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Introduction
Under the Muslim Law, a marriage is dissolved either by the death of the husband or wife or by divorce. After the death of a wife, the husband may remarry immediately. But the widow cannot remarry before a certain specified period called Iddat expires. Generally, both the parties to the marriage contract have an opinion for divorce, but the husbands right in this respect are much greater than that of the wife. The husband can dissolve the marriage tie at his will. A divorce can also take place by mutual agreement. But the wife cannot divorce herself from her husband without his consent. She can, of course, purchase her divorce from her husband and can have the marriage dissolved by Tafweez (delegation). Marriage may also be dissolved by judicial decree under the Dissolution of Muslim Marriage Act, 1939.
As the field of Personal Law is a vast field so I have restricted the scope of this assignment paper to the concept of judicial divorce under Muslim law and its position India.
This paper will also look at the elements of difference between the various statutes, keeping in mind the feasibility of trying to resolve such differences in order to come up with a single, comprehensive law, at least as regards judicial divorce.
JUDICIAL DIVORCE (faskh)
By judicial divorce, we mean a divorce by the order of a court of law. Islam provides for the dissolution of a marriage by a Kazi or Judge. On the application of a wife, if the marriage was found to be harmful or undesirable for her, the Kazi could dissolve the marriage. The power of a Kazi or Judge to pronounce a divorce is founded on the express words of Prophet Mohammed: ‘If a woman is prejudiced by a marriage, let it be broken off.’
However, despite the Quranic injunction and the traditions of the Prophet, the Anglo-Indian courts have not recognized Muslim wife’s right of judicial divorce on grounds other than Lian and impotency of the husband.
Before 1939, a Muslim wife could seek her divorce by a judicial decree only on the ground of (1) false charge of adultery by the husband against her (Lian), or (2) impotency of the husband, and on no other grounds. On the other hand, the husband need not go to the court at all as all the forms of divorce (Talaq, Ilia, Zihar, Khula or Mubarak) depend solely upon his will.
Therefore, under pure Muslim law, a Hanafi wife could hardly get any relief against her unwilling husband on any other ground except the above mentioned two grounds. But under the Shafie and Maliki laws, a wife was entitled to get a degree from the court for dissolution of her marriage on the grounds of husband’s failure to maintain her, desertion, cruelty, etc.
Therefore, there were conflicting provisions in the various schools of Muslim law in respect of divorce by a wife through judicial intervention. It was felt by the right-thinking person’s of the Muslim society and also by the Government that great injustice was being done to a Muslim wife in the matter of matrimonial relief.
Accordingly, the Dissolution of Muslim Marriages Act, 1939 was enacted by the Central Legislature and it came into force on the 17th March 1939. Under this Act, a wife married under Muslim law, may seek divorce by a judicial decree on any of the grounds enumerated therein. The Act is applicable to all the wives married under Muslim law irrespective of their schools or sub-schools.
DIVORCE UNDER THE DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939
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1 The Muslim Law, Prof.(Dr).R.K Sinha,Central Law Agency, Sixth Edition, Pg-97-
ground, the court shall give notice of her suit to all the heirs of her husband (as on the date of suit) and to his brothers and paternal uncles (whether heirs or not). Each of these persons will husband comes back and the court is satisfied with his willingness to perform his conjugal duties, the decree shall be set aside. The law in Jammu and Kashmir provides that a decree passed on this ground shall not take effect for a period of one year from the date of such decree and if during such period the husband either appear in person before the court or satisfies the court through an authorised agent as to his whereabouts, the court shall set aside the said decree. However, there was no such a case pending in the courts of Kashmir.have a right to be heard4. When a decree for faskh is passed by the Court of Law, it shall remain in abeyance for six months. If during this period, the husband comes back and the court is satisfied with his willingness to perform his conjugal duties, the decree shall be set aside. The law in Jammu and Kashmir provides that a decree passed on this ground shall not take effect for a period of one year from the date of such decree and if during such period the husband either appear in person before the court or satisfies the court through an authorised agent as to his whereabouts, the court shall set aside the said decree. However, there was no such a case pending in the courts of Kashmir. ii. Failure to maintain the wife Under the Muslim Law on marriage, certain obligations are imposed on the parties and certain rights are vested in them. The rights and obligations arising out of marriage are reciprocal so that if either of the party fails to perform his her duties, the spouse at fault shall no longer be entitled to the enjoyment of the rights vested in him /her. One of the rights of the wife is that she is entitled to maintenance from her husband while she is under obligation to look after the domestic comforts of the husband to make herself available to him. This obligation of the wife makes it necessary that she should live with the husband. Hence, if the husband fails to provide Nafquah, she can lawfully refuse to live with him. According to Islamic Law maintenance ordinarily means all those things which are necessary for the support of life, such as food, clothes, and lodging. Satgung v. Rahma,6 the court held that any maintenance provided by the husband It should be in accordance with the changing standard of the society and in consonance with the status of the spouse. Moreover, the concept of the maintenance also varies with the changing norms of the society. In this respect the observations of the Supreme Court of India in Siraftnoluned Khan Jantnohmad Khan v. Hafizunnisa Yasin Khan and another7, are quite pertinent:
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4 K. N. Ahmad. The Muslin, Law of Divorce (1978) , Kitab Bhavan; 6 edition (2006), p. 500 5 The Jammu and Kashmir Dissolution of Muslim Marriages Act 1942 (Act No. 10 of 1942). 6 A.I.R. 1946 7 A.I.R. 1981 S.C. 1972.
