GROUNDS UNDER DISSOLUTION OF THE MUSLIM MARRIAGE ACT, 1939

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This article is written by Prasun Priya of 4^th Semester of ICFAI University, Jharkhand, an intern under Legal Vidhiya

ABSTRACT:

The main aim of this article is to give a brief detail about the topic Grounds under Dissolution of the Muslim Marriage Act, 1939. The Act cover all the grounds of divorce that a Muslim women look up for divorce. Before 1939 wife can only get divorce on the basis of extrajudicial modes that are Talaaq-i-tafweez and Lian but after 1939 when the Muslim Marriage Act, 1939 come into force wife can also claim divorce through judicial mode. The act defines the grounds for divorce and the procedure for the purpose.

Keywords: – Marriage, dissolution, Muslim, divorce, talaq, judicial separation.

INTRODUCTION:

“Half of the Indian population is women. Women have always discriminated against and have suffered and were suffering discrimation in silence. Self- sacrifice and self- denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities and discrimation.”

James k. Rama Swamy

The ultramodern society and its possible consequence similar as fast changing socio profitable condition, the rapid-fire decomposition of the common family structure, the development of industrialization, education and employment and law giving equal status and equal right to women, it also led an impact on the institution of marriage. In the once time divorce was known as wrong in the society hence the ground of divorce is veritably limited. Now from time to time the situation and position have changed. Likewise Hindu law, Muslim have their own specific law, which state that Nikaah or marriage is an agreement and may be endless or non- permanent. In the earlier time Muslim women faced a lot of brutality and lived in an unhappiness life because there’s no provision related to dissolution of her marriage in the Hanafi Code of Muslim Law. The dissolution of Muslim Marriage Act came in actuality on 17th March, 1939

DISSOLUTION OF MARRIAGE:

Before knowing about dissolution of marriage first we’ve to understand the meaning of marriage in Islam. Marriage (Nikaah) is defined to be a contract which has for its object the gravidity and the legalizing of the children.^[1] (hidayatullah, 2005)[1]

Marriage according to the Mahomedan law isn’t a sacrament but a civil contract. All the rights and duty it creates arise incontinently and, aren’t dependent on any condition precedent similar as the remission of dower by spouse. ^[2] (Abdul kadir v salima, 1886)

When a spouse and a woman get separated and dissolved all this duty that’s known dissolution of marriage. Before Talaq is the only system of dissolution of marriage.

Dissolution of marriage can be done by three ways that are as follows:

By the death of the parties.
By the act of parties.
By the act of judicial proceeding.

By the death of the parties: When there’s a death caused to the husband of Muslim woman also, she has to complete the process of iddat. Iddat is that period of staying on completion of which makes new marriage valid, this is similar a period in which women cannot marry on the dissolution of first marriage.
By the act of parties:Dissolution of marriage by the act of the parties divided in three categories
By the act of husband
By the act of wife
By the act of both the parties.
By the act of husband: 1. Talaq, 2. ILA, 3. Zihar, 4 Lien

Talaq is principally divided into 2 categories: –

Talaq-ul-Sunnat
Talaq-ul-Biddat
Talaq-ul-sunnat: Divided into 2 parts
Talaq- Ashan 2. Talaq- Hasan
Talaq Ashan: (veritably stylish, veritably proper form of talaq)
A single pronouncement is made by the spouse for Divorce.
The pronouncement is made during tuhr (period when women aren’t menstruating).
Spouse abstains from sexual intercourse.
Talaq Hasan: (good, proper from of talaq)
Three pronouncements of talaq made during consecutive tuhr.
Abstinence from sexual intercourse until the third pronouncement.
Talaq-ul- Biddat: Talaq- ul- Biddat is honored by the Sunni academy. This form of talaq is for immediate divorce. It’s irrevocable form of divorce. It’s banned in utmost of the Islamic nation of the world.

Shayara Bano v/s union of India and others^[3] (Shayara Bano v Union of India , 2017)India the conception of talaq has been abolished and it was made unconstitutional.

ILA: – It’s a type of formative divorce, in this the spouse promises of abstinence and if he keeps the oath for 4 months woman gets right to seek a judicial divorce.
Zihar: Zihar is a form of incipient divorce. If the spouse compares his woman to any of his womanish relations within similar banned degrees as under marriage also woman has base to dissolve her marriage.
Lien: When spouse falsely attribute of infidelity to his woman also it’s a ground of divorce.
By the act of wife: Talaq- ul- tafuis is a power delegated to woman from his spouse. Spouse can delegate his power of talaq to some third person or to his woman. The power could be delegated absolutely or conditionally, for a particular period of time or permanently. Temporary delegation is irrevocable, but an endless delegation may be abandoned.

