1

TOPIC: JUDICIAL DIVORCEE UNDER MUSLIM LAW

TEAM 1 ASSIGNMENT

SUBMITED BY:
NAME: SANDEEP KUMAR HARTHY HA
SRN NO: 03FL23BLL093
PROGRAMME: LL. B
COURSE: FAMILY LAW - II
ACKNOWLEDGEMENT:

I, Sandeep Kumar Harthy declare that this submitted assignment is my original work and no
part of it has been published anywhere in the past. I take full responsibility that in the future,
if the paper is found invalid according to basic rules, the last decision will be of the
authorities concerned, any form of plagiarism will lead to disqualification from this
assignment.
2

CONTENTS:

Introduction…........................................................................................................ 03

Aims & Objectives................................................................................................. 11

ResearchMethodology…........................................................................................ 11

Results of study ..................................................................................................... 12

Discussion .............................................................................................................. 14

Conclusion...............................................................................................................15

Further research………………………………………………………………………………………………... 15
Bibliography & References..................................................................................... 16
3

INTRODUCTION:

For understanding Judicial Divorce (Dissolution of Muslim Marriages Act, 1939), lets first
see what is marriage under Muslim law because the only essential for divorce under Muslim
law is marriage. The dissolution of marriage is known as divorce.

Different religions define marriage differently, such as: -

1. According to the Hindu Marriage Act, 1955 marriage is a religious sacrament.

2. Under Muslim Law, Marriages a contractual relationship between two parties.

All the essentials that are required for a contract are present under Muslim
Marriage. There is an offer, acceptance, consent, consideration, the capacity of
parties, etc. The purpose of such a form of marriage is: -

 Legalising sexual intercourse.

 Procreation of children.
In the case of Shoharat Singh v Jafri Begum, the privy council held that marriage under
Muslim law is a religious ceremony. Under Islam, marriage is recognised as a basis of
society. Marriage is an institution which leads to upliftment of man and is also a means for
the continuance of the human race.

Divorce is the end of such a marital relationship, as under Muslim law there are two modes
given for the dissolution of marriage-

 Divorce

 Talaq
In daily life, these two terms are alternatively used, but under Muslim law, if a person seeks
“divorce”, he will be governed by the provisions of Dissolution of Muslim Marriage Act,
1939. Whereas, “Talaq” proceedings are governed by Muslim Personal Laws.

After the very infamous case of triple talaq, people have become more curious to know about
the Muslim law for talaq. The Supreme Court has already ruled that triple talaq is an illegal
4

practice and that a Muslim marriage cannot be dissolved by this method. If the husband still
does so, he shall be punished for up to 3 years of imprisonment. This was one of the biggest
developments in family law legislation. Marriage is an institution recognised by Indian
legislation as sacred. Similarly, divorce is also recognised by most of the religions practiced
in India. Islam was the first religion to expressly recognise divorce, or talaq, as the
termination of a marriage. In the pre-Islamic era, the husband was given unlimited powers
with regard to divorce, and women were considered the mere property of a man. Due to this,
social evils and moral ills rose in society, and talaq became a matter of equity and great
concern, especially for women. Majorly, two problems originate from the very concept of
talaq under Muslim law, first, the method of divorce (triple talaq); and second, the inequality
between husband and wife in the marriage.

Before diving into the laws, let’s first try to understand the basic terms and concepts of talaq.

Divorce under Muslim law

Pre-Islamic era

In pre-Islamic Arab society, husbands used to possess unlimited powers concerning divorce.
They had the power to divorce a woman at any time, with or without reason. Divorce by the
husband was revocable at the will of the husband and could be granted as many times as he
wished. There existed at least four types of methods for the dissolution of marriage that were
practised in pre-Islamic Arabia. A woman was free to remarry after divorce, but not before
serving the period of iddat. The period of iddat was to determine the legitimacy of the child.
But at that time, this wasn’t a strict rule.

