Supreme Court gives Muslims right to adopt a child

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http://supremecourtofindia.nic.in/outtoday/wp4702005.pdf

SC Gives Muslims Right To Adopt A Child|Muslims Right To Adopt A Child : 

NEW DELHI: In a landmark judgment, the Supreme Court has given Muslims the right to adopt a child despite their personal lawprohibiting it. 

The apex court said on Wednesday that the laws of land has to get primacy over personal law till the country achieves Uniform Civil Code as provided in Article 44 of the Constitution.

The SC bench said the right to adoption is conferred by a law and operation of this cannot be stultified by a personal law dictate.

The SC judgment comes on an 8 years old petition by Shabnam Hashmi who had approached the apex court after being refused permission to adopt.

Though the SC said all individuals have a statutory right to adopt a child, it said the time is not ripe to declare the right to adopt a fundamental right. 

http://timesofindia.indiatimes.com/topic/SC-gives-Muslims-right-to-adopt-a-childhttp://timesofindia.indiatimes.com/topic/SC-gives-Muslims-right-to-adopt-a-child

Supreme Court gives Muslims right to adopt child

On 19/02/2014 by Live Law News Network

Despite their personal law barring them, Muslims have now the right to

adopt a child as the Supreme Court in a landmark judgment said 

till the country attains Uniform Civil Code as provided in Article 44

 of the Constitution, the laws of land has to get priority over 

personal law.

While hearing an 8 years old petition by Shabnam Hashmi who had approached the apex court for framing of guidelines by the adoption of children by the people belonging to all religions and communities, after being declined approval to adopt, the apex court bench headed by Chief Justice P. Sathasivam said that the rules framed under juvenile justice law were an enabling provision which is valid to all religions and communities and the same could not be discouraged by personal religious beliefs.

The Supreme Court bench said the right to adoption is conferred by a law and functioning of this cannot be negated by a personal law order. The apex court said the time is not suitable to declare the right to adopt a fundamental right, even though it said all individuals have a legal right to adopt a child. The apex court said Muslims could adopt a child under the juvenile justice law, as its enforcement could not be obstructed by the Muslim personal Law Board.

Concept of divorce under Muslim law

THE CONCEPT OF DIVORCE UNDER MUSLIM LAW:

Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be avoided. Initially no marriage is contracted to be dissolved but in unfortunate circumstances the matrimonial contract is broken. One of the ways of such dissolution is by way of divorce . Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. However in whatever manner the divorce is effected it has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of marriage. The Prophet declared that among the things which have been permitted by law, divorce is the worst . Divorce being an evil, it must be avoided as far as possible. But in some occasions this evil becomes a necessity, because when it is impossible for the parties to the marriage to carry on their union with mutual affection and love then it is better to allow them to get separated than compel them to live together in an atmosphere of hatred and disaffection. The basis of divorce in Islamic law is the inability of the spouses to live together rather than any specific cause (or guilt of a party) on account of which the parties cannot live together. A divorce may be either by the act of the husband or by the act of the wife. There are several modes of divorce under the Muslim law, which will be discussed hereafter.

Modes of Divorce: A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally this done by talaaq. But he may also divorce by Ila, and Zihar which differ from talaaq only in form, not in substance. A wife cannot divorce her husband of her own accord. She can divorce the husband only when the husband has delegated such a right to her or under an agreement. Under an agreement the wife may divorce her husband either by Khula or Mubarat. Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery, insanity or impotency of the husband. But the Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the basis of which a Muslim wife may get her divorce decree passed by the order of the court.

There are two categories of divorce under the Muslim law:

1.) Extra judicial divorce, and

2.) Judicial divorce

The category of extra judicial divorce can be further subdivided into three types,  namely,

• By husband- talaaq, ila, and zihar.

• By wife- talaaq-i-tafweez, lian.

• By mutual agreement- khula and mubarat.

The second category is the right of the wife to give divorce under the Dissolution of Muslim Marriages Act 1939.

