TUSHAR JALAN (1282118)

BBALLB (B), 3rd Year

MUSLIM WOMEN RIGHT FOR

DISSOLUTION OF MARRIAGE
FML- 603

TABLE OF CONTENTS
1. Introduction................................................................................................................................2
2. Grounds For Divorce.................................................................................................................5
2.1. Whereabouts of the Husband Not Known..........................................................................6
2.2. Neglect or Failure to Maintain..........................................................................................7
2.3. Imprisonment of Husband.................................................................................................8
2.4. Failure to Perform Marital Obligation...............................................................................9
2.5. Husbands Impotency......................................................................................................10
2.6. Insanity, Leprosy or Venereal Disease of Husband.........................................................11
2.7. Option of Puberty by Wife...............................................................................................11
2.8. Cruelty by Husband.........................................................................................................12
2.9. A Residuary Clause.........................................................................................................14
3. Women Right After Divorce Under Muslim Law...................................................................16
3.1. Dower and Martial Gift....................................................................................................16
3.2. Maintenance.....................................................................................................................16
4. Conclusion...............................................................................................................................18

Bibliography19

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INTRODUCTION
The question of womens rights and obligations, in my opinion appear to be the most
controversial and most complex of all social problems. According to Carol Tarvis and Carol
Wade (1984), it has always been assumed throughout the centuries by all societies that the
difference between males and females is not conned to basic anatomy but in their respective
abilities to think and act. A historical study of the existence of differences between men and
women in various societies leads to the conclusion that these differences are indications of
different values as well.
Among almost all the nations of antiquity, divorce was regarded as a natural corollary or marital
rights. Romans, Hebrews, Israelis etc. all had divorce in one or the other form. Even though the
provision of divorce was recognized in all religions Islam perhaps the first religion in the world
which has expressly recognized the termination of marriage by way of divorce. In England
divorce was introduced only 100 years back. In India among Hindus, it was allowed only by
Hindu marriage act, 1955. Before the passing of the act divorce was not recognized by Hindu
Law1.
It has been pointed out by several authorities that prior to Islam divorce among the ancient Arabs
was easy and frequent occurrence, 2and that this tendency has persisted to some extent in Islamic
law. But to take a fair and balanced view it must be observed that the Prophet showed his dislike
to it in no uncertain terms.
A divorce by talaq is the mere arbitrary act of the husband who may repudiate his wife at his
own pleasure. An Arab husband has absolute power to divorce his wife without cause. According
to Tyabji, the pre-Islamic Arabs, could keep their wives in species of perpetual bondage,
pretending to take them back after repeated divorce, merely for the purpose of preventing the
wives from remarrying and from seeking the much needed protection of a husband. Divorce had

1 http://www.legalserviceindia.com/article/l338-Muslim-womens-right-for-dissolution-ofmarriage.html (visited on 24.02.15 at 11.35 P.M).

