This article is written by Titas Biswas. It deals with an in-depth analysis of the statutory act ‘The Dissolution of Muslim Marriages Act, 1939’ enacted to safeguard the interests of Muslim women seeking divorce. The author intends to delve into different notions of the act in this article, specifying the background and historical context, objectives, crucial provisions of the act, application of the act, and other important aspects.
Table of Contents
Introduction
Over time, Muslim women have been in a cascade of discriminatory events. From being forced into undesirable marriages to being denied the basic rights in their marriages, they have been deprived of their entitlements. This led to the emergence of a legislative body aimed at changing the course of unfairness towards Muslim women, which is called ‘The Dissolution of Muslim Marriages Act, 1939’ (hereinafter referred to as the Act).
Since its inception in British India, the rights of Muslim women have been upheld and maintained. This Act structures provisions regarding grounds of divorce, consequences of apostasy, serving notice amidst the disappearance of the husband and dower.
The Dissolution of Muslim Marriages Bill was passed on March 17, 1939, after being introduced in the Parliament by Qazi Muhammad Ahmed Kazim on April 17, 1936. The Act underscored uniformity among Muslim women as it was applicable irrespective of any Mohammedan sect or school of thought.
The Act of 1939 is a codified version of faskh, one of the methods used to dissolve marriage under Muslim Law in India, which shall be discussed later in this article.
Background and historical context
Prior to 1939, Muslim women faced unbearable hardships and unattainable miseries in marriages where their husbands abandoned them, leaving them unprovided for, married another woman and compromised their basic maintenance or persistently persecuted them. In light of these issues, the need to legislate an Act with provisions addressing these grounds arose.
To study the evolution of laws and approaches used to dissolve a Muslim marriage, one must consider the timelines. Following is a detailed discussion.
Pre-Islamic era
In the pre-Islamic era, a husband had unlimited and arbitrary power to dissolve his marriage. He could divorce his wife according to his wishes, resume cohabitation and would divorce again. This unending cycle led ultimately to the exploitation of such women. There was no restraint on this barbaric and injudicious act by the husband; a mere indication from him that the marital bond was dissolved was sufficient to declare such marriage dissolved.
Following are the exhaustive ways in this era that dissolved a marriage:
- Talaq (expressed announcement of repudiation of marriage by the husband.)
- Ila (An oath of not performing sexual intercourse for at least four months by the husband.)
- Zihar (A comparison of the wife drawn by the husband with a woman within his prohibited relationship, e.g., his sister or mother.)
- Khula, which was gradually in practice at the onset of the Islamic era. (a wife seeking divorce when her husband refuses to do so.)
Inception of Islamic era
Muslim Law includes two major sects, that is, Sunni Law and Shia Law. These two sects further categorise different schools of thought. Where under the Sunni sect, laws are governed by Hanafi, Maliki, Shafi and Hanbali, the Shia Sect follows Imami, Ismaili and Zaidi. The majority of Muslims in India are governed by the schools under Sunni Law as their provisions as to personal laws are pre-determined and prevalent.
The most prevalent practices of divorce under Muslim Law in this era were;
- Talaq (By the husband)
This form of divorce was only optionable to the husband, which was further classified into;
Talaq-ul-Sunnat is a revocable form of talaq and is effective according to the instructions given by Prophet Mohammad. This form of talaq is further divided into Ahsan and Hasan. ‘Ahsan’ is considered to be the best or proper form of talaq as it allows the husband to divorce his wife during the period of ‘tuhr’, which is when a woman is not menstruating. The husband pronounces talaq, which is revocable after his wife observes the iddat period. Such talaq is revocable at the instance of sexual intercourse by the husband and wife or declaration of repudiation of divorce by the husband and is considered to be the ideal form of talaq. ‘Hasan’, on the other hand, prescribes that a husband is allowed to divorce his wife by announcing ‘talaq’ three successive times during the period of ‘tuhr’ and may repudiate by performing sexual intercourse with his wife. The husband may again pronounce talaq, the second time during the ‘tuhr’ period and repudiate such divorce by performing sexual intercourse or declaration. The Shariah law restricts a husband to revoke his marriage after the third and final pronouncement of talaq.
