Muslim Women's Right for Dissolution of Marriage

Muslim women's right for dissolution of marriage

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 recognised in all religions Islam perhaps the first religion in the world which has expressly recognised the termination of marriage by way of  divorce. 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 the act divorce was not recognised by Hindu Law. Divorce among the ancient Arabs was easy and of frequent occurrence. In fact, this tendency has even persisted to some extent, in Islamic law. It was regarded by prophet to be the most hateful before the Almighty God of all permitted things; for it prevented conjugal happiness and interfered with the proper bringing up of children.  Islamic reforms – According – According to Ameer Ali, the reforms of Prophet Mohammad marked a new departure in the history of eastern legislations. The prophet of islam is reported to have said “with Allah, the most detestable of all things permitted is divorce”, 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”. The Quran permits divorce partly because of some countenance to the customs and partly to enable men get rid of an odious union. Prophet Mohammad restrained the power of divorce and gave to the women the right of  obtaining the separation on reasonable grounds. The Prophet is reported to have said,” if a women be prejudiced by a marriage, let it be broken off. INTRODUCTION: People are governed simultaneously by many different laws: laws recognised by the state i.e. codified and uncodified laws and informal laws such as customary practices which vary according to the cultural, social and political context. 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 customs. Moreover, there was opposition to a codified law for all Muslims from certain quarters who were benefiting from the customary practices. Thus, the first attempts at enacting a uniform Muslim Personal Law was rendered unsuccessful. The only advantage of this Act lay in its attempt

to bring the Muslim community under one law despite its heterogeneity. It also brings home the fact that Muslims in India, post-Independence, have not made any serious attempt to codify diverse practices of its different schools of thought and jurisprudence. Another attempt was made in 1939 with the Dissolution of Muslim Marriage Act. It laid down nine grounds on which a Muslim woman could seek divorce in the court. Islamic law then allowed a man to divorce his wife at will but a wife did not have the right either to give divorce or seek one. The only way out for them was to convert to another religion to annul her marriage. Alarmed at this trend, the Ulemas coaxed the British government to pass this Act. Although the Act allowed a woman approach the court for divorce, it did not curb the man’s right to divorce his wife orally and unilaterally. The next step was the Muslim Women (Protection on Divorce) Act, which was enacted only in 1986 after the Shah Bano controversy. This law prescribed the right to maintenance for a Muslim woman after her  divorce. Different courts interpreted the law differently and some women even continued to take resort to the Cr. P.C 125 [Criminal Procedure Code sec. 125] to demand maintenance. The laws, passed in 1939 and 1986, were not the result of a concerted effort towards reforms. They were more a result of reactions by the conservatives who saw reforms in  personal law as an infringement on their right to religion and a threat to their male identity. 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 m atrimonial 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. 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. 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; 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. Dissolution of marriage can be by following ways: By Divorce A Husband may divorce in the following mannera. Talaq: which is release from the marriage tie immediately or eventually.  b. Ila: where a husband of sound mind takes a vow that he will abstain from all relationship from his wife. c. 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 mannera. Talaqetafwiz: talaq by the wife under the husbands delegated power. By Judicial Decree: Following are the grounds on which a marriage maybe dissolved under the Marriage Act. a. 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.  b. Fask: 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.

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. T he 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.  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 following grounds, namely: (i) that the whereabouts of the husband have not been known for a period of four years; (ii) that the husband has neglected or has filed to provide for her maintenance for a period of two years; (ii-A) that the husband has taken an additional wife in contravention of the pr ovisions of the Muslim Family Laws Ordinance, 1961; (iii) that the husband has been sentenced to imprisonment for a period of seven years or  upwards; (iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years; (v) that the husband was impotent at the time of the marriage and continues to be so; (vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease; (vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen years, repudiated the marriage before attaining the age of  eighteen years: Provided that the marriage has not been consumated; (viii)that the husband treats her with cruelty, that is to say, (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, (ix) on any other ground which is recognized as valid for the dissolution of marriages under  Muslim Law, Provided that: (a) no decree passed on ground (i) shall 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 authorised agent within that period and satisfies the Court he is prepared to perform his conjugal duties the Court shall set aside the said decree; and (b) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfied the Court within such period, no decree shall be passed on the said ground. A husbands failure to provide for the maintenance of the wife for a period of 2 years mentioned in Cl.(ii) of Section 2 entitles the wife to a decree for dissolution of marriage whether or not the husband has reasonable cause for withholding such maintenance. Cl.(ii) of section 2 should be read in contradistinction with Cl.(iv) as per which the wife is entitled to to decree for dissolution of her marriage on the ground that the husband has failed to perform without reasonable cause his marital obligations for a period of 3 years. The words “without reasonable cause” are significantly absent in Cl.(ii). The duty to  provide wife with maintenance is self imposed to keep the relationship intact and it is ot a duty corresponding to the right of the wife to claim maintenance against the husband. As against the arbitrary power of the husband yo liquidate the marriage the wife gets a right to dissolution of maariage on the husband’s neglect or failure to provide for maintenance for a  period of 2 years. This construction of Cl.(ii) of Sec.2 is in consonance with the Islamic law on the subject. There is therefore no jurisdiction in introducing the words “without reasonable cause” into Cl.(ii). The legislature in its wisdom, by providing those words in Cl(iv) has not thought it necessary to provide this restriction in Cl.(ii).[1] In a suit brought by wife for dissolution of marriage on the ground that her husband was impotent at the time of marriage and continued to be so that facts were as follows. 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. On the expiry of the period the court granted a decree on the application of the wife.