2 ENCYCLOPEDIA OF ISLAM 111, 636.
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become a one-sided engine of oppression in the hands of the husband. An Arab consider the
women as an instrument for conjugal happiness.3
According to Ameer Ali, the reforms of Prophet Mohammad marked a new departure in the
history of eastern legislations. The prophet of Islam is reported to have said with Allah, the most
detestable of all things permitted is divorce, and towards the end of his life he practically
forbade its exercise by men without intervention of an arbiter or a judge. The Quran Ordains, if
you fear a breach between them twain (the husband and the wife), appoints an arbiter from his
folk and an arbiter from her folks. If they desire amendment, Allah will make them of one mind
(4:35). The Quran permits divorce partly because of some countenance to the customs and partly
to enable men get rid of an odious union. 4
Marriage is the union of man and woman as recognized by law by which status of husband and
wife is conferred upon them. The term equivalent to marriage under Muslim law is Nikah which
means "to tie up together". A marriage or Nikah under Muslim law is an institution for legalizing
sexual intercourse and procreation of children for the preservation of human race and
systemization of social life.5 It is both a pious act as well as social contract under Muslim law.
A Muslim marriage ensures stability in a married life. But if the husband or wife desires to put an
end to the marriage where it fails and finds it unable to continue together, then they are given the
right of divorce to dissolve their marriage. Though Muslim law recognizes divorce, but it is
regarded by the Prophet to be the most hateful of all permitted things before Allah, for it prevents
conjugal happiness and interferes with the proper bringing up of children.
While a Muslim husband can dissolve the marriage by mere pronouncement of Talaq, his wife is
required to go to the court. Even in India a Muslim wife has the statutory right to divorce under
the Dissolution of Muslim Marriages Act, 1939.This Act under section 2 provides nine different
grounds to obtain divorce through court. The ninth ground is a residuary clause under which she
3 S.R MAYENI, MUSLIM LAW, 1st ed.
4 A.A.A. FYZEE, OUTLINES OF MUHAMMADAN LAW (Oxford University Press, New Delhi, 9th edn.
2005).
5 Ibid.
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can obtain divorce by way of Khula, Mubaraat, Ila, Zihar and Lian under Muslim law as
recognized by section 2 of the Muslim Personal Law (Shariat) Application Act, 1937.
Before the passing of the Dissolution of Muslim Marriages Act, 1939, a wife was entitled to
obtain divorce through Kazi or court on the grounds of Lian i.e. false charge of adultery,
husbands impotency or by exercising the option of puberty i.e. Khayar-ul-Bulugh. In addition to
above three grounds, the Act was enacted after borrowing six more grounds of divorce available
to a Muslim woman under Maliki School as the Hanafi School followed by a majority of Indian
Muslims did not provide them the divorce right on the basis of insanity, neglect, failure to
provide maintenance or to perform marital obligations, cruelty etc.
Additionally the position before the Act caused severe hardship to Muslim wives where they
desired to finish the agony of failed marriage. In the absence of three above mentioned grounds,
the only way left for them was to renounce Islam and came out of the marital bond. Increasing
number of apostasy cases forced the Muslim scholars to redefine and enact a new law so that
Muslim women would not have to take recourse to this desperate mode of dissolving their
marriages,6 hence resulted in the enactment of this Act.

6 B.R. VERMA, MUSLIM MARRIAGE & DISSOLUTION (Allahabad Law Agency, Allahabad, 1971)
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GROUNDS FOR DIVORCE

A Muslim women can initiate a divorce under Dissolution of Marriage Act, 1939 on several
grounds laid down in the act. The grounds justifying a divorce under Section 2 of the Act and its
nine sub clauses have gradually been read widely enough to encompass within them both fault
grounds that point toward the fault of one party as leading to the failure of a marriage, as well as
non-fault grounds such as irretrievable breakdown of marriage that do not seek to ascribe
fault or place blame on either party to the marriage, but merely recognize that the institution has
failed. Section 2 of the Act lays down the grounds of divorce as:
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
(i)

that the whereabouts of the husband have not been known for a period of four years;

(ii)

that the husband has neglected or has failed to provide for her maintenance for a period of two
years;

(iii)

that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv)

that the husband has failed to perform, without reasonable cause, his marital obligations for a
period of three years;

(v)

that the husband was impotent at the time of the marriage and continues to be so;

(vi)

that the husband has been insane for a period of two years or is suffering from leprosy or a
virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the
age of fifteen years, repudiated the marriage before attaining the age of eighteen years; provided
that the marriage has not been consummated;
(viii) that the husband treats her with cruelty, that is to say,--

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(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct
does not amount to physical ill-treatment, or
(b) associates with women of evil repute or leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her in exercising her legal rights over it, or
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of
the Quran;
(ix)

On any other ground which is recognized as valid for the dissolution of marriages under Muslim
law.
Provided that-

(a) no decree shall be passed on ground (iii) until the sentence has become final;
(b) a decree passed on ground (i) shall not take effect for a period of six months form the date of
such decree, and if the husband appears either in person or through an authorized agent within
that period and satisfies the court that he is prepared to perform his conjugal duties, the court
shall set aside he said decree; and
(c) before passing a decree on ground (v) the court shall on application by the husband, make an
order requiring the husband to satisfy the court within a period of one year from the date of such
order that he has ceased to be impotent, and if the husband so satisfies the court within such
period, no decree shall be passed on the said ground.