Talaq-ul-Biddat, under which a husband may pronounce talaq three successive times in a single sitting, commonly referred to as ‘Triple Talaq’, which furthermore is divided into Ila and Zihar. ‘Ila’ allows the husband to take a pledge not to perform sexual intercourse with his wife. At the completion of observing the iddat period, the divorce becomes irrevocable. Under ‘Zihar’, the husband draws a comparison between his wife and a woman who falls under a prohibited degree with him. Such comparison may lead the wife to refuse to perform sexual intercourse. The period of observation under this form is four months, on whose expiration such marriage shall be considered dissolved.
- Khula & Talaq-e-Tafweez (By the wife)
These forms of divorce were granted solely to the wife while allowing her to repudiate her marriage under certain circumstances, which were generally husband-centric.
Khula, meaning ‘redemption’, has originated from the word ‘khalun’, which means ‘extracting out of one thing from another’. This form of divorce moves from the wife, which is equivalent to Talaq. However, adequate and satisfactory reasons must be stated for the same, including non-maintenance by her husband or irretrievable breakdown of marriage. Under this form of divorce, the wife consents to offer compensation and relinquish her dower (mahr) and other such rights in order to obtain divorce from her husband.
Talaq-e-Tafweez, meaning ‘Delegated Divorce’’, allows the husband to delegate the authority to his wife in order to seek divorce from him. This delegation of authority may be given at the time of marriage or later in the marital tie. This form of divorce is structured upon contractual duties and obligations of both parties to the marriage whose violation may enable the wife to exercise the authority delegated to her. Such a form of divorce has been alternatively named ‘Contractual Divorce’ given its nature and procedure.
- Khyar-ul-Bulugh (Repudiation of marriage)
This idea of divorce is also known as the repudiation of marriage by the wife where she chooses to withdraw herself from such marital ties. This form of divorce is optionable only when the marriage of a minor is performed by her guardians. Under this form of divorce, she is permitted to exercise the privilege within three years of attaining the age of fifteen. She is deemed to waive her right after the expiration of the time limit prescribed, which is from the age of 15 years to attaining the age of majority or at the instance where she performs her marital consummation despite being aware of her rights.
- Mubarat (Mutual Agreement)
As is depicted by the name, Mubarat allows both husband and wife to free themselves from their nuptial tie. This form of divorce is based on the mutual aversion of both parties towards each other. The principle basis of this kind of divorce is to allow the husband and wife to separate without any claims against each other and through mutual agreement. Both major sects under Muslim law, namely Shia and Sunni, incorporate such practice of divorce.
- Lian and Faskh (Judicial Pronouncement)
In Lian, a wife seeks divorce from her husband when he has falsely accused her of adultery or unchastity. The wife can sue her husband, claiming such allegations to be false and treating such allegations as grounds for divorce.
Faskh denotes the annulment of marriage initiated by the wife, where the authority to annul is conferred upon a Qazi or a judge. The origin of this principle is anchored from the teachings of the Quran where it is depicted that it is the right of a discriminated and afflicted wife to seek divorce on the grounds of being unprovided, tortured, neglected, deserted and some others. According to Fayzee, ‘faskh’ is a derivation of Islamic injunctions encapsulated by prophets and asserted by Ameer Ali, who believes that the pronouncement of dissolution of a Muslim Marriage by a Qazi is founded on the words by the Prophet, “If a women be prejudiced by a marriage, let it be broken off”.
This Act is a codified adaptation of this form of divorce, allowing the wife to seek divorce on several grounds. This article contains key provisions of the Act as well as its objectives and application.
Objectives of the Act
History speaks of violence, barbaric behaviour and unfair practices against Muslim women in marriage. Before 1939, the governance of the personal laws under Muslim law was divided among various schools. In India, the principles of marriage divorce were governed by the Hanafi School, but there were several criticisms regarding the governance of divorce under the Hanafi School. Hanafi Jurists suggested applying the laws laid by Maliki, Shafi’i or Hanabali in cases where Hanafi laws caused hardships to Muslim women while determining the sanctity of divorce.
