Home Judicial divorce All you need to know about judicial divorce

Judicial divorce

All you need to know about judicial divorce

August 16, 2024

248

This article is written by Ritik Verma, pursuing a B.A.LL.B. from R.S. Banaras Law College, Varanasi. This article discussed the scope of divorce under Muslim law, especially regarding the conditions of Muslim wives before and after the passing of the Dissolution of the Muslim Marriage Act, 1939.

Table of Contents

Introduction

Muslim women generally faced difficulties regarding matrimonial relations; they had severely fewer grounds to get a divorce from their spouse. This act was especially passed to improve Muslim women’s conditions regarding seeking divorce as a matrimonial relief. This act empowered Muslim women to have additional grounds on which they could file a petition in any court and obtain a decree of divorce from their husband.

The Act consolidates and clarifies the provisions of Muslim women relating to suits for the dissolution of marriage by a married wife under Muslim law and removes doubts about the effect of the renunciation of the Muslim faith in Islam by a married Muslim woman on her status of marriage.

State of divorce under Muslim personal law

Pre-Islamic era

Before 610 A.D., the community living on the Arabian Peninsula was greatly unorganised. Men were neither bound to marry women and have children nor to protect the mothers of their children; the situation was not more than just prostitution. A man could marry any girl even without her consent and arbitrarily end the marital status without any concern for the wife.

Divorce among ancient Arabs occurred frequently and easily. This tendency could also revoke their divorce, remarry the wife and divorce her again as many times as they desire without any restrictions. Husbands could, at their presumption, accuse their wives of charges of adultery and leave her to suffer punishment given by the Islamic community for adultery. On the other hand, men were exempted from the responsibility of protecting their wives and maintaining them along with their children.

Post-Islamic era

“According to the Quran,”

The Quran permits divorce in some instances due to some customary obligations and partly to authorise men to get rid of the unpleasant tie of marriage.

The Quran verse states, “If both fear a breach between them (the husband and the wife), appoint an authorised, eligible person, one from the husband’s side and one from the wife’s side. If they desire to change the status of marriage, Allah will make them of one mind.”

The Holy Quran, the paramount source of Islamic jurisprudence, holds that the pronunciation of three divorces in a single breath would not affect three separate divorces pronounced in different Tuhar periods. This Quranic verse concludes that “a divorce is only permissible twice; the husband should wait for a reasonable period before pronouncing the third and last pronunciation of the Talaq sentence.”

“According to Prophet Mohammad,”

The Prophet regarded Talaq as the most hateful act before the almighty god; it prevented conjugal happiness and interfered with the proper bringing up of children. The Prophet showed his dislike of ending a marriage by divorcing.

Hadis dictated talaq as the most detestable of all permitted things before God.

Omnipotence of Muslim husbands regarding divorce

Muslim marriage Husbands possessed unlimited powers regarding seeking divorce; they could divorce their wives at any time, due to any reason or without giving any reason at their arbitrary wish. Husbands were not required to seek permission or consent from their wives before pronouncing the sentence of talaq, that is, to declare the intention of divorce either by ‘word of mouth’ or ‘in writing form’, the sentence of talaq being “I divorce you” or “Talaq, Talaq, Talaq” or “Talaq thrice”.

All the separations affected by causes directly originating in the husband were termed “Talaq,” whereas the term “Faraqat” referred to separating the marital relationship with the assistance of a court of law.

The uncodified Muslim personal law gave total authority to husbands and zero authority to wives of their own to seek divorce. The Prophet was extremely disapproving of the arbitrariness of husbands giving divorce to their wives at their will. The Prophet also regarded the husband’s conduct as according to the existing situation of Islam; it may be impossible to completely abolish the customs followed by men within the Muslim community.

Prophet Mohammad had to develop the mentality of Muslim men to a highly moderate and developed mindset from the outdated ideology of the superiority of husbands over wives. He restrained the husband’s unlimited arbitrary power to give divorce and gave the woman the right to obtain separation on some specific grounds discussed further in this article.

The inferiority of Muslim wives regarding divorce

The Prophet Mohammad is noted to have quoted, “If a woman is prejudiced by a marriage, let it be broken off” within the Sunnah. The Prophet extracted some of the powers of the husband to give Talaq and embedded the same in the wife, through whom she gave Talaq to his husband.

