Muslim Marriage & Divorce

Chapter 11
• Who is Muslim
• Muslims consider the Quran, their holy book,
to be the verbatim word of God as revealed to
the Islamic prophet and messenger
Muhammad. The majority of Muslims also
follow the teachings and practices of
Muhammad (sunnah) as recorded in
traditional accounts (hadith)
• Marriage under Muslim Law (Hedaya(most influential compendia of Hanafi
jurisprudence (fiqh)
• Marriage According to Muslim Law,
• is a contract
• for the purposes of legalisation of intercourse, procreation of children and regulation of
social life in the interest of society by creating—
• (i) rights and duties between the parties
• (ii) between each of them and the children born from the union
•
• NIKAH is an Arabic word
• In Law it is the meaning of Marriage
• Nikah in Islam is a civil contract, and not a sacrament
• Definition by Mulla
• Nikah is defined
• to be a contract , which has for its object the procreation and the legalising of children
• Objects of Muslim Marriage
• A glossary(alphabetical list of terms in a particular domain of
knowledge with the definitions for those terms )on Tarmizi sets out
five objects
• of marriage:-
• (1) the restraint of sexual passion
• (2) the ordering of social life
• (3) the increase of the family
• (4) the discipline of the same in the care and responsibility of
wife and children; and
• (5) the upbringing of virtuous children
•
• Essentials of valid Muslim Marriage
• In muslim law, marriage assumes the form of a pure civil
contract
• proposal and acceptance.
•Minor marriages are permitted under muslim law.
• If they are minors proposal and acceptance must be made
by the legal guardians. Minor may repudiate the marriage,
after she attains 15 years, but before completing 18 years,
• subject to the condition that the marriage has not
consummated .
•
• (a) Proposal(ijab) and acceptance (Qabool)
• Proposal for amount of Dower. Bride sits behind pardah with
relatives.
•The presence of Kazi, two male witnesses or
• one male two female witnesses .
•The witnesses must be Muslims.
• witnesses come nearer to the bride
• and convey the ijab of the bride groom or of the legal guardian of
bridegroom.
• Then the legal guardian of the bride conveys his acceptance.
•When both sides say yes , then the valid requirement of the marriage
has been fulfilled
•
In Rashida Khatoon Vs. S.K. Islam
• (AIR 2005 Ori.57)
• a man assured a lady to marry her and started
to cohabit with her. After some time a child was
born . Later she claimed the status of wife.
• The question before the court was whether
their marriage was a valid marriage under
Muslim Law ?
•
• Orissa High Court cited with approval the paragraph of Mulla’s

book’’ it is essential to the validity of marriage that there should be a

proposal made by or on behalf of the other, in the presence and

hearing of Kazi and two male or one male and two female

witnesses, who must be sane and adult Muslims. The proposal and

acceptance must both be expressed at one meeting; a proposal

made at one meeting and the acceptance made at another does

not constitute a valid marriage

• Court Held that in the instant case
• there was no acceptance of the offer to
marry, but there was only an assurance to
marry in future and
• therefore mere cohabitation with such an
assurance does not constitute the factum
of marriage to give the status of a validly
married woman
• (b) Ijab and qubool must be done at one meeting
• (c) Consent must be free consent, not under
coercion, influence, misrepresentation
• marriage under compulsion is not valid under Sunni
and Shia School.
• 2. Competency
• Competence means sound mind and attained
puberty . Puberty means the age at which a person
becomes capable to perform sexual intercourse and
procreating children
• Indian Majority Act 1875 says that a person
shall attain majority at 18,
• if he is under guardian then majority at 21 years
• Child Marriage Restraint Act 1928
• age for bridegroom 21 years
• for bride 18 years
• if any body exceeds he shall be liable to be
punished under I.P.C
• Indian Majority Act 1875 and
• Child Marriage Restraint Act 1928
• both the Acts do not apply to Muslims pertaining to
dower, marriage, divorce .
• For the purpose of
• Dower, Marriage,Divorce
• the Doctrine of Puberty shall apply to muslims.
• This doctrine also differ from school to school
• In Hanafi ( Sunni) Law majority is presumed on completion of 15 years,
• But Hedaya lays down that the earliest period for a boy is 12 years and
a girl 9 years
• In Shia female attains puberty with menstruation
• Disabilities
• Some disabilities
• which may cause a marriage void, or voidable
• (a) Number of spouses
• a muslim may marry any number of wives.
• not exceeding 4 at one time . If he marries 5 th wife, it does
not become void, but it becomes only irregular
• Muslim Woman liable for Bigamy ,If remarries
• but a muslim woman can marry only one husband. If she
marries a second marriage , while the first marriage is in
subsistence she is liable for bigamy under Sec.494 IPC
• (b) Religion
• Muslim man can marry the woman of other religion.
• But the muslim woman is not pemitted to marry the person of
other religion, that marriage is void
• (c)Conversion
• (d) Consanguinity Strictly prohibited
• Ascendants, descendants of his wife
• Fosterage ( the care of a foster child)
• Unlawful conjunction
• Ex:- Muslim cannot marry two sisters,or aunt and niece
• The marriage in such a case becomes irregular, but not void.
 .
• Iddat

• Muslim woman is prohibited from marrying within a prohibited time this period is called “
IDDAT“
It is an interval which the woman is bound to observe between the
termination of marriage by death or divorce of one matrimonial alliance
and the commencement of another
when a marriage is dissolved by death or divorce,
Duration of Iddat
• In case of widowhood 4 month 10 days
• Iddat of talaq
• In case of talaq three menstruation periods if the woman is subject to menstruation,
otherwise three lunar months
• if the woman is pregnant at the time of divorce,
• iddat period continues until the delivery
• Iddat when marriage is irregular
• No Iddat, If the marriage is irregular and parties
have separated before actual consumation,
• . If the consummation has taken place the wife has to
observe iddat
• Though marriage is not consummated , wife has to
observe iddat in case of death of the husband, but not
in the case of divorce
• That is if the marriage is not consummated wife
need not observe Iddat
• Iddat of pregnant woman, if the delivery or mis
carriage comes before 4 months and 10 days, the
remaining period shall have to be observed
• computation Of Iddat
• The period of iddat begins from the date of the
divorce or death of the husband but not from the
date on which the woman gets the information.
• If she gets the information of divorce or death,
after the expiry of the specific period of iddat, she
need not observe the required period of iddat
•
• Effects Of Iddat
• During the period ,
• (i) wife is entitled to maintenance
• (ii) she is not entitled to remarry
• (iii) where the husband pronounces ‘’talak’ three
times ( Iddat period three months)’ during death-
illness, and dies before completion of wife’s iddat,
• she is entitled to inherit from him even if the
divorce has become irrevocable . prior to his death
•Kinds of marriages
• Sahih ( Valid Marriages)
• Batil ( Void Marriages)
• Fasid ( Irregular or invalid marriages
• Batil Nikah (Void Marriage)
• It has no legal effect. Children are illegitimate. They cannot
inherit properties
• Void Marriages
• Marriage between blood relations(Quraabat)
• Affinity (Mushaarat)
•
• A muslim should not marry
•A) His wife”s mother or grand mother how high so
ever
B) His wife’’s daughter or grand daughter how
low so ever
C)wife of his father or paternal grand father how
high so ever
D) wife of his son,or wife of son’’s son or wife of
daughter’ s son how low so ever
•

•Marrying his own divorced wife

• A muslim should not marry his divorced wife again immediately.
• If he marries his divorced wife again, marriage becomes void, and their children
become illegitimate
•
• But he can marry his divorced wife
Only if she marries and consumates another person , and after the death or
divorce of that husband and after the Iddat period

In Case Divorce
after the period of IDDAT ( Three menstruation periods or 3 lunar months ) in
case of talaq
In Case of Death
• or 4 months 10 days in case of death),
• Besides the above,
• Shia school prohibitsthe following;-
• marriage with 5th wife
• Marriage during pilgrimage
• Marriage with a non-muslim
• marriage with a woman undergoing iddat
• Marriage with a wife of another person, whose marriage is still subsisting , while
there is a legal bar.

• Marriage prohibited by reason of unlawful conjunction

• Marriage with one’s own divorced wife

• Marriage between
• a Muslim male and a non-muslim female; and
• a Muslim female and a non-muslim male is void
• Irregular Marriages (Fasid Nikah)
• According to Shia Law, no irregular or invalid marriage

• Sunni school admits the irregular or invalid (fasid) marriages.

• Ex;-
• Marriage contacted without witnesses
• Marriage with a 5th wife
• Marriage with a woman before completion of her Iddat
• Marriage with a non-muslim woman
• Marriage contrary to the rules of unlawful conjunction
• Effect of irregular Marriages
•
• (a) if consummation takes place:-
• (i) children are legitimate and inherit
• (ii) the parties could not possess the
• right of mutual inheritance
• (iii) wife not entitled to maintenance
• during Iddat
• (iv) marriage may be dissolved by any
• one of the parties
• (v) iddat Period of Iddat is 3 months only.
• Here the wife is bound to observe Iddat on divorce
• (v i) Wife is entitled to Specified or proper Dower,
whichever is less
• (vii) it may be terminated by either party, either
before or after consummation, by words showing an
intention to separate
• (b) If consummation does not take place
• (i) it has no legal effect
• (ii) either of the parties can dissolve the marriage,
with the intention to cancel the marriage by uttering
the words “I have relinquished you “
• MUTA Marriage

• Muta literally mean enjoyment, use

• Legally it is a temporary marriage for pleasure for a fixed period( may be for one day, one month,
one year or highsoever) for a certain reward paid to the woman
• Object
• to provide the pleasure and recreation to the muslim men in
• times of war and on travels, who used to live away for a long time from their homes

• The system of muta marriage was prevailed in Arabia before and at the time of Mohd. Prophet..

• Md. Prophet condemned this system.