Talaaq: Talaaq in its primitive sense means dismission. In its literal meaning, it means “setting free”, “letting loose”, or taking off any “ties or restraint”. In Muslim Law it means freedom from the bondage of marriage and not from any other bondage. In legal sense it means dissolution of marriage by husband using appropriate words. In other words talaaq is repudiation of marriage by the husband in accordance with the procedure laid down by the law. The following verse is in support of the husband’s authority to pronounce unilateral divorce is often cited: “Men are maintainers of women, because Allah has made some of them to excel others and because they spend out of their property (on their maintenance and dower) . When the husband exercises his right to pronounce divorce, technically this is known as talaaq. The most remarkable feature of Muslim law of talaaq is that all the schools of the Sunnis and the Shias recognize it differing only in some details. In Muslim world, so widespread has been the talaaq that even the Imams practiced it . The absolute power of a Muslim husband of divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in modern India. All that is necessary is that the husband should pronounce talaaq; how he does it, when he does it, or in what he does it is not very essential. In Hannefa v. Pathummal, Khalid, J., termed this as “monstrosity” . Among the Sunnis, talaaq may be express, implied, contingent constructive or even delegated. The Shias recognize only the express and the delegated forms of talaaq.

CONDITIONS FOR A VALID TALAAQ:

1.) Capacity: Every Muslim husband of sound mind, who has attained the age of puberty, is competent to pronounce talaaq. It is not necessary for him to give any reason for his pronouncement. A husband who is minor or of unsound mind cannot pronounce it. Talaaq by a minor or of a person of unsound mind is void and ineffective. However, if a husband is lunatic then talaaq pronounced by him during “lucid interval” is valid. The guardian cannot pronounce talaaq on behalf of a minor husband. When insane husband has no guardian, the Qazi or a judge has the right to dissolve the marriage in the interest of such a husband.

2.) Free Consent: Except under Hanafi law, the consent of the husband in pronouncing talaaq must be a free consent. Under Hanafi law, a talaaq, pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc., is valid and dissolves the marriage.

Involuntary intoxication: Talaaq pronounced under forced or involuntary intoxication is void even under the Hanafi law.

Shia law: Under the Shia law (and also under other schools of Sunnis) a talaaq pronounced under compulsion, coercion, undue influence, fraud, or voluntary intoxication is void and ineffective.

3.) Formalities: According to Sunni law, a talaaq, may be oral or in writing. It may be simply uttered by the husband or he may write a Talaaqnama. No specific formula or use of any particular word is required to constitute a valid talaaq. Any expression which clearly indicates the husband’s desire to break the marriage is sufficient. It need not be made in the presence of the witnesses.

According to Shias, talaaq, must be pronounced orally, except where the husband is unable to speak. If the husband can speak but gives it in writing, the talaaq, is void under Shia law. Here talaaq must be pronounced in the presence of two witnesses.

4.) Express words: The words of talaaq must clearly indicate the husband’s intention to dissolve the marriage. If the pronouncement is not express and is ambiguous then it is absolutely necessary to prove that the husband clearly intends to dissolve the marriage.

Express Talaaq (by husband):

When clear and unequivocal words, such as “I have divorced thee” are uttered, the divorce is express. The express talaaq, falls into two categories:

• Talaaq-i-sunnat,

• Talaaq-i-biddat.

Talaaq-i-sunnat has two forms:

• Talaaq-i-ahasan (Most approved)

• Talaaq-i-hasan (Less approved).

Talaaq-i-sunnat is considered to be in accordance with the traditions of Prophet Mohammad.

AHASAN TALAAQ: (Talaaq-i-ahasan)

consists of a single pronouncement of divorce made in the period of tuhr (purity, between two menstruations), or at any time, if the wife is free from menstruation, followed by abstinence from sexual intercourse during the period if iddat. The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce and does not apply to talaaq in writing. Similarly, this requirement is not applicable when the wife has passed the age of menstruation or the parties have been away from each other for a long time, or when the marriage has not been consummated. The advantage of this form is that divorce can revoked at any time before the completion of the period of iddat, thus hasty, thoughtless divorce can be prevented. The revocation may effected expressly or impliedly. Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says “I have retained thee” the divorce is revoked. Resumption of sexual intercourse before the completion of period of iddat also results in the revocation of divorce. The Raad-ul-Muhtar puts it thus: “It is proper and right to observe this form, for human nature is apt to be mislead and to lead astray the mind far to perceive faults which may not exist and to commit mistakes of which one is certain to feel ashamed afterwards”

