Under S. 2 of the Act, a woman married under Muslim law is entitled to obtain a decree for the dissolution of her marriage on any one or more of the following nine grounds:
1. The whereabouts of the husband have not been known for a period of four years: S. 2(i).
A decree passed on this ground does not take effect for a period of six months from the date of such a decree. If the husband appears, either in person or through an authorised agent, within that period, and satisfies the Court that he is prepared to perform his conjugal duties, the Court must set aside the decree.
Image Source: m.c.lnkd.licdn.com
ADVERTISEMENTS:
2. The husband has neglected or has failed to provide for the maintenance of his wife for a period of two years: S. 2(ii).
Failure to maintain the wife need not be wilful. It may be due to poverty, weak health, and loss of work, imprisonment or any other cause. Even if the wife is rich, she is entitled to maintenance.
A Muslim had two wives, A and B. He went out to Africa, leaving his wives in India. While he was providing A with a home and maintenance, he made no arrangements for the maintenance of В for more than two years. He wrote to В from Africa to follow him to Africa, but did not send any money for her passage.
ADVERTISEMENTS:
It was held that the husband had neglected or failed to provide for the maintenance of В for a period of two years within the meaning of section 2(ii). As the husband had failed to provide for the maintenance of B, it could not be said that he had treated her equitably in accordance with the injections of the Quran within the meaning of section 2, and that В was entitled to a decree for divorce. (Mt. Umat v. Talib, A.I.R., 1934 Lah. 310)
3. The husband had been sentenced to imprisonment for a period of seven years or more: S. 2(iii).
However, no decree can be passed on this ground until the sentence has become final.
4. The husband has failed to perform, without reasonable cause, his marital obligations for a period of three years: S. 2(iv).
ADVERTISEMENTS:
5. The husband was impotent at the time of the marriage and continues to be so. However, on an application by the husband, the Court must make an order requiring the husband to satisfy the Court, within one year from the date of such order, that he has ceased to be impotent; and if the husband so satisfies the Court within such period, no decree can be passed on this ground: S. 2(v).
6. The husband has been insane for two years, or is suffering from leprosy or a virulent venereal disease: S. 2(vi).
7. The wife, having been given in marriage by her father or other guardian before she attained the age of 15 years, repudiated the marriage before attaining the age of 18 years, provided the marriage has not been consummated : S. 2(vii).
Option of Puberty:
This sub-section recognises the old Muslim law rule, as to option of puberty (Khyar-ul-bulugh). Linder the law prior to the passing of this Act, if a minor girl who was given in marriage by the father or grandfather, wanted to repudiate the marriage on attaining puberty, she had to prove that the father or grandfather had acted negligently or wickedly.
After the passing of this Act, she need only prove that (i) she was given in marriage before she attained the age of 15; (ii) she repudiated the marriage before she attained the age of 18 years; and (iii) the marriage was not consummated.
8. The husband treats her with cruelty, that is to say, —
(a) Habitually assaults her or makes her life miserable by cruetly of conduct, even if such conduct does not amount to physical ill-treament; or
(b) Associates himself with women of evil repute or leads an infamous life; or
(c) Attempts to force her to lead an immoral life; or
(d) Disposes of her property or prevents her from exercising her legal rights over it; or
(e) Obstructs her in the observance of her religious profession or practice; or
(f) He has more wives than one, and does not treat her equitably in accordance with the injunctions of the Quran; S. 2(viii).
9. On the other ground which is recognised as vaild for the dissolution of marriages under Muslim law: S. 2(ix).
The last ground would cover laan, ila and zihar. A divorce cannot be granted under Muslim law solely on the grounds of incompatibility of temperaments, dislike, or even hatred, found to have been aroused in the mind of the wife, either justifiably or without any justification.
The fact, therefore, that the plaintiff (a Muslim wife) had begun to hate her husband, and that it was not possible for her to live with him at any rate, with peace and comfort, is not sufficient to enable the Court to grant her divorce under this last ground. Incompatibility of temperaments and hatred of the wife for her husband are not recognised grounds of divorce under Muhammadan law. (Umar Bibi v. Mohammad Din, (1944) Lah. 542)
Effect of Apostasy from Islam on Marriage (S. 4):
The renunciation of Islam by a married Muslim woman, or her conversion to a faith other than Islam, does not, by itself operate to dissolve her marriage. But after such renunciation or conversion, the woman is entitled to obtain a decree for the dissolution of her marriage on any of the abovementioned grounds.
Although apostasy of a Muslim woman is not, by itself, a ground for dissolution of her marriage, the conversion of a woman converted to Islam from some other faith to her original faith does, by itself, operate as an automatic dissolution of her marriage.
Thus, section 4 does not apply to a woman who is converted to Islam from some other faith, and re-embraces her former faith. Thus, if a Hindu girl becomes a convert to Islam and marries under Muslim law, the marriage would be ipso facto dissolved, on her renouncing Islam and re-embracing Hinduism. If, however, she does not remembrance Hinduism, but becomes a convert, say, to Christianity, the marriage would not be dissolved.
