TABLE OF CONTENTS

1) TABLE OF AUTHORITIES…………………………………………..3
2) INTRODUCTION……………………………………………………..4
3) INTRODUCTION TO MUSLIM MARRIAGE
DISSOLUTIONACT,1939……………………………………….........6
4) BACKGROUND OF MUSLIM MARRIAGE DISSOLUTIONACT,
1939……………………………………….............................................8
1. DEBATES ON THE BILL…………………………………..10
5) DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939………........16
6) NEED OF THE ACT…………………………………………….........19
7) STATUTORY PROVISIONS…………………………………………23
1. SECTION(2)
i. Absence of Husband………………………………….23
ii. Failure to maintain……………………………………23
iii. Imprisonment of husband…………………………….27
iv. Failure to perform marital obligations………………..27
v. Impotency of husband………………………………...28
vi. Insanity, leprosy or venereal disease………………….28
vii. Repudiation of marriage by wife……………………...29
viii. Cruelty by husband…………………………………....31
ix. Grounds of dissolution recognized by Mohammedan
law………………………………………………….....39
2. SECTION(3)………………………………………………....40
3. SECTION(4)………………………………………………....41
4. SECTION(5)…………………………………………………41
8) CONCLUSION………………………………………………………...42
9) SUGGESTION………………………………………………………....43
10) BIBLIOGRAPHY…………………………………………………..44
 TABLE OF AUTHORITIES
1. A Yusuf Rawther v. Sowramma, AIR 1971 Ker 261……………….24
2. A.M. Jagjakh v. RajathiZiaudeen, (2007) 1 DMC 365 (Mad)……....39
3. Abdul Azeem v. Fahimunnisa Begum, (69) A. Mys. 226…………..24
4. Aboobacker v. Mamukoya, AIR (1960), All, 684…………...…..36,39
5. Aiyesha v. Mohd. Yunus, 1938 PWN 656…………………………..29
6. Bai Fatma v. Munna Miranji, AIR 1957 Bom 453………………….25
7. Begum Subanu v. A.M. Abdul Gafoor, (1987) 2 SCC 285………....37
8. Fazal Mahmud v. Ummatur Rahim, AIR 1949 Peshawar 7………...25
9. Gul Mohd. Khan v. Hasna…………………………………………..28
10.Hamid Hussain v. K. Begum, (1918) ILR 40 All. 332……………...35
11.Iqbal Kaur v. Pritam Singh, AIR 1963 Punj 242……………………34
12.Itwari v. Smt. Asghari, AIR1960 All.684……………………… 32,38
13.K. Muhamma Lateef v. Nishath, AIR 2004 Ker 22………………....37
14.M.B. Rahim v. Shamsoonnissa Begum, (1967) 11 M.I. A.551……..35
15.Munnawarbai v. Sabir Mohammad, 1970 M.P.L.J. Notes 23……….24
16.Mustafa v. Khursida, 2006 AIHC 382 (Raj)………………………...30
17.Noor Jahan Bibi v Kazim Ali, AIR 1977 Cal. 90…………………...34
18.Nur Bibi v. Pir Bux, AIR 1950 Sindh 8………………...………..26,39
19.Sayeeda Khanam v. Muhammad Sami, PLD 1952 (WP) Lahore
113.......................................................................................................20
20.Shakla Bano v. Ghulam Mustafa, AIR 1971 Bom. 167……………..34
21.Syed Ziauddin v. Parvez Sultana, (1943) 210 IC 587…………….…32
22.Umar Bibi v. Md. Din, AI.R (1971), Ker, 261……………………....39
23.Umat-Ul-Hafiz v. Talib Hussain, AIR1945 Lah.56………………....36
24.Veeran Savyu Ravutharv v. Beeva Thumma, AIR 2002 Ker
370…………………………………………………………………...27
25.Zubaidaa v. Sardar Shah, AIR1943Lah. 310………………………..35
 INTRODUCTION
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 is perhaps the first religion in the world which has
expressly recognized the termination of marriage by way of divorce. 1 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 this act divorce was not recognized by Hindu Law.

Pre- Islamic background-Among the pre-Islamic Arabs, the power of

divorce possessed by husband was unlimited. They could divorce their wives
anytime, for any reason or without reason and as many times as they
preferred. They could arbitrarily accuse accuse their wives of adultery,
dismiss them and leave them with such notoriety as would deter other
suitors; while they themselves would go exempt from any formal
responsibility or legal punishment2.

In pre- Islamic Arabia, atleast four types of dissolution of marriages were

known: Talak, Ila, Zihar and Khula. A woman if absolutely separated
through any of these modes was free to remarry after the period of iddat has
passed but this was not a strict rule3.

After the advent of Islam4-The Prophet of Islam looked on these customs

of divorced with extreme disapproval and regarded their practice as

1
Aqil Ahmad: “Mohammedan Law”, 24thedition,revised by Prof. I.A. Khan, Ch.9; p.165
2
Ibrahim Abdul Hamid:”Dissolution of Marriage”Islamic Quarterly(1956)3 at p.166-175, 215-223
3
Accoding to Abdur Rahim
4
Syed Khalid Rasheed:”Muslim Law”,5thedition,revised by Prof. V.P. Bhartiya, Ch.5;p.104
calculated to undermine the foundation of society. It was impossible under
those conditions of society to abolish the custom entirely. Hence, the
Prophet allowed the exercise of the power of divorce to husbands under
certain conditions. He restrained the unlimited power of divorce by the
husband and gave to the woman the right of obtaining separation on
reasonable grounds.The Prophet is reported to have said,” if a women be
prejudiced by a marriage, let it be broken off” and that “with Allah, the most
detestable of all things permitted is divorce(for it prevented conjugal
happiness and interfered with the proper bringing up of children)”, 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 ye 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”5. The Quran permits divorce partly because of
some countenance to the customs and partly to enable men get rid of an
odious union.

The Prophet of Islam permitted to divorced parties three distinct and

separate periods within which they might try to reconcile their differences;
but should all attempts at reconciliation prove unsuccessful, then in the third
period the final separation became effective6. In order to put an effective
check on frequent divorce and remarriages, in case of irrevocable separation,
it is essential for remarriage that the wife should marry another man, and this
marriage should be consummated before divorce, and the wife should
observe iddat. This was done to render separation rare as it intended to
control one of the strongest feelings of men’s nature, the sense of honour.

5
See verses 35, 128 and 130 of Chapter IV of Holy Qur'an
6
Ameer Ali,”The Spirit of Islam”,London,1965 at p.243-44
 INTRODUCTION TO –
MUSLIM MARRIAGE DISSOLUTION ACT 1939

In India, people are managed by laws enacted by the Parliament or

concerned State legislations or customs prevailing in the society. A half-
hearted attempt was made in 1937 when the Shariat Application Act was
passed with the intention to apply the Shariat, and not the customary laws,
on the Muslim population. The Act said that in all personal matters, Shariat
laws and not the customary laws would govern the Muslims, though it did
specify the specific details of what would comprise this Shariat law. In
reality, each sect in the Muslim community continued to follow its own
traditions and customs7. But the Act could not fulfill the objectives for which
it was enacted and there was opposition from certain group of Muslims for
the codification of law for the whole Muslim community. Thus, the first
attempt at enacting a uniform Muslim Personal Law was rendered
unsuccessful.

