Monday, 20 June 2022

The Dissolution of Muslim Marriage Act

 The Dissolution of Muslim Marriage Act, 1939

By: Robin Pandey Date:


03/03/2022


Despite the Quranic injunction and the traditions of the Prophet, the Anglo- Indian Courts had

denied to Muslim woman the rights of dissolution available to them under the Shariat. Before 1939,

a Muslim wife could seek her divorce by a judicial decree only on the ground of:

(a) Option of puberty (Khyar-ul-Bulugh);

(b) impotency of the husband;

(c) Lian i.e. false charge of adultery by the husband against her.

On the other hand, the husband need not go to the court at all as all the forms of divorce (Talaq,

Illa, Zihar, Khula or Mubarat) depend solely upon his will. The classical Hanafi law of divorce was

causing great hardships as it consisted no provision whereby a Hanafi wife could seek divorce on

such grounds as disappearance of the husband, his long imprisonment, his neglect of matrimonial

obligations etc. Finding no other way to get rid of undesired marital bonds, many Muslim women felt

compelled by their circumstances to renounce their faith.

But now, the Dissolution of the Muslim Marriages Act, 1939 has introduced a revolutionary change

in this respect and had restored to her, right of divorce granted to her under Shariat. It is applicable

to all Muslim woman irrespective of their school to which they belong. Section 2 of the Act contains

nine grounds on the basis of any one of which a wife married under Muslim law, may filed a

petition for divorce. The grounds for matrimonial relief under Section 2 of the Act are available only

to the wife, not to the husband. This is because the Muslim law has already given an absolute right

to the husband to divorce his wife without judicial intervention and without any reason. The words

used by Section 2 of the Act are a "woman married under Muslim law" and not a "Muslim Woman".

This protects women who have already abjured Islam in the hope of getting their marriage

dissolved and are thus no longer Muslims; they also can get their marriage dissolved on any of the

grounds given in the Act.

Grounds for Judicial Divorce by Wife: Section 2

Section 2 of the Dissolution of Muslim Marriages Act, 1939 provides that 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 grounds enumerated therein. The specified grounds are as under:

(i) Absence of Husband: If the whereabouts of the husband are not known for a period of four years

a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her

marriage, but, a decree passed on this ground will not take effect for a period of six months from the

date of such decree; and if the husband appears either in person or through an authorized agent

within that period, and satisfied the Court that he is prepared to perform his conjugal duties, tie

court must set aside the said decree.


(ii) Failure to maintain: If the husband has neglected or has failed to provide for her maintenance

for a period of two years, a married Muslim woman can obtain a decree for the divorce.

(ii) Imprisonment of husband: If the husband has been sentenced to imprisonment for a period of

seven years or upward the wife is entitled to decree of the Court dissolving her marriage, but no

decree can be passed on this ground unless the sentence has become final.

(iv) Failure to perform marital obligations: If the husband has failed to perform, without reasonable

cause, his marital obligations for a period of three years, the wife can get her marriage dissolved by

means of a decree.

(v) Impotency of husband: If the husband was impotent at the time of the marriage and continues

to be so, the wife is entitled to judicial divorce for the dissolution of her marriage.

(vi) Insanity, leprosy or venereal disease: If the husband has been insane for a period of two years

or is suffering from leprosy or a virulent venereal disease the wife may claim a judicial divorce under

the Act.

(vii) Repudiation of marriage by wife (option of puberty): If she, having been given in marriage by

her father or other guardian before attaining the age of 15 years repudiated the marriage before

attaining the age of 18 years and the marriage is not consummated, she is entitled to a decree of

divorce.

(vii) Cruelty of husband: Judicial divorce may also be claimed by a Muslim wife, if the husband treats

her with cruelty, that is to say:

(a) habitually assaults her or makes her life miserable by cruelty or bad conduct even if such conducts

does not amount to physical ill-treatment.

(b) associates with women of ill-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 from exercising her legal right 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) Grounds of dissolution recognised by Muslim Law: The wife is also entitled to a decree for the

dissolution of her marriage on any other ground which is recognised as valid for the dissolution of

marriage under Muslim law. For example, under this clause, a wife may seek her divorce by judicial

decree on the ground of false charge of adultery against her (Lian).

Thus, while giving some additional grounds of divorce to a Muslim wife, the Act has not affected her

right of divorce on the ground already available under Muslim law. In Muhammad Usman v. Sainaba

Umma, the Court has held that Section 2(ix) is a residuary ground where courts have an area of

discretion and freedom to dissolve the marriage. This clause has been interpreted to mean that if a

wife finds that it is impossible for her to continue the marriage and that her marital life has totally


been broken down then she should not be compelled to live with the husband for want to any

defined ground for divorce. Where the court is satisfied that marital relations have actually been

broken down beyond reasonable doubt, the Court may include any reason or ground for giving relief

to wife.

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