(I) Whereabouts of the Husband Not Known

Section 2(i) of the Dissolution of Muslim Marriages Act, 1939 provides that a woman
can obtain a decree for the dissolution of her marriage if the whereabouts of the husband has not
been known for a period of four years. In most of the systems of the world it is laid down that if
the whereabouts of person are not known for certain duration by those who would have known

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about him, then he would be presumed to be dead 7. Similarly if the Muslim husband goes
missing for four years, her wife can have the right to repudiate the marriage. She can file a suit
for decree of dissolution of marriage. However she has to undergo Iddat of death.
Before the enactment of this Act, there was a considerable uncertainty among the
Muslim scholars about the time period of missing for the whereabouts of the husband. Under
different schools abnormally long periods were prescribed for determining whether the man was
dead. On accounts of absurdity the Indian Courts started applying Maliki law which allowed a
period of four years. The same has now been made the time period in case when the
whereabouts of the husband goes unknown under the Act.
Proviso (b) to the section provides that such decree passed shall not take effect for a
period of six months from the date of passing of decree and in case the husband appears within
six months and satisfies the court that he is willing to perform his marital obligations, the court
may set aside the decree.8 But where husband does not appear himself or through his authorized
agent, the court shall final the decree and wife then can marry.
Before passing the decree in her favor it is also required that provisions under section 3
of this Act have been complied with. Section 3 requires that a notice to be served on heirs of
husband so that they can have a just chance to be heard in the suit.

(II) Neglect or Failure to Maintain

According to the Quran, it is the husband's duty to provide for the wife with whatever means he
has.9 The Dissolution of Muslim Marriages Act, 1939 codifies this rule, in a sense, by stating
that failure to provide maintenance is a ground for divorce under section 2 (ii) which provides
that if the husband has neglected or failed to provide maintenance to the wife for two or more
years, the wife is entitled to obtain a decree for the dissolution of marriage.
7 PARAS DIWAN, LAW OF MARRIAGE &DIVORCE 522 (Universal Law Publishing Co, New Delhi,
6thedn, 2012)
8 DR. M.A. QURESHI, MUSLIM LAW 104 (Central Law Publications, Allahabad, 3rdedn, 2007)
9 THE NOBLE QURAN, SURAT AN-NISA 4:34(Translation by Sahih International, UK, 2010)
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But the husband cannot be said to have neglected her or has failed to provide maintenance for
his wife unless he was under an obligation to maintain her. Under Muslim law, the husband is
not bound to maintain his wife who is not faithful or obedient to her husband, or who does not
perform her marital duties. Therefore, if the wife lives separately without any reasonable cause,
she is not entitled to get a divorce on the husbands failure to maintain her because her own
conduct disentitles her for maintenance under Muslim law.10
As far as the period of two years is concerned it should be continuous and unbroken period and
not a period aggregating two years. The husbands refusal or failure to maintain his wife would
give the latter a cause of action for divorce on the expiry of a period of two years. If the husband
is providing her maintenance of and on, and at no time he had failed or refused to maintain her
for a continuous period of two years, then the wife has no right to sue for dissolution of
marriage under this clause.
In Satjung v RehmatDil Murad11 the Sind Chief Court said that the clause contemplates an
unbroken period of two years before the suit. A period of two years means a period of two years
and not a period of aggregating two years.

(III) Imprisonment of Husband

Section 2 (iii) says that if the husband has been sentenced to imprisonment for a
minimum period of seven years, the wife may file a suit for dissolution of marriage. Proviso (a)
to sec 2 lays down that no decree shall be passed on ground (iii) until the sentence has become
final. Therefore, the decree can be passed in her favor only after the expiry of the date for appeal
by the husband or after the appeal by the husband has been dismissed by the final court. The
wifes right of judicial divorce on this ground begins from the date on which the sentence has
become final.
The rationale behind this provision is that like desertion (which may be of two years or
of indefinite duration) the cohabitation stands disrupted for seven years besides one being
dubbed as a spouse of prisoner. One may or may not stand the seven years separation, but one
10 RabiaKhatoon v. Mukhtar Ahmad, AIR 1966 All 548
11 AIR 1946 Sind 48
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may find the agony of a prisoners wife too hard to withstand. Thus if a spouse finds either or
both difficult to suffer, he or she may seek divorce.
This provision with regard to the length of a husbands prison sentence to warrant a
divorce is diverged from other Muslim countries. Where the Indian legislature insisted on no
less than a seven-year sentence, three years sufficed for its Egyptian counterpart.