Post-Islamic era

After the advent of Islam, the Prophet discouraged such customs of divorce and considered
the practice a means to undermine the foundation of society. Since the customs have been in
practice since time immemorial, the prophet had to mold the laws and wasn’t able to change
them in its entirety. The Prophet allowed the practice of divorce by the husband under some
conditions. The reforms marked a new journey in the history of eastern legislation. The right
to seek separation on reasonable grounds was given to the women. To place an effective
5

check on the rates of divorce and remarriage, the prophet considered that it should be
essential for remarriage that the woman marry another man, consummate the marriage, and
follow the period of iddat. Though this idea was brought about to curb remarriages, critics
accused the procedure of being a disgusting ordeal and a major show of disrespect for
women.

Classification of Dissolution of Marriage

Above the table is provides a brief view about the different kinds of methods for dissolution
of marriage under Muslim law.

Judicial Divorce (Dissolution of Muslim Marriages Act, 1939). —Prior to the passing of the
Dissolution of Muslim Marriages Act, 1939, the British Courts had denied to Muslim woman
the rights of dissolution available to them under the shariat.

The wife could apply for the dissolution of her

marriage only on the following grounds. :—

(a) impotency of the husband,

(b) lian,
6

(c) opinion of puberty (khyar-ul-bulugh).

Finding no other way to get rid of this marital tie, the Muslim wives were compelled to
renounce their faith. The statement of the reasons and object of the Act indicates the
circumstances in which Act was passed:

"There is no provision in the Hanafi Code of Muslim law enabling a married Muslim woman
to obtain a decree from the courts dissolving her marriage in case the husband neglects to
maintain her, makes her life miserable by deserting or persistently ill-treating her or certain
other circumstances. The absence of such a provision has entailed unspeakable misery to
innumerable Muslim women in British India, the Hanafi jurists, however, have clearly laid
down that in cases in which the application of Hanafi Law causes hardship, it is permissible
to apply the provision of the Maliki, Shafie Hanbali Law. A lucid exposition of this principle
can be found in the book called Heelat-un-Najeza' published by Maulana Ashraf Ali (Thanvi)
who has made an exhaustive study of the provisions of Maliki law which under the
circumstances prevailing in India may be applied to such cases, this has been approved by
large number of Ulemas who put their seal of approval on the book."

In the above circumstances, the Dissolution of Muslim Marriages Act, 1939 was passed. It is
applicable to all Muslims irrespective of their school to which they belong. The Act is in
force throughout India including the] & K.1

But now, the Dissolution of the Muslim Marriages Act, 1939 has introduced a revolutionary
change in this respect and had restored to a Muslim wife, right of divorce granted to her
under shariat.

Section 2 of Dissolution of Muslim Marriages Act, 1939 provides nine grounds under which
a Muslim wife can obtain a decree for the dissolution of her marriage. The grounds are:

1) Absence of Husband.—If the whereabouts of the husband are not known for a
period of four years a woman married under Muslim law shall be entitled to
obtain a decree for the dissolution of her marriage, but, a decree passed on this
ground will not take effect for a period of six months from the date of such
decree; and if the husband appears either in person or through an authorized
agent within that period, and satisfied the Court that he is prepared to perform
his conjugal duties, the Court must set aside the said decree.?
7

2) Failure to maintain. - If the husband has neglected or has failed to provide for
her maintenance for a period of two years, a married Muslim woman can
obtain a decree for the divorce. Yusuf v. Sowramma. 3.-In this case, a girl of
17 years was married to the appellant-defendant, who was twice of her age.
After having lived for a month in her husband's house, she went back to her
parents and lived separately for over two years. During this period the
appellant admitted his failure to maintain his wife but alleged that he was
willing and anxious to keep her with him. Mr. Justice Krishna Iyer rejected the
husband's plea and upheld the decree for dissolution of marriage. The Court
held that a Muslim woman under Section 2 (ii) of the Act, can sue for
dissolution of the score that she has not as a fact been maintained even if there
is a cause for it. In the opinion of the Court, the reason why the husband has
not maintained the wife for statutory period of two years is immaterial. The
wife is entitled to decree for the dissolution of her marriage on this ground if
the husband does not maintain her for two years, although during this period
she lives separately from him without any reasonable excuse.

