Consent Divorce in Muslims

Whether such a provision that is available to Hindus, Parsis and Christians under the Special Marriage Act, 1954, is available to Muslims?


The Muslims, like other religions, are entitled to divorce by mutual consent of spouses if they fail to carry out marital obligations. The divorce could be granted on the ground that the couple ‘cannot live together and carry out the wish of Allah in carrying out their matrimonial obligations’.

No-fault divorce is allowed in Muslim societies, although normally only with the consent of the husband. A wife seeking divorce is normally required to give one of several specific justifications (see below). Islam discourages divorce.
If the man seeks divorce or was divorced, he has to cover the expenses of his ex-wife feeding his child and expenses of the child until the child is two years old (that is if the child is under two years old). The child is still the child of the couple despite of the divorce.
If it is the wife who seeks divorce, she must go to a court. She must provide evidence of ill treatment, inability to sustain her financially, sexual impotence on the part of the husband, her dislike of his looks, etc. The husband may be given time to fix the problem, but if he fails, the appointed judge will divorce the couple if the couple still wish to be divorced.

However, question that arises and worth consideration if Islamic jurisprudence had any provision to dissolve such failed marriages through mutual consent. "From the holy Quranic verse and teachings and doings of Prophet Muhammed, views of Islamic scholars and judicial decisions, we learnt that, even before 14 century years, Islam had allowed an end to a meaningless marriage -- a marriage on mere paper or by fiction -- by mutual consent of spouses."

Hence, where "it is a clear case of irretrievable breakdown of nikaah (marriage) and the parties categorically states that they do not wish to live together and wish to put an end to their marriage". The Islamic injunctions with respect to marital obligations permit separation when the spouses are not able to carry out the injunctions.




Author: Ajit Kumar, Advocate