NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI

FAMILY LAW-II

Paper on

“CRUELTY AS A GROUND FOR DIVORCE IN MUSLIM LAW”

SUBMITTED BY: SUBMITTED TO:

UMANG AGARWAL Dr. SANGITA LAHA

ROLL NO: 724 Associate Professor (Family Law)

4th SEMESTER NUSRL, Ranchi

SECTION B
INTRODUCTION
The general notion of cruelty is very subjective- depending on time, place, persons and other
factors also. 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.

Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to get
their marriage dissolved by a decree of divorce on more than one grounds specifically enumerated
in Section 131. Some of the grounds initially inserted were substituted and some more grounds
came to be added. It was in the year 1964 that sub- section (1-A) was inserted by which either
party to the marriage was also given a right to apply for dissolution of marriage by a decree of
divorce either where there has been no resumption of cohabitation for the period specified therein,
after the passing of the decree for judicial separation; or where there has been no restitution of
conjugal rights for the period specified therein, after the passing of the decree for judicial
separation; or where there has been no restitution of conjugal rights for the period specified therein
after the passing of a decree for restitution of conjugal rights.

The Dissolution of Muslim Marriages Act, 1939 contains several fault grounds. The pre-Act fault
grounds too have been saved. Section 2 contains 8 fault grounds. Clause (ix) of section 2 saves the
existing grounds on which, wife may sue for divorce. The wife may obtain a decree of divorce on
any one of the grounds specified in the Act by filing a suit in the lowest civil court. The benefits
of this Section may be given to a wife whether her marriage was solemnized before or after the
commencement of the Act. The provisions of Section 2 may be given retrospective effect. 2

1
13. Divorce- (1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition
presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her
spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the
presentation of the petition; or
has ceased to be a Hindu by conversion to another religion ; or
has been incurably of unsound mind, or has suffering continuously or intermittently from mental disorder of such a
kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
2
Dr. R.K. Sinha- Muslim Law, 5th edn. 2003, p.98, Central Law Agency, Allahabad.
If the husband levels false charges of unchastity or adultery against his wife then this amounts to
character assassination and the wife has got the right to ask for divorce. Such a mode of divorce is
called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband
which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of
Lian. Where a wife hurts the feelings of her husband with her behavior and the husband hits back
an allegation of infidelity against her, then what the husband says in response to the bad behavior
of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted
under Lian.3

Hence there exist a dispute between the Muslim personal law and the Statutory law which is
claimed to have been developed from the personal law that being Lian and Cruelty.

DEVELOPMENT OF CRUELTY AS A STATUTORY LAW

The marriage creates reciprocal rights and duties and obligations and the important one is the right
to society of marital intercourse with an end explicit obedience to the other party. Therefore, both
the spouses are under obligation to carry on the marriage. But fortunately or unfortunately if either
of the spouse deliberately breaks the marriage tie or neglects or avoids to carry out the obligation
without any fault of the other, then the innocent party has been given some rights against the
defaulter spouse.

According to this theory, a marriage can be dissolved only if one of the parties to marriage has,
after the solemnization of the marriage, committed some matrimonial offence. The offence must
be one that is recognized as a ground of divorce. In 1955, when Hindu Marriage Act was passed,
it was the guilt theory in its most conservative form which found favour with the legislators. The
Act had a conservative stance. The three traditional fault grounds adultery, cruelty and desertion
were made grounds for judicial separation and not for divorce. Adultery simpliciter was not, but
living in adultery was a ground for divorce. The other grounds of divorce were: conversion to
non-Hindu religion (for this purpose 249 followers of Hinduism, Jainism, Buddhism and Sikhism
are all Hindus),venereal disease in a communicable form,insanity for a continuous period of three
years, virulent and incurable leprosy of atleast three years duration, renunciation of the world by
entering into a holy order, not being heard of alive for a period of seven years. As already

3
Nurjahan v. Kazim Ali
mentioned, that under this theory, one of the parties must have committed some matrimonial
offence. Therefore, one of the parties should be a guilty party, which implies that the other party
should be innocent. If the other party was also a guilty party, then, this theory was not applicable.
The conduct which does not render the opposite party as innocent is laid down in Section 23 of
the Hindu Marriage Act. It is called “Bars to matrimonial relief’. If any such bar exists, the
petitioner cannot be granted relief even if he is able to establish his ground.405

LITERATURE REVIEW

In Md. Khan v. Shahmai, under a prenuptial agreement, a husband, who was a Khana Damad,
undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event
of his leaving the house and conferred a power to pronounce divorce on his wife. The husband left
his father-in-law’s house without paying the amount. The wife exercised the right and divorced
herself. It was held that it was a valid divorce in the exercise of the power delegated to her.
Delegation of power may be made even in the post marriage agreements. Thus where under an
agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking
a second wife, the will have a right of pronouncing divorce on herself, such an agreement is valid,
and such conditions are reasonable and not against public policy. It should be noted that even in
the event of contingency, whether or not the power is to be exercised, depend upon the wife she
may choose to exercise it or she may not. The happening of the event of contingency does not
result in automatic divorce.

In Syed Ziauddin v. Parvez Sultana, 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 did. Later she filed for divorce for
non-fulfillment of promise on the part of the husband. The court granted her divorce on the ground
of cruelty. Thus we see the court’s attitude of attributing a wider meaning to the expression cruelty.
In Zubaida Begum v. Sardar Shah, a case from Lahore High Court, the husband sold the ornaments
of the wife with her consent. It was submitted that the husband’s conduct does not amount to
cruelty.

In Aboobacker v. Mamu koya, 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. The Kerela 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 behaviour.

In Itwari v. Asghari, 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.

STATEMENT OF RESEARCH PROBLEM

The difference in the meaning of ‘Cruelty’ under section 2 of The Dissolution of Muslim Marriage
Act, 1939 and the ‘Lian’ enshrined in the Muslim personal laws is what the matter of concern in
the modern legislation. Lian is an allegation of adultery to the wife by the husband who entitles
her to file a suit for dissolution of the marriage and get a divorce if she proves the charge to be
false. According to the Muslim law, till a decision is passed by the Judge, the marriage subsists
and there are mutual rights of inheritance if, either should happen to die before the decree is passed.

OBJECTIVES

i. To study the difference in the meaning between Lian as enshrined in the Muslim
personal laws and cruelty as enshrined in sec. 2 of Dissolution of Muslim Marriage
Act, 1939.

PROPOSED CHAPTERIZATION

I. Introduction
II. Cruelty as a statutory right
III. Lian as under personal law
IV. Differnce between lian and cruelty
V. Case studies
VI. Conclusion