In Fazal Mahmud v. Ummatur Rahim,' the Court held that "the Act was not intended to
abrogate the general law applicable to Mohammedans, and the husband cannot be said to
have neglected or failed to provide maintenance for his wife unless under the general
Mohammedan law he is under an obligation to maintain her". The wife's suit for divorce was
dismissed as it was found that she was neither faithful nor obedient to her husband.

This case was followed by the Bombay High Court.? But the Sind High Court has taken
different view. In Mst. Nur Bibi v. Pir Bux,3 it was laid down that where a husband has failed
to provide maintenance to his wife for a period of two years immediately preceding the suit,
the wife would be entitled to a dissolution of her marriage under Section 2 (ii) of the Act in
spite of the fact that on account of her conduct in refusing to live with her husband, she
would not have been entitled to enforce any claim for maintenance against the husband in
respect of the period during which the husband has failed to maintain her.

The husband

cannot defend the suit merely on the ground that he was

8

unable to maintain her due to his poverty, failing health, unemployment, imprisonment or any
other ground, such as, personal properties of his wife, unless it is submitted, that her conduct
has been such as to disentitle her to maintenance under Muslim Law.

3) Imprisonment of husband. - If the husband has been sentenced to

imprisonment for a period of seven years or upward the wife is entitled to
decree of the Court dissolving her marriage, but no decree can be passed on
this ground unless the sentence has become final [Sec. 2(iii) read with proviso
(a), Dissolution of Muslim Marriages Act, 1939].
4) Failure to perform marital obligations. - If the husband has failed to perform,
without reasonable cause, his marital obligations for a period of three years,
the wife can get her marriage dissolved by means of a decree.

In Veeran Sayou Ravuthar v. Beevathumma, 5 the court has held that where a wife is residing
in her own family house and away from husband and the husband has never made any
attempt to get conjugal company and consortium of wife, moreover, he does not take any
action for restitution of conjugal rights. He has, thus, failed to perform his marital obligation
without any reasonable cause. The wife is, therefore, entitled to a divorce decree under
Section 2 (iv) of the Dissolution of Muslim Marriages Act, 1939.

5) Impotency of husband. —If the husband was impotent at the time of the
marriage and continues to be so, the wife is entitled to judicial divorce for the
dissolution of her marriage. Before passing a decree on this ground the Court
shall, on application by 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 he does so satisfy, no decree shall be
passed on this ground.!
6) Insanity/venereal disease. - If the husband has been insane for a period of two
years or is suffering from a virulent venereal disease the wife may claim a
judicial divorce under Section 2 (vi) of the above Act. It is to be noted that
virulent diseases need not be two years old, it may be even recent.
7) Repudiation of marriage by wife. — If she, having been given in marriage by
her father or other guardian before attaining the age of 15 years, repudiated the
marriage before attaining the age of 18 years and the marriage is not
consummated, she is entitled to a decree of divorce. Detailed study of this
9

provision (including the old law on the point) has been made in the chapter of
Marriage.
8) Cruelty of husband. -Judicial divorce may also be claimed by a Muslim wife,
if the husband treats her with cruelty, that is to say-(a) habitually assaults her
or makes her life miserable by cruelty or bad conduct even if such conducts
does not amount to physical ill-treatment.
(b) associates with women of ill-repute or leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her from exercising her legal right
over it, or
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one; does not treat her equitably in accordance
with the injunctions of the Quran.

In K. Muhamma Lateef v. Nishath, 5 the Kerala High Court had to consider whether second
marriage of the husband amounts cruelty and therefore a ground for divorce to the first wife.

In the instant case, the parties got married in the year of 1997. Within the year they got
separated. During the subsistence of marriage within five months of separation, the husband
got remarried. This has come to light when he was examined in the court. The first wife filed
a suit seeking divorce on the ground of cruelty on the part of the husband.

The Court was much concerned with the attitude of the husband in getting remarried within
five months of separation. If during the subsistence of a valid marriage the husband had
remarried another, necessarily, that will be a mental cruelty towards first wife. Merely
because the husband was willing to cohabit with the first wife while continuing the second
marriage, there was no reason to deny the first wife a decree for dissolution of marriage. The
Court thus granted the decree.