Callipah Omar
• He described it as a ruthless and suppressed mode of marriage, and it is nothing but
prostituion
•
• Points
• (a) Recognised by SHIA school
• (b) Other schools have not recognised it
• (c) A Shia male can marry in muta marriage any woman belonging
• Muslim religion and is not permitted to marry a non-muslim
• (d) Period of cohabitation must be fixed
• (e) Bridegroom shall pay some specified Dower .
• Fixing the dower is another feature of Muta marriage
• (f) If the dower is fixed, but the period is not fixed the marriage may not be
treated as Muta marriage. Then it shall be treated as permanent marriage
• (g) The parties do not have mutual rights of inheritance
• but their children are treated as legitimate and shall have the right of
inheritance
• (h) if the muta marriage is not consummated, the wife is entitled to
half of the specified Dower
• (i) If the muta marriage is dissolved, by the husband by his own will,
he has to pay full dower as specified
• (j) If the woman leaves her husband before the expiry of the term,
she is entitled only the proportionate part, for the period of
cohabitation
• (k) wife not entitled for maintenance
• (l) Divorce is not recognised in muta marriage
• (M) Sunni school does not recognise Muta Marriage
• ( N) Husband is not bound to provide residence to wife
• (o) the marriage is dissolved ipso facto on the expiry of the period
 Dower ( Mahr)
• Dower
• Muslim law of marriage is a contract, where the bridegroom
promises to pay bride some amount which is called Mahr.
• Muslim jurisprudents consider Dower as the consideration
for the contract of marriage
• Mahr may be paid
• (i) at the time of marriage or
• (ii) after the marriage or
• (iii) even after the death of the husband from the assets
of the husband
• Definition
• Mulla
• Dower is a some of money or other property which the wife is
entitled to receive from the husband in consideration of the marriage
• Supreme Court of India Opined
• “ Muslim marriage is like a contract of sale in which the wife is the
property and dower is the price”
• OBJECT
• It has 4 objects
• (1) obligation imposed by law on the husband as a mark of respect for
the wife
• (2) It Prevents Divorce. Here In case of divorce, the husband has to
pay the entire dower to the wife. Usually the dower amount is always
higher to the capacity of the bridegroom, So before giving the divorce
bridegroom thinks over
• (3) Dower becomes a strong support to the muslim
wife
• (4) the dower property cannot be touched by any
one
• KINDS OF DOWER
• (1) Specified Dower ( Mahr-i-Musamma )
• (2) Proper or Customary Dower( Mahr-i-Misl )
• (3) Prompt Dower ( Muajjal Mahr )
• (4)Deferred Dower ( Muwajjal Mahr )
• (1) Specified Dower( Mahr-i- Musamma)
• If the amount is fixed and agreed between the parties, either at the
time or before the marriage
• It is again divided in to two:-
• (a) Prompt (b) Deferred
• (a) Prompt Dower:-
• prompt dower shall be payable immediately after the marriage on
demand
• Important Points:-
• (a) Wife can realise the prompt dower at any time before or after
consummation from husband
• (b) However it is observed that in the Muslim Community
• It is rarely demanded and is rarely paid
• (c) In extraordinary circumstances only the wife
demands her husband to pay her prompt dower,
EX :-domestic disagreement, husband” s
indebtedness without making any provision for her
and her children
• (d) The wife can refuse to enter into sex with her
husband until her prompt dower is paid
• (e) She can bring a suit for the recovery of the
prompt dower
• (f) Prompt dower does not become “deferred
Dower” after consummation. Even then the wife has
• a right to sue for recovery
• (g) if the wife is a minor, the guardian can refuse to send her
for consummation, until he pays the amount of the prompt
dower to her on demand
• (h) Once the wife enters consummation with her husband ,
she cannot refuse the conjugal rights of her husband and
cannot demand that she will come to consummation of
marriage, if the dower amount is not paid.
• I f she refuses conjugal cohabitation, after consummation
takes place, the husband has a right of conjugal cohabitation
and can file a suit for restitution of conjugal rights
• (i)If the wife does not demand the prompt
dower during the period of marriage, the
limitation period starts from the day of the
death of the husband or from the day of the
dissolution of the marriage
• (b) Deferred Dower
• It shall be payable to the wife on dissolution
• either by death or by divorce
•Important points
•A. Deferred dower can not only be claimed by the wife but also by her heirs
after her death.
• B. It is not a contingent right, but a vested right of a muslim wife
• C .The muslim wife by her own will consents to decrease the amount of
deferred dower, she can do so
• D. Muslim wife has no right to convert the deferred dower to prompt dower.
But the husband, if he wants, can convert the deferred dower to prompt dower
and can pay the dower or transfer any of his property inlieu of the amount
• E. Deferred dower shall be paid after the dissolution of marriage or death of
the husband or wife.
• F . The agreement between the husband and wife to pay the deferred dower
at any time is also valid
Differences between Prompt and Deferred
Prompt
• It is called as Muajjal-mahr
• It shall be payable
immediately after marriage
on demand , even before
the marriage also
• Generally wife only claims
the prompt dower. In rarest
cases, the heirs of the wife
can claim it
Deferred
• It is called as Muwajjal-
mahr
• It shall be payable on
dissolution of marriage, by
death or divorce
• The wife and her heirs also
can claim it
 Differences between Prompt and Deferred
(Contd...)
Prompt Deferred
• It does not become the • If the husband wishes, he can
deferred dower after convert it into prompt dower
consummation of marriage. and pay it to his wife in the
The wife has a right to sue shape of cash or property
the husband for the same
• Along with it, the right of
conjugal right and • This type of rights are not
cohabitation is vested in the seen in it
wife and husband , i.e. the
wife can refuse cohabitation
until her prompt dower is
paid
 Differences between Prompt and Deferred
(Contd...)
Prompt Deferred
. Once she consummates,
she loses such right or
demand and in such case, if
wife refuses to cohabitate,
the husband has the right
to RCR
• Once it is fixed, it cannot be • The wife can decrease it by
decreased her own will
• It can be demanded by the • It can be claimed by wife or
wife or by her guardian in her heirs
case she is minor
• Proper / Customary Dower(MAHR- I –MISL)
• Proper Dower is also called as Customary Dower.
Sometimes the bride also accepts the marriage without
any dower. In such a situation the wife is entitled to the
customary dower.
• It means the amount of dower to be paid to the wife
shall be decided on the customary and proper way on the
principle that what amount
• other female members of her father,s family, viz., her
father’s sisters, would get, the same amount shall be
paid to the wife.
• Points
• (a) Economic condition of her husband has to be
considered
• (b)Quantum of dower which was given to
• the wife”s father”s sisters shall be taken
• as Customary dower
• (c) Social status of her father”s family and father-in-
law’s family shall be considered
• (d)personal capacity of wife, her age, beauty, edn.,
shall also be taken into consideration
• Under Sunni Law, there is no maximum prescribed
• Under Shia law proper dower should not exceed 500
Dirhams
• Consequences of NON- Payment of Dower
(a) Remission of Dower:-
• It must be paid on demand to the wife by the husband or
by his heirs. If they are unable to pay the dower which is very
high to their standards, the wife may commute her dower.
With her own will.No compulsion shall be made against her
• (b) Suit for dower a suit can be brought by her or by her
heirs
• Period of Limitation:-
• Suit for recovery of Prompt Dower is
• 3 years from the date on which the dower is
demanded or refused
• from the date of dissolution of marriage
• or from the date of the death of husband
• or from the date of the death of wife
• (in case of claim by heirs after death)
• Refusal for cohabitation
• wife can refuse to cohabit until her prompt dower is
paid. In case, she is a minor the guardian may refuse
to send her to the in-laws
• House until the dower amount is paid
• After consummation, she looses her right to refusal
to cohabit. In such case husband acquires the right of
Restitution.
• Then she can recover her dower by a suit or taking
into possession of husband”s property, like debt
• Dower is an unsecured debt
• Unanimously agreed by the Muslim jurisprudents that the dower is a debt,
but unsecured debt. Wife has only right of retention, but not entitled to any
charge on husband”s property.
• No Right to possession
• Widow is not entitled to take into possession of her husband”s property
and say that she can retain that property towards her dower.
• If she put in possession of the property of her husband with good faith
and on reasonable grounds. She can have the custody. She can enjoy the
mesne property, until her debt is paid from the mesne property of such
property. But She could not hushup the property depriving the heirs of the
husband. She has to account the profits and expenses to the concerned
heirs
•
• Case Bibi Bachun Vs. Shaikh Hamid Hussain
• P.C. 1871 MIA 377)
• A mahomedan widow whose husband had died
without issue was put into possession of her
husband”s estate as co-heir to secure her dower
• Whether having been so put in possession, she was
entitled to retain it until her dower debt was paid,
to the exclusion of the other heirs of the husband ?
• P.C held that she was so entitled
• Case Maina Bibi & Others
• Vs
• Vakil Ahmed & Others (AIR 1925 P C 62)
• Maina Bibi was the wife of Shaikh Muin-ud-din. At the
time of her marriage. He promised certain amount of
dower. After the death of her husband , she took the
possession of her husbands property. Heirs of her
husband sued Maina Bibi for immediate possession of his
property, held and retained by the widow in lieu of dower,
on the ground that her dower-debt had already been
satisfied. They also claimed mesne profits
• Subordinate judge passed decree on condition that the plaintiffs were
to pay to the widow a certain amount as the balance of dower within a
certain time. The sum was not paid as per the Decree.
• On Appeal High Court of Allahabad confirmed the lower courts
decree. The Widow thereupon gifted away the property mentioning in
the deed that she had become absolute owner of the said property
• Aggrieved respondent/ heirs appealed to the Privy Council
• Privy Council gave the judgment that the effect of
• non- payment by plaintiffs/ heirs in the prior suit had not the effect of
conferring absolute estate on the widow . The decision of the prior
suit did not extinguish their right to claim possession at any time, by
paying dower amount
•
• Principle
• Where a Muslim wife acquires her deceased husbands property peaceably and
retains it in her possession, until the dower amount is paid, is not mortgage strictly
in sense in the Islamic Law. It is a lien Right of retention is not equal to mortgage
• Effect of Conversion
• It the husband converts religion and tries to evade the dower to his wife, even
then the wife is entitled to recover her dower.
• Sec.5 Dissolution of Muslim Marriage Act,1939, entitles a Muslim Woman to get
her dower, even on her husbands giving the talak, or on her husbands conversion
to other religion
• Right of retention does not give any right or title on the property to the wife
• No right to alienate the husbands property to satisfy her dower
• the widow or her heirs can sue her husbands heirs for the recovery of her dower
out of his assets
 Diff. Between Shia and Sunni Law
DOWER
Sunni Shiai Law
• . Minimum limit of 10 • No such limit
Dirhams for specified dower
(1 Dirham= Rs. 13.20)
• No Maximum limit for
Proper dower • Proper Dower shall not
exceed 500 Dirhams
• If the wife enters with her free • Such an agreement with a
will and consent to forego her sane and adult wife is valid
dower such agreement shall
be void in Sunni Law
Sunni Law
• If there is no agreement,
showing that what portion is
prompt and what portion is
deferred, a reasonable portion
of the dower is treated as
prompt dower. Generally half
part is treated as deferred
dower
• No proper dower shall be
payable to the wife, if the
marriage was not consummated
Shia Law
• If there is no agreement, the whole
dower shall be treated as Prompt
Dower
• If the marriage was dissolved by death
and dower is not specified, or if there is
an agreement between the parties that
no dower need not be paid, in these
circumstances proper dower shall be
payable. Whether the marriage
consummated or not, the wife is
entitled to get proper dower
 Dowry and Dower
• After Independence, the trend has been
changed, instead of giving Kanyasulkam, the
bridegrooms of Hindu Community started
demanding some amount, property, presents
etc.,.
• This system is named as DOWRY
• In the beginning, this was good, because such
amount was kept separate for the benefi of the
women and called as STRIDHANA
• No share was given to daughter Until 1956
• This system changed in to worst. Parents of the bridegrooms
used to demand more and more both at the time of marriage and
also after that.
• This demand of Dowry has become a pernicious ( Extremely
harmful) custom in the Hindu community
• This system has also crept in Muslims and other
communities.This System was more or less equal to Dower in
Muslim Community.
• Due to the above circumstances G.O. India
• brought an enactment by name “” The Dowry Prohibition Act
1961.
• Dowry Prohibition Act prohibits giving and
taking of dowry,
• Sec. 2 prohibits giving and taking of Dowry
• But it excludes the DOWER or Mehr from
the purview of Dowry Prohibition
Act,1961 Under Sec.2 (b)
Diff. Between Dowry and Dower
Dower Dowry
• It existed in the Muslim • It is an evil a bad custom in
Community since Pre- the Hindu Community
Islamic time. It is an old
custom and is given honour
from the time immemorial