Before the Dissolution of Muslim Marriage Act of 1939 was passed, a Muslim woman was eligible to apply for the dissolution of her marriage on the following grounds:

impotency of the husband;
lian (false charge of adultery),
repudiation of marriage by the wife.

To pronounce a valid talaq, the spouse shall possess the following essentials:

Under Shia law,

Attained the age of puberty (15 years) (Baligh),
Must be of sane nature or sound mind at the time of pronouncing talaq (Aqil),
Not under any compulsion, duress, intoxication, etc.
If oral, then the presence of at least 2 witnesses (either 2 males or 1 male with 2 females).

Under Sunni law,

Attained the age of puberty (15 years) (Baligh),
Must be of sane nature or sound mind at the time of pronouncing talaq (Aqil).

Grounds for Muslim wives to seek divorce under personal law

Zihar (injurious assimilation)

If the husband compares his wife to his mother or any other female within a prohibited degree, the wife gets a right to refuse herself until he performs adequate penance to compensate for his wrongful act. In default of the expiration of penance, the wife gets the right to apply for judicial divorce.

Talaq-E-Tafweez (Delegated Talaq)

Tafweez means delegation of power. A husband may, himself, delegate his power to repudiate the marriage to his wife, or sometimes a third party. Such an agreement may happen before or after marriage, imposing a situation or condition on the delegation.

Talaq-e-Tafweez is one of the most important forms of divorce under Muslim law, as it gives Muslim wives a right to divorce their husbands without concern or obtaining consent from their husbands. A wife can only divorce the husband in situations where the husband has delegated such power to her or under an agreement, not on her own arbitrary will. Approaching a court of law is not required for the wife to take divorce herein; only an oral or written declaration to the husband is enough to enforce the dissolution of marriage.

Ameer Ali gives three kinds of tafweez. These are:

Ikhtiar: giving her the authority to talaq herself;
Amr-bayed: leaving the matter in her own hands; and
Mashiat: gives her the option to do what she likes.

Khula (Redemption)

Divorce happens at the request of the wife. The literal meaning of Khula or redemption, is “to lay down.” In legal Muslim jurisprudence, Khula means laying down by a husband of his rights and authority over his wife. In khula, the consent of the husband is obtained by the wife when she gives or agrees to give a fixed amount of money to the husband or simply waives her dower in lieu of her release from marital status.

Lian (Imprecation)

The husband falsely accused his wife of committing adultery and imputed unchastity. If a husband accuses the wife of infidelity, he is liable to punishment for defaming his wife unless he proves his allegation by the testimony of four witnesses, which is acceptable under law. If there was no proof produced, then the wife has a right to divorce her husband under the doctrine of Lian.

By mutual consent of husband and wife

Mubarat (Divorce by mutual agreement)

The meaning of “Mubaraa” is an act of mutually freeing one from another. It is the desired separation mutually from the consent of both sides together. The offer of divorce is given either from the husband’s or wife’s side and consecutively accepted by the other spouse.

When an offer of mubarat is accepted, it becomes an irrevocable divorce (talaq-ul-bain) and the wife needs to observe an iddat period of 3 months to marry another man.

Through Qazi (the magistrate or judge of a Sharia court):

Faskh

Faskh means cancellation, abolishment, rescission, revocation, abrogation, or annulment. Under Muslim law, a lady can approach the Qazi to dissolve her marriage. The Quran says the husband has a duty to give proper treatment to his wife. The wife is also bound by the duty to obey all the lawful orders of her husband. If the husband and wife both conclude that they cannot live together, either spouse can refer the matter to Qazi, who can, after careful examination, terminate the marriage.

According to Tyabji, the following were the main grounds for dissolving the marriage at the instance of the wife:

The marriage is irregular;
A person had the option to rescind marriage and thus exercised his option;
The marriage was held within prohibited degrees of marriage or fosterage;
The marriage was contracted between non-Muslims, and the parties adopted Islam later.

Condition of wives after enforcement of “The Dissolution of Muslim Marriages Act, 1939”.