"After the International Year of Women when all the important countries of the world are trying to give the fair sex their rightful place in the society and are working for the complete emancipation of women by breaking the old shackles and bondage in which they were involved, it is difficult to accept a contention that the statutory provisions of the Code are meant to provide a wife merely with food, clothing, and lodging as if she is only a chattel and has to depend on the sweet will and mercy of the husband." The Dissolution of the Muslim Marriages Act provides that women married under the Muslim Law shall be entitled to obtain divorce provided the husband has neglected or failed to provide for her maintenance for a period of two years. Failure to maintain the wife need not be intentional. Even if the failure to provide for her maintenance is due to poverty, failing health, loss of work, imprisonment or due to any other cause, the wife would be entitled to a divorce. These grounds no doubt beyond the control of the husband are immaterial to justify maintenance of the wife. Further, it is no defense that the wife is rich. Here, the author is of the opinion that the income of the wife must also be taken into consideration at the time of granting maintenance. It is submitted that in the cases where the income of the wife exceeds that of her husband, the non-maintenance of such wife, should not be allowed as a ground for faskh. Here, the pertinent issue is, what is the impact of the wife's conduct upon her non-maintenance. There is undoubtedly a cleavage in judicial opinion on the issue. One view is that on the plain language of S. 2(ii) of the Act, the husband is bound to maintain the wife in all circumstances, even if she had no justification for living separately from him. The Sind High Court, in Nur Bibi v. Pir Bux8, laid down that faulty conduct of the wife is irrelevant in judging non-maintenance. Similarly, the Peshawar High Court, in Said Ahmad Khan v. Sultan Bibi, laid down that the conduct of the wife would be irrelevant in granting faskh under S. 2(fi) of the Dissolution of the Muslim Marriages Act. It is argued that the clear words used in this section must be given effect to and a right in the wife to claim maintenance from her husband read irrespective of her conduct. The above view has been followed by the Kerala High Court in A. Yousuf Rawther v. Sowramma9, where justice Krishna Iyer observed: “a Muslim woman, under S. 2(ii) of the Act can sue for dissolution on the score that she has not as a fact been maintained even if there is good cause for it the voice of the law, echoing public policy is often that of the realist, not of the moralist."
The other view holds that where the wife is not willing to discharge her marital obligations towards her husband, she is not entitled to claim maintenance from him. The husband according to this view, is not bound to provide her maintenance wherever she goes, unless she can show some legal justification for not living with or not discharging her marital obligation towards him. This view has
8 A.I.R. 1950 Sind. 8 9 A.I.R. 1971 Ker. 261 at p. 270
become final. But there is no condition that the husband should have served any portion of the sentence or even that the sentence should have commenced before the wife applies for faskh. In this context it is pertinent to point out, that under the Special Marriage Act, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent is undergoing a sentence of imprisonment for seven years or more for an offence as defined under the Indian Penal Code. Under the Dissolution of Muslim Marriages Act as well as its parallel Act in the State of Jammu and Kashmir, it is provided that imprisonment for seven years can be availed by the petitioner for seeking faskh only when the sentence becomes final. Here, in this respect the following issues are quite important:- a. The first point is, when does the sentence become final? Is it when the lower court has convicted and sentenced the respondent or when the appellate court has upheld the conviction and sentence of the lower court? It is submitted, that the imprisonment becomes final, when the appellate court has upheld the decision of the lower court or when the period for appeal has expired. b. Secondly, what should be the position, when the accused person remains under-trial for a long period ranging from three to five years or seven or more than seven years and is subsequently convicted for seven or more than seven years, with the benefit of set off under the Code of Criminal Procedure11 enabling him to be cut cf prison before seven years are elapsed after final sentence? It is submitted that the respondent must not be allowed to take the benefit of this section and a decree for faskh must be granted. c. Thirdly, what should be the position if the respondent has been sentenced to seven years imprisonment but there are chances that he can secure his release sometime earlier on parole or on the benefit of remission etc.? No doubt, the section is quite clear on this issue and does not leave a room for any doubt. But, this section is not in consonance with the modern correctional philosophy which aims at the resocialization of the prisoners. In the cases where the prisoner is likely to be released earlier, the decree for faskh should not be granted. In such cases the wife must be asked to wait, at least for four years in order to get a decree for faskh. However, in our study there was not even a single case of faskh on the basis of imprisonment. But, in the Central Jail, Srinagar there was only one case of a life convict, whose wife had approached the court for seeking faskh12.