consideration of marriage • It is demanded by the

parents of the bridegroom
• Dower is paid by the
husband to the wife in
consideration of marriage
•
• It is for the welfare of the
Muslim wife
• Dower prevents the
Muslim Husband to give
divore to his wife. Because,
after giving divorce, he has
to pay the entire dower
as per the agreement
• It is an evil
• Dowry creates more
greediness in the minds of
both the bridegroom an
in-laws
• Dower is seen only in the • The Evil of dowry has crept in
Muslim Community muslim community

• Giving and taking of Dowry is

• Dower is not punishable punishable
• U/ Sec.3 Of D.P. Act 1961

• Dower is an unsecured debt • Dowry is an evil

• The wife or her heirs can • If it is paid, parents of the bride
or bride can recover back by
recover dower through civil instituting proceedings Under
proceedings, as a debt Sec.6 of D.P.Act, 1961
• The amount of dower
shall be mentioned in
Kabin-nama, the agreement
deed of marriage
• Dower has been praised by
the social reformers, jurists
• Dower becomes a source of
maintenance in case of
divorce
• Generally there is no
documentary evidence in
the case of dowry
• practice of dowry was
criticised by Social
Reformers
• Sec.125 Cr.P.C. applicable
• Dower is a custom which • It is an evil prohibited by
has been in existence in the D.P.Act 1961
Muslim law since so many
years.It is exempted from
Dowry prohibition Act
1961
 Dissolution of Muslim marriage Talak
• Mohd. Propet said
• With Allah, the most detestable of all things permitted is
Divorce
• Prophet of Islam disapproved the divorce, in general and
condemned triple divorce in particular.
• He taught that giving talaq to a wife is the most heinous
crime
• Asaf .A.A. FYZEE opined
• “ The greatest defect of the Islamic system is the absolute
power given to the husband to divorce his wife without
cause”
• In Islamic Law, marriage is not a sacrament.
• It is purely a CIVIL CONTRACT
• Object
• Procreation of children
• It may be dissolved in any of the following ways:-
• (a) by death of the Spouse
• (b) by the Act of parties
• (c) By the Judicial Process
• (a) By death
Death of one of the spouses operates in law as dissolution of
marriage.
Under Muslim law,
A husband is free to remarry immediately , if his wife dies.
In the case of wife, she has to wait for some period, if her
husband dies. This period is called “IDDAT”. The period of
Iddat, in case of the death of husband is 4 months 10 days.
• If she is pregnant at the time of the death of husband, this
period of IDDAT extends upto the delivery of the child
•
•
• (b) By Act Of Parties
• Marriage under muslim law can be dissolved by
the act of any one of the parties.
• Infact in Islamic law absolute power of divorce is given
to the husband. She can obtain the decree of divorce
by judicial process underThe Dissolution of Muslim
Marriage Act, 1939
• Dissolution of marriage by the act of parties
• is of two types:-
(i) by the husband:-
• A muslim husband may give divorce to his wife in the following
ways”:-
• (a) Talak means to repudiate, to divorce, to free the wife from
bondage of marriage
• Points
• (i) any muslim of sound mind, who has attained puberty may
divorce his wife whenever he desires, without showing any cause
• (ii)It may be oral or in writing. But the words of pronouncement
of talak must be very clear, unambiguous and express.
• (iii) It must refer to the wife
• Even in the absence of the wife, the husband can pronounce the talak
before two witnesses, or before the Family council
• Case Rashid Ahmed Vs. Anisha Katun
• ( P.C. 1932 59 IA 21)
• Facts;- A mahomedan husband gave talak to his wife by three
pronouncements in the same breath in these terms “I divorce you”
• “’ I divorce you” I Divorce You”. However after talak, wife husband lived
together, and 5 children were born to them
• Father acknowledged them as his children. After the death of the father, the
collateral heirs raised the dispute that the children were illegitimate and were
not entitled to share in the properties of their father, as there was no re-
marriage between the wife and husband after talaq
• Children prayed before the court to presume the marriage by the conduct of
their father and mother and thus they were legitimate
• P.C. Held
• Children could not be treated as legitimate and no share would
be awarded. Council further held that the divorce by the husband
created a bar . The bar can only be removed
• (i)by providing that their mother had after the divorce married
another man
• (ii) and the latter had died or divorced her after actual
consummation of marriage, and
• (iii)then married the former husband.
• As the three conditions were not proved, re-marriage between
them cannot be presumed and the children could not be held to be
legtimate, their claim must fail
• (iv) Talaq in writing
• It may be oral or in writing. Husband may
write the talaq or sign on the talaq-nama prepared
by some one, before the KAZI, or before 2
witnesses, or before the wife’’s father
• It( talaq-nama) must be addressed to the wife and be
expressed.
• Under Shia Law there must be 2 witnesses atleast,
eventhough the talaknama is in writing, and the
intention must be express.
• In the case of Shia law, a talaq must be pronounced
orally in the presence of 2 competent witnesses
• Talaq communicated in writing is not valid, unless the
husband is physically incapable of pronouncing it orally
• Modes of Talaq
• (a) Talaq -al-Sunnat( in confirmity with the dictates of
Prophet
• (i) Talaq Ahsan
• It is the most approved form
•
• It is approved by Prophet. In this form, there must
be one single pronouncement in a period of
Tuhr(Purity,i.e., when the women is free from her
menstrual courses), followed by abstinence from
sexual inter course for the period of Iddat.
• If the wife is old and beyond the age of
menstruation,
• the condition of Tuhr is unnecessary A
pronouncement of Talaq made in the “Ahsan” form
can be revocable during Iddat.
• (ii) Talaq Hasan
• In Arabic “Hasan” means good
• It is also an approved from. But less
approved than the first Ahsan
• It consists of three pronouncements made
during successive “Tuhrs” . No inter course
should take place during any of the three
Tuhrs
• (2)Talaq-ul-Biddat or Talaq-I-Bidai
• It is a disapproved form of Divorce. It is a sinful
form of divorce. Irregular form of divorce in order
to escape the strictness of law.
• Essentials
• (i) It consists of 3 pronouncements made during
a single Tuhr either in one sentence
• Ex “ I divorce thee thrice” or in separate sentence
• Ex; I divorce thee, I divorce thee, I divorce thee
• (ii) A single pronouncement made during Tuhr clearly
indicating an intention irrevocable to dissolve the
marriage
• Ex; I divorce thee irrevocably
• under talaq-ul-Biddat, once a definite complete
separation has taken place parties so separarted cannot
remarry without the formality of the woman marrying
another man and being divorced from him
• In Sarabhai Vs. Rabia Bai (1906) 30. B0m. 537
• , It was said that talaq-ul-Biddat is theologically improper
• It has been maintained that this form of talaq is
improper from the moral point of view
• In Fazlur Rahman Vs. Aisha (1929) 8. Pat .690
• It was argued that this type of divorce is against
the Quranic law and the
• court is bound not to give effect to the rule and
it also opposed to a tradition of the prophet and
that the Quran verses have been differently
interpreted by the different schools
• It becomes irrevocable imediately when it is
pronounced irrespective of Iddat This talaq is
also known as talaq-ul-bain. When talaq is in
writing it becomes irrevocable immediately
• The modes of divorce and
• effect of cohabitation of the divorced wife with
the man and
• legitimacy of children born after pronouncement
of talaq was considered by the Privy Council in
• Rashid Ahmad Vs. Anisa Khatoon
• 1932 59 I A 21 (All)
• Facts; Ghayas Uddin pronounced the triple talaq in the
presence of witnesses, but in the absence of wife. Talaq
nama was executed four days later. It stated that the three
divorces were given.
• It was not proved that there was re-marriage between the
parties, or intermediate marriage and a subsequent divorce
after actual consumation. But they lived together and 5
childrren were born. Ghayas treated Anisa as his wife and
children as legitimate. AS there was no intermediate
marriage, the bar to remarriage created by the divorce was
not removed
• Keeping in view the above circumstances,
remarriage could not be presumed and the children
born after triple divorce were held to be
illegitimate
• The words “ I divorce Anisa Khatoon for ever
and render” her haram for me; were repeated by
Ghyas three times (talaq-ul-bain) which clearly
showed an intention to dissolve marriage and it was
confirmed by divorce deed. It was held that the
divorce was valid one
• On the second point of revoking divorce, the Lordships
observed
• ‘’According to Hanafi Law of Sunnis, Ghyas Uddin could
not marry Anisa after pronouncement of talaq, unless
another marriage of Anisa had intervened. It was held
that the fact of subsequent treatment of divorced
wife ,as wife and birth of children during the
subsequent period cannot be undo the divorce and
make the children legitimate . Thus the five children