(IV) Failure to Perform Marital Obligation

Section 2 (iv) provides that if the husband without reasonable cause has failed to perform his
marital obligations for a period of three years, the wife may file a suit to dissolve her marriage.
The Act does not define marital obligation of the husband. Syed Khalid Rashid in book12
provides that a Muslim husband has following obligations towards his wife:

Maintenance: This has been already covered under clause (ii).

Equal Treatment: This is also now a specific ground under clause (viii) (f), being considered as
the cruelty to the wife.

To make available to her a personal apartment,

To allow her to visit and be visited by her parents and blood relations,

Sexual Intercourse: Sexual intercourse, i.e. the marital right to it flows directly from the Muslim
concept of marriage. But denial should be of a reasonable claim. It would mean the same thing
as that of cruelty, and

Dower.
The last four would be covered by this clause. For the purpose of this clause, husbands failure
to perform only those conjugal obligations may be taken into account, which are not included in
any of the clauses of Section 2 of this Act. Similarly where the husband deserts his wife or does
not cohabit with her without any reasonable cause, it amounts to failure of the husband to
perform marital obligations.13
12 SYED KHALID RASHID, MUSLIM LAW (Eastern Book Co., Lucknow, 5thedn. 2009)
13 DR. R.K. SINHA, MUSLIM LAW (Central Law Agency, Allahabad, 5thedn. 2003)
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Regarding the period of three years it has been held in Munnawrabai v Sabir14 that the clause
does not use the word continuously with the words for a period of three years, but it is
submitted that is what the clause means.

(V) Husbands Impotency

Section 2 (v) states that a Muslim wife can apply for divorce if her husband is impotent at the
time of marriage and continues to be so. Impotency means inability to consummate the
marriage. The marriage is consummated by sexual intercourse. The sexual intercourse is an act
where the male acts as an active partner and the female acts as a passive one. Impotency with
reference to a male means non-erection of the male organ, or erection but non-penetration of it
into females body.
Prior to the Act a Muslim wife in order to obtain divorce for her husbands impotency has to
prove the grounds that the husband was impotent at the time of marriage and she was ignorant
of the fact at the time of marriage. Such impotency continued since then and permanent and the
marriage has not been consummated. If during this period the husband has sexual intercourse
with wife, it will be presumed that the husband is not impotent, however if there is no such
intercourse, the Kazi must pronounce the separation.14
But now under section 2(v) for getting a decree, the wife has to prove only two grounds that the
husband was impotent at the time of the marriage, and that he continues to be impotent till the
filing of the suit. Sirajmohmed v Hafizunnisa Begum15 is a significant judgment, in which the
Supreme Court, held that impotency of husband is a species of cruelty and a just ground for the
wife to withdraw from the marriage.
Proviso (c) to Sec 2 of the Act provides that when a decree is passed in the favor of wife for the
dissolution of marriage on the ground of husbands impotency, the decree shall be remained nisi
for the period of one year. However this can take place only where the husband make an
application. So a husband can make an application for allowing him to prove that he has ceased
14 M.A. QURESHI, MUSLIM LAW OF MARRIAGE, DIVORCE AND MAINTENANCE (Deep & Deep
Publications, New Delhi)
15 AIR 1981 SC 1972
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to be impotent within one year from the date of passing of decree for annulment of his marriage.
The decree such passed shall not be absolute till one year.
If after the expiry of one year the wife satisfies the court that the husband continues to be
impotent and physically unable to perform marital obligations, she will be entitled to have the
decree made absolute otherwise the decree nisi will be cancelled and her suit dismissed.

(VI) Insanity, Leprosy or Venereal Disease of Husband

A wife married under Muslim Law can obtain divorce on the ground that the husband is
insane or is suffering from leprosy or venereal disease under section 2 (vi). The husbands
insanity must be for a period of two or more years immediately preceding the presentation of the
suit. Under the Act, Insanity of the husband may be with or without lucid intervals. Insanity
under the Dissolution of Muslim Marriages Act, 1939 has not been qualified by words such as
incurable or continuous. The Insanity may be of any quality. It may be idiocy or lunacy. Hence, it
can be continuous with lucid intervals, it might be curable or incurable, and it can be before or
after marriage and consummation.
Under this clause she can file a suit for divorce on the ground of leprosy of her husband.
Leprosy means agonizing or ulcerous type of disease under which a human being becomes
deform and unfit for sexual intercourse. The Act neither specifies the form of leprosy nor its
duration. She can get the decree of dissolution of her marriage only where the leprosy is
loathsome, i.e. the husband is unfit for social contact and is shunned by the society.
Venereal disease is a disease of the sex-organs. It may be of any duration. Moreover, even
if this disease has been infected to the husband by the wife herself, she is entitled to get divorce
on this ground. The most common form of venereal diseases are Syphilis and Gonorrhea; and of
these two, former is considered to be more dangerous.

