Dissolution of muslim marriages act 1939 pdf

He contended that he had never deserted her. She went to her house on her own accord. Her petition for grant of maintenance had been dismissed by the competent court. Therefore he did not have a legal obligation to maintain her. Consequently, it could not be taken that he had neglected or failed to provide for her maintenance. A failure will arise only when there was obligation to maintain. She was at liberty to come to his house. He had not divorced her. An equitable treatment with another wife can be disputed only if she had come and lived with him.

So there was no reason at all to grant the declaration sought for by her or to grant a decree of divorce on any of the three grounds urged by her. A1 certificate from the Mahal Juma ath was produced by her to prove the factum of divorce. But that was a certificate dated 1. P1 did not contain from which record the material for certification were obtained.

The wife did not attempt to prove Ext. A1 by examining the person who had issued the certificate or bringing the document based on which Ext. A1 certificate was issued. Thus the trial court found that the wife was not entitled for declaration that there was a divorce by the husband.

On the other hand the trial court found that the dismissal of application for maintenance filed by the wife did not ipso facto prove that the husband did not have an obligation to provide for maintenance of his wife.

Every Muslim husband was liable to maintain his wife. The right to get maintenance in terms of Section of Code of Criminal Procedure, dependent upon other circumstances and even if the wife failed to obtain an order of maintenance in terms of said provision, the obligation of a Muslim husband to provide for maintenance of his wife does not get extinct.

The trial court relied on two decisions of this Court in Yousuf Rowthan v. Sowramma, KLT , and Moosa v. Fathima, KLT to arrive at the finding that the husband had neglected and failed to provide for the maintenance of his wife. The court below also found that the husband had never gone to the wife's house and she had to leave the house as she was not treated decently and that he was showing discrimination towards her as compared to his other wives.

Therefore the trial court found that he had failed to perform his marital obligation towards her to grant her a decree on the ground of Section 2 iv of the said Act. The trial court also found that because of the treatment meted out to her by the husband, there was perfect discrimination to attract Section 2 viii f that he did not treat her equitably with other wives in accordance with the injunction of the Quaran.

It was in the above circumstances the decree of divorce had been granted by the court below. This decree is assailed by the husband contending that the court below erred in finding sustenance of the ground urged by the wife in terms of Section 2 ii that he had failed to provide for maintenance for a period of two years.

He was always ready to maintain her in his own house. In such circumstances she herself had, by her conduct, disabled her to get maintenance. That was why her applications seeking maintenance had been dismissed by the competent courts. When she did not have legal entitlement to get maintenance from the husband, there arises no question of any failure on the part of the husband to provide for her maintenance especially when she was living away from him.

In such circumstances the finding in that regard has to be reversed. The decisions of this Court relied on by the trial court requires reconsideration as various other High Courts, in similar circumstances, have taken a different view in the decisions in Ahmed Abdul Quadeer v. It is further contended that he did have obligation to give his company to his wife only so long as she is prepared to live with him in his house.

She had left his house for no reason. Therefore it cannot be taken that he had failed to perform his marital obligation towards her, because of her keeping away from him. There was reasonable cause, so far as he was concerned, that he did not give company to her in her own house. Therefore no decree of divorce ought to have been granted on the ground available under Section 2 iv of the Act.

According to him there was no occasion for any ill-treatment or inequitable treatment towards her. He had not violated the injunctions of Quran in that regard.

So no ground in terms of Section 2 viii f was also available to grant a decree in her favour, the appellant contends. It is true that every other High Courts except Sind High Court and High Court of Lahore and later this Court, had held that the word negligent appearing in Section 2 ii of the Act implies willful failure and therefore it shall imply an omission of a duty cast on the husband to provide maintenance.

In Mt. Shamim Fatima v. If she refused to avail herself of the shelter which was offered to her, she cannot complain and is certainly not entitled to a decree. Bushra, AIR Raj. That Court was of the opinion that: "the failure or neglect to provide maintenance in order to give rise to claim for dissolution, must be without any justification. For if there is justification, there cannot be said to be neglect.

Neglect or failure implies non-performance of a duty. But if the husband is released from the duty on account of the conduct of the lady herself, the husband cannot be said to have neglected or failed to provide maintenance. Mahiyakhatun Bibi v.

But in the decision in Smt. Noor Bivi v. The plain ordinarily grammatical meaning of the words: "Has failed to provide maintenance in Clause ii appears to me to be very clear. It is true that these words occur in an enactment which deals with the dissolution of Muslim marriage, but the meaning of these words cannot therefore be different from what it would be, for instance, if these words were used with reference to a Hindu or a Christian or a Parsi husband.