Latif Unisa Case^[4] (Danial Latifi and another v Union of India, 2001)the spouse authorizes the woman to divorce herself from him in the event of his marrying an alternate woman without her concurrence is also valid.

By the act of both the parties: By collective concurrence talaq can be done in 2 manners that are as follows: –

Khula.
Mubrat.
Khula: Khula is a divorce with the concurrence and at the case of the woman. Khula or redemption literally means to lays down. In law it means lying down by a husband of his right and authority over his woman.
Mubrat (Mutual separation): Mubrat is also form of divorce where marrying is dissolved by agreement between the parties. In Mubrat woman isn’t needed to pay any compensation.

The difference between the two is that in Khula, the aversion is on the side of the woman and she desires a separation, whereas in Mubrat the aversion is collective and both the parties ask a separation.

DISSOLUTION OF MARRIAGE BY JUDICIAL PROCEDURE

Marriage is a contractual relationship between two parties. The entire essential that are need for a contract are available under Muslim Marriage. The dissolution of marriage was made in 1939, under the Muslim Act for womanish to get the right to dissolve her marriage in certain case. Under section 2 of the Dissolution of Muslim marriage Act, 1939 provides nine grounds through which a woman can gain a decree of Dissolution of marriage in the court through judicial proceeding.

The grounds of dissolution of marriage are as follows:

Absence of spouse
Maintenance
Imprisonment
Failure to perform martial obligation
Impotence of spouse
Insanity, Leprosy or Venereal Disease.
Option of puberty
Cruelty
Other grounds

Now we talk about each of the ground in brief:

Absence of spouse: – Where about of the spouse is not been known or missing for a period of four years or above.
Maintenance: – If the spouse fails to give maintenance to his wife for a period of 2 years or above.

Some exceptions are also there in which there is no protection available before spouse on the ground if he come under poverty, falling health or unemployment.

Imprisonment: – Sentence of imprisonment on the spouse for a period of 7 years or above.
Failure to perform martial obligation: – If the spouse not performing any martial obligation without any reasonable cause for a period of 3 year or above.
Impotence of spouse: – If the spouse is impotent at the time of marriage and keeps on being so.

In the case of Gul Mohd. Khan v. Hasina;^[5] (Ghulam Mohammad Khan v Hasina, 1987) the wife file a suit for the dissolution of Marriage on the ground of impotency. The spouse made an application under the steady gaze of the court looking for a request for demonstrating his strength. The court permitted him to demonstrate his potency.

Insanity, Leprosy or venereal Disease: – If the spouse is insane or experiencing nauseous or any sexually transmitted disease from a time of 2 years or above, legal separation by wife can be guaranteed.
Option of Puberty: – If a girl is married before the age of majority by her father or by the guardian, then she has been given the right to repudiate such type of marriage after attaining the age of puberty that is 18 years of her age also the marriage is not consummated. She is allowed for legal separation from such marriage.
Cruelty: – if the spouse assuming the husband serves his wife with. barbarism, she can move toward the court and case for a proclamation of legal separation.

In the case of Russell v Russell^[6] (Russell v Russell, 1924)the court said following point comes under the term cruelties that are:

If the spouse beats wife consistently and it become really hard for the wife to live.
If the spouse has extra martial relationship.
If the spouse compel wife to do immoral activity.
If the spouse transfers the properties of wife frequently.
If the spouse has two or more wife and does not treat each other equally.
Other Grounds: – Any other grounds which is recognized as valid the wife is entitled to obtain a divorce on those grounds.

CONCLUSION

The main end of dissolution of marriage Act 1939, to give the right to woman to take their decision on the matter of judicial separation. Before these Act only men have the right of Talaq not women as by this it come an injustice for women. This act has proved to be boon for the Muslim Women. But as every act has its own graces and faults as this act doesn’t talk about heritage, guardianship of children etc after dissolution of marriage. This act provides a vast ground to women for dissolution of marriage. In last 20 times except for some pro-women judgments, there has been no forward movement in the trouble to reform the Muslim law by codifying it and making it slightly applicable to the entire Muslim population across the country.

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