after the triple talaq were held to be illegitimate
• Triple Divorce
• Triple divorce is ecognised
• But disapproved form of divorce
• It is considered by Islamic Jurists as an
innovation within the fold of Shariat.
• It commands neither the sanction of Holy
Quran nor the approoval of the Holy Prophet
• Triple talaq was not in the practice during the life time of First Caliph
Abu Baaker
• Later Hazarat Umar permitted it
• When the Arabs Conquered Syria, Egypt., Persia,
• they found women there much more better in appearance as compared
to Arabian woman. They wanted tyo marry them
• Then they insisted that inorder to marry them, they should divorce to
their existing wives instantaneously by pronouncing three divorce in one
sitting
• This condition was readily acceptable to the Arabs because they knew
that in Islam divorce is permissible only twice in two separate period of
Tuhr and it’s repetition at one sitting is unislamic, void and shallnot be
effective
• They could not only marry them but also retain their existing
wives
• This matter was brought to the Second Caliph Hazrat Umar
• Then h in order to prevent the misuse of the religion by the
unscrupulous husbands decreed that ev en repetition of the
word talaq,talaq, talaq at one sitting would dissolve the
mariage irrevocably
• However it was a mere administrative measure and could
not make it a law
• Later Hanafi Jurists at the strength of this administrative
order of Second Caliph declared this
• form of divorce valid and also pave religious sanction to it.
• Holy Quran , the paramount source of Islamic
Jurisprudence has not ordained that the three divorces
pronounced in a single breath would have the effect of
three separate divorces
• The verse of Quran can be relied upon in this regard
• “ A divorce is only permissible twice; after that, the parties
should wither hold together on equitable terms, or
separate with Kindness
• ( I – II: 229 Trans)
• It is clear from the above verse that even after two
pronouncements of divorce on different occasions,
the chances for retaining the wife is very much open
before the pronouncement of the third divorce on
separate occasions. Third pronouncement of divorce
makes divorce irrevocable and the chance for
retention comes to an end
• Some Jurists are of the view that mere repetition of
word talaq thrice or uttering three number of talaq
indicate the purpose of effecting divorce
• In Quran there is no trace that the three
divorces pronounced at one occasion would
be treated as three divorces or irrevocable
divorce
• The view that mere repetition of divorce
without an intention to give
Mughallazah(Final divorcce) or momentary
excitement does not amount to Final divorce f
• If a person pronounces one divorce against his wife
and then repeats the divorce a second or even third
time simply to emphasise the first pronouncement
but not with a view to effect a final divorce,
• It shall be open to him to explain his intention and
take back his wife
• During the period of the Prophet and after him cases
of triple divorce, where in divorcing husband swore to
his intention of divorcing only once, were termed as
cases of single divorce
 */*
• During Caliph Omar’s time people started misusing
this facility and indulged in widespread triple
divorce, reverting back to the wife after swearing to
their intention of giving a single divorce
• Caliph Hadrat Umar decreed that triple divorce
would become effective, refusing to allow the
couple to revert to each other since the facility of
oath taking has been turned into meaning less
game by many.
• The object of Caliph Umar in treating it as a final divorce
wa s clearly to people from wanton repetitions of divorce
and from treating the matter of divorce in a light way
• But in the modern times it has resultred in a great deal
of harm. People in the excitement of moment give
three divorces to the wife at one and same time without
least intention to pronounce a final divorce put simply to
emphasise the first pronouncement, a step which they
grievously repent afterwards, then they finds that
mischief cannot be undone
• Juristic view
• Imam Abu Hanifa holds that three pronouncements shall
amount to thre separate divorce and they shalll result in a
final divorce.
• The explanation that the husband had used the three
pronouncements simply for the sake of emphasis ,cannot
change the nature of divorce and a final divorce would be
affected
• Hanafi jurists who hold that in such a case final divorce
would be affected and would be good in law, though bad in
religion
• Juristic View
• In British India as well as in Independent aindia,
all trh courts are declaring tripl pronouncements
of divorce in one sitting as lawful and effective.
• Common phrase used by courts is that the talaq-
ul-biddat or triple pronouncements of divorce is
good in law Triple divorce is recognised and
endorsed by the Indian Judiciary
• Bombay High Court recogniosed triple
• divorce on irrevocable footing
• in Sara Bai Vs. Rabia Bai,
• I L R (1905) 30 Bom. 537
• Facts:- Siddique with two witneses approached Kazi and before him
he pronounced talaq in the absence of his wife. Talaqnama was
prepared by Kazi and was duly signed by all concerned, steps were
taken to handover her Iddat allowance with the communication of
talaq. Siddique died very soon. . His divorced wife filed a suit
assuming her self as wife of Siddique for maintenance and residence.
• Bombay H.C refused to accept her contention and held the triple
talaq on irrevocable footing
• Privy council accepterd triple divorce pronounced at one time
as valid and effective in
• Saiyid Rashid Ahmad Vs. Mst. Aneesa Khatoon AIR 1932 PC 25
• Whether the presence of wife is essential at the time of divorce
was answered byt eh Madras High court in
• Aisha Bibi Vs. Qadir Ibrahim 1910 3. Mad 22
• Held words of divorce addressed to the wife, though she was
not present , were repeated three times as “ I divorce forever
and render Haram for me” which clearly showed an intention to
dissolve the marrige, and followed it by
•
• executind a deed of divorce which stated that
three divorces were given in the abominable
form, the talaq being addressed to the wife by
the name and in the biddat form, the presence
of wife is unnecessary
• Justice V.R.Krishna Iyer made a significant
observation regarding divorce in
• Yusuf Vs. Sowramma 1994 (12) Lucknow Civil
Decision, p.463
• He observed that it is popular fallacy t6hat a Muslim male
enjoys, under Quranic llaw, un bridled authority to
liquidate the marriage.
• The holy Quran ex[ressly forbids a man to seek pretext for
divorcing his wife so long as she remains faithful and
obedient.
• He further observed that muslim law as applied in India
has taken a course contrary to the spirit of what the holy
Prophet or the holy Quran laid down and the same
misconception vitiates the law dealing with the wife’s
right to divorce
• In majority of cases the court has either regretted
its action or found itself helpless to pronounce its
verdict in opposition to the earlier rulings. In some
cases the court felt the need to reform but did not
give verdict against the established law on triple
divorce is good in law
• Supreme Court in its land mark judgment
• in Shamim Ara Vs. State of U.P Jt 2002(7) SC
520 has tried to clarify the Is;amioc law of divorce
• Shamim ara was married to Abrar Ah mad in 1968
according to Muslim Shariat n law . Four sons were born
ouyt of the wedlock. In 1979 Shamim ara on hehalf of
herself and for her two minor children, filed an
application for maintenance under Sec. 125 Cr.P.C
complaining of desertion and cruelty on the part of the
husband
• Family court at Allahabad refused to grant any relief to
the wife on the ground that she was already divorced by
her husband and hence not entitlled to any maintenance
• However maintgenance at the rate of Rs.150 was allowed for
one son for the period during which he remained a minor, the
other one having become major during the pendency of the
proceedings.
• On the other hand Abrar denied all the averments made by the
wife. He pleaded that he had divorce her by triple divorce in
1987 before 4 to 5 witnesses and since then ceased to be
spouses
• He claimed the protection of Muslim Women( Protection of
Rights on Divorce) Acr 11986 and also submitted that he had
purchased and delivered a house to her in lieu of dower and
therefore the wife was not entitled to any maintenance
• High Court on revision held that the divorce which
alleged to have been given by the husband to the
wife was not given in the presence of wife and it is
not the case of the husband that the same was
communicated to her.
• But the communication would stand completed of
5ht December 1990 with the filing of the written
statement by the husband
• there fore the High Court concluded that the wife
was entitled for maintenance
• Apex Court in allowing the Special Appeal held that talaq to be
effective has to be pronounced.
• In the instant case there was no proof of talaq having taken
place in 1987
• A mere plea taken in the written statement 9f a divorcce having
been pronounced same time in the past cannot by itself be
treated as effectuating talaq on the date of delivery of the copy
of written statement to the wife
• Marriage between the parties not having been dissolved ,
