Part 2 - PROCESS OF DIVORCE OUTSIDE THE COURT - BMMA'S DRAFT PROVISIONS

DAY 24

Part 2 - DIVORCE OUTSIDE THE COURT

In this part, I will discuss BMMA’s proposed law where lays out the method of divorce which can happen outside the court. This method is to be followed by NGOs, Darul Qazas, Shariat Adalats. 

What are the different forms of divorce recognized by BMMA’s law? 

The Act recognizes 3 forms of separation between husband and wife:

• Demand for divorce by wife [Khula/faskh]
• Demand for divorce by husband [Talaak]
• Divorce by mutual consent [Mubarah]

What are the general rules that need to be followed if the divorce happens through court? 

• In the event mentioned Khula/Faskh, Talaak, Mubarah the party demanding divorce will follow the Talaak-e-Ahsan method of divorce
• No rights of the wife are forfeited in the event of Khula, Mubarah or Talaak
• The wife has the right to refuse to stay under the same roof during iddat if she fears physical, mental and emotional harm
• The demand of khula by wife is not dependent on the consent of the husband. The Arbitrators shall have the power to terminate the marriage in the absence of consent of the husband in case of khula [faskh-e-nikaah].
• The procedure of Talaak-e-Ahsan also signify restitution of conjugal rights.

What are the grounds on which the divorce is to happen if it happens outside the court?

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage from the court on any one or more of the following grounds, namely that the:

• Whereabouts of the husband have not been known for a period of two years;
• Husband has neglected and or has failed to provide for her maintenance for a period of two years;
• Husband has failed to perform, without reasonable cause, his marital obligations for a period of two years
• Husband has been sentenced to imprisonment for a period of two years or upwards;
• Husband was impotent at the time of the marriage and continues to be so;
• Husband has been of unsound mind for a period of two years or has been suffering from leprosy or a virulent venereal disease;
• If she was given in marriage by her father or other guardian before she attained the age of fifteen years, she can file for divorce whether the marriage was consummated or not. 
• Husband has, after the solemnization of marriage, treated her with cruelty; that is to say,

1. Habitually assaults her or makes life miserable by cruelty of conduct even if such conduct does      not   amount to physical ill-treatment, or
2. Associates with persons of evil repute or leads an infamous life, or
3. Attempts to force her to lead an immoral life, or
4. Disposes of her property or prevents exercising of legal rights over it, or
5. Obstructs in the observance of religious profession or practice, or

• Husband has maintained, after solemnization of marriage, sexual relations with persons other than his own wife;
• That due to irretrievable breakdown of marriage, life together has become impossible or intolerable;

What are the grounds for decree of dissolution of marriage by husband?

A man married under Muslim law shall be entitled to obtain a decree for the dissolution of his marriage from the court on any one or more of the following grounds, namely that the:

• Whereabouts of the wife have not been known for a period of two years;
• Wife has been sentenced to imprisonment for a period of two years or upwards;
• Wife has been incurably of unsound mind for a period of two years or has been suffering from leprosy or a virulent venereal disease;
• Wife has, after the solemnization of marriage, treated him with cruelty;
• Wife has maintained, after solemnization of marriage, sexual relations with persons other than her own husband;
• That due to irretrievable breakdown of marriage, life together has become impossible or intolerable;

What is the procedure followed for divorce to happen outside the court?

Dissolution of marriage proceedings, by whatever name called, initiated by either or both the parties to a marriage without the intervention of a court, to be concluded through the following procedure only:-

1. STEP 1

As a first step, when there is a marital discord, the husband/ wife will reason out with each other through discussions.

2. STEP 2

If differences persist, then as a next step, the parties sexually distance themselves from each other in the hope that this temporary physical separation may encourage them to unite.

3. STEP 3

And if even this fails, they will once again discuss the seriousness of the situation and try to bring about reconciliation.