Within 18 months of the passing of the Muslim Personal Law Shariat

Application Act 1937, the Dissolution of Muslim Marriage Act 1939 was
passed. While passing the act, it was noted that the Hanafi code of Muslim
law did not allow a Muslim woman to obtain a decree from the court
dissolving her marriage in case the husband failed to maintain her, deserted
her, mal-treated her, or left her un-provided for. The fundamental purpose of
the Act is to consolidate and explain the laws that govern Muslims for
dissolving marriage by women who are married according to Muslim law
and to clarify the uncertainties regarding renunciation of the husband by a
woman from the bond of marriage. It is a small legislation with five sections.
The Act also repealed the Shariat Application Act8

7
http://Muslim%20womens%20right%20for%20dissolution%20of%20marriage.htm
8
http://lawyerslaw.org/the-dissolution-of-muslim-marriages-act-1939/
Hence, the legal reform with the most significant impact on Muslim
women’s rights was the Dissolution of Muslim Marriage Act of 1939.
Modelled on the English Matrimonial Causes Acts, this allowed a Hanafi
wife to obtain a judicial divorce on the standard grounds of cruelty,
desertion, failure to maintain, etc. Despite the act, however, there was little
improvement in the plight of Muslim women.

The introduction of this bill represented another attempt on the part of the
Ulemas to utilize the legislature to rectify the prevailing situation with
regard to the rights of Muslim women when it came to dissolving their
marriages. This concern was for two reasons:

 The Quran expressly permits the dissolution of a marriage by women

in case of necessity 9, and
 The danger of losing numerical strength that was emerging from the
women’s apostatizing from Islam.

These two factors led them to take action to rectify the situation so that the
conversion could be stopped and women could get the right to dissolve their
marriages not through the act of apostasy, but through the legal procedure10.

Major credit goes to Maulana Ashraf Ali Thanavi, who wrote extensively
about the rights of Muslim women. His writings were an important force in
assembling the coalition that backed the legislation. To elaborate this, in
1913 Maulana Thanavi had issued a fatwa in a case involving a Muslim
husband who had applied to a British court in India for restitution of
conjugal rights. The wife’s family refused on the grounds that she had
renounced Islam, and therefore, her marriage no longer remained valid. The
judge asked the claimant to secure a fatwa clarifying this point in Islamic
law, and Maulana Thanavi ruled that the marriage was indeed annulled as a
result of the wife’s apostasy11.

9
Mahmood, 1988
10
http://sabihaocasionalpaper.pdf
11
Aasud et al. 1996; Thanavi nd
 BACKGROUND OF-

MUSLIM MARRIAGE DISSOLUTION ACT, 1939

A majority of Muslims in the subcontinent follow the Hanafi School of
Islamic jurisprudence, which is the strictest in matters of divorce, and gives
the wife almost no grounds for initiating the dissolution of her marriage.

During this period, when Muslim women were converting to other religions,
some Muslim jurists laid down the principle that the marriage would not be
dissolved and the woman would be imprisoned till she returned to Islam.
However, in British India, it was not possible to enforce this ruling. Various
rulings of the courts were based on the notion that if a Muslim woman
refused to return to her faith, it would result in the dissolution of her
marriage. The situation became alarming during the early decades of the
20th century when the number of Muslim women who renounced Islam in
order to secure judicial divorces increased exponentially. This increase in
apostasy was because many Muslim women found no other way to come out
of cruel and abusive marriages.The latent impact of this act of apostasy, as
visualized by political parties and community leaders, was the upcoming
numerical imbalance. This trend was seen as a danger to group identity and
cohesion. Growing apostasy was also said to be the result of the selfishness
of Muslim men who denied their women the rights given to them by Islam.

The famous poet Iqbal made an appeal to Muslim scholars to reform Hanafi
law in order to find a solution within Islam for this problem, so that Muslim
women would not have to take recourse to this desperate mode of dissolving
their marriages 12 .So, Muslim organizations and social reformers started
thinking of ways and means to curb the tendency of renouncing Islam.

12
Masud1995:pg. 155-78
In 1913, Maulana Thanavi had consulted a number of other ulemas on the
subject of his fatwa, including various Maliki ulemas in Arabia. In 1931, he
issued a lengthy revision of his earlier fatwa: Al-hilat un-Najiza li’l-Halitat
al-‘Ajiza13 (‘A Successful Legal Device for the Helpless Wife’).

He ruled that apostasy did not annul a Muslim marriage, but a wife might
obtain a judicial divorce based on grounds permitted by the Maliki school of
Muslim jurisprudence. This device of eclecticism (takhayyur) in
jurisprudence recognized by some legal scholars and commentators opened
the way to a reform of Muslim divorce law. Maulana’s opinion was
seconded by the Jamiat-ul-Ulam-e-Hind. The issue of conversion was a
challenge for the ulemas as well as the Jamiat-ul-Ulam-e-Hind.

Consequently, in 1935, several bills were drafted by the Jamiat-ul-Ulam-e-

Hind based on a book written by Maulana Ashraf Ali Thanavi with the help
of other Maulanas. On the basis of the recommendation of the book, a Bill
was introduced in the central legislature of 1936 by Muhammad Ahmad
Kazmi, a member of the central legislative assembly and the Jamiat, apart
from being a lawyer from Meerut, which later on became the Dissolution of
Muslim Marriage Act, 1939.

The statement of Objects and Reasons 14 attached to the bill gave several
reasons for its introduction. The main reason was that the existing law had
caused ‘unspeakable misery to innumerable Muslim women in British
India’. In the Federal Assembly, the bill was described as being constituted
of three parts:

 it gave grounds for the dissolution of marriage,

 described the effect of apostasy on the marriage tie, and
 Provided for the authorized court personnel to dissolve a Muslim
marriage.

The bill clearly enlisted the grounds on which Muslim women could seek a
divorce. It was debated and enacted in 1939 specifically directed to benefit
Muslim women and was compiled as an amalgam of the four schools of
jurisprudence, picking the most liberal features from each of them15.

13
http://dex 1.tsd.unifi.it/juragentium/en/surveys/rol/minault.htm
14
Gazette of India, Part V, 1936, p.154
15
http://sabihaocasionalpaper.pdf
Debates on the bill of Muslim Marriage Dissolution Act, 1939

This bill was first referred to a Select Committee of which Muslims formed
a majority, debated thoroughly in the assembly, and finally passed in 1939.
The statement of objects of the bill was announced by Hussain Imam,
M.L.A. from Bihar and Orissa. He pointed out:

“There is no provision in the Hanafi Code of Muslim Law enabling a

married Muslim woman to obtain a decree from the Court dissolving her
marriage in case the husband neglects to maintain her, makes her life
miserable by deserting or persistently maltreating her, or absconds, leaving
her unprovided for and under certain other circumstances. The absence of
such a provision has entailed unspeakable misery to innumerable Muslim
women in British India”.

The Hanafi jurists, however, have clearly laid down that in cases in which
the application of Hanafi law causes hardship, it is permissible to apply the
provision of the Maliki, Shafi or Hanbali law. Acting on this principle, the
Ulema had issued fatwa to the effect that in cases enumerated in clause 3,
part A of this Bill, a married Muslim woman may obtain a decree dissolving
her marriage. As the courts are sure to hesitate to apply the Maliki law to the
case of Muslim women, legislation recognizing and enforcing the above-
mentioned principle is called for in order to relieve the suffering of countless
Muslim women.

The courts in British India had held in a number of cases that the apostasy of
married Muslim woman dissolves her marriage. This view has been
repeatedly (expressed) at the bar, but the courts continue to stick to
precedents created by rulings based on an erroneous view of the Muslim
law. The Ulema have issued fatawa supporting non-dissolution of marriage
by reason of wife’s apostasy. The Muslim community has, again and again,
given expression to its supreme dissatisfaction with the view held by the
courts. Thus, by this bill the whole law relating to the dissolution of
marriage is brought at one place and consolidated in the hope that it would
supply a very long-felt desire of the Muslim community in India16.