husband should continue to be liable for payment of
maintenance until the obligation comes to an end in accordance
with law
• The Correct law of divorce as ordained by the Holy
Quaran is that talaq must be for a reasonable cause
and be preceded by attempts at reconciliation
between the husband and the wife by two
arbitrators, one from the wife”s family and the other
from the husband, if the attempt fails talaq may be
effected
• Talaq to be effective must be pronounced
• It means to proclaim, to utter formally, rhetorically
to declare
• Thus the Apex Court has tacitly disapproved the formula of
triple talaq as being applied and followed in India.
• One more problem came before the Supreme Court in Sher
Mohammed Vs. Nazma Biwi 2 006
• Couple from Orisse forcibly sparated by the community after
local clerics issued by local Juristic verdict that they were
divorced even as thy wanted to live together, told the S>c that
the police had not provided them protection, despite the court
ordeer
• Nazma Gibi’s husband Sher Mohammed had pronounced triple
talaq in an inebriated condition in2003. but later realizing his
mistake, decided to live with his wife and 3 children
• S.c directed the Orissa government to provide police protection
to the Muslim couple
• Iqbal Bano Vs. U.P S.c Held that the conclusion that in view of
the statement in the written statements about an alleged divorce
30 years back by utterance of the words “talaq “talaq “ talaq’
three times is sufficient in law, is not sustainable
• A mere plea taken in the written statement of divorce having
pronounced some time in the past cannot by itself be treated as
effectuating talaq on the date of delivery of the copy of the
written statement to the wife
• the husband ought to have adducec evidence and proved the
pronouncement of talaq at the claimed earlier date
• If he failed to to prove the plea raised in
written statement, the plea ought have been
treated as failed
• .(3) Ilam ( Vow of continence)
• Ingredients
• ( a) Husband must be sound mind and must have attained majority
• (b) He swears by God or takes aa vow
• )c) That he will not have sexual inter course with his wife
• (d) in pursuance of vow he abstains from sexual inter course with his
wife for four months or more
• Acc. To Ithna Ashari Sahfei school
• wife is entitled to apply to the court for passing
a decree dissolving the marriage
• In Sunni Law legal proceedings are not
necessary
• BiBi Rehana Vs. Iqtidar-Uddin 1943 All.295
After the marriage ceremony was over the
parents of the boy pushed him into a room
where his wife was waiting for him.
• It appears from the facts of the case that the
husband was not interested in that marriage.
• After entering into the room he took a vow in
the presence of his wife that he would never
• Have sexual intercourse with her. Soon after
giving this statement he came out of the room
and repeated the voww in the presence of his
mother and his mother’s sister. His father then
came out then he once again repeated the vow.
• the court refused to accept the version of the
husband andsaid that the husband has failed to
establish that there had been a divorce in the
form of Ila
• Cancellation of Ila
• (i) the HUSBAND RESUMES SEXUAL INTERCOURSE
WITHIN THE PERIOD OF FOUR MONTHS, or
• (ii) verbnal restriction there of
• Ila is not practiced in India
• (4) Zihar ( Injurious assimilation)
• (a) Husband must be sane and adult
• (b) He compares his wife to his mother or any other
female within the prohibited degree
• © The wife has a right
• (i) refuse to have a sexual intercourse with him till he
has expiated himself from penance , such as
• freeing a slave
• fasting for two months
• feeding 60 poor persons
• (ii) to apply to the court for an order requiring
him either to perform a penance or to decree
her a regular divorce.
• Legal efects of Zihar
• (a) sexual intercourse becomes unlawful
• (b) husband is liable to expiation by penance
• © wife can claim judicial separation, if the
husband persists in wrong doing
• Talaq-e-tafweez ( talaqby the wife under the
husband’s delegated authority)
• Tafweez or delegation of power is an
important topic of the Muslim law of divorce
• A husband may either by himself repudiate
• wife of delegate this power of repudiating her
to a third party, or even to his wife.
Such delegation of power is called tafweez
• An agreement made either before or after the marriage
providing that the wife would be at liberty to divorce herself
from her husband under conditions
• (a) in case of husband’s second marriage
• (b) fails to maintain for a specific period
• is valid
• Provided
• (i) That the option is not absolute and unconditional
• (ii) that the conditions are reasonable and not opposed to
public policy
•
• Husband’ s power to pronounce talaq in spite of
tafweez
• the mere fact that the husband delegates to wife
power of pronouncing her own talaq, does not deprive
the husband himself of his right to pronounce talaq
• Talaq—e-taliq
• Contingent divorce. Under Hanafi law, the
pronouncement of divorce may take effect
immediately or at some future specified time or event,
a condition may be attached to it and it will be valid
• KHULA (Divorce at the request of the wife)
• Redemption
• Khula or redemption means to lay down. It means
laying down by a husband of his right and authority over
his wife
• Essentials of Khula
• (i) Offer from the wife
• (ii) offer must be accepted with the consideration (evaz)
for the release
• (iii) offer must be accepted by the husband
• Mubarat ( Divorce by mutual agreement)
• It signifies a mutual discharge from the marriage
claims. In mubarat the aversion is mutual and both the
sides desire separation.
• when an offewr of mubarat is accepted, it becomes an
irrevocable divorce talaq-ul-bain and iddat is necessary
• Lian ( False charge of adultery)
• where a husband charges his wife of adultery and
the charge is false, the wife is entitled to sue for and
obtain divorce
• In Zafar Hussain Vs. Ummat-ur- Rahman 1919, 17 All.L.J 78, AIR
1919 All,182
• Allahabad High Court recognised the doctrine of Lian.
• Defendant wife alleged that her husband had stated before
several persons that she had illicit intercourse with her brother
and imputed fornication to her
• it was argued that the law of Lian had no place in Anglo-
Mohammedan law and must be considered obsolete.
• But the court rejected the argument and held that the muslim
wife is entitled to bring a suit for divorce against her husband and
obtain a decree on the ground that the latter falsely charged her
with adultery
• Features of Lian
• (a) Husband (adult and sane) charges his wife(adult
and sane) of adultery or denies the paternity of her
child
• (b) Such charge is false
• © Such charge does not ipso facto does not dissolve
the marriage, it only gives an opportunity to the wife
to move to the court to dissolve the marriage.
Marriage continues till the decree is passed
• (d) She must file a regular suit for the dissolution of the
marriage. No su ch suit will lie if the marriage was irregular
• (e) Judicial separation due to lian is irrevocable
• (f) Lian is applicable only to Sahih marriages but not to
fasid marriages
• Calcutta High Court in Nurjahan Bibi Vs. Md. Kazim Ali
AIR 1077 Cal.90 held that Lian has not become obsolete in
India. A muslim wife can bring a suit for divorce against her
husband on the ground that her husband has charged her
with false charges of Adultery
• Retraction of charge
• Muslim law permits the man to retract the
charge
• It must be Bonafide, unconditional, made at or
before the commencement of hearing and not
after the close of evidence
• Termination of marriage through
Faskh(cancellation)
• In Muslim law a lady can approach to the Qazi for
dissolving her marriage. Quran says that it is the
duty of the husband to give proper treatment to
his wife The wife is also under duty to obey all
lawful orders of the husband
• Fask means cancellation Before the passinng of
the Dissolution of muslim Marriage Act,1939 there
was no peace of legislation under which a muslim
lady could ask for the dissolution of her marriage
• Muslim ladies could only ask for dissolution of their marriage
under doctrine of Fask
• According to Tyabji, the following arte th main grounds for
dissolving the marriage at the instance of the wife:-
• (i) the marriage is irregular
• (ii) that a person having an option to avoid a marriage has
exercised his option
• (iii) tha a marriage was performed within prohibited degrees
or fosterage
• (iv) the marriage having been contracted by non-muslims the
parties have adopted Islam
• In K.C. Moyin Vs. Nafeesa (73) A. Ker.176
• Khalid.J., said that under no circumstances
can a Muslim marriage be repudiated by the
wife and he further said that a unilateral
repudiation of marriage by Fask at the
instancec of the wife has no legal sanction
• Contact of the wife of the second marriage
was held punishable Under Sec.494 of I P C
• After the passing of the Dissolution of Muslim Marriage Act, 1939 the position has become
clear.
• JUDICIAL DIVORCE Under Dissolution of Muslim Marriage Act 1939
Prior tto the passing of Dissolution of Muslim Marriages Act 1939 British courts had denied to
Muslim women the rights of dissolution available to them under the Shariat Act

