Muslim marriage: triple talaq, a wife's right to divorce, mahr and maintenance

Instant triple talaq is void and a crime

The Muslim Women (Protection of Rights on Marriage) Act, 2019:

• "Talaq" here means talaq-e-biddat or any similar form of instant and irrevocable divorce pronounced by the husband (section 2(c)).
• Any such pronouncement — spoken, written, electronic (SMS, WhatsApp, email) or in any other manner — is void and illegal (section 3). The marriage continues.
• The husband can be punished with imprisonment up to three years and fine (section 4).
• The wife is entitled to a subsistence allowance for herself and dependent children, fixed by the Magistrate (section 5), and to custody of her minor children as the Magistrate decides (section 6).
• The offence is cognizable if the wife or a relative by blood or marriage informs the police; it can be compounded (settled) only at the wife's instance with the Magistrate's permission; and the husband gets bail only after the Magistrate hears the wife (section 7).

A wife's right to divorce through the court

The Dissolution of Muslim Marriages Act, 1939, section 2, lets a woman married under Muslim law get a decree of divorce on any of these grounds:

• the husband's whereabouts have not been known for four years;
• he has neglected or failed to provide maintenance for two years;
• he has been sentenced to seven years' imprisonment or more (once final);
• he has failed without reasonable cause to perform his marital obligations for three years;
• he was impotent at the time of marriage and continues to be;
• he has been insane for two years or suffers from a virulent venereal disease;
• she was given in marriage before 15, repudiated it before 18, and it was not consummated;
• cruelty, which includes habitual assault or making her life miserable by cruel conduct, associating with women of evil repute, forcing her into an immoral life, disposing of her property, obstructing her religious practice, or — if he has more than one wife — not treating her equitably as the Qur'an requires;
• any other ground valid under Muslim law.

Section 5 says the divorce does not affect her right to dower (mahr).

Rights on divorce: mahr, provision and maintenance

Under the Muslim Women (Protection of Rights on Divorce) Act, 1986, section 3, a divorced woman is entitled to:

• a reasonable and fair provision and maintenance, made and paid within the iddat period by her former husband;
• where she maintains the children, a reasonable and fair provision for them for two years from each child's birth;
• the full mahr (dower) agreed at or after the marriage;
• all properties given to her before, at or after the marriage by her relatives, friends, the husband or his relatives.

Maintenance under criminal procedure: in Mohd. Abdul Samad v. State of Telangana (2024), the Supreme Court held that the general maintenance provision (section 125 CrPC, now BNSS section 144) applies to all married women, including Muslim women, and that a divorced Muslim woman may seek maintenance under that provision, under the 1986 Act, or both. Where talaq is illegal under the 2019 Act, she may seek the section 5 subsistence allowance or, at her option, maintenance under the general provision.

Personal law applies

The Muslim Personal Law (Shariat) Application Act, 1937, section 2, makes Muslim Personal Law (Shariat) the rule of decision where the parties are Muslims, in questions including marriage, dissolution of marriage (talaq, ila, zihar, lian, khula and mubaraat), maintenance, dower, guardianship, gifts and intestate succession (agricultural land excepted).

Steps

1. For an instant talaq, a written complaint to the police station, naming the date and how it was pronounced; keep the message or recording.
2. Apply to the Magistrate for subsistence allowance and custody, or for maintenance under BNSS section 144.
3. For divorce on a ground above, file in the Family Court.
4. Free legal aid is available to women at the District Legal Services Authority.