of paternity.The SC in this case has observed that:The courts in India cannot order blood test as a matter of course;Wherever applications are made for such prayers in order to have raving injury, the prayer for blood test cannot be entertained.There must be a strong prima facie ease in that the husband must establish non-access in order to dispel the presumption arising under section 112 of the Evidence Act.No one can be compelled to give sample of blood for analysis.The court must carefully examine as to what would be the consequences of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

Conclusion It appears that Islamic law of marriage and divorce is not identical to the man made laws which are changed by man himself moment after moment. It is evident that the position of man and woman in the social set up of the community, is equal in every respect, but keeping in view the mindset of both the genders, Islam segregates the rights, duties and functions of both the gender and then declares their status with regard to family matters.If it is asked that are man and woman equal in Islamic way of life? There would not be simple positive or negative way of answer rather, one must scrutinize, examine and inspect closely and thoroughly their respective rights, duties and functions. And then placing a complete picture in front, it may be possible to answer the above question. In other societies of the world, the state of affairs is not in concurrence to Islamic way of life. Those other societies always try to claim that man and woman are equal in every respect which is not a natural phenomenon.[footnoteRef:4] [4: http://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html]