Before the passing of the Dissolution of Muslim Marriages Act, 1939, there was no codified legislation through which a Muslim lady could ask for the dissolution of her marriage. Muslim ladies could only apply for the dissolution of their marriages under the subject matters specified within the doctrine of Faskh.

Currently for dissolving the marriage by wife, first she needs to file a civil suit in family court on any ground of judicial divorce provided under the Act or any ground specified within the doctrine of Faskh. After the court gets satisfied hearing both parties, it provides a decree for dissolution of marriage on the grounds claimed and proved by the wife side. This decree is proof of marriage dissolution and the end of the marital tie between the couple. The husband can appeal the decree provided by the higher court and the wife is restricted from marrying someone else until the appeal period for the husband has expired or the appeal has been dismissed by a superior court.

Grounds for judicial divorce provided under the Act

A Muslim wife married within Muslim law provisions shall be entitled to obtain a decree for the dissolution of her marriage based on any ground provided under Section 2 of the Dissolution of Muslim Marriage Act:

Missing husband [Section 2(1)]

The husband has not been contacted or discovered living for a period of four years. If a decree of divorce is obtained by the wife, then she shall not marry within a period of six months from the passing of such a decree. If the husband appeared within six months and satisfied the court that he was willing to perform his marital obligations, the court may set aside the decree.

The wife filing suit must contain the following information:

The full names and addresses of the residents of the husband, along with the relatives who would have been eligible to inherit property from the divorceable husband if he had died on the date of the filing of the plaint;
Notice shall be served of such suit filed against such heirs;
The right to be heard shall be given to such heirs;
Within such a suit, the parental uncle and brother of the husband are to be made parties.

Failure to maintain [Section2(2)]

If a husband is married under Muslim law and has neglected or failed to provide for maintenance for a period of two years to his wife, then the wife can obtain a decree for the divorce. Within Muslim law, the wife who was not faithful or obedient to the husband or who did not perform her marital duties is not bound to maintain her. So, if a wife files a suit for divorce on the ground of failure of maintenance and the husband proves that she was neither faithful nor obedient to her husband, the dismissal of the suit will take place.

Case- Rabia Khatoon vs. Mukhtaar Ahmad (1966)

In the landmark case of Rabia Khatoon vs. Mukhtaar Ahmad, the court ruled that a wife who lives separately from her husband without any valid reason will lose her right to seek divorce on the grounds of a lack of maintenance. This judgement highlights the importance of cohabitation in a marriage and establishes that a wife’s conduct can impact her entitlement to maintenance from her husband.

The court’s decision in this case was based on the principle that both spouses have certain obligations and responsibilities within a marriage. One of these obligations is the duty to cohabit, which means living together under the same roof and sharing a common household. When a wife voluntarily chooses to live separately from her husband without any justifiable cause, she breaches this duty.

The court held that when a wife refuses to cohabit with her husband, she not only deprives him of his conjugal rights but also makes it difficult for him to fulfil his marital obligations, such as providing maintenance. Therefore, the court ruled that such conduct on the part of the wife amounts to a forfeiture of her right to claim maintenance from her husband.

However, it’s important to note that the court did not completely deny the wife’s right to maintenance. If she has a valid reason for living separately, such as abuse or neglect by the husband, she may still be entitled to maintenance. The court’s decision in Rabia Khatoon v. Mukhtaar Ahmad emphasises the importance of cohabitation in a marriage and serves as a reminder that spouses must make every effort to uphold their marital vows and obligations.

Case- Mst. Nur Bibi vs. Pir Bux (1950)

Judgement:

In the landmark case of Mst. Nur Bibi vs. Pir Bux, the court expounded on the intricacies of marital obligations and the rights of spouses under the Dissolution of Muslim Marriages Act. The judgement centred on the issue of maintenance and its impact on a wife’s right to dissolve her marriage.

The court held that if a husband fails to provide maintenance to his wife for a continuous period of two years immediately preceding the filing of a suit, the wife is entitled to seek dissolution of her marriage under Section 2 (ii) of the Act. This right is granted irrespective of the wife’s willingness or actions in refusing to live with her husband during the period of non-maintenance.

The court recognised that a wife’s refusal to live with her husband could impact her ability to enforce any claim for maintenance against him. However, this factor alone does not negate the husband’s obligation to fulfil his maintenance responsibilities. The court emphasised that the provision of maintenance is a fundamental right of the wife, and the husband’s failure to fulfil this obligation for a significant period constitutes a breach of his marital duties.