Another prime objective of introducing the Act was that marriages of Muslim women dissolved ipso facto on renunciation of Islamic religion, formally called ‘apostasy’. Such erroneous views under Muslim law became a prevalent precedent while deciding cases regarding divorce. The notion that a woman’s marriage would automatically dissolve upon renouncing her religion was arbitrary on the face of law and humanity.
This recognition led the jurists to apply Maliki laws, which provided a wide slate of grounds for divorce for an aggrieved wife. Such grounds were borrowed from the Maliki Law by the doctrine of ‘Takhayyur’, which denotes the ‘Doctrine of Eclectic Choice’. The application of these laws became widespread, formulating them as uncodified yet enforceable laws. A synchronised compilation of Maliki Laws can be found in the book ‘Heelatun Najeza,’ authored and published by Maulana Ashraf Ali Sahib. This book offers an exhaustive study of laws under Maliki Law suitable for application in India and recognised by various legal authors, scholars, and jurists. Recently, the Supreme Court of India referenced this book in deciding the ‘Triple Talaq Case’ under the title Shayara Bano vs. Union of India (2017).
Key provisions of The Dissolution of Muslim Marriages Act, 1939
There are six sections under this Act, each of which is equally important. However, Section 2 of the Act asserts the grounds for decree for dissolution of marriage. The significance of this provision is reflected through its application in the courts of India. Since its inception, aggrieved Muslim wives received their due justice through this provision that outlines several grounds protecting the interests of the wife. In addition to the grounds provided by this Act, it encompasses the phrase “a woman married under Muslim law”, which provides for the inclusion of those women who got married under Muslim law but converted her religion.
- Section 2 of this Act states nine grounds of divorce on which a Muslim wife can seek divorce from her husband. These grounds have proven to be inexplicably significant and practical, focusing on the miseries and harassment that an aggrieved wife suffers. Other provisions of this Act revolve around Section 2, which serves as its consequential provisions.
- While exercising the remedy given under Section 2 (i), a wife is compelled to serve notice upon the heirs of the husband if his whereabouts are unknown. This is provided under Section 3 of the Act.
- Section 4 of this Act came into existence addressing the need to eradicate unfair treatment against Muslim wives, providing that the marriage of a Muslim woman would not dissolve ipso facto upon her conversion of faith. Earlier, the conversion of a wife to another faith would automatically dissolve her marriage, resulting in unfair treatment.
- Section 5 of this Act provides that on the dissolution of marriage of a Muslim woman, her right to dower shall not be affected in any way.
Application of the Act
The application of this Act extends to any woman married under Muslim law in any part of India. The scope of its applicability is quite broad in its sense, as it includes a Muslim woman belonging to any Sect or School under Muslim law. A woman who has converted her faith to a religion other than Islam may also exercise the rights and remedies given under this Act.
However, the Renoncants of the Union Territory of Pondicherry are excluded from the scope of application of this Act, as is governed by The Pondicherry (Extension of Laws) Act, 1968 Act.
Grounds for decree of dissolution of marriage (Section 2)
Section 2 of the Act prescribes nine grounds on which a wife may seek divorce against her husband from the Court. These nine grounds are inspired by the Maliki Laws, which allow a wife to seek divorce and are wife-centric, unlike pre-Islamic laws of divorce. All the grounds under this provision are discussed in detail hereafter:
Disappearance of the husband – Section 2 (i)
This provision is borrowed from the principles applied in the Maliki School of Law. Under this provision, a wife may seek a decree of divorce from the court on the ground of her husband being missing for four years. Where the Maliki School of Law prescribes a duration of four years, the Hanafi and Shafi Schools of Law prescribe a longer duration. This extended waiting period leads to frustration and false anticipation, leaving the wife harassed and unprovided for over the years. This provision has been proven to be more liberal than the analogous provisions under The Hindu Marriage Act, 1955 and Indian Evidence Act, 1872 where the duration for the presumption of death of a missing person is seven years.