The Court has further held that the fancy of the husband that a Muslim husband can have
more than one wife is also no reason to reverse the decree.

Bigamy is permitted as per Muslim Law under exceptional circumstances. The circumstances
under which it is permitted also have to be taken note of. As at present, such circumstances
do not exist. Not only that, even to have a second wife certain conditions have to be satisfied
by the husband including the financial capacity, the physical capacity and capability of
treating more than one wife without discrimination and to give both of them equal
10

conveniences and considerations in life. Even if the husband contends that he can equitably
treat both the wives without discrimination, it is a human impossibility. Even if possible that
condition alone is not sufficient. Instead of patching up the differences, the husband was
planning a second marriage. In the light of this conduct, the finding of the court that "the
husband could not be expected to treat the wife equitably with his second wife who is now
along with him cannot be stated to be faulty."

9) Grounds of dissolution recognised by Mohammedan Law.— The wife is also

entitled to a decree for the dissolution of her marriage on any other ground
which is recognised as valid for the dissolution of marriages under
MuslimLaw.1This clause covers the divorces by Ila, zihar, khula, mubarat and
tafweez. Imputation of unchastity or a false charge of adultery against the wife
(Lian) is a good ground for the dissolution of her marriage. This ground falls
in clause (ix) of Section 2 of the Dissolution of Muslim Marriages Act,1939.

In Noor Jahan Bibi v. Kazim Ali, 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
become obsolete under the Muslim Law and, therefore, a Muslim wife can bring a suit for
divorce against her husband on the ground that her husband has charged her with adultery
falsely, by virtue of Section 2 (xi) of the Dissolution of Muslim Marriages Act,

1939.
11

AIMS & OBJECTIVES:

To analyse the Judicial Divorce (Dissolution of Muslim Marriages Act, 1939)

The Rise of Judicial Divorce

Grounds for Judicial Divorce

Rights Granted Through Judicial Divorce

Challenges Faced by Judicial Divorcees

RESEARCH METHODOLOGY:

To start the project, research in right way was most important. All the data and contents
collected depended upon correct way of research. The method of research was doctrinal
method. These data and contents depend upon the original case and other sources, and to find
these sources hard-work and dedication was applied. Right and apt information and data were
picked from various books and other sources and then analysed and interpreted in my own
view. Various sources had been referred to gather useful information and knowledge. Articles
and opinions of some renowned researcher were used to interpret review of literature and
conclusion of the project work. The compilation of data collected was done chronologically
which was equally important to have meaningful content. Every point information was
organised in correct sequence and then written in my own words. Then the sources which
were referred to have been listed that followed bibliography and blogs.
12

RESULTS OF STUDY:

Divorce in Muslim law is a complex topic, historically weighted towards the husband's
unilateral power to dissolve the marriage through talaq (pronouncement of divorce).
However, judicial divorce provides Muslim women in many countries with an alternative
path to ending a troubled marriage. This paper will delve into the concept of judicial divorce
under Muslim law, exploring its provisions, the rights it grants women, and the ongoing
challenges faced by female petitioners.

Traditional Divorce Methods and Limitations

Traditionally, Muslim marriages could be dissolved through extra-judicial methods like talaq
by the husband or through mechanisms like khula (divorce initiated by the wife with
compensation). While khula offered some agency, the power dynamics often favoured the
husband, particularly in unilateral talaq, which could be instantaneous and irrevocable.

The Rise of Judicial Divorce

The Dissolution of Muslim Marriage Act (1939) in many South Asian countries and similar
legislative measures elsewhere introduced judicial divorce as a safeguard for Muslim women.
This empowered them to seek divorce through court intervention based on specific grounds
outlined in the Act.