This judgement underscores the importance of upholding the principles of fairness and equity in marital relationships. It ensures that wives are not left destitute due to their husbands’ neglect or unwillingness to provide for their basic needs. The court’s decision empowers women to seek legal remedies when their marital rights are violated, promoting gender equality and protecting the rights of vulnerable individuals within matrimonial bonds.

Husband in Prison [Section 2(3)]

If the husband has been sentenced to a period of seven years or more imprisonment, the wife would be entitled to obtain a divorce decree from the court. However, the decree shall not be passed immediately. It shall be passed only after the expiration of the period for appeal by the husband or after the appeal by the husband has been dismissed by the Supreme Court of India.

The rationale behind this provision is to give the husband an opportunity to challenge his conviction and sentence. If the husband is successful in his appeal, the divorce decree will not be granted. However, if the husband’s appeal is dismissed, the divorce decree will be granted.

This provision is important because it protects the rights of both the husband and the wife. It ensures that the husband has an opportunity to challenge his conviction and sentence, while also ensuring that the wife is not left in limbo indefinitely.

In addition, this provision also takes into account the fact that a divorce can have a significant impact on the lives of both the husband and the wife. It is therefore important to ensure that a divorce is not granted lightly and that both parties have had an opportunity to consider the consequences of their actions.

If the husband is successful in his appeal, the divorce decree will not be granted. However, if the husband’s appeal is dismissed, the divorce decree will be granted.

No marital obligations were performed [Section2(4)]

Herein, the husband, without reasonable cause, has failed to perform his marital obligations for a period of not less than three years. The wife becomes eligible to obtain a decree of marriage divorce.

The Act did not define ‘marital obligation of the husband’. For this ground, the husband’s failure to perform conjugal obligations as to ‘not cohabit with her’ or ‘desert her’ without reasonable cause makes up for the failure of the marital obligations of the husband, as a breach of other obligations is already a ground for divorce under this Act.

Case: Veeran Sayvu Ravuthar vs. Beevathumma (2002)

The case of Veeran Sayvu Ravuthar vs. Beevathumma, decided by the Indian courts in 2002, addressed the issue of divorce under the Dissolution of Muslim Marriages Act, 1939. In this significant judgement, the court examined the circumstances under which a wife could seek a divorce due to the husband’s failure to fulfil his marital obligations.

Facts of the Case:

The plaintiff, Veeran Sayvu Ravuthar, was the husband in the marriage.
The defendant, Beevathumma, was the wife in the marriage.
The couple was married under Muslim law.
After the marriage, Beevathumma resided in her parent’s house or her own house, away from her husband.
Veeran Sayvu Ravuthar made no attempts to establish conjugal company with his wife.
He did not initiate any legal action for the restitution of conjugal rights.

Legal issue:

The primary legal issue before the court was whether Beevathumma was entitled to a divorce under Section 2(iv) of the Dissolution of Muslim Marriages Act, 1939. This section allows for the dissolution of a Muslim marriage on various grounds, including the husband’s failure to perform his marital obligations without a reasonable excuse.

Court’s reasoning and judgment:

The court analysed the facts of the case and concluded that Veeran Sayvu Ravuthar had failed to fulfil his marital obligations towards Beevathumma.
The court noted that he had not attempted to establish conjugal company with his wife and had not taken any legal steps to restore their marital relationship.
The court emphasised that a husband has a legal and moral responsibility to provide for and protect his wife, including providing her with a suitable place of residence and conjugal company.
In this case, Veeran Sayvu Ravuthar’s failure to do so constituted a breach of his marital obligations.
The court held that Beevathumma was entitled to a divorce under Section 2(iv) of the Dissolution of Muslim Marriages Act, 1939, as her husband had failed to perform his marital obligations without providing any probable or reasonable cause.

Significance of the judgement:

The judgement in Veeran Sayvu Ravuthar vs. Beevathumma is significant for several reasons:

It reinforces the principle that both spouses in a marriage have certain rights and obligations and that failure to meet these obligations can lead to the dissolution of the marriage.
It provides legal recourse for women who are denied their conjugal rights and face abandonment or neglect from their husbands.
It emphasises the importance of communication and open dialogue between spouses to resolve marital issues before resorting to legal proceedings.