However, the decree of divorce shall not be operative for the next six months, being treated as an observing period. The husband may, by himself or through an authorised agent, appear in the court and claim that he would perform his conjugal obligations. The Court, on being satisfied shall set aside the decree. [Proviso (b) of Section 2]
Non-maintenance by the husband – Section 2 (ii)
Clause (ii) of Section 2 of the Act provides that if a husband is unable to maintain his wife for at least two years due to any reason, the wife is entitled to seek divorce in Court. Even though the provision does not state it explicitly, it is immaterial if the husband is unable or unwilling to provide maintenance. In Satagunj vs. Rahmat AIR 1946 Sind 48, it was held that the husband could not use his illness, poverty, insolvency or any other reason as an excuse to avoid maintaining his wife. However, the disobedience or any form of denial to perform marital obligations by the wife may nullify her claim of maintenance from her husband, as was held in Kunju Ismail vs. Md. Kedeja (1959).
Apart from being a ground for divorce, a wife is entitled to maintenance and can even sue her husband under section 125 of The Code of Criminal Procedure, 1973. This provision allows both a wedded and divorced wife to claim maintenance from her husband or ex-husband, where she establishes before the Court that she is unable to maintain herself and is dependent upon her husband or ex-husband. According to the necessity and circumstances, the Court may even order an interim maintenance under this provision.
Convicted for an offence punishable with seven years or upwards – Section 2 (iii)
This clause of the Act provides that if a husband is awarded with a punishment of seven years or more, his wife may seek a decree of divorce on such grounds. Provided that such decree shall not be passed before the final judgement against the husband and the husband must be convicted under the offence. [proviso (a) of Section 2]
Failure of performing marital obligations by the husband – Section 2 (iv)
Failure by the husband to perform marital obligation towards his wife for a period of three years without any reasonable cause forms a ground under this clause for the wife to seek a decree of divorce. The specifics of marital obligations vary in different cases based on the facts and circumstances of each case. An example of such a situation is the desertion of the wife by the husband without any reasonable cause, as held by the court in Veeran Sayvu Ravuthar vs. Beevathumma (2002). Another example is a husband depriving his wife of conjugal rights. When a husband deprives his wife of her conjugal rights, whether by not maintaining or treating her inappropriately and not respecting her, it constitutes a failure of marital obligations.
Impotence of the husband – Section 2 (v)
This ground of divorce has been prevalent and in application before the inception of this Act, and which has also been incorporated as a ground in this Act. Under this provision, a wife may seek a decree of divorce from the Court if she claims her husband is impotent. A decree of divorce shall be granted if the husband’s impotence subsisted when the marriage was solemnised and is in continuance while filing the suit for a decree of divorce. Such impotence must be permanent and non-curable, though the husband can contest this by filing an application praying to prove his potency. According to Proviso (c) of this section, the Court, upon hearing the prayer, shall grant the husband one year for that purpose and shall not grant a decree of divorce if the husband establishes his potency. It was also held in the case of Mohd. Ibrahim vs. Mst. Altafan AIR (1925) that consummation of marriage may nullify the claim under this ground.
Insanity and Illness of the Husband – Section 2 (vi)
The Act provides insanity and illness of the husband as a ground of divorce for the wife. A wife may seek divorce from the Court if her husband has been suffering from insanity for two years or more. Diseases of the husband as grounds include virulent venereal disease. Before the amendment in 2019, leprosy was also included as a ground for divorce under this provision. There hasn’t been a prescribed limitation period under this provision.
In order to interpret insanity, the Courts earlier have referred to provisions mentioned under Section 27(1)(e) of the Special Marriage Act, 1954, which renders a husband insane in a situation where he has been of unsound mind permanently and has been suffering from a mental disorder intermittently or in a continuous manner. The Courts have also referred to provisions under Section 13 (1)(iii) of the Hindu Marriage Act, 1955, where the interpretation of the term ‘insanity’ is quite similar to the provision under the Special Marriage Act.
Option of Puberty (Khyar -ul-Bulugh) – Section 2 (vii)
This ground allows the wife to repudiate her voidable marriage at her option before attaining the age of eighteen years, formally known as ‘Khyar-e-Bulugh’. When a girl has been given in a marriage by her father or another authoritative guardian before she has attained the age of fifteen years, she has the option to annul that marriage before attaining the age of eighteen years. She may exercise this option provided the following conditions are fulfilled:
- There has been no cohabitation between the wife and her husband.