In proposing the Bill, Ahmad Kazmi said, “The reason for proceeding with
the bill is the great trouble in which I find women in India today. Their
condition is really heartrending, and to stay any longer without the
provisions of the bill and allow the males to continue to exercise their rights
and to deprive women of their rights given to them by religion would not be
justifiable– the rights of women should not be jeopardized simply because
they are not represented in this house. I am sure if we had a single properly
educated Muslim woman here in this house, then absolutely different ideas
would have been expressed on the floor of this house. I know, sir that the
demand from educated Muslim women is becoming more and more
insistent, that their rights be conceded to them according to Islamic law– I
think a Muslim woman must be given full liberty, full right to exercise her
choice in matrimonial matters”17.

In his speech on the motion to refer the Bill he further said:

“Apostasy was considered by Islam, as by any other religion, as a great
crime, almost amounting to a crime against the State. It is not novel for the
religion of' Islam to have that provision. If we look up the older Acts of any
nation, we will find that similar provision also exists in other Codes as well.
For the male a severer punishment was awarded, that of death, and for
females, only the punishment of imprisonment was awarded. This main
provision was that because it was a sin, it was a crime, it was to be punished,
and the woman was to be deprived of her status as wife. It was not only this
status that she lost, but she lost all her suit as in society; she was deprived of
her property and civil rights as well.
But we find that as early as 1850 an Act was passed here, called the
Caste Disabilities Removal Act of 1850, Act XXI of 1850–By this Act, the
forfeiture of civil rights that could be imposed on a woman on her apostasy
has been taken away. She can no longer be subjected to any forfeiture of
property or her right of inheritance or anything of the kind. The only
question is that the Legislature has come to her help, it has given her a

16
Government of India, Legal Department Record, 1938, L/p & J/7/1839
17
Legislative Assembly Debates 1939:616
certain amount of liberty of thought, some kind of liberty of religion to adopt
any faith she likes, and has removed the forfeiture clause from which she
could suffer, and which was a restraint upon her changing the faith. The
question is how far we are entitled after that to continue placing the
restriction on her status as a wife. Her status as a wife is of some importance
in society. She belongs to some family, she has got children, and she has got
other connections too. If she has got a liberal mind, she may not like to
continue the same old religion. If she changes her religion, why should we,
according to our modern ideas, inflict upon her a further penalty that she will
cease to be the wife of her husband? I submit, in these days when we are
advocating freedom of thought and freedom of religion, when we are
advocating inter-marriages between different communities, it would be
inconsistent for us to support a provision that a mere change of faith or
change of religion would entail forfeiture of her rights as the wife of her
husband. So, from a modern point of view, I have got no hesitation in saying
that we cannot, in any way, support the contrary proposition that apostasy
must be allowed to finish her relationship with her husband. But that is only
one part of the argument18.
The only woman member of the Assembly, Mrs. Radhabai Subaroyan, in
her support of the bill pointed out, “I rise with pleasure to support the motion
moved by my honorable friend, Mr. Kazmi. I feel this bill recognizes the
principles of equality between men and women. It has been stated here and
outside that though Islamic law lays down this principle, in actual practice in
several parts of our country, it is ignored to the disadvantage of women. It is
heartening…to hear my Muslim colleagues condemn this state of affairs and
advocate that justice should be done to women and that women should have
the rights to claim divorce on the same terms as men– it definitely raises the
status of women and recognizes their individuality and–human
personality”19.
During the course of debate, Mr. M.S. Aney, a member from Berar,
pointed out, “by using the legislature to reform Muslim law, the law was
being secularized and government courts should therefore be allowed to
judge cases; there was thus no need for a special Quazi, as had been
proposed.20

18
supra note.17
19
Legislative Assembly Debates 1939:881
20
Ibid.868
 However, the ulemas were not comfortable with the proposed Bill,
particularly Clause Vl which says that “suits of the dissolution of marriage
on the part of Muslim women should be held in proper courts under the
supervision of Muslim judges and, when the presiding officer was not
Muslim, the suit should be passed from one place to another until it could
find a Muslim official. After the decision, the suit would then be referred
back to the original court. In the case of appeals against the decision of the
trial court, people would have to look to the high court and their cases
should be heard and decided again by a Muslim judge”.
They felt that the Act differed in several respects from the
recommendations of the Ulema. Most important was not reserving
jurisdiction in cases of Muslim divorce to Muslim judges alone. It was also
made to apply to all Muslims–not only Sunnis, but Shias as well.
Consequently, Maulana Thanavi and the other divines who had originally
urged for the reform of the divorce law were displeased with the Act in its
final form, and condemned the Muslim Dissolution of Marriage Act as un-
Islamic. 21 They were afraid of religious freedom and the imposition of
artificial arrangements from a foreign government. This feeling arose after
the ruling of various courts in British India, which in turn strengthened the
idea that the enforcement of Muslim Family Law could not be accomplished
without the appointment of Muslim authorities in such institutions. They,
particularly the jamait- ul-Ulama-i- Hind blamed the member of Muslim
League legislature for the enactment of such ‘Un-Islamic measures on
Muslim. However, it seems that the basic reason for blaming the Muslim
League was political rivalry, mainly the leadership of Jinnah, who had a
progressive outlook on the matter of legal reforms. 22 Besides this, many
fatwas were issued during the period, arguing that if a non-Muslim could not
perform the ceremony of Muslim Nikah, there was simply no way in which
he could be justified in dissolving a Muslim marriage.
Nevertheless, some of the members of legislature reacted to the
objection and gave their views on the difficulty in implementing the clause
in the Bill.
Mr. J.A. Thorne , Nominated Member of the Government of India,
pointed out that “the difficulty of implementation of this clause will arise in
those provinces where the number of Muslim judges in particular and

21
Masud1971:251-97
22
Mahmood, 1995:58
Muslims in general was small. In such circumstances the enforcement of the
Act would not be advantageous”.23
Sardar Sant Singh, M.L.A. from west Punjab, while giving his
reaction to this bill stated, “The proposal for such communal tribunals would
only show distrust of judges of communities other than one’s own in the
matter of administration of personal laws introduce a narrow mentality that
should be avoided at all costs” 24 . He further criticised those members of
assembly who demanded that the matter be removed from civil courts and
handled over to courts that were presided over by one community, on the
grounds that it was akin to introducing the principle of imperial in imperio1 .
M.S.Aney, M.L.A. from Berar, was of the same opinion and said that
“since it was a matter of the administration of justice, it could be
accomplished by relying upon men, irrespective of religious background,
who had been recruited according to the true spirit of law and in the best
interests of people”25.
The Law member, Sir Nirpendra Sircar, enumerated the
administrative difficulties that were likely to arise if it was accepted that
only a Muslim could dissolve a Muslim marriage. He further objected to the
clause in principle, as it amounted to casting aspersions on the judicial
honesty of the judges26.

From evaluation of all debates that took place in support of the bill it
can be concluded that all legal arguments put forth by supporters of the bill,
particularly the two parties: the unionist party and the Jamat-ul- e-Hind had
little to do with improving the status of Muslim women. Rather the intention
to support the bill had more to do with putting a stop to the illicit conversion
of women to alien faiths, which were usually followed by immediate and
hurried marriages with someone from the faith she happened to have joined,
with a view to locking her in the new community and preventing her from
returning to the one to which she originally belonged. The conversion of a
Muslim woman to Hinduism and of a Hindu woman to Islam was not only
looked at from social and political points of view, but also from the point of
view of the long term consequences this conversion would have on the
23
Legislative Assembly Debates, Seventh Session of the Fifth Legislative Assembly, 31 January to 22
February 1938:319
24
Ibid.626
25
Ibid. 320
26
Legislative Assembly Debates, V.9.No.ix, p. 1954
numerical strength of the communities. In other words, it was feared that this
could create a disturbance in the numerical balance between the two
communities, which s what they were more concerned about. The abduction
of women had created disturbances that could not be overlooked. These
conversions and the women’s subsequent marriages were therefore rightly
regarded as a series of depredations practiced by Hindus against Muslims
and vice-versa.

