This Article is written by Chitrankshi, intern at Legal Vidhiya
This article is regarding the dissolution of marriage under the Muslim Marriage Act,1939. It covers the grounds on which divorce can be seeked by Muslim women. It also addresses the doubts regarding the effects of renunciation of Islam by a married woman on her marriage tie.
Earlier, the Muslim women faced a lot of cruelty and lived in misery as there was no provision in the Hanafi Code of Muslim Law to allow a woman to get a decree from the court for dissolution of her marriage. Then this act came into existence on 17th March, 1939. This is different from divorce seeked by a husband under the Muslim law. In total, it consisted of six sections, out of which section 6 was repealed and now has five sections.
- The section 1 of the act introduces us to the title of the act and its extension.
- Section 2 is an important section, it states grounds for the dissolution of the marriage under which, the wife can ask for a decree of divorce.
- Section 3 of this same act talks about the heirs of the husband when the whereabouts of the husband are not known.
- Section 4 is an another important section here that talks about the effects of conversion of faith by Muslim women.
- The then penultimate section, section 5, says that the rights to dower of the Muslim women shall not be affected as a result of such dissolution.
ANALYSING THE SECTIONS IN DETAIL:
We have got a brief understanding or an overview of the act till now, and can further analyse or study the sections in detail.
The section 1 of the act introduces us to the title of the act- Dissolution of Muslim Marriages Act, 1939 and says that it shall extend to the whole India, except for the states of Jammu and Kashmir.
This section talks about the grounds under which a Muslim woman can ask for divorce and dissolve the marriage with her husband. This consists of a total of nine clauses or grounds for the women to get entitled for a decree for the dissolution of her marriage.
The grounds are mainly under the titles of- cruelty, negligence, absence and incompetence.
The grounds are as follows:
i)Cruelty: it consists of such acts of the man like –
- When the husband assaults her and makes her life miserable even if his conduct does not amount to physical ill-treatment.
- Associates with women of evil repute
- Forces or attempts to force her to lead an immoral life.
- Disposes off her property or prevents her from exercising her legal rights which she has over it.
- Obstructs her when she practises her religious profession.
- In case he has more than one wife, he does not treat her properly and equitably according to the injunctions of the Quran.
ii)Negligence: it consists of the situations where:
- The husband has failed to provide for maintenance of her wife for a period of seven or more years.
- He has failed to perform his marital obligations, without any valid causes, for a period of three years.
iii)Absence: it consists of the situation where the:
- Whereabouts of the husband have not been known for a period of four years
Condition: the divorce decree passed on this ground shall not take effect for a period of six months from the date of passing such decree. This is because if the husband appears either in person or through any authorised agent within that period of six months and satisfies the court that he is prepared to perform his conjugal duties, then the court shall set aside the decree.
- Husband has been sentenced to an imprisonment for a period of seven years or more.
Condition: no decree shall be passed on this ground until the sentence has become final.
iv)Incompetence: it consists of the events when and if:
- The husband was impotent at the time of the marriage and continues to be so
Condition: if the husband submits an application, then the court shall make an order requiring the husband to satisfy the court that he has ceased to be impotent, within a period of one year from the the date such an order has been passed. If the Court is satisfied within such period, then no such decree shall be passed.
- He has been insane for a period of two years or if he is suffering from a virulent venereal disease
v)other grounds: there may be other grounds too on which a Muslim woman can ask for divorce:
- That if she has been given in marriage by her father or any other guardian even before she attained the age of fifteen years, repudiated the marriage before she attained the age of eighteen years, provided that the marriage has not been consummated.
- Other valid grounds which are recognised as valid for dissolution of marriage under Muslim law.
SECTION 3: talks about the legal heirs and representatives of the husband.
When the whereabouts of the husband have not been known for a period of four years:
- The names and addresses of the people who would have the heirs of the husband, under the Muslim law, in case of his death on the date of filing of the plaint shall be stated in the plaint.
- The notice of the suit shall be served on such persons and they have the right to be heard in the suit.
- If there are any paternal uncle or brother of the husband then they shall be considered as party even if he himself or they are not the heirs.
Talks about the effects of renunciation of Islam by married women or their conversion to another faith. It says that conversion to Islam itself does not dissolve the marriage by itself.
After renouncing Islam or converting to other religion, the woman is entitled to obtain the decree of divorce on one of the grounds mentioned in section 2.
Condition: the provisions of this section does not apply to women who converted to Islam from any other faith and they take up their former faith.
This section says that no provision of this act shall affect any rights which the Muslim women may have to her dower or any part of it due to dissolution of her marriage.
Under this heading, you will find certain case briefs which would enhance the understanding of this act.
i)MD. ABDUL ZALIL AHMED V. MUSTT. MARINA BEGUM (16 JULY, 1998)
In this case, an application of divorce was filed by a woman under The Dissolution of Muslim Marriage Act,1939. The ground stated in the application was that the husband failed to perform his marital obligation without any reasonable cause and treated her with cruelty which made her life miserable (physical torture and ill treatment). These were the grounds mentioned in section 2 of the same act. And hence a joint application was filed by both the wife and the husband requesting the court to pass a decree of divorce. Hence, the learned Family Court passed an order in the favour of the applicant for the same and under the grounds mentioned in section 2.
ii) ABDUL AZEEM V. FAHIMUNNISA BEGUM:
The husband was sued by the wife for failing to maintain her for a period of two years. She was married in 1952 and went to her parents’ house in 1955. Later on, her husband married again. The suit failed on this basis as polygamy was allowed in Mahomedan Law and there were no other grounds.
iii) UMAT-UL-HAFIZ V. TALIB HUSSAIN:
In this case the husband went abroad and left behind his two wives. He provided maintenance to one wife but failed to do the same for the other. The court granted the decree for divorce to the neglected wife on the grounds of negligence, unequal treatment and cruelty mentioned in section 2 of the act.
iv) ZUBAIDAA V, SARDAR SHAH:
It was expressed as a view that its not always easy to determine that for what purpose the husband sold his wife’s property, he may do that for the benefit of his wife, children or family. Unless the property is disposed for selfish needs and in the sense of waste and all this is done to deprive the wife of her property and without her consent, then it would come under the ground of offence of cruelty.
v) SHAKLA BANO V. GHULAM MUSTAFA:
It was observed that an unwilling wife cannot be forced to live along with her husband. It was also said that to constitute cruelty, there is no need of actual violence or only the physical violence is considered as cruelty. Likeliness of the occurrence of violence and mental agony also come under violence.
This act has proved to be a boon for the Muslim women. But this act does not throw light upon the aspects of inheritance, custody of children, etc. Though everything has its demerits as well, we are always more concerned abouts merits it brings for us.