The wife could apply for the dissolution of her marriage only on the following grounds;-
Importency of the husband
Lian
Opinion of puberty

Finding no other way to get rid of this marital tie, the muslim wives were compelled to
renounce their faith
•

•
•
• Circumstances under which this Act was
passed;-
• There was no provision in the Hanafi Code
of Muslim law enabling a 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 illl-treating her or
certain other circumstances.
• Absence of such provision entailed unspeakable misery to
muslim woman in British India
• Hanafi jurists have clearly laid down that in cases in which
the application of Hanafi Law causes hardship, it is
permissable to apply the provision of the Maliki, Shafie
Hanbali Law.
• This can be found in the book of Maulana Ashraf Ali who
has made an exhauative study of the provisions of Maliki
law which under the circumstances prevailing in India may
be applied to such cases.
• This has been applied by large number of Ulemas who
• put their seal of approval on the book
• In those circumstancecs , the Above Act of
1939 was passed
• This Act applies to all Muslims irrespective of
their school
• This Actof 1939 Ha introduced revolutionary
change and restoredf to Muslim Woman right
of divorce granted to her under Shariat
• Sec.2 Of the Dissolution of Muslim Marriage Act, 1939
provides 9 grounds under which a Muslim Woman can
obtain a decree for dissolution of marriag
• (1) Absence of husband
• If the whereabouts of the husband are not known
for a period of 4 years a muslim woman shall be
entitled to obtain a decree for the dissolution.
• The on this ground will not take effect for a period of
6 months from the date of such decree
• if the husband appears either in person or
through an agent within that period and
satisfied the court that he is prepared to
perform his conjugal duties, the court must set
aside the decree under Sec 2(1) read with
proviso (b) of the Act.
• (2) Failurew to maintain
• If the husband has neglected or has failed to
maintain herfor a period of 2 years
• Yusuf Vs. Sowramma AIR 1971 Ker.261
• Facts A girl of 17 years was married to appellant- defendant
who was twice of her age. Having lived for a month in her
husband’s house, she went back to her parents and lived
separately for over 2 years
• During this period the appellant admitted his failure to maintain
her. But alleged that he was willing anxious to keep her with
him.
• Mr. Justice V.R. Krishna Iyer rejected his plea and upheld the
decree for dissolution. The wifwe is entitled to decree, if the hus
band does not maintain her for 2 years, although she livers
separately from
• from his without any reasonable cause
• (3) Imprisonment of husband
• Under sec.2(iii) read with Proviso(a) of 1939
Act, If the husband has been sentenced to
imprisonment for 7 years or upwards the wife
is entitled to the decree of the court.
• But no such can be passed on this unless the
sentence has become final
• (4) failure to perform marital obligations
• Sec.2(iii) read with proviso (a) If t he husband has faioled to
perform, without reasobnable cause, his marital obligations
for a period of 3 years, the wife can get her marriage
dissolved
• Veeran Sayvu Ravuthar Vs. Beeva Thumma
• AIR 2oo2 Ker. 370
• Wife is residing in her own family and away from
husband. Husband has never made any attempt to get
conjugal company and consortium of wife. He does not
take any action for restitution
• Thus he failed to perform his marital obligation without any
reasonable cause
• The court held that the wife is entitled to a divorce decree under
Sec.2(iv) of 1939 Act
• (5) Impotency of the husband
• Sec.2(v) read with Proviso ©, If the husband was impotent at
the time of the marriage and continues to be so, the wife is
entitled to judicial divorce.
• Before passing a decree 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
• If he does so satisfy. No decree shall be passed on this ground
• (6) Insanity, leprosy or venereal disease
• Sec.2(vi). If the husband has been insane for 2 years or is
suffering from leprosy or a virulent V.D, the wife may claim
Divorce. But the leprosy and Virulent diseases need not be of
2 years old, it may be even recent.
• (7)Repudiation of marriage by wife
• Sec.2(vii). If she having been given in marriage by her father
or guardian before attaining the age of 15 repudiate the
marriage before attaining the age of 18 years. If the marriage
is not consummated, she is entitled to a decree of divorce
• (8) Cruelty of the husband Sec.2(viii)
• Clauses (a) to (f)
• (a) Habitual assaults or makes her life miserable by cruelty ,
bad conduct though does not amount to physical ill-treatrment
• (b) associates with women of ill-repute of leads an infamous
life or
• © attempts to force her to lead an immoral life
• (d) disposes of her property or prevents her from exercising
her legal right over it
• (e)obstructs her in the observance of her religious profession
or practice
• (f) if he has more wives than one, does not treat her
equitably in acccordance with the principles of Quran
• In K. Muhamma Lateef Vs. Nishath
• AIR 2004 Ker.22
• The parties got married in the year 1997. Within the year
they got separated.
• During the subsistence of marriage within 5 months of
separation, the husband got married
• 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
• 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
• 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, ther
husband had remarried, it will be a mental cruelty
towards the first wife. The court granted the decree
of divorce.
• (ix) Grounds of dissolution recognised by Mohammedan
Law
• Sec.2(ix) Muslim wife is also entitled to a decree for the
dissolution of her marriage on any of the grounds
recognised as valid for dissolution under Muslim Law
• This clause covers Ila, Zihar, Khula Mubaratr and tafweez
• Noor Jahan Bibi Vs. Kazim Ali, AIR 1977 Cal.70
• Facts. Noor Jahan filed a suit against her husband Kazim
Ali. He charged her that she was of bad character and she
was enamoured of one Asghar Ali and committed adultery
• It was held that the doctrine of Lian has not become obsolete
under the Muslim Law’ She can bring a suit for divorce against her
husband on that ground
• Apostasy or Conversion
• Before the enactment of 1939, apostasy of either party ipso
facto dissolved the marriage
• After the Act of 1939 came into force, though the husband’s
apostasy from Islam would ipso facto dissolve the marriage, the
same is not the case in the case of wife
• That is , wife cannot on the ground of her apostasy, claim a
decree for divorce. She must establish any of the 9 grounds of
Sec.2 of Act , 1939
• This section also says that on account of her
own apostasy from Islam, the wife does not
lose her right to claim a divorce on any of the
grounds given under Sec.2
• This section does not apply to a woman
being a convert to Islam from some other
faith
•
• Legal Consequences of Divorce
• Irrespective of the mode of divorce the following
legal consequences will follow;-
• (i) The parties can remarry. If the marriage
was consummated the wife may marry another
after completion of Iddat,
• If the marriage was not consummated she is free
to marry immediately
• (ii) Dower becomes immediately payable
• if the marriage was consummated, wife is entitled to
immediate payment of the whole unpaid dower, both
prompt and deferred.
• If the marriage was not consummated and the amount of
dowe was specified in the contract, sh is entitled to half .
• If no amount was specified all that she is entitled a
present of three articles of dress
• In case dissolution upon the apostasy of wife she is
entitled to whole dower, if the consummation has taken
place
• This Act of 1939 does not affect any right which a
married woman may have under Muslim Law to her
dower or any part thereof
• On the part of dissolution
• (iii) Mutuial rights of inheritance cease after the
divorce becomes irrevocable
• (iv) Cohabitation becomes unlawful after the divorce
has become irrevocable, children born of such
intercourse are illegitimate and cannot be legitimated
by acknowledgment
• (v) remarriage between divorced couple is not
lawful, where the husband has divorced by three
declarations, unless and until the following course is
adopted;-
• (a) the wife should observe iddat
• (b) after iddat, she should be lawfully married to
another
• ©the intervening marriage must be actually
consummated
• (d) the second husband must divorce or die
• (e) the wife should observe iddat after this divorce
• or death
• (vi) the wife become entitled to maintenance
during iddat of divorce, but not during the
iddat of death
 Dif. Between sunni and shia law of talaq

Sunni
• Talaq may be given orally or
in writing
• No witnersses are required
at the time of pronouncing
talaq
Shia
• Shias do not recognise talak
in writing unless the
husband is physically
incapable of pronouncing
• Under Shia Law the
presence of 2 male
witnesses are necessary
 Sunni Shia
• Intention is dispensed • Intention is necessary
with. In Sunni law even ingredient.. Hence talaq
such talaq is valid and pronounced under
effective intoxication or compulsion,
or in jest is invalid. Because
under such condition man
does not do what he
intends
• It recognises Talaq-ul-
• Shia law recognises talaq-
sunnat and talaq-ul-biddat
ul-Sunnat only
• Maintenance Of divorced women
• A muslim is bound to provide maintenance (Nafqah) to the
folllowing:
• (a) wife (b) aged parents © children , grand children (4)
other relatives
• Wife
• I t is the duty of husband to maintain his wife. It is the duty
of the wife to be faithful to his husband. The husband need
not maintain his wife, who is not loyal to him and wilfully
resides with her parents, and neglects and behaves dis
obediently to her husband
• Law before 1986
• sec.125 Cr.P.C was in force regarding the
maintenancwe of Muslim women, equally with the
Hindu woman. Sec.125 provides that the husband is
bound to provide maintenancew to his wife,
children,legal or illegal, and old parents. The case
laws interpreteddddddddddddd that the section
gives the muslim woman to get the maintenancec
from her husband even after divorce, if she does not
remarry, and who is unable to maintain heer self
• Right of Muslim divorced woman to maintenance
• Case Mohd. Ahmed Khan Vs. Shah Bano Begum and
others
• AIR 1985 S C 945 Shah Bano ‘s case
• Md Ahmed Khan married Shah Bano in 1932. Three sons
and two daughters were born of that marriage. In 1975
the husband drove the wife out of the matrimonial home.
In April 1978 the wife filed a petitionn under Sec.125 Cr.P.C
before the Judicial First Class magistrate Indore, asking for
maintenance at the rate of Rs.5oo- per month
• she contends that her husband’s monthly earnings would cross
Rs.60,000 per year.
• Husband divorced the wife in 1978 by an irrevocable talawq His
deffence was that she had ceased to be wife by reason of the
didvorce granted by him. He was under no obligation to provide
mainttenancee
• And that he had already paid maintenance to her at the rate of
Rs.200 per month. For about 2 years and that he had deposited a
sum of Rs.3000- in thhe court by way of dower during the period
of Iddat,
• In 1979 the Learned Magistrate directed the husbandto pay a a
sum of Rs.25 p.m to the respondent by way of maintenance
• The wife filed a rrevisional petition before the High
Court of M.P for enhancement of mainttenancce.
The High Court enhnced the amount of maintenance
to Rs.179.20 per month
• Husband filed Special Criminal application before
the S.c He contended that according to the Muslim
Personal las ( Shariat ) Application Act, 1937 , he
need not provide maintenance to his divorced wife,
and the provisions of Sec.125 Cr.P.C would not apply
to the muslism husbands
• S.C rejected the contention of the husband
that Sec.125 of Cr.P.c providing maintainance
of divorced women who is unable to maintain
herself is in applicable to muslims The Court
further held that the deferred dower is a
payment on the divorce of wife and hence
such payment under the personal law
excludes the payment of any maintenance by
the husband to the wife was also rejected.
• It was said that Under Sec.127(3)(b) Cr.P.C
Mahr is an amount which the wife is entitled to
receive from the husband in consideration of
the marriage
• Effectt of Shah Bano Case
• This case caused sensational agitation among
the Muslim Cpmmunikty alleging that the
Supreme Court decision in Shah Bano sec.125
Cr,P.C overrides the Personal Law of Muslims.
• Law After Muslim Women (Protection of Rights of Divorce)Act.
1986
• Sec.5 Provides that if both the wife and husband give their
consent admitting the Sec.125 Cr.P.C through an affidavit, then
the concerned Magistrate or judge shall dispose of the case
according to Sec.125 of Cr.P.C
• V.R. Krishna Iyer Suggested that Sec.5 of the Act shalll have to
be amended by withdrawing the power given to the husband,
and instead such power shall have to bbe given to the wife
who is aggrieved party, then only the Act can be called as The
Muslim Women(Protection of Rights on Divorce Act, else it does
not give any fruitful results
• After 1986 Muslim husband is not bound to maintain his
wife after divorce. He has to pay maintenance for a period of
iddat only
• Points of the Act
• Sec.3 explains about Mehr or other properties of muslim
woman to be given to her at the time of divorce
• Sec.4 if the Magistrate ifr, satisfies shall order the relatives of
the wife to maintain her, if there are no relatives, then the
Wakf Board shall be obdered to pay maintenance to her
• Sec.5 Muslim husband my submit himself by an affidavit
accepting the provisions of Cr.P.c Sec.125
• Sec.6. Power of the central government to make
rules
• Sec.7 If any previous cases were pending under
Sec.125 Cr>P>c shall be disposed
• Muslim has the liability to maintain his wife until
the period of iddat only from the date of divorce,in
case of pregnancey until she del;ivers a child
• The liability of her maintaince of divorced wife
shifts from the husband to her relatives.
• If they refuse to maintain she may bring a suit
for her maintenance
• Maintenance shall be determined in each case
according to the standsards of that woman
relatives, and the property she has, if any
• If the divorced wife has no parents, relatives or
children but have no means or unable to
maintain, The Magistrate ma shall order the
State Wakf Board to pay maintenance.
• Muslim Husband if agrees the Sec.125 Cr.P.C. in
the case of maintenance by his wife, then only
Those provisions shall apply.
• The consent must be expressed by an affidavit
in writing
• The con sent may be joint or separate. It is
purely an option. It depnds upon the husband,
whether to opt Sec.125 Cr.P.C or not
• If. He does not like The Court may not compel him to opt
• Muslim wife is not entitled to maintenance in the following:-
• (i) If She abandons the conjugal domicile without valif cause
• (ii) If she refuses access to her husband without any valid cause
• (iii) If she is disobedient to his reasonable commands
• (iv) If she refuses to live with her husband without any lawful
excuse
• (v) If she has been imprisoned