The judgement serves as a reminder that mutual respect and understanding are essential for a healthy and lasting marriage and that neglect of marital obligations can have serious consequences, including the possibility of divorce.

Impotence of the husband [Section2(5)]

Impotency means the inability to consummate the marriage via sexual intercourse between the married couple. Impotence may be physical or mental. If the husband was suffering from erectile dysfunction (impotency) exactly during the course of marriage and continues to be so, the wife is entitled to get a divorce judicially.

The wife needs to prove two facts to obtain a decree:

The husband was impotent at the initial stages of the marriage, and
The husband continued to be impotent until the suit was filed by his wife.

Case- Gulam Mohd. Khan vs. Hasina.

Judgement- The wife filed a petition for divorce on the ground of the impotency of the husband. The husband, to prove his potency, filed a medical certificate declaring that the man is able and potent.

Verdict- A husband is impotent if he is not able to have some sexual relationship with his wife and make her pregnant. Impotency in Section 2 denotes impotency concerning his wife, not concerning any other woman, generally any female. A husband can be competent to perform sexual intercourse and be able to pregnant her with his hormones but he can be impotent for only his wife, or maybe vice versa. Therefore, where the wife claims that her husband ceases to be potent, the husband shall satisfy the court that he can perform effective and productive sexual intercourse with his wife regardless of any general women.

Insanity and venereal disease [Section2(6)]

If the husband has been insane for a period of two years or if the husband has been suffering from a virulent disease for a period of two years, consider it recently. The insanity of the husband, with or without lucid intervals post-marriage as well as pre-marriage, arising either before or after the consummation of marriage, is all covered within this ground.

Marriage before puberty [Section2(7)]

If consent for marriage was given by her natural parents or another guardian before she reached the age of 15 years. She can repudiate the marriage through a decree of divorce before attaining the age of 18 years and her marriage has not been consummated after she attained the age of puberty.

Case- Mustafa vs. Khursida (2006).

Facts- A Muslim girl was put into marriage by her parents when she was 7 years old. The birth certificate and passport of her mother proved that the petitioner was 7 years and 23 days old at the time her parents contracted child marriage with their consent. This age was also confirmed by the ration card. The petitioner and respondent had never lived together as husband and wife and this was proved with evidence. Their marriage was never consummated at any time. Between attaining the age of puberty and attaining 18 years of age, the girl applied for the dissolution of her marriage before the Family Court at Jodhpur.

Verdict – High Court held that the married girl was eligible to obtain a decree to dissolve her marriage. Even if a married girl below 15 years of age whose marriage was consummated, this conduct shall not terminate her option to repudiate the marriage after she attains the age of puberty. The marriage should not be consumed after the wife attains puberty.

Cruelty by husband [Section2(8)]

A decree dissolving a marriage can be claimed by a Muslim wife if the husband treats her with cruelty. Cruelty can be both mental and physical. More specifically, the following conditions shall be deemed to be cruelty to the wife:

Constantly assaults her or makes her feel pathetic or bad, even if such conduct does not amount to physical ill-treatment.
lives an infamous life or has affairs with women of poor repute, or
forces his wife to live an immoral life, or
disposes of the property or prevents the wife from enforcing her legal right over the property, or
prevents or disturbs her from practicing or propagating her religious beliefs or faith,
If the husband has more than one wife and he does not treat each wife equally or similarly in accordance with the instructions provided in the Quran.

Case– K. Muhamma Lateef vs. Nishath (2004).

Facts- The parties got married in the year 1997. Within the same year, they got separated and during their subsistence, the husband got married to someone else within five months of separation. This came to light when he was examined in court. The first wife filed a suit seeking divorce on the grounds that her second marriage recently caused mental cruelty to her.

Verdict- The Court was very concerned with the attitude of the husband towards getting married again within five months of separation. The husband had remarried another female recently during the subsistence of a marriage that legally proceeded; necessarily, that will be mental cruelty towards the first wife. The husband was willing to cohabit with the first wife while enjoying the other wife and continuing the second marriage; there was no reason to reject the petitioner’s plea to grant a divorce decree.