The question whether there was a failure to maintain was a pure question of fact, which did not in any manner depend upon the circumstances in which the failure had occurred As I pointed out in Hajra's case Suit No. It is therefore no less correct to speak of a man's failure to maintain his wife even when she is not entitled to claim maintenance, than it is to speak of a man's failure to pay his debts of honour on bets or his debts which have become time barred In the cases in which it has been held that there could be no failure to maintain, unless the wife was entitled to enforce a claim for maintenance, the plain ordinary meaning of the words, it seems to me, was intentionally departed from, on the express ground that the ordinary meaning of the words was not the one which could really have been intended, that the really intended meaning had been sought to be expressed, rather unhappily, by the use of words which in fact had a different meaning; and the supposed intended meaning which necessarily involved importing into the enacted words something which was not there, was then preferred to the ordinary meaning; on the supposition that unless that was done an abrogation of the general Muhammadan Law and a startling state of affairs would result Dissolution of a marriage is allowed when acessation of the state of marriage has in really taken place, or the continuance of the marriage has become injurious to the wife.

The continuance of a state of affairs in which a marriage had ceased to be reality, when the husband and the wife no longer lived "within the limits of Allah" is abhorred in Islam, and the prophet enjoined that such a state of affairs should be ended. The main object of enacting the Dissolution of Muslim Marriages Act was to bring the law as administered in this subcontinent into conformity with the authoritative texts. A very strong select committee which included Sri.

Nripendranath Sircar, Sri. Mohammed Zafrulla Khan and several notable Muslim Scholars examined the Muslim Law and drafted the bill with the greatest care With regard to the provisions of the enactment, Sir. Muhammed Zafrulla Khan made a statement which is of particular interest with regard to the question now before us. Sir, the outstanding merit of this Bill is that it puts down, in the space of one printed page, the various grounds on which divorce may be obtained by a woman married under the Muslim Law.

This is a matter the lack of which has, in the past, caused a great deal of distress and misery and suffering in India As I have said, this Bill defines the grounds on which Khula may be obtained by a married woman under the Muslim law in very definite, clear and precise terms and I cannot imagine that any Judge, whether he is a Muslim or a non-Muslim, could have much room left for doubt with regard to them.

There may be a dispute with regard to the facts in any particular case - that is inherent in every litigation - but I do not think there can now be much doubt with regard the grounds upon which divorce is permissible under the Muslim law.

That is the Chief merit of this Bill. In Manak Khan v. Mulkhan Bano AIR Lahore which reads as follows: "Where the words of the statute, are unambiguous, effect must be given to them whatever the consequences. It is laid down expressly in Clause iv of Section 2 that where the husband has failed to perform without reasonable cause his marital obligations for a period of three years the wife is entitled to a dissolution of her marriage in Clause ii , however, the words 'without reasonable cause' do not occur.

This type of marriage is also accepted by both the Shia and Sunni sects, except the Itna Asari school of the Shia sect. The only essential condition for divorce under Muslim Law is marriage between two parties. There are different forms and ways through which marriage can be dissolved under Muslim Law, which are following:. This form of divorce is based on Muslim Personal Laws. It is further sub-divided into the following categories:.

Rights conferred by personal laws based on religion is not absolute. For instance, the two most popular and important judgments of the Supreme Court in this regard are discussed hereinafter, in the case of Mohd.

Ahmed Khan vs Shah Bano , Shah Bano at the age of 62 was divorced by her husband Mohammed Ahmed Shah, and she along with her five children were disowned and tossed out from her marital home. When she approached Madhya Pradesh High Court to restore her maintenance amount of rupees which was halted by her husband, and to increase its amount to rupees , she was divorced by her husband through instant triple talaq or Talaq-ul-Biddat, who used it as a defence not to pay maintenance as she no longer was his wife.

But the court granted maintenance to Shah Bano under Section of CrPC on the grounds that she is unable to earn and maintain herself. Though it was against the provisions of Islamic law, Section of CrPC override the personal law and gave effect to the judgement.

Similarly, in the case of Shayara Bano vs Union of India , Shayara Bano married to Rizwan Ahmed, was a victim of domestic violence, while she was visiting her parents, Rizwan Ahmed sent her a divorce letter of Talaq-ul-Biddat declaring instant divorce. She filed a petition before the Supreme Court to declare triple talaq, nikah halala, and polygamy to be unconstitutional.

Although the court took into account only the plea of triple talaq declaring it to be unconstitutional and it also held that until the government formulates a law regarding instant triple talaq, there would be an injunction against the pronouncement of triple talaq by husbands on their wives.

Talaq-ul-Biddat or triple talaq is unconstitutional as it violates Article 14 of the Constitution in two ways; firstly, it discriminates Muslim women from Muslim men on the basis of gender, as only Muslim men have the right to declare triple talaq, and secondly, it is discrimination on the basis of religion, women of no other religion are subject to cruelty and unjust behaviour of triple talaq except Muslim women.