The requirements of Sec.2(v) that the husband is not only impotent at the time of the marriage but that he continues to be impotent when the suit is filed. The evidence in the case was held to establish impotency at both the point of time. On the question raised that during the period of grace, the husband was denied the company of his wife in his own house, the court held that after the act the rule of Mohammedan Law about the duty of the wife did not apply. The act requires an opportunity to satisfy the court about the cessation of the condition and that the opportunity is available only on application to the court. The  provision of the act abrogated the Mohamrdan Law. It is not the rule that the acquisition of  virility can be proved only by sexual act with the wife. Such a procedure is likely to subject the wife to some peril. In case of Abdul Azeem v. Fahimunnisa Begum [2] the facts were: In this case 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. The suit failed. It was held that under Mahomaden 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. In Munnawarbai v. Sabir Mohammad[3] case 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, it was held that the wife is not entitled to relief under  section 2 (ii) of Dissolution of Marriage Act, 1939. Other than these situations Cl.(ix) of Section 2 states that “on any other ground which is recognised as valid for dissolution of marriage under Muslim Law”. This clause covers the divorces by ila, zihar, khula, mubarat and tafweez. Imputation of unchastity or f alse charge of adultery against the wife (Lian) makes a good ground for dissolution of her marriage. This ground falls under clause(ix) of section 2 of the act. In Noor Jahan Bibi v. Kazim Ali [4], 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. It was held by the court that the doctrine of Lian has not  been absolute under the Muslim Law and therefore a muslim wife can bring a suit for  divorse against her husband on the ground that her husband has charged her with adultery falsely under section 2(ix) of the act. In M.B. Rahim v. Shamsoonnissa Begum [5], the privy council observed that wherin the husband disposed of the property of her wife and confined her to a room as if she was in a  jai. He also misbehaved with his wife. In appeal Husband raised contention that as far as Muslim Law is concerned a wife has no right to live seperatly even though the conduct of  the husband is not good. It was held by privy council that if under the muslim law no wife

can separate herself from her husband then such law is clearly contrary to the principle of  natural justice. This case was decided in favour of wife by the privy council. CRUELTY: 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. 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 can not 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 affecting 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 spouse. Cruelty is a ground for matrimonial relief. 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. Section 2(viii)(a) 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 misbehaviour, 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. Regarding cruelty of conduct the general test should apply, since the conduct that is cruel for one woman can not be civilized enough for another just because of the religion of the  parties. The point lies in the statutory words ‘makes her life miserable’ and the social status and standard of self-respect of the wife should be decisive to ascertain if the man’s conduct

amounts to cruelty. A simple allegation of the wife, unsupported by independent testimony, is not sufficient in law to establish any charges mentioned in the law. In case of inequitable treatment between the co-wives which amounts to cruelty, the courts earlier providing maintenance to one wife only and ill-treatment forcing co-wife to leave the husband as instances of unequal treatment. In Umat-Ul-Hafiz v. Talib Hussain[6], husband went abroad leaving behind his two wives in India. He provided maintenance to one wife and neglected the other. The court granted divorce to the neglected wife. The Allahabad High Court in Itawari v. Smt. Asghari[7] 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 cohabitation 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. It will amount to cruelty if the husband disposes of his wife’s property or prevents her from exercising her legal rights over it. In case Zubaidaa v. Sardar Shah[8], the view expressed  by Abdul Rahman J., 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.

In Shamsunnissa Begum’s case, II. M.I. 551 the test of cruelty is based on universal and humanitarian standards by the husband which would cause such bodily or mental pain as to endanger the wife’s safety of health. In another case the Bombay High Court in Shakla Bano v. Ghulam Mustafa [9], 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 backgroung. It is settled position that persistent charges of  adultery and immorality may amount to cruelty[10]. It is clear 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[11]. Presently physical violence is not the only essential ingredient of cruelty. Mental agony also amounts to cruelty. It is to be noted that the term cruelty includes habitual assaults, concubinage, associated with the women of ill repute or leads an infamous life, attempts to force her to live her an immoral life, dispose of her property, or prevent her to exercise her legal rights, obstructs her in the observance of her religious profession or practice and if muslim husband has more than one wives, he doesn’t treat her equitably. 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. 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. 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. Section 4: Effect of conversion to another faith.

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. 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 Section 6: (Repeal of section 5 of Act, XXVI of 1937) Rep. by the Repealing and Amending Act, 1942 (XXV of 1942), section 2 and First Sch. 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 community. MERITS: Dissolution of Muslim Marriage Act 1939, has enabled women to seek divorce on the grounds of cruelty without having a free of loosing 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 are interconnected and complementary and therefore has a commitment to international solidarity. DRAWBACKS: 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 mehr, 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. Some aspects of the law like the right of  Muslim women to seek divorce and the post-divorce maintenance have been codified. But other aspects like inheritance, custody of children etc. have not been codified. 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 mehr 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 organisations 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 organising 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 r egressive leaders and to the State and demand a gender-just codified Muslim law.