(VII) Option of Puberty by Wife

This ground for the dissolution of marriage is not based on any fault of the husband. It is an
independent provision under which, a marriage is voidable at the option of the wife. Under
Section 2 (vii), a wife can obtain a decree for dissolution of her marriage if her marriage was
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contracted by her father or any other guardian during her minority. Thus, this clause gives her,
the option to repudiate the marriage before attaining the age of eighteen years. Proviso to
Sec 2 (vii) lays down that the marriage has not been consummated. So when consummation
takes place, the option of puberty of a wife is lost.
The mere exercise of the option of puberty does not operate as dissolution of marriage. The
repudiation is only a ground to file a suit to dissolve the marriage. The repudiation must be
confirmed by the decree of the Civil Court. Until then, the marriage subsists, and if either party
to the marriage dies, the other party will inherit.
However the latest legal trend about the validity of dissolution of marriage by the option of
puberty is discussed in Smt.KhatizaTulQubra @ Tara Bano vs Iqbal Mohammad 16 where it has
been held that when the option of puberty is opted by a lady by her conduct and same is
admitted by the opposite party, in that situation, it is not necessary to obtain a decree for
dissolution of marriage from a competent court.

(VIII) Cruelty by Husband

Section 2 (viii) of the Dissolution of Muslim Marriages Act, 1939 provides that a Muslim wife
will be entitled for divorce if her husband treats her with cruelty. Even before passing of the Act
of 1939, cruelty was recognized as a good ground for the wife to seek divorce. Section 2 (viii)
of the Act of 1939 contains various instances of cruelty. These are:

Physical and Mental Cruelty.

Concubine.

Attempts to force her to lead an immoral life.

The husband disposes off her property or prevents her from exercising her legal rights over it.

Obstructs her in the observance of her religious profession or practice.

If he has more wives than one, does not treat her equitably.

16 AIR 2009 Raj 82

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Cruelty, no doubt, constitutes a pompous ground for dissolution of marriage, as the term cruelty
and love and affection are repugnant to each other. There is no strait jacket formula to define
cruelty. Even a gesture, an angry look, a sugar coated joke, an ironic look may be more cruel
than beating. Every act or conduct of one spouse which makes the other spouse unhappy or
miserable cannot amount to cruelty. The mere fact is that the erring spouse is moody, whimsical,
mean, stingy, selfish, boorish, irritable, inconsiderable, irascible etc. will not be sufficient to
amount to cruelty.
Cruelty in marital relationship, is a course of conduct of one spouse which adversely affecting
the other. Cruelty may be mental or physical, intentional or unintentional. If it is physical, it is an
issue of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel
treatment and then as to the treatment of the mind of the spouse. Whether it caused reasonable
apprehension that it would be harmful or injurious to live with the other, is ultimately a matter of
inference to be drawn by taking into account the nature of the conduct and its effect on the
complaining spouse. Cruelty is a ground for matrimonial relief.17
The onus in these days would be on the husband who takes a second wife to explain his action
and prove that his taking a second wife involved no insult or cruelty to the first. For example, he
may refute the presumption of cruelty by proving that his second marriage solemnized at the
suggestion of the first wife or in order to gain some financial benefit( may be through contract)
the first wife may indulge or insist her husband or reveal some other relevant circumstances will
prove cruelty. But in the absence of a strong and proper explanation the court will presume,
under modern prevailing systems, that the action of the husband in taking a second wife involved
cruelty to the first and that it would be inequitable for the court to compel her against her wishes
to live with such a husband.
It will amount to cruelty if the husband disposes of his wifes property or prevents her from
exercising her legal rights over it. In case Zubaidaa v. Sardar Shah,18 the view expressed by
Abdul Rahman J., that, it is not always easy to determine for what purpose, husband sells or
assigns his wifes property of any value. Property may be used for the treatment of wife, for the
17 http://www.legalserviceindia.com/article/l338-Muslim-womens-right-for-dissolution-ofmarriage.html (Visited on 21.02.15 at 6.42 P.M).
18 AIR 1943 Lah. 310.
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benefit of the family members, for the education of children, for the maintenance of any other
liabilities. If the property disposed of not for the selfish ends of the husband, not with the object
of meeting a pressing needs but more in the sense of waste and this done to deprive the wife of
her property and without the consent of wife then it shall constitute the offence of cruelty.
Today, there is a large volume of case laws on cruelty in India and abroad. Since human nature
and conduct are infinitely diverse. No hard and fast rules can be laid down as to what acts or
conducts will amount to cruelty in any given case. However, there is a sea change in the attitudes
of the courts. There is no difficulty in holding when physical violence amounts to cruelty.
However deciding some clear cases, questions do arise in the sphere of mental cruelty or not.
The reason is that mental cruelty may be of any kind or of infinite variety, new concept of mental
cruelty may reveal. It may be subtle or brutal. It may be by words, gestures or even by mere
silence.