11 The Code of Criminal Procedure 1973, S. 428. 12http://dspace.cusat.ac.in/jspui/bitstream/123456789/11223/1/Divorce%20under%20Islamic% 20Law. Accessed 25-0-
iv. Non-Performance of the marital obligation
The Muslim marriage is a civil contract and from it emerges rights and duties to both husband and wife. If the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years, it gives a cause of action for faskh to the wife." The Dissolution of Muslim Marriages Act, does not specify "marital obligations" of the husband." Fyzee has rightly pointed out that it is very difficult to give an exhaustive list of the husbands' obligations arising from marriage. However, Ahmad has identified some of the important obligations of the husband and wife which may be said to be illustrative.
In short the words, 'marital obligations' is a term of wider import and will include almost everything which is essential for the continuance of the happy married life.
v. Impotency
The wife, under S. 2(v) can sue for the faskh on the ground of her husband's impotency, if she can prove: Her husband was impotent at the time of marriage; and He continues to be impotent even up to the time of filing the suit. Muslim marriage is a civil contract, and it is both Ibadat and Muamlat. Consummation is a must for the completion of the Muslim marriage. If this very object of marriage is lost the marriage may fail to fulfill its purpose and some time even become harmful. Islamic law lays great emphasis on the performance by the husband of the obligation to satisfy the natural desire of his wife to intimate with him at reasonable intervals and not to neglect this important obligation.
However, under the Muslim Law a marriage with an impotent person is not void but merely voidable. This is also the position under Hindu Law. Impotency may be due to the congenital constitution, weakness, old age, accident, disease etc. It can also be due to the psychological cause which may have nothing to do with the husband's physical condition. In the former case he will be incapable for all women, but in the latter case his incapacity may be limited to some particular woman or women.
If the husband within the period of one year satisfies the court that he has ceased to be impotent, the decree for dissolution of marriage cannot be granted. The adjournment of the case for one year is only on the application of the respondent. If no such application is made the decree dissolving the marriage can be passed without any delay. If after the expiry of one year, the incapacity of the respondent to consummate continues, the decree for faskh would be granted. But when the allegations of impotency by one party are countered by allegations of the impotence of the other party, the court may have to resort to measures for reaching the truth. It is often said that when the husband alleges that he has ceased to be impotent, but the wife asserts that he continues to be impotent, it is necessary for the wife in such circumstances to submit herself to the husband in order to test the truth of her husband's claim that he has ceased to be impotent. In this respect, Mysore High
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The wife can, under the Act, also seek faskh, if the husband is suffering from leprosy. There is no time limit in this respect. Leprosy is infectious as well as contagious and a person can become infected with it either by infection through the breath of the victim or by contact. The affected part of the body becomes senseless and it becomes necessary for the other spouse to keep apart from the sufferer and so he or she is deprived of the satisfaction of the married life. Under the different laws in India venereal disease is a ground for judicial separation and faskh. The Muslim Law specifically lays down that a marriage may be dissolved by the husband, if the wife has been suffering from leprosy, scrofula and madness. However, it was said that Muslim wife did not possess power even to ask for the dissolution of marriage. Consequently the Muslim wives suffered in many cases, due to wrong interpretations are given by Muslim Ulemas. This disadvantage of the Muslim wives has been recognized by the Dissolution of Muslim Marriages Act, which provides for the faskh if the husband has been suffering from the venereal disease17. vii. Option of puberty A Muslim marriage is normally governed by the same principle of law as applied to contracts entered into on behalf of minors. Thus, when a marriage is contracted for a minor by a guardian, he or she on attaining majority has a right under conditions to choose whether he or she is interested to continue such contract or dissolve it altogether. This right of dissolution of marriage on attaining the age of majority is called Khiyar-al-Bulugh or option of puberty. A wife, under the central Act, is entitled to the dissolution of her marriage if she proves the following facts:
- The marriage has not been consummated,
- The marriage took place before she attained the age of fifteen years; and
- She has repudiated the marriage before attaining the age of eighteen years. Under this clause a Muslim female who was given in marriage by her father or guardian before she attained the age of fifteen years can seek a decree for faskh on the ground that she has repudiated the marriage, which remained unconsummated. The option of puberty is one of the safeguards which the Muslim Law provides against undesirable marriage. The basic idea underlying the doctrine of "option of puberty" is to protect a minor from an unscrupulous exercise of authority by his or her guardian for marriage. Dr. Tahir Mahmood, has rightly pointed out that the Dissolution of Muslim Marriages Act 1939, effects a substantive change in the classical law of option of puberty in as much as it fixes the age of puberty at the completion of the fifteenth year. Justice Hidyatullah, in this respect, has pointed out
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16 S. K. Rashid, Muslim Law 4th^ edition 2013, Eastern Book Company p. 57. 17 ibid
that the Act has abolished all the restrictions on the option of puberty in the case of a minor girl whose marriage has been arranged. by a father or grandfather. viii. Cruelty is also a ground for faskh under the Dissolution of Muslim Marriages Act 1939. The concept of cruelty depends on the standard of society and changes in the changing norms. It has been rightly pointed out that the concept of cruelty has been undergoing a change with the socio-economic conditions of our society. In Sint. Gurudev Kaur v. Sarwan Singh18," the Punjab High Court observed, that the test that constitutes cruelty will have to be applied in the changed social conditions as they obtain today and not according to the rigid background of the tenets of the old texts of Manu. The Dissolution of the Muslim Marriages Act, has enumerated the following acts as the main aspects of cruelty: a) Habitual assaults, i.e., physical cruelty or making life miserable, i.e., mental cruelty b) Association with women of ill-repute or leading an infamous life c) Attempting to force to lead an immoral life d) To dispose of the property of the wife or preventing her from exercising legal right over it e) Obstruction in the observance of religious profession or practice and f) Unequal treatment of the wives, if he has more than one (ix) Residuary provision Lastly, the Act provides that the court can pass a decree of faskh on any other ground which is recognized as valid for the dissolution of marriages under the Muslim Law. This clause is meant to cover such cases which do not fall within any of the eight grounds provided under the Act. The courts in India under this clause are at liberty to pass a decree of faskh on any ground, which they deem to be valid for the purpose. Khusro, has recently pointed out that the courts are reluctant to grant a divorce to Muslim wives sought on various grounds as laid down in the Act. He points out that the courts can grant a dissolution of marriage on grounds not mentioned in the Act. He has quoted an example of Jamila, wife of Thabit bin Qays, where the Prophet of Islam has granted a divorce on the ground that husband was short-statured and extremely ugly. ' He has further observed that the Indian courts, approached by Muslim wives for divorce under the residuary provision of the Act should take this event as a
18 A.I .R. 1959 Punj. 162.
BIBLIOGRAPHY
S. A. M. Khusro, "Muslim Wife's Right to Divorce: A Note on Proper Perspective", Islamic and Comparative Law Quarterly, Vol. No.III 4, ( 1982). S. K. Rashid, Muslim Law 4 th^ edition 2013, Eastern Book Company.
The Code of Criminal Procedure 1973. K. N. Ahmad. The Muslin, Law of Divorce (1978) , Kitab Bhavan; 6 edition (2006).
The Jammu and Kashmir Dissolution of Muslim Marriages Act 1942 (Act No. 10 of 1942).
Dr. R.K. Sinha- Muslim Law, 5th^ edn. 2003 Central Law Agency, Allahabad.
. The Indian Evidence Act 1872 (Act No. 1 of 1872).
The Muslim Law, Prof.(Dr).R.K Sinha,Central Law Agency, Sixth Edition.
WEB SOURCES
https://www.scribd.com/doc/80758281/Judicial-divorce-under-muslim-law
http://dspace.cusat.ac.in/jspui/bitstream/123456789/11223/1/Divorce%20under%20Islamic%20Law.
www.indiankanoon.com
www.lawteacher.com
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