Grounds for Judicial Divorce

The grounds for judicial divorce vary by jurisdiction but often include:

 Cruelty (physical or mental)

 Desertion by the husband
 Failure to maintain the wife
 Impotency
13

 Unsound mind
 Wife's imprisonment

Rights Granted Through Judicial Divorce

Judicial divorce offers Muslim women crucial rights, including:

 The ability to dissolve a marriage on valid grounds, even if the husband refuses talaq.
 Protection from unilateral and arbitrary divorce by the husband.
 Potential for maintenance payments and a share of marital property.

Challenges Faced by Judicial Divorcees

Despite these advancements, challenges persist:

 Lengthy court proceedings can be financially and emotionally draining.

 Social stigma surrounding divorce can hinder a woman's ability to remarry.
 Economic dependence on the husband can make women hesitant to pursue divorce.

The Way Forward

To strengthen the position of judicial divorcees, there is a need for:

 Streamlining court procedures to ensure faster resolutions.

 Raising awareness of women's rights under Islamic law.
 Promoting social acceptance of divorce as a legitimate option.
14

DISCUSSION:

Discussion: Judicial Divorce for Muslim Women in India

The legal landscape surrounding judicial divorce for Muslim women in India is complex and
evolving. Here are some key points to consider and discuss:

Effectiveness of the DMMA:

 Has the DMMA effectively empowered Muslim women to seek divorce when
necessary?
 Are there socioeconomic barriers preventing women from accessing the legal system?
 How can legal aid and awareness campaigns be improved to ensure all Muslim
women understand their rights under the Act?

Judicial Interpretations:

 How have court interpretations of the DMMA's grounds for divorce (like cruelty or
maintenance) impacted its effectiveness?
 Are there inconsistencies in judicial interpretations across different regions in India?
 Is there a need for clearer legal guidelines to ensure consistent application of the Act?

Uniform Civil Code Debate:

 Would a Uniform Civil Code necessarily disadvantage Muslim women?

 Could a UCC be drafted in a way that respects religious diversity while ensuring
equal rights for all women?
 What alternative legal reforms could be considered to address concerns about the
UCC?
15

Social Reform and Women's Agency:

 How have social reform movements within the Indian Muslim community influenced
the discourse on women's rights and divorce?
 How can these movements be further supported to empower Muslim women?
 What role can education and social awareness campaigns play in changing attitudes
towards divorce within Muslim communities?

Comparative Law:

 What lessons can be learned from the experiences of other countries with significant
Muslim populations regarding legal frameworks for divorce?
 Are there successful models that could be adapted to the Indian context?
 How can India balance the need for legal modernization with respect for religious
traditions?

Additional Points:

 The potential impact of technology and online resources on access to legal

information and support for Muslim women seeking divorce.
 The role of religious institutions in providing guidance and support to women
navigating divorce within the framework of Islamic law.
 The importance of data collection and research to better understand the lived
experiences of Muslim women seeking divorce in India.

By fostering a conversation around these issues, we can work towards a legal and social
environment that empowers Muslim women in India to make informed choices about their
lives and marriages. It's important to consider diverse perspectives, including those of
Muslim women, legal experts, social reformers, and religious leaders.
16

CONCLUSION:

Judicial divorce serves as a critical tool for Muslim women to navigate marital discord and
seek an equitable dissolution of marriage. Continued legal reforms and social advocacy are
essential to fully realize its potential and ensure a just and secure future for judicial divorcees.

FURTHER RESEARCH:

This paper provides a springboard for further exploration. You can delve deeper into specific
aspects like:

 Comparative analysis of judicial divorce across different jurisdictions.

 The role of religious scholars and interpretations of Islamic jurisprudence.
 Socio-economic factors impacting the accessibility of judicial divorce.

By examining these facets, you can create a comprehensive research paper that contributes to
a nuanced understanding of judicial divorce for Muslim women
17

BIBLIOGRAPHY:

Prof Iqbal Ali Khan – Mohammedan Law/27th Edition.

Dr. Paras Diwan – Muslim law in Modern India / 13th Edition.

Tahir Mahmood & Saif Mahmood – Introduction to Muslim law /2nd Edition.

REFERENCES:

www.casemine.com

www.scconline.com

www.manupatra.com

www.indiankanoon.com