The Muslim husband can have more than one wife; hence, there is also no reason to reverse the decree. Bigamy is permitted as per Muslim law. Even if the husband claims that he can equitably treat both wives without discrimination, it is practically impossible to do that without disappointing the other wife subsequently.

Other grounds for dissolution recognised by Mohammedan law [Section2(9)]

The grounds for the dissolution of a Muslim marriage under Muslim personal law are not limited to those codified in the Dissolution of Muslim Marriages Act (DMMA). The Act covers several additional grounds, including Ila, Zihar, Talaq-i-Tafweez, Khula, Lian, Mubaraat, Faskh, and apostasy from Islam. These grounds ensure that Muslim women have the right to seek the dissolution of their marriage on various grounds beyond those explicitly mentioned in the Act.

Ila: Ila is the husband’s oath to abstain from sexual intercourse with his wife. If the husband maintains this oath for four months, the wife can seek dissolution of the marriage.

Zihar: Zihar is a metaphor in which the husband compares his wife to his mother or other close female relatives. This act is considered offensive and degrading and can be grounds for divorce.

Talaq-i-Tafweez: Talaq-i-Tafweez is a type of divorce where the husband delegates the power of divorce to his wife. If the wife exercises this power, the marriage is dissolved.

Khula: Khula is a divorce initiated by the wife with the consent of her husband. The wife may offer compensation to the husband in exchange for the dissolution of the marriage.

Lian: Lian is a process where both spouses make oaths denying or confirming the paternity of a child. If the oaths are contradictory, the marriage may be dissolved.

Mubaraat: Mubaraat is a mutual agreement between the husband and wife to dissolve their marriage without assigning blame to either party.

Faskh: Faskh is the dissolution of a marriage by a court order due to factors such as cruelty, insanity, or impotence.

Apostasy from Islam: If one spouse converts to a religion other than Islam, it may be considered grounds for divorce in some interpretations of Islamic law.

The inclusion of these grounds ensures that Muslim women have the opportunity to seek the dissolution of their marriage in cases where traditional grounds may not apply. By codifying these grounds, the DMMA aims to protect the rights of Muslim women and provide them with legal recourse when their marriages have irretrievably broken down.

Legal consequences of divorce

The rights and obligations applicable to both husband and wife shall arise from the divorce:

After the divorce becomes irrevocable, the rights to inherit each other’s property cease to exist.
The unpaid dower becomes payable immediately, both prompt and deferred dower, if the married wife is entitled to immediate payment of the whole of the consummated within the contractual marriage settled between the parties;
If the marriage was not consummated even once, and the dower amount was specified in the marital contract, she is entitled to only half of that unpaid dower, but the burden of proof lies upon the wife to prove that the marriage was not even consummated once.
The wife becomes entitled to claim maintenance during the Iddat period observed due to divorce but not during the Iddat due to the death of her husband.
Both husband and wife become eligible to contract another marriage. If the marriage was consummated, after the wife observes the Iddat period of 3 months, she becomes entitled to marry another man. If the marriage was never consummated, then the wife is free to marry again immediately without observing any Iddat period.
If the marriage was consummated with the wife seeking a divorce and the husband had four wives at the date of divorce, including the divorced wife, he may marry another wife after the competition of the Iddat period of the divorcing wife, as practically he shall be left with three wives, then he can marry the fourth wife.
Cohabitation becomes unlawful after the talaq procedure is completed and talaq becomes irrevocable. Children born out of cohabitation after irrevocable divorce are considered illegitimate and cannot be acknowledged by the father.
Remarriage between a divorced couple is not lawful where the husband has divorced the wife, unless and until the concept of “Nikaah Halala” or “Halala” is adopted and thus applied to remarry that same divorced wife.

The procedure for applying Halala is:

The wife shall observe 3 months of the Iddat period;
After Iddat is observed completely, she should be lawfully married to another man;
This marriage must actually be consummated by the new husband;
The new husband must die or give talaq to the wife married for completing Halala rituals;
The wife should observe the period of Iddat in accordance with the dissolution of the second marriage, either by death or divorce for the later husband.