The above observation is made on the basis of the two provisions to

Section 4 of this Act.
 In proviso (1) the Hindus concede to the Muslims that if they
convert a woman who was originally a Muslim, she will remain
bound to her former Muslim husband, notwithstanding her
conversion.
 Through proviso (2) the Muslims concede to the Hindus that if
they convert a Hindu married woman and she is married to a
Musalman, her marriage will be deemed to be dissolved if she
renounces Islam and she will be free to return to her Hindu fold.
Thus, what underlies the change in law is the desire to retain the numerical
balance, and it is for this purpose that the rights of women were sacrificed.
 DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939
Marriages, as they define, are made in heaven and solemnized on earth. It is
a sacrament for Hindus, a sanctified contract for Muslims and a sacred knot
for Christians. Husbands and wives vow for each other, yet there have been
innumerable cases of betrayals by the spouses.

The complexity of modern society and its possible consequences such as fast
changing socio economic conditions, the disintegration of the joint family
structure, the rapid development of industrialization and urbanization,
education and employment and laws giving equal status and rights to
women, led a tremendous impact on the institution of marriage. Few decades
ago divorce was considered as an evil, the grounds of divorce were very
limited and it was sought only under compelling circumstances. Positions
have however, changed now. Marriage is no longer treated as an indissoluble
union. In fact, there has been a considerable legislative and judicial
interference in the sphere of matrimonial laws during the past few decades
all over the world. In view of the changing times, divorce laws are being
substantially modified and liberalized.

Like Hindu law, followers of Islam have their own personal law, which
states that Nikaah or marriage is a contract and may be permanent or
temporary and permits a man four wives if he treats all of them equally.
There should be a proposal or `offer’, made by or on behalf of one of the two
parties.

The Muslim marriage law also states that to have a valid marriage under the
Muslim law, if a person is of sound mind, normal and has attained puberty at
the age of 15 his or her marriage cannot be performed without his or her
consent. Hence, the basic requisites to constitute valid marriage 27
recognized under Islam are:-

i. An `acceptance` of such proposal or `offer` by or on behalf of the other

party;

ii. The `offer` and `acceptance,` both, must be expressed in the same
meeting. There is no prescribed form for proposal and acceptance. However,
a proposal, made at one meeting and an acceptance, made at another
meeting, will not constitute a valid marriage;
27
http://Muslim%20womens%20right%20for%20dissolution%20of%20marriage.htm
iii. The offer and acceptance must be made in the presence of two male
witnesses, or one male and two female witnesses, who must be adult
Mohammedans of sound mind; iv. A marriage, contracted without witnesses,
is not void but is considered irregular. Such irregularity can be cured by
consummation. However, according to Shia law, the presence of witnesses is
not necessary in any matter.

Along with these, there are certain prohibited relationships, whose marriage
is considered void. Like mother and son, grandmother and grandson, uncle
and niece, brother and sister and nephew and aunt.

Islam has also validated certain ways for Dissolution of marriage 28 as

mentioned herein:

1. By Divorce -

 A Husband may divorce in the following manner-

i. Talaq: which is release from the marriage tie immediately or

eventually?
ii. Ila: where a husband of sound mind takes a vow that he will abstain
from all relationship from his wife.
iii. Zihar: where husband sane and adult compares his wife to his mother
or any other female within the prohibited degrees.

 A wife may divorce in the following manner-

i. Talaq-e-Tafwid: Talaq by the wife under the husbands delegated

power.
ii. By Judicial Decree: Following are the grounds on which a marriage
maybe dissolved under the Marriage Act.

 Lian: Where the wife is charged with adultery and the charge is
false. She can file a regular suit for dissolution of marriage as a
mere application to the court is not the proper procedure.
 Faskh: The cancellation, abolition, revocation, annulment. Before
the passing of the dissolution of Marriage Act, Muslim women
could only apply for the dissolution of their marriage under the
doctrine of Fask.

28
Syed Khalid Rasheed:”Muslim Law”,5thedition,revised by Prof. V.P. Bhartiya, Ch.5;p.116-18
Under the Muslim Law a marriage is dissolved either by the death of the
husband or wife, or by divorce. After the death of a wife, the husband may
remarry immediately. But the widow cannot remarry before a certain
specified period called Iddat expires.

Muslim Marriage Act also has a provision for separation under the name of
dissolution of Marriage act, 1939. Both the parties to the marriage contract
have an opinion for divorce, but the husband`s right in this respect is much
greater than that of the wife. In case of divorce a husband can leave his wife
without any reasons merely by pronouncing the word "Talak" thrice. Like in
Hindu marriage act, divorce can also take place due to mutual agreement
between the husband and the wife which is known as Mubarat. The husband
can dissolve the marriage tie at his will. A divorce can also take place by
mutual agreement. But the wife cannot divorce herself from her husband
without his consent. She can of course purchase her divorce from her
husband and can have the marriage dissolved by Tafweez (delegation).

Khula is another way of ending a Muslim marriage which is a form of

divorce with the consent and at the initiative of the wife. The wife gives or
agrees to give a consideration to the husband for her release from the
marriage tie. In this form relieving the husband from payment of mahr to the
wife may be a consideration.
 NEED FOR THE ACT29
Prior to the passing of Muslim Marriage Dissolution Act, 1939, the British
Courts had denied to Muslim women the rights of dissolution available to
them under the Shari at. The wife could apply for the dissolution of her
marriage only on the following grounds of Impotency of the husband, Lian
or Opinion of puberty (khyar-ul-bulugh).

Finding no other way to get rid of this marital tie, the Muslim wives were
compelled to renounce their faith. The statement of the reasons and object of
the Act indicates the circumstances in which Act was passed:

“There is no provision in the hanafi code of Muslim law enabling a married

Muslim woman to obtain a decree from the courts dissolving her marriage in
case the husband neglects to maintain her, makes her life miserable by
deserting or persistently ill-treating her or certain other circumstances. The
absence of such a provision has entailed unspeakable misery to innumerable
Muslim women in British India, the hanafi jurists, however, have clearly laid
down that in cases in which the application of hanafi law causes hardship, it
is permissible to apply the provision of maliki, shafie, hanbali law. A lucid
explosion of this principle can be found in the book called 'Heelat-un-
Najeza' published by Maulana Ashraf Ali (Thanvi) who has made an
exhaustive study of the provisions of Maliki law which under the
circumstances prevailing in India may be applied to such cases, this has been
approved by large number of ulemas who put their seal of approval on the
book”30.

In the above circumstances, the Dissolution of Muslim Marriage Act, 1939

was passed. It is applicable to all Muslims irrespective of their schools to
which they belong. The Act is in force throughout India except Jammu
&Kashmir, where a similar enactment by the name of Jammu & Kashmir
Dissolution of Muslim Marriage Act, 1942, is in force (Sec.1).

But now, the Dissolution of Muslim Marriage Act, 1939 has introduced a
revolutionary change in this respect and has restored to her right of divorce
granted to her under shariat.

