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Dissolution of Muslim Marriages Act


Dissolution of Muslim Marriages Act
Dissolution of Muslim Marriages Act

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The Dissolution of Muslim Marriages Act, 1939 (Judicial Divorce ar Suit of Wife)


Judicial divorce at the instance of the husband is not recognized in modern Muslim law due to the absolute and unilateral power granted to him. The annulment of marriage by judicial decree at the wife's instance is called faskh.



Under Mohammedan law, a wife has no absolute right to obtain a divorce; she only has this right under certain contingencies and conditions.



The Dissolution of Muslim Marriages Act, 1939, was enacted to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts regarding the effect of a married woman's renunciation of Islam on her marriage tie.



The main objective of the Act was to align the law as administered in this subcontinent with authoritative texts.



Before the Act's passing, British courts had denied Muslim women the rights of dissolution available to them under the Shariat Act, 1937 (such as Ila and Zihar). A wife could apply for the dissolution of her marriage only on the grounds of: 


(i) the husband's impotence,


(ii) Lian, and 


(iii) the option of puberty.



The Act applies to all schools of Muslim law and territorially to the whole of India, except the Jammu and Kashmir State, where the J&K State Dissolution of Muslim Marriage Act, 1942, is substantially the same.

 
 

Sec. 2. Grounds for decree for dissolution of marriage


Section 2. Grounds for Decree for Dissolution of Marriage

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:


- The whereabouts of the husband have been unknown for a period of four years.


- The husband has neglected or failed to provide for her maintenance for a period of two years.


- The husband has been sentenced to imprisonment for a period of seven years or more.


- The husband has failed to perform his marital obligations, without reasonable cause, for a period of three years.


- The husband was impotent at the time of marriage and continues to be so at the time of the petition's presentation.


- The husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease.


- She, having been given in marriage by her father or guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18 years (provided that the marriage has not been consummated).


- The husband treats her with cruelty.


- On any other valid ground recognized under Muslim law.



 [Clause (i)] Four years absence of the husband

A decree passed on this ground will not take effect for a period of six months from the date of such decree. If the husband appears either in person or through an agent within that period and satisfies the court that he is prepared to perform his conjugal duties, the court must set aside the decree.



 [Clause (ii)] Failure to provide maintenance for two years



[Clause (iii)] Seven years’ imprisonment of the husband 

A decree can be passed on this ground only if the sentence has become final, meaning an appeal against the judgment has been disposed of. Remission of the sentence later does not affect the right of the wife.



 [Clause (iv)] Failure to perform marital obligations

This ground is akin to ‘desertion’ under Hindu law. Thus, the "reasonable cause" here will have the same meaning as it has in connection with desertion. The Act does not specify that it should be continuously for three years.



[Clause (v)] Impotency of the husband 

Upon an application by the husband, the court must order him to satisfy the court within one year from the date of such order that he has ceased to be impotent. If he does so within this period, no decree can be passed on this ground. Therefore, the application must be made before the passing of the decree.



[Clause (vi)] Insanity, leprosy, etc. of the husband 

In the Act, ‘insanity’ is used in a very wide sense. It may be continuous or with lucid intervals, curable or incurable, and it may exist before or arise after the consummation of the marriage. Similarly, the ‘leprosy’ need not be incurable or virulent.



 [Clause {vii)]  Repudiation of marriage by wife {option of puberty)


[Clause (viii)] Cruelty 



[Clause (ix)]  Other grounds under Muslim law 

This clause is sufficiently wide to cover all grounds recognized by the Muslim law entitling a wife to divorce e.g. Ila, Zibar, Khula, Mubara’at, Talaq-i-tafweez, Lian. 

Breakdown Grounds under Muslim Law


Incompatibility of temperaments and hatred of the wife for her husband are not recognized by Muslim law as grounds of divorce.

 This principle was clearly established in Umar Bibi v Mohammad Din (1944 Lah 542). However, a different perspective was taken in Yousuf v Sowramma (AIR 1971 Ker. 261), where it was observed that if a marriage has broken down beyond the possibility of repair, it is better to put it asunder. 



Non-payment of maintenance by the husband: In Noorbibi v Pir Bux (AIR 1950 Sind 8), the court noted that when Muslim law allows divorce to the wife on the ground of the husband’s non-payment of maintenance, it was not because divorce was by way of punishment for the husband, nor was it a means of enforcing the wife’s right to maintenance. Rather, it was seen as an instance where cessation or suspension of the marriage had occurred.



Recognition of Breakdown Grounds:

From the above cases, two breakdown grounds of divorce were recognized as being available to the wife:


1. If the marriage has broken down beyond the possibility of repair, it is better to dissolve it.


2. Non-payment of maintenance by the husband leading to a cessation or suspension of the marriage.



These grounds reflect a nuanced approach to the dissolution of marriage in Muslim law, recognizing the reality of marital breakdown and the need for practical remedies.



Divorce by Mutual Consent under Muslim Law


Unlike Hindu law, there is no explicit statutory provision for divorce by mutual consent under Muslim law. However, Muslim law does recognize divorce by mutual consent in the forms of Khula and Mubara'at (as discussed earlier).



In the case of Mobd. Abdul Zahl Ahmed v Marina Begum (AIR 1999 Gau 28), the court introduced a new dimension to Section 2 of the Dissolution of Muslim Marriages Act, 1939, by granting divorce to the parties by 'mutual consent.' This decision was significant despite the absence of a statutory provision for mutual consent divorce in the Act. 



In this case, the wife had initially filed for divorce under the 1939 Act on the grounds of cruelty and non-performance of marital obligations by the husband. Subsequently, both the husband and wife filed joint applications for divorce by mutual consent.



The court held that since the grounds for divorce under the Act were already met, a decree of divorce could be passed in terms of the compromise reached between the parties. This decision was further justified by the fact that the husband had already remarried and the wife's remarriage was also imminent.



However, the court's approach in cases where the grounds for divorce under the 1939 Act are not proved but the parties simply seek a divorce by mutual consent remains uncertain.



Nonetheless, practical considerations suggest that even in the absence of an explicit statutory provision, where parties mutually agree to divorce and the court is satisfied that they cannot live together harmoniously, the divorce should be decreed.



This recognition of mutual consent divorce, albeit indirectly, reflects a progressive interpretation of Muslim law that aligns with contemporary societal needs and the principles of justice and fairness.

 
 

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