A marriage without fulfilling the conditions of Halala is irregular, but not void. In accordance with Muslim personal law. But mere cohabitation between the divorced couple without the fulfilment of the above conditions to remarry the divorced wife is void, and the children born out of such cohabitation are illegitimate and cannot be acknowledged by the father. This theory was elaborated in Rashid Ahmad vs. Anisa Khatur.

Effect of apostasy (conversion to another religious faith)

Apostasy by wife

Section 4 of the Dissolution of Muslim Marriages Act of 1939 states that if a married Muslim woman exercises renunciation of Islam or converts to a faith other than Islam, this shall not by itself operate to dissolve her marriage immediately but the wife shall be entitled to obtain a decree for the dissolution of her marriage based on any of the grounds mentioned in Section 2 of the Act. The provisions of Section 4 shall not apply to a woman who was converted from any other faith to Islam and who re-embraces her former faith. An apostate wife is eligible to recover her deferred dower after her conversion.

Apostasy by husband

Section 4 of the Act does not apply to apostasy by a husband. Apostasy by the husband is still governed by their Muslim personal law regarding apostasy, which states that if a Muslim husband renounces his belief in Islam, his marriage is immediately dissolved just after the renunciation. When a Muslim husband converts to another religion, the wife ceases to be the Muslim wife of that husband. The wife is also not further governed by the provisions of Muslim law and she is not required to observe the Iddat period to marry someone else.

Case- Sarla Mudgal vs. Union of India

Facts:

In this case, the husband was accused of committing the offence of bigamy as defined under Section 494 of the Indian Penal Code, 1860. The husband, who was Hindu by faith, married twice. To solemnise his second marriage, he converted to Islam without legally dissolving his first marriage. This act raised the question of the validity of his second marriage and whether it constituted bigamy under the law.

Verdict:

The Supreme Court of India delivered a significant verdict in this case. The Court held that before the husband could enter into a second marriage, it was imperative for him to dissolve his first marriage in accordance with the provisions of the Hindu Marriage Act, 1955. The Court reasoned that the first marriage, being valid under Hindu law, continued to subsist and was not automatically dissolved by the husband’s conversion to Islam. Consequently, the Court declared the second marriage to be illegal and void under Section 494 of the Indian Penal Code, 1860.

Significance:

The Supreme Court’s verdict in Sarla Mudgal vs. Union of India has far-reaching implications for the legal recognition of bigamy in India. The Court’s emphasis on the need to comply with the Hindu Marriage Act, 1955, for the dissolution of a Hindu marriage, highlights the importance of adhering to the legal framework governing marriage and divorce. The verdict also underscores the principle that religious conversion alone does not automatically dissolve a marriage solemnised under a specific personal law.

This case serves as a reminder that individuals cannot circumvent the legal requirements for dissolving a marriage by simply converting to a different religion. It also emphasises the need for clarity and consistency in the application of marriage and divorce laws, ensuring the protection of the rights and interests of all parties involved.

Effect of the dower on divorce

Section 5 of the Dissolution of Muslim Marriage Act, 1939 states that “rights to dower are not to be affected.” This means that any right that a married Muslim woman possesses with regards to her unpaid dower under Muslim law remains entitled to the whole amount of the dower discussed at the time of her marriage if the marriage has at least been consummated once during the subsequent period of her marriage. The Dissolution of Muslim Marriages Act, 1939, does not infringe any right that a Muslim married woman may have under Muslim law to her dower or any part of matrimonial relief that she possesses due to the occurrence of the dissolution of her marriage.

Also, the Muslim personal law empowers the Muslim wife to be entitled to recover half of the dower amount even if the marriage has never been consummated.

Conclusion

Muslim wives did not have many grounds to dissolve their marriage through options provided within “Muslim law” and the “Muslim personal law (Shariyat) Applicability Act 1937.” The legislation, through the enactment of “The Dissolution of Muslim Marriage Act 1939,” gave several grounds to Muslim wives filing a suit in family court for dissolving their marriage on the account of their husband at default, such as falling within a ground specified in Section 2 of the Act.

Currently, Muslim wives can dissolve their marriage within the court on any ground specified under Muslim law, Muslim personal law (Shariyat) Applicability Act 1937, or the Dissolution of Muslim Marriage Act 1939.