29
Aqil Ahmad: “Mohammedan Law”, 24thedition,revised by Prof. I.A. Khan, Ch.9; p.192-93
30
ibid.192
Section 2 of the Muslim Marriage Dissolution Act, 1939 provides 9 grounds
under which a Muslim women can obtain a decree for the dissolution of her
marriage.The restriction imposed by this Act on the right of women married
under Muslim Law is against Qur'anic injunctionsrelating to dissolution of
marriages and also unreasonable.
The Qur'an declares that when a split arises among spouses efforts should be
made for reconciliation, by appointing onearbitrator from the people of the
wife and one arbitrator from the people of the husband and permits
separationconsequent upon the failure of such efforts31.

In the words of a Full Bench of the Lahore High Court (speaking through
Cornelius, C.J.) in Sayeeda Khanam v. Muhammad Sami 32 , "when this
verse (i.e. 130) is read in conjunction with the repeated injunctions in verses
35 and128, that reconciliation and agreement is the better course, its effect
may be appropriately understood to be that, having made every effort at
restoring normal relations between themselves, then if still the spouses
cannot agree, and they separate, their action will not merit disapproval."
The Qur'an does not contemplate that if the aggrieved party is a wife she
should go to a Quazi or a court and obtain an order of dissolution on proof of
her grounds there for. The reason why such a provision has not been
enunciated is obvious from the fact that a marriage may come to a
breakdown for causes which one may not be able to prove before a Quazi or
a court, or which, even if proved, may be discarded by a Quazi or a court as
"too subtle for legal forceps". Inspite of all possible efforts for reconciliation
and agreement if a wife does not give up her demand for separation, there is
no reason why she should be directed to undergo the ordeal of obtaining a
decree of dissolution from a court of law on proof of her case33.
The Qur'an enjoins on Muslim males to retain their wives in kindness or to
release them in kindness. If a woman wants to separate from her husband,
the only reasonable thing that can be done by a third party, whether it be a
Quazi or a Judge, is to try for a compromise and to separate them if no
compromise is possible. Thus, the Iraqi Law of Personal Status, 1959
provides that if either of the spouses alleges injury on the part of the other,

31
See verses 35, 128 and 130 of Chapter IV of Holy Qur'an
32
PLD 1952 (WP) Lahore 113
33
http://www.supremecourtcases.com Eastern Book Company Generated: Wednesday, October 1, 2014
making continuance of company with the other impossible or if a split
emerges between them, an order of separation may be sought for from the
Quazi and that the Quazi shall appoint arbitrators from both sides for
effecting reconciliation.
The arbitrators shall make all efforts for a compromise and on their report
where the Quazi is satisfied that either spouse has caused injury to the other
or that a split between them is continuing and that no reconciliation is
possible, the Quazi shall separate them. Similar provisions have been
brought forth in Morocco, Syria, Jordan, Sudan, Egypt and some other
countries also34
Those who plead for restriction on the right of woman quote very often the
following traditions of the Prophet:
"(1) whichever woman asks her husband for divorce without fault, the
fragrance of paradise is unlawful for her.
(2) the most detestable of lawful things near Allah is divorce."
Thus it seems that the motive behind the plea for restriction on the right of
women married under Muslim Law to obtain divorce is the pious wish that
the women may not lose the chance of entering paradise by making unjust
demand for divorce. But even after these and similar traditions of the
Prophet and the Qur'anic injunctions on the subject are made known, if the
woman demanding divorce, does not retract nobody need worry over her
fate in the world hereafter and she should be allowed to separate35. However,
provision may be made for granting KHULA, in consideration of the whole
or part of dower, if the arbitrators find that the fault is that of the wife.

The first Khula in Islam is reported in the commentary of Imam Razi on the
Holy Qur'an, entitled 'Tafsir-ul-Kabir', Vol. II, as follows:
"It has been reported that this verse 36was revealed respecting the case of
Jamila, daughter of Abdullah, son of Ubayy and her husband Sabet, son of
Qais, son of Shemas.
The facts were that:-
 She hated him with intense hatred and he loved her with intense love.
 She came up to the Holy Prophet and, said: 'Effect separation between
me and him as I hate him. I saw him from the side of my veil, coming
amongst people. He was of the shortest stature, the ugliest in face and

34
see "Family Law Reform in the Muslim World" by Tahir Mahmood
35
“Need for Amendment” By M. FazlulHaq, Advocate, Varkala : (1973) 1 SCC (Jour) 28
36
verse 35 of Chapter IV of the holy book of “Quran”
 blackest in complexion. I do not prefer infidelity (Kufr) after having
accepted Islam.'
 Sabet addressed the Prophet as follows: 'O Prophet of Allah, order her
that she should return the garden I gave her.'
The Holy Prophet said to her: 'What have you to say?'
She replied: 'I agree and I will give more.'
Then the Holy Prophet said: 'No, only the garden.'
Then the Holy Prophet said to Sabet: 'Take from her what you gave and
clear her way.'
Sabet did this and it was the first Khula in Islam."

What Sabet did on his wife's demand for divorce was the right thing and at
the same time reasonable also and let his conduct be a guideline for all
Muslim husbands placed in similar situation.

It is high time that the Act 8 of 1939 is amended in accordance with the
Qur'anic injunctions, since such an amendment is highly necessary to
ameliorate the lot of women married under Muslim Law, in the present time.
 STATUTORY PROVISIONS

The various grounds under Section 2 of this act which entitles women
married under Muslim law to obtain a decree for the dissolution of her
marriage are explained below:-

1. Absence of Husband (i.e. the whereabouts of the husband have not been
known for a period of four years)-

If the husband is missing for a period of four years the wife may file a
petition for the dissolution of her marriage. The husband is deemed to be
missing if the wife or any such person, who is expected to have knowledge
of the husband, is unable to locate the husband. Section 3 provides that
where a wife files petition for divorce under this ground, she is required to
give the names and addresses of all such persons who would have been the
legal heirs of the husband upon his death. The court issues notices to all such
persons appear before it and to state if they have any knowledge about the
missing husband. If nobody knows then the court passes a decree to this
effect which becomes effective only after the expiry of six months. If before
the expiry, 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 the decree and the marriage is
not dissolved37.

2. Failure of Maintenance (i.e. the husband has neglected or has failed to

provide for her maintenance for a period of two years)-

It is a legal obligation of every husband to maintain his wife, and if he fails

to do so, the wife may seek divorce on this ground. A husband may not
maintain his wife either because he neglects her or because he has no means
to provide her maintenance. In both the cases the result would be the same.
The husband’s obligation to maintain his wife is subject to wife’s own
performance of matrimonial obligations. Therefore, if the wife lives
separately without any reasonable excuse, she is not entitled to get a judicial
divorce on the ground of husband’s failure to maintain her because her own
conduct disentitles her from maintenance under Muslim law. e.g.

37
Proviso (b) of section 2 of Muslim Marriage Dissolution Act, 1939
Abdul Azeem v. Fahimunnisa Begum38

Facts:-

 The wife sued the husband for dissolution of her marriage for failure
to maintain her for 2 years.
 She was married in 1952.
 In 1955 she went away to her parents.
 The husband then performed the second marriage.

Judgment:-

The suit failed. It was held that under Mahommeden Law polygamy was
allowed and could not be a ground for living apart and claiming for the
maintenance in the absence of other grounds which would justify the wife to
follow other course.

Munnawarbai v. Sabir Mohammad39

Facts:-

 The wife left the marital house and stayed away without any
justifiable cause and then asked for dissolution of marriage on the
ground that husband was not maintaining her.

Judgment:-

It was held that the wife is not entitled to relief under section 2 (ii) of
Dissolution of Marriage Act, 1939.

