The separation of relation of husband and wife is called dissolution of marriage.

Talaq is the method

of dissolution of marriage but now a-days the word Talaq is more vogue in place of dissolution of
marriage

Dissolution of marriage can be done by 3 methods:

By the death of the parties to the marriage

By the act of parties

By the act of judicial procedure

Let us understand this method in detail

1. By the death of parties to the marriage

When the husband of Muslim wife dies then she has to complete the process of iddat. Iddat is the
process which widow or divorced women should abstain from second marriage for certain period of
time.

The period of iddat is three months.

2. Dissolution of marriage by the act of parties

Divided in 3 categories

1. By the act of husband

2. By the act of wife

3. By the act of both the parties

3. By the act of husband

Talaq- the meaning of Talaq is cancellation , to get rid off. Only adult and sound mind can give Talaq.

Divorce can be given verbally as well as in written form also . Talaq which are given in written form
are known as Talaqnama while in verbally Talaq it is required to clearly pronounce ‘ I divorced
you’ for three times.

There are 2 modes of Talaq

Talaq ul-sunnat

Talaq-ul-biddat

Talaq-ul-sunnat:- this Talaq is followed by the tradition propounded by the prophet

Ahasan- meaning of ahasan is very good. It is considered best way of Talaq. Ahasan was also
acknowledge by prophetIn Ahasan Talaq following formality are required that are-Single
pronouncement of divorce Wife should be required in pure state at the time of pronouncement

Wife should undergo Iddat

This type of Talaq can be revoked before the completion of iddat .

revocation can be done in express way or implied way.

cohabitation with wife is implied form of revocation of Talaq.

Hasan- meaning of Hasan is good.

In hasan Talaq following formality are required that are-

1. Pronouncement of divorced three times

2. In the case of menstruating wife, the first pronouncement should be made in pure state of wife i.e
TUHR . tuhr is period between 2 menstruation cycle.

3. In the case of non menstruating wife , the pronouncement should be made during the successive
interval of 30 days

4. No cohabitation should take place during the three period of tuhr

If during this period husband cohabits with wife then it revokes the Talaq and if there is no
cohabitation then Talaq become irrevocable.

Talaq-Ul-Biddat:-

it is sinful form of Talaq. Three pronouncement made during a single tuhr either in one sentence e.g,
‘ I divorce thee thrice’ or in separate sentence e.g. I divorce thee, I divorce thee , I divorce
thee. On such pronouncement Talaq becomes irrevocable.

Case- Shaira Banna v/s UOI air 2017 the concept of Talaq has been abolished and it was made
unconstitutional.

ILA ( VOW ) it is based on Koranic injunction. when a person of sound mind and adult abstain from
sexual intercourse for 4 months in pursuance of vow then it is said that he have ila and its effect will
be that of a single irrevocable Talaq. In such case wife can divorce husband.

Zihar (Injurious Assimilationlien (Imprecation)-

when husband compare his wife with his mother, sister and in prohibited relations them also wife
has ground to dissolve her marriage.

Lien (Imprecation)-

When husband falsely impute of adultery to his wife then also it is ground wife to take divorce from
her husband.
Dissolution of Marriage By The Act of Wife

Under Muslim law generally has no right of Talaq .but general rule has an exception and that
exception is Talaq-E-Tafuis ( delegation of right of Talaq in favour of wife by husband)

Such delegation is in written agreement such agreement may be at the time of marriage or after
marriage Such agreement may be conditional also.

Case- Latif Unisa Case- in this case delegation was on the condition that if husband will do another
marriage then wife has right to take divorce.

Dissolution of Marriage By The Act of Both Parties To Marriage

Both parties means here by the mutual consent of parties

Such Talaq can be take by these two manner

Khula

Mubrat

Khula (Redemption)-

in case of Khula the proposal of dissolution of marriage comes from the side of wife and agree to
give consideration to husband . The agreement of Khula can be done in oral as well as in written
form also.

Case- Rasidan vs Bakridan privy council said that Khula from wife should be without any pressure
and if it under element of pressure then it will not be consider valid.

Mubrat (Mutual Separation)-

in such cases, proposal of Talaq made by either side of parties to the marriage. Proposal by one side
and acceptance by other side It may be written ,oral and not need to be registered Husband can also
put condition for giving Talaq

Case- Smt.Sabbah Adanan Sami Khan Vs Adanan Sami Khan it has been held by bombay high court
that if wife want to remarry with that husband after Khula and mubarat then she is not required to
follow halala. halala is required to be followed in case of Talaq through pronouncing Talaq three
times.

Dissolution of Marriage By Judicial Procedure

This type of dissolution of marriage was made in 1939, under this act Muslim female has a right to
dissolve her marriage in certain cases. Under this 9 grounds are available under sec 2 on the bases of
which Muslim female can make application for dissolution of marriage in court. Generally such
application is instituted in family court and where family court are not present then in district court.
Under Section 2 , a wife can file an application for dissolution of marriage on following grounds that
are:

the whereabouts of the husband have not been known for a period
of four years
Maintenance the husband has neglected or has failed to provide for her
maintenance for a period of two years
Imprisonment- husband has been sentenced to imprisonment for a
period of seven years or upwards;
Desertion- he husband has failed to perform, without reasonable cause,
his marital obligations for a period of three years;
Impotency- he husband was impotent at the time of the marriage and
continues to be so
the husband has been insane for a period of two years or is suffering
from virulent venereal disease
Unsound mind/ insanity