(IX) A Residuary Clause

Section 2 (ix) is a residuary clause under which; a wife may seek dissolution of her
marriage on any ground which is recognized as valid for the dissolution of marriage under the
Muslim personal law. It covers other grounds such as Lian, Khula, Talaq-e-Tafweez, Ila,
Mubaraat, Zihar, apostasy from Islam, breakdown of marriage etc. The Act proceeds to lay
down a residuary provision in order that, the wife may not lose the benefit of any other ground
which may have escaped the attention of the Parliament.

Lian: A suit for Lian can be filed under Section 2(ix) if there is a false charge of adultery.

Mutual imprecation commences if a husband accuses his wife of adultery. If no proof is

forthcoming, next is the procedure of Lian which in India happens at the institution of a suit after
which the husband has the option to formally retract his charge or swear under many oaths to
four eyewitnesses. The wife can swear to her innocence. After these mutual imprecations, the
marriage stands dissolved. In Zafar v Ummat-ul-Rahman19 the court held that no decree can be
passed if the charge is true.

19 ILR (1949) 41 All 278

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Khula and Mubaraat: Under Dissolution of Muslim Marriages Act,1939 there is no

provision for divorce by mutual consent, however, Muslim law recognizes it by the way of Khula
and Mubaraat. Moreover the judicial pronouncements20 have also agreed to this point and it is
held that even in the explicit statutory provision, the wife can apply under Sec 2 clause (ix) for
the divorce by mutual consent.

Breakdown of Marriage: Under this clause, complete break-down of matrimonial

relations or total mental incompatibility in itself, has been regarded as a reasonable ground for
dissolution of a Muslim marriage. Such interpretation of this clause would not only be realistic,
rational and modern approach but generally, it would also be in consonance with Islamic policy
of dissolution of marriage. After the marriage has ceased to exist in substance and in reality, there
is no reason for denying divorce.21

Creation of prohibited degrees: Quran discourages intra-family relations22 that if one

spouse commits a sexual act with an ascendant or descendant of the other, the couple could be
considered related and the marriage is dissolved.23

20 Md Abdul Zahl Ahmed v Marina Begum, AIR 1999 Gau 28; Mrs. Sabah Adnan Sami Khan v
Adnan Sami Khan
AIR 2010 Bom 109
21 http://www.legalserviceindia.com/articles/break_mar.htm (Visited on 24.02.15 at 3.46 PM)
22 Supra note 9
23 J. J. NASIR, THE STATUS OF WOMEN UNDER ISLAMIC LAW AND MODERN ISLAMIC LEGISLATION (BRILL,
3rd edn 2009)
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WOMEN RIGHT AFTER DIVORCE UNDER MUSLIM LAW

Dower and Martial Gift
In Muslim law dower is an attribute of marriage and not of divorce. All unpaid dower becomes
payable on divorce. If a marriage is dissolved before it is consummated, half of the specified
dower is payable. The same will be the case if the dissolved marriage was Fasid under Muslim
law.
Discharge of dower liability towards the divorced wife id the divorcing wife topmost legal
obligation. Islamic texts put great emphasis on the divorced wifes dower which must be paid as
soon as talaq becomes legally effective; its payment cannot be unreasonably delayed; nor can the
dower be withheld on any ground whatsoever.

