Modes of Talak, Zihar, the DMMA 1939 & Iddat — Muslim Law (Family Law II) Notes

Modes & Effects of Talak; Zihar; DMMA 1939

On 22 August 2017, in Shayara Bano v Union of India, the Supreme Court struck down instant triple talaq (talaq-e-biddat) — a husband divorcing his wife by saying “talaq” three times in one breath — as unconstitutional. Parliament followed with the Muslim Women (Protection of Rights on Marriage) Act, 2019, making it a punishable offence.

How is a Muslim marriage dissolved?

A Muslim marriage can end in several ways, and the exam wants the whole map organised by who brings about the dissolution.

A. By the husband — Talak. Talak is the husband’s unilateral power to divorce.

Talak-ul-Sunnat (approved) — the mode approved by the Prophet, itself of two kinds:
- Ahsan (most approved) — a single pronouncement during a period of purity (tuhr), followed by abstinence through the iddat; revocable during iddat.
- Hasan (approved) — three pronouncements in three successive periods of purity; becomes irrevocable on the third.
Talak-ul-Biddat (disapproved / innovation) — three pronouncements at once, or one irrevocable pronouncement — the instant triple talaq now struck down by Shayara Bano and criminalised by the 2019 Act.

B. By the wife.

Talak-e-Tafweez — divorce by the wife under a power delegated to her by the husband in the marriage contract.
Khula — divorce at the wife’s instance, where she offers consideration (usually giving up her dower) and the husband agrees.
Mubarat — divorce by mutual agreement, where both desire separation.

C. By mutual/constructive means.

Ila — the husband vows abstinence from his wife for four months; if kept, the marriage dissolves.
Zihar — the husband compares his wife to a woman within prohibited degrees (e.g. “you are to me as my mother’s back”); this is a constructive divorce — the wife may refuse cohabitation until he does penance; if he persists, she may seek judicial divorce.
Lian — the husband falsely charges the wife with adultery; she may sue for dissolution.

D. By judicial decree — Dissolution of Muslim Marriage Act, 1939. A wife may obtain a divorce on the grounds in section 2, including: husband’s whereabouts unknown for 4 years; failure to maintain her for 2 years; imprisonment for 7 years or more; failure to perform marital obligations for 3 years; impotence; insanity or a virulent venereal disease; the option of puberty (s.2(vii)); and cruelty. (Leprosy was omitted as a ground by the Personal Laws (Amendment) Act, 2019.)

Effects of talak. On an effective divorce: the wife must observe iddat (Topic 5); the deferred dower becomes payable; the parties may not inherit from each other after iddat; and (unless the divorce was irrevocable and by triple talaq) they may remarry — but after an irrevocable divorce they cannot remarry unless the wife has meanwhile married another, that marriage has ended, and her iddat from it is over (the rule of halala).

Section 2, Dissolution of Muslim Marriage Act, 1939 (extract): “A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds…” — desertion (4 years), failure to maintain (2 years), imprisonment (7 years), failure of marital obligations (3 years), impotence, insanity, cruelty, and others.

In Simple Terms: A husband divorces by talak (best: the revocable ahsan form; the instant triple talaq is now illegal). A wife divorces by delegated power (tafweez), by giving up dower (khula), by mutual consent (mubarat), or by court under the 1939 Act on stated grounds. Zihar (calling the wife like a mother) and ila (a vow of abstinence) are constructive divorces. After divorce the wife keeps iddat and gets her deferred dower.

🧩 WORKED EXAMPLE — a hasty triple talaq

Facts. In 2020 a husband pronounces “talaq, talaq, talaq” in one sitting and claims the marriage is instantly over.

Rule. Talaq-e-biddat (instant triple talaq) was declared unconstitutional in Shayara Bano (2017) and made a punishable offence by the 2019 Act.

Apply. The single-sitting triple pronouncement is talaq-e-biddat; it has no legal effect to dissolve the marriage and exposes the husband to prosecution.

Conclusion. The marriage is not validly dissolved by that pronouncement; the wife’s status continues and the husband may be prosecuted.

flowchart TD
    ROOT["Dissolution of Muslim marriage"]:::root
    ROOT --> H["By husband: Talak"]:::leaf
    H --> H1["Sunnat: Ahsan (revocable) / Hasan"]:::leaf
    H --> H2["Biddat: triple talaq (struck down)"]:::leaf
    ROOT --> W["By wife: Tafweez / Khula / Mubarat"]:::leaf
    ROOT --> C["Constructive: Ila / Zihar / Lian"]:::leaf
    ROOT --> J["Judicial: DMMA 1939, s.2 grounds"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Shayara Bano v Union of India (2017) — talaq-e-biddat (instant triple talaq) is arbitrary and unconstitutional.
Shamim Ara v State of U.P. (2002) — a talaq must be for reasonable cause and preceded by attempts at reconciliation; a mere plea of talaq in a written statement does not effect it.

Iddat

Why must a divorced or widowed Muslim woman wait before she can remarry? Because the law wants certainty about paternity — no child should be born into a doubt about whose it is. That waiting period is iddat.

What is iddat?

Iddat is the period of waiting that a woman must observe after the dissolution of her marriage (by divorce or death) before she may lawfully remarry. Its purpose is to ascertain whether she is pregnant and, on death, to mourn.

Duration:

On divorce — three menstrual courses (three tuhrs); if she does not menstruate, three lunar months.
On the husband’s death — four months and ten days.
If she is pregnant (whether on divorce or death) — until delivery of the child (this overrides the above).
Before consummation — a divorced woman who was never in valid retirement observes no iddat; but a widow observes the full iddat of death even without consummation.

When it starts. Iddat runs from the date of the divorce or the death; if the wife learns of it late, from the date of knowledge. During iddat the husband must maintain the divorced wife, and the parties may still reconcile in a revocable divorce.

On iddat: it is “the period during which a woman is prohibited from remarrying after the dissolution of her marriage” — three courses (or three months) on divorce, four months ten days on death, or until delivery if pregnant.

In Simple Terms: Iddat is the waiting time a woman keeps before remarrying, so paternity is certain. Divorce: three monthly cycles (or three months). Death: four months and ten days. Pregnant: until the baby is born. No consummation and divorced: no iddat.

flowchart TD
    ROOT["Iddat (waiting period)"]:::root
    ROOT --> A["Divorce: 3 courses / 3 months"]:::leaf
    ROOT --> B["Death: 4 months 10 days"]:::leaf
    ROOT --> C["Pregnant: until delivery"]:::leaf
    ROOT --> D["No consummation + divorce: no iddat"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Danial Latifi v Union of India (2001) — a husband’s duty to make provision extends within the iddat and the provision itself may secure the wife’s future beyond it.

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