•
• (vi) If she has eloped with somebody
• (vii) If she is a minor on which account
marriage cannot be consummated
• (viii) If she deserts her husband voluntarily
and does not perform her marital duties
• (ix) Muslim wife is not entitld to a decree for
past maintenance, unless the claim is based
on specific agreement between them
• Case : Mohd Shamshuddin Vs Noor Jahan
• AIR 1955 Hyd.144
• The question of maintenance to a divorced Muslim
women arose in the Nizam State. The then High Court
held that according to Koran a divorced women could not
be entitled to maintenance, except for Iddat period
• Facts Noorjahan and Shamshuddin were wife and husband.
After a long period of married lifef, he gave talak . She
filed a Criminal petition Before the Judicial First Class
Magistrate praying for maintenancce. The court granted
Maintenance Aggrieved by this order Husband filed appeal
• The High Court quashed the Judgment of the Judicial First class and
held that the divorcd women was not entitled to the maintenance
after the period of Iddat
• In Arab Ahemadhia Abdullah And others
• Vs. Arab Bail Mohmuna Saiyadbhai And others Air
1988 Guj. 141
• Facts Abdullah is the husband, Saiyadbhai is wife. He gave Talaq
to her in1984. SHE FILED A PETITION uNDERsEC.125 Cr.P.C. in
porbandar in 1984. The Magistrate ordered the husband to Pay
Rs.300/- per month to the wife towards maintenance
• Husband filed Revision petition before the Addl. Sessions Judge.
Who dissmissed and upheld the loewer court
• . Aggrieved by the decisions of trial and District Court
Husband appealed to High Court , by Spl. Cr. Application
• Husband contended that by the Muslim
Women(Protection of Rights on Divorce) Act, 1986. and
Muslim law his liability to provide maintenance of
hisdivorced wife was limited to the period of iddat,
despite the fact that she was unable to maibntain herself
• High Court rejected the appeal of the husband and held
that he was liableto maintenance
• Case Usman Khan Bahamani Vs. Fathimunnisa Begum
and Others
• AIR 1990 Sc 225
• Thewife had filed for maintenance Under sec.125 Cr.P. C.
• Court held that in view of Sec.3 of the 1986 Act
husband’s liability was limited to the period of iddat.
• Wife argued that under Act of 1986, while maintenace
may be payable for and during the period of iddat, a fair
and reasonable provision could be made for meeting her
future needs
• court did not accept this argument,
• as according to the court, this would amount to
negating the very purpose of the Act of 1986
• Court Held Sec.125-Sec.128 of Cr.P.C 1973 have
no application after the Act of 1986
• Kerala High Court Delivered a significant
judgment , which liberallyconstrued a Muslim
Divorced women right to maintenance under Act
Of 1986
• In K. Kunhammed Haj Vs. K.Amina
• 1995 Cr.L.J. 3371 (Ker)
• Court Held Muslim Divorced Women is entitled to a
fair and reasonable provision for her livelihood after
the period of iddat apart from maintenance during the
period of iddat
• In Shaikh Babbu Vs. Sayeda Masarat Begum 1999
Cr.L.J 4822 ( B0m)
• Where a divorced wife’s petition filrf under Sec.125
Cr.P.C 1973 was resisted by her former husband
• case, on the ground that afyer 1986, she could not
resort to Sec.125 Cr.P.C
• Bombay H.C made significant observation
• the law laid down by the Apex Court In Shah Bano
case has given a right to a divorced muslim women
to claim maintenance Under Sec.125 Cr.P.C against
herformerhusband and there is nothing in Act 1986
which states that Sec.125 Cr.P.C are not available to
such women as soon as the Act came into force
• It cannot be inferred from the provisions of Act, 1986,
that it was intended for the purpose of denying the
benefit to claim maintenance Under Sec.125 to a
divorced muslim women.
• The contetion raised by the petitioner that the
remedy for the claim of maintenance against
theformer husband is not available to a divorced
muslim women during her status as a divorced
women………. Leads to ‘’vialation of her constitutional
rights guaranteed under Art.14,15, an Art.21 of I.C
• Court Held
• Provisions of Act of 1986 are available to
adivorced muslim women for claiming
maintenance from her former husband in
addition to the provisions of ix of Cr.P.C and
they arenot in exclusion of each other
• After these decisions, it isdisappointing to
note that Andhra Pradesh Highourt
• In P.V. Khan Vs. Ashia Khatoon 2000 Cr.L.J 2124
• Held that a divorced muslim women cannot
avail Sec.125 of Cr.P.C 1973 after the coming
into force the Act 1986, unless she and her
husband exercise the option to be governed by
it
• In Shamshag Begum Vs. Md. Noor Ahmed
• 2001 Cr.L.J 2396 ( Ori)
• An order granting maintenance to a divorced muslim
women, before the Act came into force was held tobe
enforceable even after the Act came into force
• However in Md. Yameed Vs. State of U.P
• 1992 Cr.L.J 1804 (All)
• Court took a different view
• Where a wife filed execution prooceedigs in 1990 in
respect of non-complied maintenance order obtained in
1985
• Magistrate refused to pass any order in view of 1986 Act
• In revision by the wife, Sessions Court admitted her
application on the ground that the order made
before 1986 and so wasenforceable
• Husband filed revision before he High Court
• Which was allowed
• According to High Court In view of Sec.3 and Sec.4
and Sec.7 of Act 1986 a muslim womencabbot
maintain her application Under Sec.125 nd Sec.127
Cr.P.C oreven get an execution of an order already pa
• However In Chand Patel Vs. Bismillah Begum
• Air 2008 S.C. 1915
• Question
• Whether a muslim man, who married his wife’s sister, while
his first marriage is subsisting, is obliged to maintain the
second wife under Sec.125 Cr.P.C
• Coirt held that such marriage is temporarily prohibited or
irregular*fasid) and may be rendered lawful once the
prohibition is removed
• Therefore the husband is liable tomaintain her under Sec.125
Cr.P.C
• Humeera Khatoon Vs. Md. Yaqoob
• AIR 2010 NOC 707, (All)
• It was reiterated that maintenance for a
divorced Muslim Women and her entitlement
to an amount of maintenance awarded under
Sec.125 Cr.P.C cannot be restricted ony for
theiddat period. It Extends for entire life till
her remarriage
• Kerala High Court in
• Seenath Vs. Iqbal AIR 2010 NOC 636 (Ker)
• The Court was of ghe opinion that even if th
wife has upon her divorce received customary
dues like dower and ornaaments given to her by
her parents and relatives at the time of
marriage, she is still entitled to get fair and
reasonable provision and maintenance Under
Sec.3 of the Act of 1986
• The husband shall also pay her maintenance
during iddat period
• There is no escape route for former husband
to extricate himself ouut of statutory liability
by taking recourse to a plea that he had paid
the customary dues to his former wife
• Shahbana Bano Vs. Imran Khan
• AIR 2010 S.C. 305 It is a recent judgment of Supreme
Court which has clarified that a petition by divorced
Muslim women Undder Sec.125 of Cr.P.c against her
husband is maintainable even after the iddat period as long
as she does not remarry
• Husband’s preliminary objection that he had already
divorced her and therefore under the Act of 1986 , she
was not entitled to any maintenance after divorce and after
expiry of iddat period wasoverruled
• In this Case Family Court awarded maintenance
• Under Sec.12 Cr.P.C to the wife from thedate of
divorce till the expiry of iddat
• Wife’s revision petition was dismissed by the High
Court
• Hencecame o the Apex Court. This Court analysed the
satutory provision and the case
• Validity of the Act of 1986 whivh had become
socontraversial and confusing, leading to conflicting
jmnts causing hardship to divorced muslim wives
waschallenged before S.C
• In Daniel Latif Vs. Union Of India
• ATR 2001 S.C 3958
• Main grounds
• Sec.125 Cr.P.C is a provision made in respect
of women belonging to all religions and
exclusion of muslim women from the same
would be discriminatory between muslim and
non-muslim women
• It was argued
• (a) if the object of Sec.125 is to avoid
vagrancy ( without leaving), the remedy
thereunder cannot be denied
• (b) Apart from the gender injustice caused in
the country,, the discrimination further leads
to a monstruous proposition of nullifying a law
declared by this court in Shabano’’s case
• Thus there is a violation of not only equality
before law but also equal protecton o laws and
inherent infringement of Art.21 as well as bc
Human valuues
• © The Act is un-Islamic, un-constitutional
and it has the potential of suffocating the
muslim women and it undermines the secular
character which is the basic feature of the
constitution
• It was contended that there is no rhyme or
reason to deprieve the muslim women from the
applicability of Sec.1w25 Cr.P.C and consequentlt
the Act must beheld to be discriminatory
andviolative of Art.21 and Art.14
• According to the Court
• Sec.3 lays down
• Two separate and distinct obligations on the part
of the Muslim husband
• (i) to make a reasonable and fair provision for
his divorced wife
• (ii) to provide mainenance for her
• The Act of 1986 actually and in reality
codified what was stated in Shah Bano
• While upholding the validity of the Act,
summed up as follows:--
 (1) Muslim husband is liable to make
reasonable and fair provision for future of
the divorced wife, which includes her
maintenance as well
such a reasonable and fair provision
extending beyond the iddat period, must be
made by the husband, within the iddat period
Uner Sec.3 (1) (a) 0f the Act of 1986
• (2) Liability of muslim husband to is divorced wife
arising under Sec.3(1) (a) of te Act to pay
maintenance is not confined to iddat period
• (3) Amuslim divorced women who has not
remarried and who is not able to mmaintain herself
after iddat can proceed under Sec.4 of the Act
against her relaives who are liabl to maintain her in
proportion to the properties, which they inherit on
her death from the dovorced women, including her
children and parents
• If they are unable to mintain the magistrate may direct
the wakf Board to pay such maintenance
• (4) The provisions of the Act of 1986 do not offed the
Art, 14, 15 and Art.21
• Court without Striking the Act as ultravires of Art.14,
15 and Art.21 court has given t a construction. Which
will remove discrimination and hardship caused to
muslim divorced women
• This will ensure their financial security not only during,
but also beyond iddaat period untill they are remarried
 Chapter 12
Family courts Act 1984
• History
• Before 1984 the family disputes were settled in the Civil
and criminal Courts
• Family disputes arise in the families due to
psychological, social,, economical and emotional feelings
• Civil and Criminal could not concentrate on the family
issues
• Each problem is required to be treated separately and
emicably rather than to be settled in the civil and
criminal courts
• Hence the social and women organisations
judges jurisprudents urged the government to
make special Acts to deal with family matters
• Law commission in it’s 54 and 59 had
recommended to enact Special Act to deal with
family matters
• A a result, the Indian Parliament enacted the
Family Courts Act, 1984 which came into force
14.09.1984
• Objects