Talaq-ul-Biddat also violates Article 21 of the Constitution on the grounds of the right to live with human dignity, Muslim women are subject to derogatory and cruel behaviour of the Talaq-ul-Biddat, which reduces their presence to mere unwanted beings in the eyes of their husband and society.

A divorce that is arbitrary, without justified reasoning and a reconciliatory process is never allowed by the Koran. Thus, personal laws of Muslims are given prominence unless and until they are against the right of women to live a dignified life or are unconstitutional.

Implementation of the Uniform Civil Code is the need of the hour. Article 44 of the Indian Constitution talks about the creation of the Uniform Civil Code for all the citizens of India. The creation and implementation of UCC will bring drastic changes in the Muslim personal laws, this is the reason it is being opposed by the Muslims. It will lead to the permanent abolition of triple talaq, all the marriages will be dissolved through Court proceedings. The practice of polygamy will be abolished and monogamy will be the norm.

It will also bring change in maintenance provisions; Muslim women will be able to claim maintenance for a lifetime. Civil contractual nature of marriage will be abolished. Registration of marriage will be compulsory practice, and implementation of UCC will also lead to a violation of the period of iddat. These changes are pro-women and are actively welcomed by Muslim women, as it will lead to the positive betterment of women and society as a whole.

But these changes are opposed by Muslims as a whole because they feel the imposition of UCC as an imposition of Hindu law over their personal laws, which is the wrong notion. Uniform Civil Code will be secular in nature containing essentials of all the diverse religions in India. Thus, Uniform Civil Code is necessary for strengthening national unity and integrity among citizens of India.

Under the Muslim Law, there are more than one form of ways through which marriage can be solemnized and divorce can be initiated for dissolution of marriage. To cater to the needs of changing circumstances along with Muslim personal laws certain legislations are brought by the Government of India such as the Muslim Dissolution of Marriage Act, , the Muslim Women Protection of Rights on Marriage Act, etc.

However, apart from these legislations and personal laws, there is a need for the Uniform Civil Code for creating single informed laws governing all the citizens of the nation to strengthen national unity and integrity. Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:. Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content. Save my name, email, and website in this browser for the next time I comment. Check your mailbox for the joining link. From Bhawna Agarwal: [email protected]. Sign in. Agreement between a Mahomedan Husband and wife which provide for future separation in the event of disagreement between them is void as being against public policy2.

Under Shia law, there are four conditions for the husband to be considered competent to pronounce a valid Talaq-. Talaq given by husband in state of intoxication is considered as a valid divorce in Shia Law whereas it is prohibited in Sunni Law. It is followed by the abstinence from any sexual relationship during the period of tuhr and whole of the Iddat period. Iddat is the period during which a wife is prohibited from re-marrying after the dissolution of the first marriage.

Talaq-e-Ahsan is considered as the most approved form of Talaq as it is revocable during the period of Iddat. The husband may revoke the Talaq by express words or by conduct including the resumption of Sexual intercourse. It consists of three successive pronouncements of Talaq which are made by the husband during three consecutive periods of Tuhr purity.

During each Tuhr period, no sexual intercourse must have taken place else the pronouncement made during that period shall not be considered as valid. In a case where the wife has crossed the age of menstruation, the three pronouncements have to be made at successive intervals of 30 days. When the last pronouncement has been made, the Talaq becomes final and irrevocable. In Talaq-e-biddat, pronouncement of Talaq was done by saying Talaq three times in a row.

The only way to reconcile the marriage is through the practice of nikah halala, which requires the woman to get remarried, consummate the second marriage, get divorced, observe the three-month Iddat period and return to her husband.

However in Shayara Bano v. The Supreme Court by holding that Triple Talaq is unconstitutional implied that mere utterance of Talaq thrice does not result in the dissolution of marriage. After getting passed in both houses of Parliament, President has given assent to the triple talaq bill passed by Parliament, turning it into a law which makes the practice of instant divorce among Muslims a punishable offence.

The Act will replace an ordinance promulgated on February 21, to the same effect. It depends on the will of the husband. Section 2 of the Act states the various modes in which a Muslim wife can ask for a divorce.

In case of Maharam Ali v. Ayesa Khatun4 , it was held that an agreement between husband and wife by which the husband authorizes the wife to divorce her from him in the event of his marrying a second wife without her consent is valid.

T here are three ways through which wife can give divorce which are as follows:. In Ila, the husband swears by god, not to have sexual intercourse with his wife for duration of at least four months. After expiry of such period, the marriage is treated as irrevocably dissolved.

The husband may revoke his oath before the expiry of four months by resuming sexual intercourse with the wife. If husband did not cohabit with his wife after four months then wife is entitled to file the suit of restoration of conjugal rights.