Two forms of constructive divorce have existed in Muslim law, Ila and Zihar. According to Abdul Rahim, “In some cases the conduct of the husband will have the effect of repudiation, though he did not use the word talak or any other expression with the intention of dissolving the marriage. This is when he swears that he will have nothing to do with his wife and in pursuance of such oaths abstains from her society for four months.
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The legal effect of such a conduct would be a single irrevocable divorce. This form of divorce is known as ila. The Shafis and the Shias hold that this does not result in talak, but merely gives the wife the right of judicial divorce. According to the Ithana Asharis, this form of divorce can be used only after the consummation of marriage.
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If the husband resumes intercourse with his wife, or has retracted from it before the expiry of the period of four months, the ila does not take place and stands cancelled. If the husband assents of ila after four months, then the cancellation will be valid only if the wife assents to it.
Zihar, on the other hand, is an inchoate divorce. In this form, the husband expresses his dissatisfaction with his wife by comparing her with the back of his mother, or sister, or any other woman within the degrees of prohibited relationship.
In such a case the wife acquires a right to refuse cohabitation with her husband till he performs a penance. If the husband refuses to perform the penance, the wife gets a right of judicial divorce.
Among the Ithana Asharis, the declaration of divorce in zihar (the period of purity, i.e., when the wife is not in her mensturation course), sexual intercourse during that period having not taken. Tyabji remarks that zihar has hardly any significance so far as the law courts in India are concerned; the words do not come naturally to Indian Muslims.