Before the Dissolution of Muslim Marriages Act, apostasy from Islam by one of the married pair operated as a complete and immediate dissolution of their marriage, which took effect immediately, without requiring the decree of a judge, and without being a repudiation of the marriage, whether the conversion was before or after consummation (i.e., completion of marriage by sexual intercourse).
After the passing of the Act, as a result of S. 4 of the Act, apostasy of a married Muslim woman does not, by itself, operate to dissolve her marriage. That section gives an option to the wife to sue her husband for divorce on any one of the grounds enumerated in S. 2 of the Act.
Apostasy from Islam of the husband, even after the Act of 1939, will operate as a complete and immediate dissolution of the marriage, as section 4 of the Act mentions a married Muslim woman, and not a man.
Divorce and Apostasy:
The marriage of a Muslim with an English woman, solemnized at the Registrar’s office in London is a Christian marriage, which means a voluntary union for life of one man arid one woman to the exclusion of all others. Therefore, he can divorce his wife under the Divorce Act, but not by any of the forms of divorce recognised by the Muhammadan law.
According to the strict Muhammadan law, an apostate has no right to contract his infant daughter, who is a Muslim, into marriage with another. But this rule of Muhammadan law has been abrogated by the Freedom of Religion Act, 1850, according to which no law or usage can inflict on any person who renounces his religion any forfeiture of rights or property.
Problem:
A Muslim married a Jain woman, after converting her to Islam. After 5 years of married life, she renounced her religion and embraced Christianity. The husband sued her for restitution of conjugal rights. She contended that renunciation of Islam by her operated as a divorce. Will she succeed? Give reasons.
Ans:
Linder S. 4 of the Dissolution of Muslim Marriages Act, renunciation of Islam by a Muslim married woman cannot, by itself, operate as a divorce. The wife’s apostasy from Islam, in this problem, would have dissolved the marriage if she had embraced her former faith, i.e., Jainism. But instead, she embraced Christianity, a new faith. The marriage is, therefore, not dissolved. The husband will succeed.
It is further provided that nothing in the Act is to affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage. (S. 5)
How far the Act has improved the position of Muslim women:
Before the passing of this Act, there was no provision for obtaining relief by a married woman on the following grounds : (1) whereabouts of the husband being unknown; (2) failure of the husband to maintain the wife; (3) failure to perform marital obligations; (4) husband sentenced to imprisonment for 7 years; (5) husband’s insanity or his suffering from leprosy or virulent venereal diseases; (6) that she was given in marriage by her father before attaining puberty; and (7) cruelty. In such cases, a married Muslim woman could have recourse only to one device, viz., and apostasy.
The present Act improves her position to a great extent, as she can claim judicial divorce on these grounds. On the other hand, her right to her dower, or any part thereof, on the dissolution of her marriage, is also preserved by the Act.
Defences to a Suit for Restitution of Conjugal Rights by a Husband against the Wife:
A Muslim husband may sue his wife for restitution of conjugal rights, where his wife, without lawful cause, ceases to cohabit with him or neglects to perform marital obligations.
The following are the nine well-recognised defences open to a wife in such a suit:
1. Gross failure by the husband to perform his marital obligations regarding her maintenance, residence, etc.
2. Non-payment of prompt dower.
Non-payment of prompt dower is a complete defence in the suit filed before consummation; if it is filed after consummation, the decree will be for restitution, conditional on payment of the prompt dower.
3. Cruelty of such a character as to render it unsafe for the wife to return to her husband.
4. Actual violence of such a character as to endanger the wife’s personal health and safety or reasonable apprehension of such violence.
5. Unfounded accusation of adultery.
6. Apostasy of the husband.
7. Expulsion of the husband from the caste.
8. Irregularity of the marriage.
9. Marriage avoided by the exercise of the option of puberty.
Legal Effects of Divorce:
The following are the five legal effects of a Muslim divorce:
(1) Right to Contract another Marriage:
If the marriage was not consummated, the wife is not bound to observe iddat and she may marry again immediately.
However, if the marriage is consummated, the wife is bound to observe iddat of divorce, which is three menstrual periods. If, for any reason other than pregnancy, she is not subject to menstruation, the corresponding period is three lunar months. If the wife is pregnant at the date of divorce, the period of iddat is until delivery or three months, whichever is longer.
(2) Maintenance:
During the period of iddat, the husband is bound to maintain the wife. If the divorce is not communicated to the wife, she is entitled to maintenance even after the expiry of that period, until she is informed of the divorce.
(3) Dower:
(i) If the marriage was consummated the wife is entitled to the whole of the unpaid dower, whether prompt or deferred.
(ii) If the marriage is not consummated she is entitled to half of the specified dower.
(4) Mutual Rights of Inheritance:
When the divorce becomes irrevocable, mutual rights of inheritance between the husband and wife cease to exist. There is one exception to this, viz., in the case of a divorce given during death-illness (Marz- ul-Maut), in which case, the wife’s right to inherit continues till the period of iddat is over.