4. STEP 4

If the dispute still remains unresolved, as a fourth step, the parties to the dispute must place their matter before two Arbitrators nominated by the family, one from the family of each spouse, for resolution. The family Arbitrators must approach Arbitrators of a registered organization, as mentioned in this act, for the resolution of their marital discord.

What happens after these four steps? 

• It is only after the failure of the aforementioned four attempts at reconciliation that the first talaq is to be declared by the Arbitrators in the presence of two witnesses and both the parties. This declaration of divorce is to be followed by a waiting period called the iddat. Not more than two divorces can be pronounced within this period, the duration of which is three monthly courses.
• For women who have attained menopause or suffer from amenorrhea the period of iddat is three months, and in the case of pregnant women it is till the termination of pregnancy.
• And if the parties are unable to unite during iddat, the second and the final irrevocable talaq can be pronounced by the Arbitrators but only after the expiry of the iddat. Once the second and the final talaq has been invoked the marital bond is severed and the parties cease to have any relationship as between husband and wife with each other.
• However, even after iddat has lapsed and before the pronouncement of the second and final talaak by the Arbitrators, the contending parties have a chance to reunite by recontracting the marriage, provided the final talaq has not been declared.
• In other words, after the expiry of iddat, the parties are given the options of remarriage or permanent separation.
• All decisions taken before the witnesses and Arbitrators must be recorded. The final divorce at the end of iddat must also be recorded in a talaaknama by the Arbitrators.
• The rights of the women on divorce must be safeguarded by the Arbitrators and must be mentioned in the talaaknama.
• Original copies of the same must be provided to both the parties.

What other principles must be kept in mind? 

• The pronouncement of final talaak should be during the period of tuhr
• The four steps mentioned above signify restitution of conjugal rights
• The parties can also approach the Indian courts directly for the dissolution of their marriage
• Before making the second and final pronouncement of divorce, the Arbitrators must ensure that all matters related to dower, jewelry, household items,  maintenance of the women and children, inheritance, custody, education of children, residence of divorced women has been amicably and fairly settled.
• Once the second and final pronouncement of dissolution of marriage has been made, the parties are no longer married to each other.

How are women’s rights protected if it is khula? 

Even if the divorce proceedings initiated at the behest of the wife (khula), it will not affect any of the rights to dower and maintenance and all rights as mentioned earlier that the wife is otherwise entitled to.

The wife shall be entitled to institute any proceeding in the appropriate court under any or all of the following legislations -

(a) Muslim Women (Protection of Rights on Divorce) Act, 1986.

(b) Protection of Women from Domestic Violence Act, 2005.

(c) S.125 of the Code of Criminal Procedure, 1973.

(d) Any other law for the time being in force, applicable to her.

What if someone does not follow this method? 

Dissolution of marriage outside court through any other procedure to be invalid. Dissolution of marriage, by whatever name called, initiated outside court shall be concluded only through the procedure mentioned in this document. Dissolution of marriage concluded through any other procedure, in contravention of the procedure mentioned shall be illegal. If any of the spouse refuses to cooperate or participate in the reconciliation or dissolution process, it may amount to cruelty of conduct and may be a ground for approaching the court for dissolution of marriage.

How can the process outside court get approval of the court? 

• If the parties married under Muslim Law have concluded a dissolution of marriage by following the procedure provided, then they shall approach the court for a decree of dissolution of marriage.
• Each of the party will submit to the court an application asking for a decree of dissolution of marriage. Along with the application the parties will submit the Arbitrators' report which states the procedure followed for divorce and the confirmation that the parties have settled all issues fairly and amicably;
• After satisfying itself of the veracity of the affidavits and that the procedure outlined in this Act has been followed, the court shall either pass a decree of dissolution of marriage, in accordance with the other provisions of this Act, or dismiss the petition directing the parties to first comply with the requirements of this Act.
• If any party objects to any settlement related to dower, maintenance of wife and children, custody, inheritance, matrimonial property etc, the court may ask the party to file a fresh application for the settlement of the dispute.