- The marriage took place before the wife attained the age of fifteen years.
- The wife exercised the option of puberty before or upon attaining the age of eighteen years.
However, to repudiate the marriage, the wife must initiate a suit for dissolution of marriage, and a marriage may not be dissolved on the grounds provided by the Act if the suit is initiated by the husband. This stance was held in the case of Shaib Ali Biswas vs. Jinnatan Nahar And Ors. (1960), where the Court reasoned its dismissal of the decision by the Appellate Court by stating that the Act, which allows for such repudiation, does not apply to suits initiated by husbands.
In the case of Khatiza Tul Qubra vs. Iqbal Mohd (2009), the Court held that it is not mandatory for the wife to seek a decree of divorce from the Court to exercise the option of puberty. Mere oral evidence of such revocation by the wife suffices to repudiate the marriage.
Cruelty by the Husband – Section 2 (viii)
The long due ground of ‘cruelty by the husband’ has been added as one of the grounds for dissolution of a Muslim marriage where a wife may seek a decree of divorce on six grounds sub-categorized under this clause.
Section 2 (viii) (a)
A wife, under this clause, may seek a decree of divorce from the court on an account where she has been assaulted, mentally or physically tortured and has been ill-treated. The Court upon being satisfied by the allegations brought by the wife by adducing evidence and examining facts and circumstances, shall pass a decree of divorce on the ground of cruelty.
In the case of Sirajmohmedkhan Janmohamadkhan vs. Hafizunnisa Yasinkhan & Anr (1981), the Court examined the circumstances to conclude that where the wife has a reasonable apprehension of being harmed by her husband and in-laws on a stubborn demand of dowry by them, she has the right to live separately from her husband, provided that she must prove her allegations with reasonable evidence.
Section 2 (viii) (b)
If a husband associates himself with a woman whose reputation is looked down upon in society and who leads a scandalous life, his wife may pray to the court to seek a decree of divorce from him under this clause.
Section 2 (viii) (c)
A wife may pray for a decree of divorce from the Court under this clause if she falls into a compelling situation with her husband where he forces her to indulge in immoral activities and lead an unethical life. This may include the husband forcing his wife to perform sexual intercourse outside their marriage, which would bring him pecuniary benefits or for the sake of his entertainment. A wife may take the help of this provision if her husband coerced her into committing a criminal offence.
Section 2 (viii) (d)
A husband forcibly and illegally disposing of his wife’s property or preventing her from exercising her legal rights would make grounds for divorce under this clause. In a circumstance where the husband unethically disposes of his wife’s property, taking due advantage of their fiduciary relationship, the wife may seek assistance from the court under this clause.
Section 2 (viii) (e)
If a husband obstructs his wife from performing her religious duties in any way or prevents her from doing so by deviating her from religious practices, the wife may seek a decree of divorce from the Court under this clause. A wife has a right to profess and practise her religion in an individual manner, and any grave and persistent obstruction may enable her to prefer this clause as a ground for divorce.
Section 2 (viii) (f)
A wife may pray to the Court under this clause to obtain a decree of divorce if her husband remarries and subsequently fails to do justice between them, following the instructions of Quran. The Quran, in its Chapter Surah An-nisa, verse 3, instructs a man to marry more than one woman only if he is able to do justice between them and treat them equally with their due respect.
In the case of Itwari vs. Smt. Asghari And Ors. (1959), it was observed that it amounts to cruelty when the husband filed a suit for restitution of conjugal rights to avoid the consequences regarding a suit for maintenance by his first wife and to cohabit peacefully with his second wife. It was further observed that the husband was never concerned for his first wife, leaving her neglected, while he took utmost care of his second wife, which amounts to injustice between his two wives.
Other grounds – Section 2(ix)
This is a residuary clause which allows an aggrieved Muslim woman to acknowledge her rights even if the ground on which she is seeking divorce is not explicitly mentioned in the other eight grounds. The scope of this section is wide in nature and is interpreted in various senses depending upon the circumstances and facts of a case.