Maintenance
Under the "Women (Protection of Rights on Divorce) Act, 1986" spells out objective of the Act
as "the protection of the rights of Muslim women who have been divorced by, or have obtained
divorce from, their husbands." The Act makes provision for matters connected therewith or
incidental thereto. It is apparent that the Act nowhere stipulates that any of the rights available to
the Muslim women at the time of the enactment of the Act, has been abrogated, taken away or
abridged. The Act lays down under various sections that distinctively lay out the criterion for
women to be granted maintenance. Section (a) of the said Act says that divorced woman is
entitled to have a reasonable and fair provision and maintenance from her former husband, and
the husband must do so within the period of Iddat and his obligation is not confined to the period
of Iddat.
It further provides that a woman , if not granted maintenance can approach the Wakf board for
grant as under section (b)which states that If she fails to get maintenance from her husband, she
can claim it from relatives failing which, from the Wakf Board.
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An application of divorced wife under Section 3(2) can be disposed of under the provisions of
Sections 125 to 128, Cr. P.c. if the parties so desire. There is no provision in the Act which
nullifies orders passed under section 125, Cr. P.c. The Act also does not take away any vested
right of the Muslim woman.
All obligations of maintenance however end with her remarriage and no claims for maintenance
can be entertained afterwards. The Act thus secures to a divorced Muslim woman sufficient
means of livelihood so that she is not thrown on the street without a roof over her head and
without any means of sustaining herself.

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CONCLUSION
From the above we can infer that these laws were piecemeal, targeting only certain aspect of the
personal law. For instance, the Dissolution of Muslim Marriage Act only laid down grounds on
which women could seek divorce. It never curbed mens right to unilateral oral divorce nor did it
lay down any procedure for the recovery of mehr, post-divorce maintenance or about the custody
of children. All three instances of codification of certain aspects of Muslim personal law show
that religious men from the community used their influence on the entire process to protect the
Shariat from any pro-women reform. Accordingly all attempts at bringing about pro-women
reforms and some uniformity in the Muslim law failed. Even statutory legislations are not
without flaws. Some aspects of the law like the right of Muslim women to seek divorce and the
post-divorce maintenance have been codified. But other aspects like inheritance, custody of
children etc. have not been codified. On top of all these is the prevalence of customary laws,
which the community has been following as a matter of tradition. In the last 20 years except for
some pro-women judgments, there has been no forward movement in the effort to reform the
Muslim law by codifying it and making it uniformly applicable to the entire Muslim population
across the country.
Dissolution of Muslim Marriage Act 1939, has enabled women to seek divorce on the grounds of
cruelty without having a free of losing a substantial part of her property. Earlier, before the
enactment of this act Muslim women did not have this advantage to file an application for
divorce on the grounds of cruelty but now she can do so. This act has proved to be a boom for all
Muslim women. Womens struggle are interconnected and complementary and therefore has a
commitment to international solidarity.

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BIBLIOGRAPHY
A.A.A. FYZEE, OUTLINES OF MUHAMMADAN LAW (Oxford University Press, New
Delhi, 9th edn. 2005).
B.R. VERMA, MUSLIM MARRIAGE & DISSOLUTION (Allahabad Law Agency, Allahabad,
1971).
DR. R.K. SINHA, MUSLIM LAW (Central Law Agency, Allahabad, 5thedn. 2003).
J. J. NASIR, THE STATUS OF WOMEN UNDER ISLAMIC LAW AND MODERN ISLAMIC
LEGISLATION (BRILL, 3rd edn 2009).
M.A. QURESHI, MUSLIM LAW OF MARRIAGE, DIVORCE AND MAINTENANCE (Deep
& Deep Publications, New Delhi).
PARAS DIWAN, LAW OF MARRIAGE &DIVORCE 522 (Universal Law Publishing Co, New
Delhi, 6thedn, 2012).
SYED KHALID RASHID, MUSLIM LAW (Eastern Book Co., Lucknow, 5thedn. 2009).
THE NOBLE QURAN, SURAT AN-NISA 4:34(Translation by Sahih International, UK, 2010).

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