A Yusuf Rawther v. Sowramma40

Facts:-

 A girl of 17 years was married to the appellant-defendant, who was

twice of her age.
 After having lived in her husband’s house for 1 month, she went back
to her parents and lived separately for over 2 years.
38
(‘69)A. Mys. 226.
39
1970 M.P.L.J. Notes 23.
40
AIR 1971 Ker 261
  During this period the appellant-defendant admitted his failure to
maintain his wife but alleged that he was willing and anxious to keep
her with him.

Judgment: -

Krishna Iyer, J. rejected the husband’s plea and upheld the decree for
dissolution of marriage.

The Court held that the reason why the husband has not maintained the wife
for statutory period of 2 years is immaterial. The wife is entitled to decree
for dissolution of marriage although during the period of 2 years, she lives
separately from him without any reasonable cause.

However, it is submitted that this view is not correct.

Fazal Mahmud v. Ummatur Rahim41

Facts:-

 The wife’s suit for divorce was dismissed as it was found that she was
neither faithful nor obedient to her husband.

Judgment: -

The Court held that “The Act was not intended to abrogate the general law
applicable to Mohammedans, and the husband cannot be said to have
neglected or failed to provide maintenance to his wife unless under a general
Mohammedan law he is under an obligation to maintain her”.

This view was followed by Bombay High Court in

BaiFatma v. MunnaMiranji42

Facts:-

 The parties ace Mahommedans and were married some time in about
1946-47 and they lived together for about two or three years, after
which the plaintiff has gone to live with her parents.

41
AIR 1949 Peshawar 7
42
AIR 1957 Bom 453
  The husband's defense was that he had made attempts to bring back
the plaintiff to his house and that the plaintiff had, without any
justifiable reason, refused to come and live with him, and that he had
not neglected nor had failed to provide for her maintenance for a
period of two years.

Judgment:-

The Court held that the wife in this case had no justifiable cause to refuse to
live with the defendant and if in these circumstances the defendant did not
send her moneys for maintenance, it could not be said that he had neglected
or failed to provide for her maintenance within the meaning of Section 2 (ii)
of the Act. In the above circumstances, the requirements of Section 2 (ii)
have not been satisfied and the learned Assistant Judge's finding that it was
not proved that the defendant had neglected or had failed to provide for the
plaintiff's maintenance is correct.

This appeal therefore failed and is dismissed with costs.

However, the Sindh High Court has taken a different view in

Mst NurBibi v. PirBux43

Judgment: -

It was held that where a husband has failed to provide maintenance for the
wife for a period of two years immediately preceding the suit, the wife
would be entitled to a dissolution of her marriage under Section 2 (ii) of the
Act in spite of the fact that on account of her conduct in refusing to live with
the husband she would not have been entitled to enforce any claim for
maintenance against the husband in respect of the period during which the
husband had failed to maintain her.

Hence the husband cannot defend the suit merely on the ground that he was
unable to maintain her due to his poverty, failing health, unemployment, etc.
unless it is submitted that his conduct has been such as to disentitle her to
maintenance under Muslim law.

43
AIR 1950 Sindh 8
3. Imprisonment of Husband (i.e. the husband has been sentenced to
imprisonment for a period of seven years or upwards)-

When the husband has been sentenced to imprisonment for a period of seven
years or upwards, the wife’s right of judicial divorce on this ground begins
from the date on which the sentence becomes final44. Therefore, the decree
can be passed in her favour 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.

4. Failure to perform marital obligations (i.e. the husband has failed to

perform, without reasonable cause, his marital obligations for a period of
three years)-

The Act does define ‘marital obligations of the husband’. There are several
marital obligations of the husband under Muslim law. But for the purpose of
this clause husband’s 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 such as to make available to her a personal apartment and to
allow her to visit and be visited by her parents and blood relations.

Veeran Sayvu Ravuthar v. Beeva Thumma45

Judgment: -

The Court has held that where a wife is residing in her own family house and
away from the husband and the husband has never made any attempt to get
conjugal company and consortium of wife, he does not take any action for
restitution of conjugal rights. He has, thus, failed to perform his marital
obligation without any reasonable cause. Hence the wife is entitled to
divorce under section 2(iv) the Muslim Marriage Dissolution Act, 1939
subject to proviso (a).

In Ila the husband declares that he would have no carnal connection with his
wife for 4 or more months, on which he is said to have given her Ila talak.
Here, under clause (IV), where the husband has in fact abstained from his
wife’s sexual company for 3 years, the wife is afforded a ground to sue for

44
Clause 3 of Section 2 read with proviso (a)
45
AIR 2002 Ker 370
the dissolution of the marriage. The clause also includes desertion by the
husband which means total repudiation of the obligations of the marriage.

However, his failure to marital obligations must not originate from the
misconduct of the wife or a cause in which she had consented, such as his
visit to a foreign country for studies or business with her consent. Similarly,
if he is compelled by circumstances such as illness or imprisonment of 3 or
more but less than 7 years, she will not get the remedy under this clause.

5. Impotency of husband (i.e. the husband was impotent at the time of the
marriage and continues to be so)

In order to get a decree of divorce on this ground, the wife has to prove that
the husband was impotent at the time of the marriage and continues to be
impotent till the filing of the suit. Before passing a decree of divorce on this
ground, the court is bound to give to the husband one year to improve his
potency provided he makes an application for it and if he satisfies the Court
within such period, no decree shall be passed against him on such ground46.

Gul Mohd. Khan v. Hasina

Facts:-

 The wife filed a suit for dissolution of marriage on the ground of

impotency.
 The marriage was celebrated on June 12, 1960 and the suit was
brought on Oct 3, 1960.
 The husband asked for and was granted one year to prove that he has
ceased to be impotent.

Judgment: -

The court allowed him to prove his potency. On the expiry of the period the
court granted a decree on the application of the wife.

6. Insanity,leprosy or venereal disease (i.e. the husband has been insane

for a period of two years or is suffering from leprosy or a virulent venereal
disease)-

46
Clause 5 of section 2 read with Proviso (c)
If a husband has been insane for a period of 2 years or is suffering from
leprosy or a virulent disease the wife may claim a judicial divorce under
Section 2(vi) of the dissolution of Muslim Marriage act, 1939. It must be
noted that only insanity should be at least two years old but leprosy and
virulent diseases may be even recent.

7. Repudiation of marriage by wife (i.e. the wife having been given in

marriage by her father or other guardian before she attained the age of 15
years, repudiated the marriage before attaining the age of 18 years)

If the wife married before 15 years of age repudiated the marriage before 18
years of age, provided that the marriage has not been consummated, she is
entitled to a decree for divorce under this section.

This clause is based on the Muslim law custom of Khyar-ul-bulugh( option

of puberty) and solves the problem of ascertaining the condition of puberty
by fixing the minimum and maximum age. It also removes the difference of
opinion among Shias and Sunnis regarding the repudiation of marriage
contracted by father and grandfather of minor.

Aiyesha v. Mohd. Yunus47

Judgment: -

It was held that according to Shia law, a minor’s marriage contracted by

anyone except father or father’s father is totally ineffective until it is ratified
by the minor on attaining puberty.

However, according to Hanafi law, if a minor’s marriage was contracted by

the father’s father, such a marriage cannot be cancelled by the minor on
attaining puberty, unless it is proved that:

i. the marriage has been fraudulently or negligently contracted; or

ii. An improper dower has been fixed; or

iii. The other partner is not equal in status etc. to the minor.

47
1938 PWN 656
The conditions mentioned in this clause are:-

• The marriage was solemnized before the girl had attained the age of
15 years

• By father or any guardian

• She is repudiating the marriage

• She is between 15 and 18 years of age

• their marriage was never consummated

e.g.

Mustafa v. Khursida48

Facts:-

• A muslim girl of 7 years was given in marriage by her parents.

