Divorce under Muslim Law in India
Team SoOLEGAL 6 Jul 2023

Divorce under Muslim Law in India


Divorce is a sensitive and complex issue that affects individuals from various cultural and religious backgrounds. In India, where diverse religious practices coexist, different communities have their own set of personal laws governing marriage, divorce, and family matters. This article focuses on divorce under Muslim laws in India, shedding light on the rights and procedures involved in the dissolution of a Muslim marriage.

Muslim personal laws in India are derived from Islamic Shariah principles and are regulated by the Muslim Personal Law (Shariat) Application Act, 1937. These laws govern marriage, divorce, maintenance, custody, and inheritance for Muslims in the country. It is important to note that there is no uniform code for Muslims in India, and different schools of Islamic jurisprudence, such as Hanafi, Shafi'i, Maliki, and Hanbali, may have slight variations in their interpretations and practices. 

Divorce under Muslim Law

Broadly, there are two types of Divorce namely:

1.     Extra-Judicial Divorce

2.     Judicial Divorce


1.     Extra-Judicial Divorce: Extra-judicial divorce, also known as divorce outside the court system or informal divorce refers to a form of divorce under Muslim personal laws that occur outside the purview of the judicial process. In this context, it typically refers to divorce through the pronouncement of talaq by the husband without involving a qazi (judge) or an arbitration council.

It is important to note that extra-judicial divorce does not follow the prescribed procedures and safeguards outlined in the Muslim personal laws. The practice of extra-judicial divorce, particularly the instantaneous form of triple talaq (talaq-e-biddat), has been a subject of debate and legal scrutiny in recent years. 

In 2017, the Supreme Court of India, in the case of Shayara Bano v. Union of India 2017 9 SCC 1, declared the practice of triple talaq unconstitutional and void, emphasizing that it violated the fundamental rights of Muslim women. The court ruled that the husband must follow due process and provide reasonable grounds for divorce, ensuring the principles of justice, equality, and dignity. Following the Supreme Court's decision, the Muslim Women (Protection of Rights on Marriage) Act, 2019, commonly known as the Triple Talaq Act, was enacted to make the pronouncement of triple talaq a cognizable offense punishable with imprisonment. 

The Act also provides protection and safeguards for Muslim women, including the right to maintenance (nafaqah) during the iddah period, custody of children, and the opportunity to seek redressal through legal channels. 

2.     Judicial Divorce: Judicial Divorce basically refers to the procedure of obtaining a divorce decree through the appropriate court of law. In the present case, a woman married under Muslim Law can obtain a divorce decree under Section 2 of the Dissolution of Muslim Marriages Act, 1939. 

What are the methods under Muslim Law that allows a Muslim man to Divorce his wife?

  1. Talaq-ul-sunnat: Talaq-ul-Sunnat, also known as Talaq-e-Sunnat, is a form of divorce recognized under Muslim personal laws. It follows the traditional method prescribed by Prophet Muhammad and is considered as the recommended or preferred way of divorce. Talaq-ul-Sunnat can be further categorized into two subtypes: Talaq-e-Ahsan and Talaq-e-hasan.
  2. Talaq-e-Ahsan: This method involves the husband pronouncing talaq once during a period of tuhr (when the wife is not menstruating) followed by a waiting period of three menstrual cycles (iddah). If reconciliation attempts fail during this period, the divorce becomes final.
  3. Talaq-e-Hasan: In this method, the husband pronounces talaq twice on separate occasions, with a waiting period (iddah) of one menstrual cycle between the pronouncements. If reconciliation is not achieved during the waiting period, the divorce becomes irrevocable.
  4. Talaq-e-Biddat: Also known as triple talaq, this form of divorce involves the husband pronouncing talaq three times in a single sitting or through any electronic medium, such as a phone call, text message, or social media. However, it is important to note that the practice of triple talaq was declared unconstitutional by the Supreme Court of India in 2017. The Muslim Women (Protection of Rights on Marriage) Act, 2019, also known as the Triple Talaq Act, makes pronouncing triple talaq a cognizable offense.


What are the methods under Muslim Law that allows a Muslim wife to Divorce her husband?

1.     Section 2 of the Dissolution of Muslim Marriages Act, 1939 provides the grounds for Muslim wife to seek divorce from her husband.


2.     Tafweez: Tafweez is a form of divorce in which the husband delegates the power of divorce to his wife or a third party through a legally valid agreement. An agreement can be made between a husband and wife before or after marriage. If the terms of the agreement are not fulfilled, the wife has the right to request a divorce. This type of divorce allows women to seek dissolution of the marriage, while the husband retains his right to initiate divorce.


3.     Lian: If a husband falsely accuses his wife of unchastity or adultery, it can be considered as a form of character assassination. In such cases, the wife has the right to seek a divorce based on these grounds. This type of divorce is referred to as Lian. However, it is important to note that Lian can only be invoked when the husband voluntarily and aggressively charges his wife with adultery. If the accusation is proven to be false, the wife is entitled to obtain a divorce decree on the basis of Lian. 

What the methods of Mutual Divorce in Muslim Law?

  1. Khula: Khula is a form of divorce where the wife seeks to dissolve the marriage by seeking a separation from her husband. In this case, the wife offers or agrees to give something of value, usually financial compensation or the return of her mahr (dowry), to the husband in exchange for his consent to the divorce. The husband has the right to accept or reject the wife's offer. If the husband accepts the offer, the divorce is granted, and the marriage is dissolved.
  2. Mubarat: Mubarat is a mutual form of divorce initiated by both the husband and the wife. It occurs when both parties agree to separate and mutually consent to end their marriage. The term "Mubarat" translates to "release" or "disengagement." Unlike Khula, there is no requirement for the wife to provide any compensation or consideration to the husband in Mubarat. It is a mutual agreement between the spouses to part ways amicably and dissolve the marriage. 

 We have tried to cover the above topic as exhaustively as we could. However, in case of any queries please call us at +91 9810929455 and

Did you find this write up useful? YES 0 NO 0
  14 Jul 2023 8:12pm
Very well written article., in practice to make things simple with the changing landscape and the recent supreme court judgement which makes a Muslim read more
Allen Dave   6 Jul 2023 9:29pm
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