•(a) aggrieved parties are generally women, who are half of the
population. They are mostly illeterates, poor, lacking independence. The
family Courts give moral legal support to them
•(b) The family disputes arise from the human life that too from the family
life. They arise due to different psychological, social, economical, and
sensitive matters. These matters cannot be dealt in ordinary courts. The
family courts meet this requirement.
•
© In the ordinary courts rigid rules or practice pertaining to evidence are
followed. In the family courts this rigidity is lessened. There is no need
to take the assistance of advocates. The parties can plead their
grievance by themselves. However, on the request of the parties the
advocates are permitted
• (d) Conciliation
• Family courts promote conciliation and
secure speedy settlement of the disputes
relating to the marriage and family affairs and
the matters connected with marriages
• (e) Every suit or proceeding in these courts
may be held in camera, if either party so
desires
• Nature of disputes (Sec.7)
• To be settled in Family Courts
• (a) Suit or proceeding for a Decree of nullity of
marriage ( to declare the marriage to be null and
void or may be for annulling the marriage)or
R.C.R Or J.S, or dissolution of marriage
• (b) Suit od proceeding for a declaratrion as to the
validity of the marriage or the matrimonial status
• of any person
• © Suit or proceeding of the parties to a marriage with
respect to the property of the parties or either of them
• (d) A suit or proceeding for an order or injunction in
circumstances arising out of marital relationhip
• (e) For a declaration as to the legitimacy of any person
• (f) for maintenance
• (g) Suit or proceeding in relation to the guardianship
of the person or the custody, or access to any minor
• Jurisdiction
• Family Court is equal to District Court and subordinate
to High Court
• High Court has original and appellate jurisdiction over
the familly matters
• Hindu Marriage Act clearly states that all matrimonial
cases shall be heard by the District Court. The same
jurisdiction is given to the Family court
• Generally woman is appointed as the judge of the
family court
• The court shall also have and exercise
• (a) the jurisdiction exercisable by a Magistrte of the First
Class under Chapterix ( relating to order for maintenance
of wife, children, parents of the Cr.P.C 1973(2 of 1974)
• (b) su ch other jurisdiction as may be conferred on it by
any other enactment (Sec.7)
• Family court cannot entertain an application Under Se.3
of the Muslim Women(Protection of Rights on Divorce)
Act, 1986. Hence Muslims are excluded from the
jurisdiction of Family Courts.
• Family court has no authority to interfere in other matters,
except in the matters specified in Sec.7
• It cannot grant a Succession certificate. It cannot entertain
matters Under Sec.9(4) of the Hindu Adoptions and
Maintenance Act 1956
• Family courts exercises jurisdiction over Sec.125 Cr.P.C.
After the establishment of Family Court, the Judicial First
Class Magistrate loses his jurisdiction under this section.
Any proceeding pending before him on the date of
establishment of this court shall have to be transferred to
the family court . He caccot pass final orders
• Where a Family court is established the district
court or any subordinate civil court ceases its
jurisdiction over the matters (Sec.7)
• Conciliation in the family Disputes
• Ancient Hindus did not know about the concept of divorce
• though there were disputes between the spouses Elders
used to settle the disputes by way of mediation .
• Young gave respect to the decisions of the elders
• Village heads usedto settle the disputes between the wife
and husband
• In those days the wife also could not come out
of the matrimonial house, due to illeteracy.
Even the parents of the wife did not support
her.,
• Position has been changed. Now there are
no elders. Even parents have become burden
to the new couple. As soon as the younger
people are married, they are separating from
their parents
• Entire Joint family system is almost collapsed. Now there
are no elders to mediate the disputes between the wife
and husband
• Divorce, judicial separation have been crept in to the
Indian Domain by the British Courts
• This system affected the family relations .
• Nullity of marriage and divorce are the drastic steps in
family. They put an end to the Holy Institution of Hindu
Marriage.
• For small causes either of the spouses is approaching the
court of law and it increased the burden of courts
• Law commission has recommended to enact a
Special Act to ensue special provisions for the
conciliation and mediation in such law.
• Hence the Family Courts Act, 1984 came into
existence
• Object of this enactment is not only to settle the
disputes between the husband and wife but also to
reestablish the amicable relationship
• Before deciding the case, Family Court, First tries to
conciliate the parties
• According to Sec.9 of the Family Courts Act, 1984, It is the duty of the court to
make efforts for settlement
• It means it is not the first duty of the Family Court to decide the case on the
evidence and to separate the spouses by issued a Decree of Divorce. If the Famil
Court grants or refuses any diuvrce, as early as possible, the problem does not
solve in its entirety. The number of cases will certainly be increased. For the
smallest causes, the spouses approach the courts like in western countries. It
leads to social unrest. There fore, Sec.9 imposes the duty upon the Family court
to make all necessary efforts for settlement, but not to grant the divorce or
judicial separation immediate

• Sec.11 of the Act, states the proceedings of the court shall be held in Camera.
Family dispute is enquired by the court, other parties and advocates are not
allowed. Only judges and parties, if the permission is given their advocates can
present in the court. The proceedings should not be published in the courts
• Conciliation
• Depending upon the nature of the case, The
Family court is empowered to direct the
parties to approach the Conciliation. For this
purpose, if necessary and the court thinks that
the dispute will be solved between the
spouses by the conciliation, the court adjourns
the case for months together
• Association of Social welfare Agencies (Sec.5)
• The State Government may in consultation with the High
Court provide for the association with a Family court ,by rules
• (a) institution or organisations engaged in social welfare or
the representatives thereof
• (b) Persons profefsionally engaged in promoting the
welfarew of the family
• © Persons working in the field of social welfare
• (d) any other person, whose association with a Family court
would enable it to exercise its jurisdiction more effectively in
accordance with the purposes of the F.M.Act
• Appointment of Counsellors, Officers, and other employees of
the Family Court
• (Sec .6) This Section empowers the State to appoint the
Counsellors, Officers and other employees to assist a Family
Court in discharge of its functions
• Counselling Centres
• This Act empowers the State to establish the Counselling
Centres in each city, town or area to be known as “the
Counselling Centre of the Family Court. And to appoint
counsellors for conciliation between the parties. Generallyn the
counsellor must possess a Master”s degree in social work with
minimum experience of certain years in family counselling.
• Such a councellor must present in the family court
in the concerned case and must explain his efforts
to conciliate the parties in disputes to the court
• Functions of the counselor
• The counsellor entrusted with any petition shall
assist and advise the parties regarding the
settlement of the subject matter of dispute
between the parties or ant part thereof.He shall
also help the parties in arriving at reconciliation
• The Counselor on discharge of his duties is
entitled to visit the homes of any of the parties,
and to interview the relatives, friends and or any
of them.. He may seek any information required
to settle the disputes from the employer of any
of the parties. He may refer the parties to an
expert in any other area such as medicine or
psychiatry. On the advise of the Counselor, the
Family court may prepare a panel of experts.
• List of Institutions, Agencies
• Family Court shall prepare a list of
institutions, agencies, organisations working
in the are a of family welfare, child guidance,
employment, or in any other area that it may
deem fit in order to enable a counselor or
parties to obtain the assistance of such an
institution, organisation or agency
• Confidentiality
• It is the duty of the counselor not to disclose the
information gathered from the spousesd and other
relatives to the court, except with the consent of both the
parties
• Evidence
• The counselor shall submit a report, information, or any
thing required in the dispute to the Family Court, but he
shall not be permitted to give evidence or cross-examined,
in any court in respect of this information, settlements,
notes or report.
• Settlement before counselor/conciliator
• When arrive a settlement before the
counselor/conciliator relating to the dispute or any
part thereof, such settlement shall be reduced to
writing and shall be signed by the poarties and
countersigned by the counselor/conciliator. Basing
upon , thevfamily court pronounce a Decree or
Order in terms thereof, unless the Court considers
the terms of the settlement unlawful or un
conscionable
• Counselor/conciliator”s duty to Supervise custody of
children
• He will be entitled to supervise the placement of children
in custody of a party and will be entitled to pay surprise
visits to the home where the child resides. In the event of
the counselor/conciliator coming to a conclusion that any
alterations is required in the arrangement relating to the
custody of a child and/ or children, he will make a report
to the family court . Thereupon the court may after notice
to the parties, pass such orders in that connection as the
court may deem
• Right to supervise reconciliation
• He is authorised to supervise guide, or assist
reconciled couples, although the matter is
longer pending in court