• The marriage was never consummated

• On attaining puberty but before reaching 18 years, the girl appealed

before the Family Court at Jodhpur for dissolution of her marriage under
Section 2(vii) of the Muslim Marriage Dissolution Act, 1939.

Judgment: -

The girl’s application was granted. On appeal by the husband, the High
Court upheld her right of the option of Khyar-ul-bulugh and held that she
was entitled to the decree.

Mulla says that the option of puberty is lost if a female does not exercise it
immediately after attaining puberty, or on being informed of marriage if she
was not aware of it. However in case of male, the right continues until he has
ratified the marriage either expressly or impliedly (e.g. by cohabitation or by
payment of dower).

48
2006 AIHC 382 (Raj)
In this regard, the question arises whether the wife lose her right if her
marriage was consummated?

 According to Fatawa-i-Alamgiri a Sayyiba( a girl not being virgin)

has the right of option of puberty which is not rendered void except in
express words, or by cohabitation or demand of mahr and
maintenance.
 According to Malik’s view, Sayyiba’s right would be protected by
clause (ix) of Section 2 [on any other ground which is recognized as
valid for the dissolution of marriage under Muslim law].
 According to Sharma, clause (vii) of Section 2 makes no difference
between a virgin and a Sayyiba and that there is no need to carve out
an exception in the express terms of clause (vii) on the basis of
general terms in clause (ix).
 The Allahabad High Court held that the consummation must be with
the wife’s consent, and the Lahore High Court had held that
cohabitation before the age of 15 years did not fall within the meaning
of the proviso .

8. Cruelty of husband (that the husband treats her with cruelty)-

Cruelty was always recognized as a ground for dissolution of marriage under

the traditional Muslim law. ‘Cruelty’, cannot be defined in absolute terms.
The general notion of cruelty is very subjective- depending on time, place,
persons and other factors also.

However, the legal concept of cruelty, which is not defined by statute, is

generally described as act or conduct of such a nature as to have caused to
life, limb or health- physical or mental or as to make a reasonable
apprehension of such danger.

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 affects 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 spouse49. Cruelty is a
ground for matrimonial relief.

E.g.

Itwari v. Asghari50

Judgment:-

The Allahabad High Court observed that Indian Law does not recognize
various types of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on,
and that the test of cruelty is based on universal and humanitarian standards;
that is to say, conduct of the husband which would cause such bodily or
mental pain as to endanger the wife’s safety or health.

Syed Ziauddin v. Parvez Sultana51

Facts:-

 Parvez Sultana was a science graduate and she wanted to take

admission in a college for medical studies.
 She needed money for her studies.
 Syed Ziaudddin promised to give her money provided she married
him.
 She married Syed Ziauddin.
 Later she filed for divorce for non-fulfillment of promise on the part
of the husband.

Judgment:-

The court granted her divorce on the ground of cruelty.

49
http://www.supremecourtcases.com Eastern Book Company Generated: Wednesday, October 1, 2014
50
AIR1960 All.684
51
(1943) 210 IC 587.
Thus we see the court’s attitude of attributing a wider meaning to the
expression cruelty.

In Islamic law, the concept of cruelty (zirar) is not limited. The cruelty
provision is to be interpreted in the light of the Prophet’s exhortations that
women are as tender as glasses (qawarir) and he is the best man who is kind
to his wife. It is worth mentioned here that under Muslim law cruel nature is
a disqualification for eligibility to marry.

The legal ingredients of cruelty by husband on wife as mentioned in Sec. 2

(viii) are given below:-

(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 of leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her 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,

Clause (a) of Section 2(viii) of the concerned Act uses the words by cruel
conduct even if such conduct does not amount to physical ill treatment. This
language is wide enough to include all cases of cruelty, not merely this, it
would cover all types of misconduct or misbehavior, serious and not very
serious on the part of the husband calculated to break spirit of the wife by
physical or moral force which was systemically exerted on her to such a
degree and to such a length of time resulting in undermining her health, it
will amount to cruelty.

An example of clause (b) of Section 2(viii) is reflected in a Hindu case,

Iqbal Kaur v. Pritam Singh52

Judgment:-

It was held that it is settled position that persistent charges of adultery and
immorality may amount to cruelty.

Noor JahanBibi v. Kazim Ali53

Facts:-

 One Noor Jahan filed a suit against her husband Kazim Ali who
charged her that she was of bad character and she was enamoured of
one Asghar Ali and committed adultery with him.

Judgment:-

It was held that the doctrine of Lian has not become obsolete in Muslim law
and, hence, a Muslim wife can bring a suit for divorce against her husband
on the ground that her husband had charged her with adultery falsely, by
virtue of Section 2(viii) (b).

As per the ingredient of clause (c) of Section 2(viii), an attempt to force the
wife to lead an immoral life also amounts to cruelty. E.g.

Shakla Bano v. Ghulam Mustafa54

Judgment:-

The Bombay High Court has observed that an unwilling wife cannot be
compelled to live along with her husband. Cruelty can be of various shapes.
It depends on various factors like health, environment, education, economic
and social background.

52
AIR 1963 Punj 242
53
AIR 1977 Cal. 90
54
AIR 1971 Bom. 167
Hamid Husaain v. K. Begum55

Judgment:-

It was held that to constitute cruelty, it is not necessary that there should be
actual violence or a reasonable apprehension of it. Likelihood of violence is
a good ground for the grant of relief. Presently physical violence is not the
only essential ingredient of cruelty. Mental agony also amounts to cruelty.

According to clause (d) of Section 2(viii), it will amount to cruelty if the

husband disposes of his wife’s property or prevents her from exercising her
legal rights over it.

Zubaidaa v. Sardar Shah56

Judgment:-

Abdul Rahman J. expressed the view that, ‘it is not always easy to
determine for what purpose, husband sells or assigns his wife’s property of
any value’. Property may be used for the treatment of wife, for the 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.

M.B. Rahim v. Shamsoonnissa Begum57

Judgment:-

It was held that the test of cruelty is based on universal and humanitarian
standards by the husband who would cause such bodily or mental pain as to
endanger the wife’s safety of health.

55
(1918) ILR 40 All. 332
56
AIR1943Lah. 310
57
(1967) 11 M.I. A.551
According to clause (e) of Section 2(viii),if the husband obstructs the wife
in the observance of her religious profession or practice that will amount to
cruelty.

Aboobacker v. Mamukoya58

Facts:-

 The husband used to compel his wife to put on a sari and see pictures
in cinema.
 The wife refused to do so because according to her beliefs this was
against the Islamic way of life.
 She sought divorce on the ground of mental cruelty.

Judgment:-

The Kerala High Court held that the conduct of the husband cannot be
regarded as cruelty because mere departure from the standards of suffocating
orthodoxy does not constitute un-Islamic behavior.

According to clause (f) of Sec 2(viii) i.e. in case of inequitable treatment

between the co-wives which amounts to cruelty, the courts earlier granted
divorce where husband provided maintenance to one wife only and the ill-
treatment forced the co-wife to leave the husband as an instance of unequal
treatment. E.g.

Umat-Ul-Hafiz v. Talib Hussain59

Facts:-

• Husband went abroad leaving behind his two wives in India.

• He provided maintenance to one wife and neglected the other.

Judgment:-

The court granted divorce to the neglected wife.

58
AIR (1960), All, 684
59
AIR1945 Lah.56
K. Muhamma Lateef v. Nishath60

Facts:-

• The parties got married in the year 1997.

• Within the year they got separated.

• During the subsistence of marriage within 5 months of separation, the

husband got remarried.

• This fact came to light when he was examined in the Court.

• The first wife filed a suit seeking divorce on the ground of cruelty on
the part of husband.

