Re­marriage of Divorced Couple under Muslim Law

Rashid Ahmed v. Anisa Khatun, (1932) 34 Bom. L.R. 475 P.C., 59 I. A. 21:

In this case, a Hanafi Musalman divorced his wife by three successive pronouncements. Subsequently, he re-married her. It was held by the Bombay High Court that the re-marriage (to his former wife) was not valid, unless the wife married another person; the marriage was consummated, and thereafter dissolved.

In the absence of proof of such marriage with another person and the dissolution of such marriage, a presumption of remarriage could not be raised. Hence, the children born after the pronouncement of divorce were held to be illegitimate, and therefore, not entitled to inherit from the father.

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Problem:

A Hanafi Muslim repudiated his wife by three pronouncements in the same breath “I divorce you…I divorce you…I divorce you.” The parties afterwards live together, and five children born to them. What are the rights of the children in the father’s estate after his death?

Ans:

The children would be regarded as illegitimate, and would, therefore, have no rights in the father’s estate after his death. (See Rashid Ahmed v. Anisa Khatun, above.)

Rights and Obligations of Parties on Divorce:

1. Until the divorce becomes irrevocable, (i) the husband Ñ9Ï revoke it, and (ii) either party is entitled to inherit from the other.

After the divorce becomes irrevocable, the wife may marry another husband, (a) immediately, if the marriage was not con­summated, and (b) after the completion of iddat, if the marriage was consummated.

2. If the husband had four wives, including the divorced wife, at the date of the divorce, he can marry another wife immediately, if his marriage with the divorced wife was not consummated, or after the completion of iddat of the divorced wife, if the marriage was consummated.

3. The wife is entitled to maintenance during iddat, or until she is informed of the divorce, whichever period is longer.

4. Sexual intercourse with the divorced wife is unlawful, and the issues of such an intercourse are illegitimate; their paternity cannot be acknowledged.

5. Mutual rights of inheritance cease after the expiry of the iddat. Until the expiry of the iddat, the wife’s right to inherit continues only if (i) the divorce was pronounced during the husband’s death-illness, and (ii) she was not repudiated at her own request.

6. The wife becomes entitled to the immediate payment, (i) of the whole of the unpaid dower, if the marriage was consummated; (ii) to half of the specified dower [or three articles of dress where it is not specified], if the marriage was not consummated.

7. The divorced couple may re-marry either during the iddat or after its completion; provided that a re-marriage with a thrice repudiated wife is irregular, though not void, unless, (i) the divorced wife married another man after the divorce, and (ii) the latter had died or divorced her after actual consummation of marriage.