These grounds may include grounds from other forms of divorce, such as lian or Zihar. One such case to exemplify is Tufail Ahmad vs. Jamila Khatun (1962). The wife, in this case, filed a suit for divorce from her husband on the ground of false imputation of unchastity against her. She claimed that such false allegations against her would fall under the purview of Section 2 (viii) (a) and, if not, under the residuary clause, i.e., Section 2 (ix). The Court, after examining the case, held that even though the case was admitted on its merits, the bona fide retraction of such allegations by the husband nullifies the claim. The Court further held that there is no dedicated clause in this regard, and following prior precedents, it shall be justified to dismiss the suit based on the husband’s bona fide retraction.
Notice to heirs of the husband when the husband’s whereabouts are not known (Section 3)
This provision is provided to avoid unambiguousness and to foster a cautious and responsible approach towards the procedure under Section 2 (i), which deals with the disappearance of the husband. This provision compels the wife to address the heirs of the husband while filing a suit under Section 2 (i), which includes:
- The names and addresses of the husband’s heirs must be mentioned in the plaint. Under Muslim law, the inheritors must be the heirs of the husband, as if he had died at the time of filing the suit. [Section 3 (a)]
- The notice of the suit is deemed to be served on such persons. [Section 3 (b)]
- These persons shall have the right to be heard in the suit. [Section 3 (c)]
This provision gives clear status to the husband’s brother and Paternal Uncle as parties to the suit, even if they are not his heirs.
Effect of conversion to another faith (Section 4)
Section 4 of this Act lays down that the conversion of Islam to another religion by the wife would not ipso facto dissolve her marriage with her Muslim husband. Earlier, under the Hanafi School of Islam, conversion by a Muslim woman from Islam to another religion would automatically repudiate her marriage. The precedential tradition of instant dissolution of marriage of a Muslim woman who committed apostasy, came to an end with the genesis of Section 4 under this Act.
Section 4 lays down the following:
- The renunciation from Islam or conversion to another faith by a Muslim married woman shall not by itself amount to the dissolution of her marriage.
- This Section further states that after such renunciation or conversion, the woman would still be entitled to file a suit for divorce under this Act. Section 2, widening the scope of this act, has provided these rights for any woman married under Muslim law.
- This Section has excluded women who converted themselves to Islam from another faith but still are governed by their former faith.
However, in the case of Krishna Das Choudhury & Ors vs. Mustt. Prabin Rahman Hazarika & Ors (2015), if a husband performs apostasy in order to marry another woman, given that his existing wife has completed her iddat period by default and there has been no expressed divorce or suit for divorce, the marriage shall stand dissolved.
Case laws and judicial interpretations
There is an ocean of case laws and precedents that are followed by the courts to reach their ratio decidendi. However, in this section of the article, a few key case laws have been briefly discussed from the view of this Act.
Sarla Mudgal vs. Union of India (1995)
This case revolves around the concept of ‘polygamy’ and deceitful marriages. This case also centres attraction towards itself by attempting to beneficially use the personal law of another religion by converting to such religion. This case led the Supreme Court to question the applicability of one’s personal laws, and Article 44 of the Indian Constitution was also invoked.
Respondents, in this case, converted themselves to Islam and married another woman, despite already being married. This case came into the limelight as more than one petition was addressed together by the Court during the hearing. In order to remarry and fall out of the purview of Section 494 of the IPC, the Respondents converted themselves to Islam so as to avoid the consequences of the offence of bigamy. The Court addressed three main issues under this case: the validity of the second marriage after conversion while the first marriage still subsisted, the applicability of such practice and whether such apostasy of the husband would come under the purview of Section 494, IPC.
The Court, after examining the facts and circumstances of the case, held that the apostasy of the husband cannot dissolve his former marriage automatically. According to the pre-1955 Hindu customs under marriage, the conversion of a Hindu husband to Islam does not amount to a repudiation of his marriage under Hindu Law. This case stands contradictory to the case of Krishna Das Choudhury & Ors vs. Mustt. Prabin Rahman Hazarika & Ors (2015), where the only difference was that, in this case, the husband converted himself from Islam to Hindu.