Issue:-

The Kerala High Court had to consider whether the second marriage of the
husband amounts cruelty and therefore a ground for divorce to the first wife?

Judgment:-

The Court held that if during the subsistence of a valid marriage the husband
had remarried another, necessarily that will amount to mental cruelty
towards the first wife. Merely because the husband was willing to cohabit
with the first wife while continuing the second marriage, there was no reason
to deny the first wife a decree for dissolution of marriage.

The Court thus granted the decree and further held that a Muslim husband
can have more than one wife is also no reason to reverse the decree as
bigamy is permitted under Muslim law under exceptional circumstances
which are absent in this case.

Begum Subanu v. A.M. Abdul Gafoor61

Judgment:-

60
AIR 2004 Ker 22
61
(1987) 2 SCC 285
The Supreme Court held that sharing the matrimonial bed with the second
wife of the husband constituted ‘matrimonial injury’ affording her a ground
to live separately from the husband.

Itwari v. Smt. Asghari62

Judgment:-

The Allahabad High Court observed that a Muslim has the legal right to take
a second wife even during the subsistence of the first marriage, but if he
does so, and then seeks the assistance of the Civil court to compel the wife
live with him against her wishes on pain of severe penalties including
attachment of properties, she is entitled to ask whether the court, as a court
of equity, ought to compel her to submit to co-habitation with such a
husband.

In that case the circumstances in which his second marriage took place are
relevant and material in deciding whether his conduct in taking a second
wife was in itself an act of cruelty to the first.

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.

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.

62
AIR1960 All.684
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.

9. Grounds of dissolution recognized by mohammedan law (i.e. on any

other ground which is recognized as valid for the dissolution of marriage
under Muslim law)-

This is a residue provision covering other grounds such as Tafwid, Ila,

Zihar, Lian, Khula and Mubarat’at, as mentioned in the Shariat Act, 1937.

In 1945 in Umar Bibi v. Md. Din63

Facts:-

 It was argued that the wife hated her husband so much that she could
not possibly live with him and there was total incompatibility of
temperaments.

Judgment:-

On these grounds the court refused to grant a decree of divorce.

However, in 1950, in Noori Bibi v. Pir Bux

Tyabji, CJ.held that: ‘there is no merit in preserving the marriage when the
parties fail to live within the limits of Allah’.

Similarly in Aboobacker v. Mamu64

Judgment:-

Krishna Iyyer, J. laid down that when there was incompatibility of minds
between the spouses, the marriage must be dissolved. This is known as the
breakdown theory of marriage.

A.M. Jagjakh v. RajathiZiaudeen65

63
AI.R (1971), Ker, 261
64
1971 KLT 663 at p.668
Facts:-

 A, appellant husband, fought legal battle in Family court for 12 years

for dissolution of their marriage.
 In his written submission he had charged her of already being secretly
married to another person, was leading an un-islamic life, and asserted
that he had pronounced divorce twice in writing and communicated to
her.
 When the Family Court granted a divorce decree he took a U turn and
appealed to the High Court alleging that the family Court had not
given him sufficient time for reconciliation and should have ordered
restitution of conjugal relations.

Judgment:-

The Madras High Court dismissed his contention as frivolous and held that
he was interested only in dragging the case whereas their marriage had been
rendered a complete dead wood and there was no useful purpose in putting
the parties together. The divorce decree was upheld as there was
irretrievable breakdown of marriage.

Section 3: Notice to be served on heirs of the husband when the

husband’s whereabouts are not known.

In a suit to which clause (i) of section 2 applies:

(a) The names and addresses of the persons who would have been heirs of
the husband under Muslim Law if he had died on the date of the filing of the
plaint shall be stated in the plaint.

(b) Notice of the suit shall be served on such persons, and

(c) Such persons shall have the right to be heard in the suit:

Provided that paternal-uncle and brother of the husband, if any, shall be

cited as party even if he or they are not heirs.

65
(2007) 1 DMC 365 (Mad)
Section 4: Effect of conversion to another faith (apostasy).

The renunciation of Islam by a married Muslim woman or her conversion to

a faith other than Islam shall not by itself operate to dissolve her marriage:

Provided that after such renunciation, or conversion, the woman shall be

entitled to obtain a decree for the dissolution of her marriage on any of the
grounds mentioned in section 2;

Provided further that the provisions of this section shall not apply to a
woman converted to Islam from some other faith who re-embraces her
former faith.

Prior to this Act, apostasy of either party, ipso facto dissolved the marriage.
Now although Husband’s apostasy from Islam would ipso facto dissolve the
marriage, the apostasy of wife will no more dissolve the marriage ipso facto.
This section lays down that on account of her own apostasy from Islam, the
wife does not lose her right under the Act to claim a divorce on any of the
grounds under Section 2 of the Act. However, this Act does not apply to a
woman being a convert to Islam from some other faith who re- embraces her
former religion. In that case, the law as it stood before the above Act would
apply and the conversion of the woman to her former faith would dissolve
the marriage tie.

Section 5: Right to dower not be affected.

Nothing contained in this Act shall affect any right which a married woman
may have under Muslim law to her dower or any part thereof on the
dissolution of her marriage

After the dissolution of marriage by any means discussed above the man and
the woman can remarry immediately. In fact, unlike in a Hindu marriage,
Muslim widow is encouraged to be remarried and that`s a responsibility of
the Muslim community66.

66
http://Muslim%20womens%20right%20for%20dissolution%20of%20marriage.htm
 CONCLUSION
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. Women’s struggle is interconnected and
complementary and therefore has a commitment to international solidarity.

On the other hand, there are several drawbacks also of this Act. 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 men’s right to
unilateral oral divorce nor did it lay down any procedure for the recovery of
mahr, inheritance, 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. 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.
 SUGGESTIONS
The Muslim women, meanwhile, continued to suffer because of polygamy,
oral unilateral divorce, low mahr amounts, lack of maintenance and other ills
which plague Muslim law. In the last two decades 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. Therefore a reform should
be brought in the Muslim law to uplift the position of the women. More of
women organizations should be encouraged because of the fact that the
women’s organizations have played a remarkable role in highlighting the
plight of the Muslim women. They have continued to play a catalyst in
organizing the Muslim women around the issues like demand for the
abolition of oral unilateral divorce. This movement got a fillip recently with
the fatwa against Imrana. Imrana, a mother of five children, from Muzaffar
Nagar, was raped by her own father-in-law. The shariah jamaat passed a
fatwa, which nullified Imrana’s marriage with her husband. The All India
Muslim Personal Law Board later put its stamp of approval on the fatwa
issued by the Darul Uloom Deoband’s above ruling. It also pinned down the
State in taking more responsibility in protecting the rights of the Muslim
women who are equal citizens and are entitled to all such benefits, which the
women of other faiths inherit by right. The progressive elements within the
Muslim community must make themselves known to the self-styled
regressive leaders and to the State and demand a gender-just codified
Muslim law.


 BIOBLIOGRAPHY

 Aqil Ahmad: “Mohammedan Law”, 24thedition,revised by Prof. I.A.

Khan, Central Law Agency(Allahabad)2012
 Syed Khalid Rasheed:”Muslim Law”,5thedition,revised by Prof. V.P.
Bhartiya,Eastern Book Company(lucknow)2014
 Tahir Mahmood: Family Law Reform in the Muslim World,1st
edition, Indian Law Institute(New Delhi)1972

 http://lawyerslaw.org/the-dissolution-of-muslim-marriages-act-1939
 http://Muslim%20womens%20right%20for%20dissolution%20of%20
marriage.htm
 http://sabihaocasionalpaper.pdf
 http://www.supremecourtcases.com Eastern Book Company
Generated: Wednesday, October 1, 2014