Whatever be the mode, a divorce operates as a complete severance of the matrimonial relationship between husband and wife. After completion of every form of divorce, the marriage is dissolved and the parties cease to be husband and wife.
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Effects or the legal consequences of a divorce are given below:
(1) Cohabitation becomes illegal:
ADVERTISEMENTS:
Cohabitation between the husband and wife becomes unlawful after completion of the divorce.
(2) Iddat:
The wife is required to observe an Iddat of three lunar months after the divorce or, if pregnant, till the delivery of the child. However, if the divorce takes place before consummation, the wife need not observe Iddat.
(3) Maintenance during Iddat:
During the period of Iddat, the divorced wife is entitled to be maintained by her former husband. Maintenance of divorced wife is now governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986. Under this Act to the former husband is liable to maintain the divorced wife only upto the period of Iddat.
(4) Right to Contract another Marriage:
Both the parties are free to contract another marriage with other persons. Thus, husband can marry another woman immediately after the divorce. But a divorced wife cannot marry another husband before the expiry of the period of Iddat. If their marriage had dissolved before the consummation, the wife is also free to contract another marriage immediately after the divorce.
ADVERTISEMENTS:
However, if the husband has four wives at a time and one of them has been divorced, the husband too cannot contract another marriage during the Iddat of the divorced wife.
(5) Dower:
The unpaid dower becomes immediately payable to the divorced wife. Whether the dower is prompt or Deferred, the divorced wife is entitled to it immediately after the divorce.
If the marriage was consummated, she is entitled to the full amount of her Specified Dower; if the divorce takes place before consummation then she is entitled to only half of the Specified Dower. Where dower was not specified, she is entitled to Proper Dower; but if divorce takes place before consummation, she is entitled to get only some presents.
It is to be noted that Section 5 of the Dissolution of Muslim Marriages Act, 1939, provides that the Act does not affect, in any manner, the right to dower which a married woman may have under Muslim law on the dissolution of her marriage. Therefore, where a wife seeks a judicial divorce under this Act her right to claim dower is not lost; she is entitled to dower in accordance with the rules of Muslim personal law.
(6) Remarriage between the Divorced Couple:
ADVERTISEMENTS:
After completion of divorce, the parties cease to be husband and wife. There is no restriction in their re-marriage with other persons. But, there is some restriction in the re-marriage of the divorced couple. Muslim law prescribes certain special rules for the re-marriage between divorced husband and wife. These special rules are given below:
(a) The re-marriage of the divorced couple must be a fresh contract of marriage with all the essential formalities including fresh dower. If the divorced couple resumes cohabitation without contracting a fresh marriage, their union would be unlawful.
(b) The divorced couple cannot remarry even by a fresh contract without adopting the following special procedure:
(i) After completion of divorce the divorced wife observes the required Iddat. When Iddat is completed, the divorced wife contracts a valid marriage with another person. This marriage with the other person should not be merely a formality. It must be consummated.
(ii) The marriage with such other person dissolves. The husband either voluntarily divorces the wife or is himself dead and the wife observes Iddat.
(iii) Now, after the expiry of this Iddat, the wife may lawfully remarry the former husband.
Thus, we find that for a lawful remarriage between the divorced couples, two conditions are necessary: First, there must be a fresh contract of marriage between them and secondly the prescribed ‘special procedure’ must be followed.
If there is fresh contract but special procedure has not been followed, the marriage is irregular. But, if there is no fresh contract, the marriage is void. That is to say, if there is mere resumption of cohabitation there is no re-marriage and the union is void.
Rashid Ahmad v. Anisa Khatun is a leading case on this point. Briefly, the facts of this case were: Ghiyasuddin, a Sunni husband, divorced his wife Anisa Khatun irrevocably by pronouncing three Talaqs. He pronounced the Talaq under the undue influence of his parents when the wife was not present there. After sometime, the husband resumed cohabitation without formally remarrying and without adopting the special procedure.
Five children were born to them after this resumption of cohabitation. After the death of the husband, the children and the widow Anisa Khatun claimed their share in the property as heirs of the deceased. Their claim to inherit the property was challenged by Rashid Ahmad, who was brother of the deceased husband. Rashid Ahmad pleaded that after triple divorce the marriage of Ghiyasuddin and Anisa Khatun was dissolved.
In their re-marriage, the conditions prescribed by Muslim law for re-marriage of divorced couple were not followed. Since they resumed cohabitation without fulfilling these conditions, the re-marriage was void and Anisa Khatun (widow) and her children have no right of inheritance.
The Privy Council held that as there was no intermediate marriage (with another person) the bar to remarriage was not removed. The court further observed that there was no proof of any regular re-marriage; the parties simply resumed cohabitation.
In view of these circumstances, the court held that the union of Ghiyasuddin and Anisa Khatun after the triple divorce was void. The children, therefore, were held to be illegitimate and neither the children nor the widow could inherit the properties.
Khadija v. Muhammad is an interesting case from Kerala High Court. The husband had divorced his wife irrevocably by three pronouncements. After a long period, the husband ‘remarried’ her under a fresh contract of marriage and took her to his house. But in the meantime, the wife had not married any other person as required under Muslim law.
After few months of this remarriage, they quarelled and the husband divorced his wife once again. But during this short period cohabitation had taken place and a child was conceived and later born. The wife claimed maintenance for this child under Section 125 of the Cr. P.C.
The husband objected her claim on the ground that his ’remarriage’ was not lawful according to the provisions of Muslim law as there was no intervening marriage with a stranger. He further argued that their union after the remarriage was adulterous and illegal union, therefore, the child was illegitimate and not entitled to maintenance.
It was held by the Kerala High Court that if there is an irrevocable divorce by three Talaqs the spouses cannot remarry without fulfilling the prescribed conditions. But if the spouses remarry (with all the required formalities of a fresh marriage) then although the prescribed condition of marriage with another person and subsequent divorce by that person has not been followed, the remarriage is not void; it is merely irregular. Children of irregular (fasid) marriage are legitimate. As such, the child was legitimate and was entitled to maintenance under Section 125 of the Criminal Procedure Code.
(7) Mutual Rights of Inheritance Ceases:
Upon the completion of a divorce i.e. when it becomes irrevocable, the mutual rights of inheritance between the spouses cease. That is to say, if husband dies after the divorce, the wife is not entitled to inherit his properties. In the same manner, if the wife dies, the husband cannot inherit her properties. But, if the divorce was pronounced during the husband’s death-illness (Marz-ul-Maut), this general rule is not applicable.