Option of puberty- she, having been given in marriage by her father or

other guardian before she attained the age of fifteen years,
repudiated the marriage before attaining the age of eighteen years (
Provided that the marriage has not been consummated)
Cruelty

Other i.e Ila, Zihar,lien/

Case Rasel vs Rasel- in this famous case, court said following things can be consider in cruelty

If husband beats wife habitually and it became really hard for wife to survive

If husband have extra martial affair relation

If husband compel wife to do immoral things

If husband transfer the properties of wife fraudulently

If husband have two or more wife and does not treat equally

Section 2(vii) of this Act

provides that a Muslim
wife is entitled to obtain
a
decree for the
dissolution of her
marriage on the ground
that her marriage
was contracted by her
father or any other
guardian during her
minority (i.e.
when she was under the
age of 15 years). At
present, a Muslim wife
has an
Section 2(vii) of this Act
provides that a Muslim
wife is entitled to obtain
a
decree for the
dissolution of her
marriage on the ground
that her marriage
was contracted by her
father or any other
guardian during her
minority (i.e.
when she was under the
age of 15 years). At
present, a Muslim wife
has an
Maintaince

As per Muslim woman protection act 1986 sec 3 –

a reasonable and fair provision and maintenance to be made and

paid to her within the iddat period by her former husband
 where she herself maintains the children born to her before or after
her divorce, a reasonable and fair provision and maintenance to be
made and paid by her former husband for a period of two years from
the respective dates of birth of such children;
an amount equal to the sum of mahr or dower agreed to be paid to
her at the time of her marriage or at any time thereafter according
to Muslim law
all the properties given to her before or at the time of marriage or
after her marriage by her relatives or friends or the husband or any
relatives of the husband or his friends.
CRPC 125
Ahmd khan vs Sha bano begum 1973

Shabano banu vs Imran Khan

Shayara Bano vs UOI 2017

Daniel Latifi vs UOI 2001

Introduction
 ‘Maternity’ is a legal relation between mother and a 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 relationships are associated with certain rights and duties, such
as mutual rights of inheritance, maintenance and guardianship.
o 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).
 In Shia Law, mere birth is not sufficient to establish maternity; it has to be also proved that the
birth was a result of a lawful marriage.
o Paternity, how established: - The 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.

Legitimacy under Muslim Law

 The legitimacy and parentage under Muslim law are closely related to marriage. So, a child will
be considered legitimate only if he is born in lawful wedlock. This means that
the father (begetter) and the mother (bearer) of the child should have been in a valid lawful
marriage at the time of conception.
o Then the child will be a legitimate child with established paternity and maternity. Hence under
Muslim law, only direct or indirect marriage between the begetter and the bearer of a child can
establish the legitimacy of children.
 If there is not a lawful and direct marriage between the said people, then an indirect marriage
can be established if:
o There is cohabitation of the father and the mother.
o The father acknowledges the mother as his wife.
 o The father acknowledges the child as his own. So, if the marriage cannot be proven between
the father and mother, or there is a doubt as to the paternity of the child, the father can choose
to acknowledge the child as his own. This is true for both sons and daughters. It is also known
as ikrar-e-nasab. Also, such acknowledgement need not be expressed, it can also be implied by
conduct.
 A person born in lawful marriage is said to be the legitimate child of the spouses. So, the main
point in case of the legitimacy of a child is the marriage between his or her parents.
Laws of Legitimacy (Indian Evidence Act, 1872)
In India, the legitimacy of any child no matter his religion is decided by the Indian
Evidence Act, 1872. This act states that a child will be legitimate if:
 Is born in the continuance of a valid marriage between the mother of the child and any other
man (need not be the father of the child).
 Is born after 280 days (about 9 months) of the dissolution of the marriage as long as the
mother did not remarry in such a time.

Acknowledgement of Paternity (Ikrar-e-nasab)

 Acknowledgement of paternity by a person means that he has accepted himself as father of a
child where the legitimacy of a child is neither proved nor disproved the acknowledgment of
paternity by a person may establish the existence of a valid married and also the legitimacy of
the child.
 It may be express or implied in the case of a child who is proved to be the child of a third
person or illegitimate, the acknowledgment shall carry no force.
Conditions of a valid acknowledgment -
i. The acknowledgment must be with the distinct intention of conferring the status of legitimacy.
ii. The acknowledger must be at least twelve and a half years older than the person
acknowledged.
iii. The child so acknowledged must not be known to be the child of another.
iv. The child, if adult must confirm or acquiesce in acknowledgment.
v. It is essential to show that a lawful marriage is possible between the acknowledger and child’s
mother and the child is not the fruit of an adulterous intercourse.
vi. The acknowledger must be an adult and sane.
Effects of acknowledgment: -
Acknowledgment of paternity raises a two fold presumption
1. In favour of child claimant: It produces all the legal effect of a natural paternity and vests in the
child the right of inheriting from acknowledger.
2. In favour of the wife (i.e., the mother of an acknowledged child): It has the effect of giving
her the status of legal wife and hence the right of inheritance.

Case Laws:
 Habibur Rehman v. Altaf Ali (1918):
o The Calcutta High Court held that legitimacy of a child can purely be established by marriage.
In zina, even if the parents of an illegitimate child can validly marry each other in the future, it
cannot be regarded as a legitimate child post that.
 Zamin Ali v. Aziz Nissa (1939):
o The Allahabad High Court observed that a statement (acknowledgement) of the deceased
father that he was married to the mother of the child, is evidence of a valid marriage, from
which legitimacy of the child may be presumed.