Itwari vs. Smt. Asghari And Ors. (1959)
The issues in this case revolved around injustice perpetrated by a husband between his two wives. The Appellant, in this case, filed a suit for restitution of conjugal rights against his first wife, who had already separated herself from her husband’s society due to cruelty and filed a suit for maintenance. The court, after examining the facts and circumstances of the case, observed that the appellant caused physical and mental abuse upon his first wife, due to which she started residing at her paternal home. The court observed that the appellant never made efforts to bring his first wife home; rather remarried another woman and filed a suit for restitution of conjugal rights in consequence of a suit filed by his first wife for maintenance. The court held that even though under Mohammedan Law, four marriages are allowed, it is never encouraged by Islam to do so, especially when a man knows that he would fail to do justice among his wives.
Bai Fatma Alauddin vs. Mumna Miranji Haji (1956)
This case revolves around clause (ii) of Section 2, where the wife alleged her husband of cruelty, ill-treatment, and failure by the husband to provide maintenance for a continuous period of two years prior to the suit. As a result of the non-maintenance by her husband, the wife started to reside at her paternal home and filed a suit for decree of divorce under Section 2 (ii) of this Act.
The Court, on further examination of the facts and circumstances, held that on an occasion where the husband makes efforts to reconcile with his wife, the wife’s persistent refusal to stay with her husband invalidates the allegation put by the wife upon her husband of avoiding providing her maintenance.
Shayara Bano vs. Union of India (2017)
The case of Shayara Bano was decided by a five Judge’s Bench with a majority of 3:2. Although the case is not directly concerned with provisions of this Act, it provided a huge arena in regard to dissolution of marriage under Muslim law. The 403-page Judgement has penned down various observations derived from precedents, commentaries, statutes, Quran and other reliable sources.
The ratio decidendi of this landmark judgement is declaring the practice of ‘Triple Talaq’ unconstitutional, practised formerly under ‘Talaq-ul-Biddat’ under Muslim law. The nullification of this form of talaq has empowered Muslim women and given them back their due justice. The Court, in this case, has upheld the utmost significance of this Act and commented on how judiciously and with prudence this Act has been the backbone of Muslim women.
Conclusion
While tracing the evolution of the dissolution of Muslim marriages, one can only get a glimpse of the torturous and ill-treated position of the Muslim women whose only grounds for dissolution of marriage were either impotence of her husband or delegation of the right to seek a decree of divorce from her husband. The pre-Islamic era summarised all the barbaric acts that the husbands did upon their wives. The patriarchal society made married Muslim women slaves of their husbands, who were ultimately left unprovided for years and were then neglected by their husbands, who married their next victim.
Through its provisions, the Act not only outlined the major need of the hour but highlighted certain underlying aspects as well, such as insanity of her husband, desertion of her husband for four years, non-maintenance by the husband, quashing of the automated dissolution of her marriage upon apostasy. These provisions have set out a notion as to an ideal set of rules for women to dissolve her marriage.
The Act is also adapting to the contemporary legal challenges, ensuring that Muslim women across different sects and regions in India can seek justice without prejudice. Over time, its application has evolved through judicial interpretations and other key landmark judgements. Section 2 of this Act phrases ‘A woman married under Muslim law’, which expands the ambit of this Act beyond any sect or school under Muslim law. This Act further aims to solidify the rights given to a Muslim woman by dedicating specific provisions and sparing a residuary ground so as not to make the list of grounds exhaustive.
Frequently Asked Questions (FAQs)
Is the dissolution of a Muslim woman’s marriage valid if such dissolution is not governed by this act?
A Muslim woman can always opt for another method of getting her marriage dissolved, for example, via a Talaqnama, repudiation of the contract with her husband, by returning her dower according to an oral Talaqnama or delegation of the power of divorce by the husband, i.e., Talaq-e-Tafweez, where the wife receives absolute authority to exercise the power as she wishes concerning herself, and this authority is irrevocable.
References