THE HASAN TALAAQ (Talaaq-i-hasan): 

In this the husband is required to pronounce the formula of talaaq three time during three successive tuhrs. If the wife has crossed the age of menstruation, the pronouncement of it may be made after the interval of a month or thirty days between the successive pronouncements. When the last pronouncement is made, the talaaq, becomes final and irrevocable. It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken place during the period of tuhr. Example: W, a wife, is having her period of purity and no sexual intercourse has taken place. At this time, her husband, H, pronounces talaaq, on her. This is the first pronouncement by express words. Then again, when she enters the next period of purity, and before he indulges in sexual intercourse, he makes the second pronouncement. He again revokes it. Again when the wife enters her third period of purity and before any intercourse takes place H pronounces the third pronouncement. The moment H makes this third pronouncement, the marriage stands dissolved irrevocably, irrespective of iddat.

Talaaq-i-Biddat: 

It came into vogue during the second century of Islam. It has two forms: (i) the triple declaration of talaaq made in a period of purity, either in one sentence or in three, (ii) the other form constitutes a single irrevocable pronouncement of divorce made in a period of tuhr or even otherwise. This type of talaaq is not recognized by the Shias. This form of divorce is condemned. It is considered heretical, because of its irrevocability.

ILA:

Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve. Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the court of law. After the expiry of the fourth month, the wife is simply entitled for a judicial divorce. If there is no cohabitation, even after expiry of four months, the wife may file a suit for restitution of conjugal rights against the husband.

ZIHAR: 

In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete. After the expiry of fourth month the wife has following rights:

(i) She may go to the court to get a decree of judicial divorce
(ii) She may ask the court to grant the decree of restitution of conjugal rights.

Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot seek judicial divorce. It can be revoked if:

(i) The husband observes fast for a period of two months, or,

(ii) He provides food at least sixty people, or,

(iii) He frees a slave.

According to Shia law Zihar must be performed in the presence of two witnesses.

Divorce by mutual agreement:

KHULA AND MUBARAT: 

They are two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or a part of some other property. A verse in the Holy Quran runs as: “And it not lawful for you that ye take from women out of that which ye have given them: except (in the case) when both fear that they may not be able to keep within the limits (imposed by Allah), in that case it is no sin for either of them if the woman ransom herself.” The word khula, in its original sense means “to draw” or “dig up” or “to take off” such as taking off one’s clothes or garments. It is said that the spouses are like clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of each other. In law it is said is said to signify an agreement between the spouses for dissolving a connubial union in lieu of compensation paid by the wife to her husband out of her property. Although consideration for Khula is essential, the actual release of the dower or delivery of property constituting the consideration is not a condition precedent for the validity of the khula. Once the husband gives his consent, it results in an irrevocable divorce. The husband has no power of cancelling the ‘khul’ on the ground that the consideration has not been paid. The consideration can be anything, usually it is mahr, the whole or part of it. But it may be any property though not illusory. In mubarat, the outstanding feature is that both the parties desire divorce. Thus, the proposal may emanate from either side. In mubarat both, the husband and the wife, are happy to get rid of each other . Among the Sunnis when the parties to marriage enter into a mubarat all mutual rights and obligations come to an end . The Shia law is stringent though. It requires that both the parties must bona fide find the marital relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word talaaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic unless the parties are incapable of pronouncing the Arabic words. Intention to dissolve the marriage should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other requirements are the same as in khula and the wife must undergo the period of iddat and in both the divorce is essentially an act of the parties, and no intervention by the court is required.

DIVORCE BY WIFE:

The divorce by wife can be categorized under three categories:

(i) Talaaq-i-tafweez

(ii) Lian

(iii) By Dissolution of Muslim Marriages Act 1939.

Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently . A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. The power of talaaq may be delegated to his wife and as Faizee observes, “this form of delegated divorce is perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of any court and is now beginning to be fairly common in India”. This form of delegated divorce is usually stipulated in prenuptial agreements. In Md. Khan v. Shahmai , under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law’s house without paying the amount. The wife exercised the right and divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to her. Delegation of power may be made even in the post marriage agreements. Thus where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable and not against public policy . It should be noted that even in the event of contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of contingency does not result in automatic divorce.

LIAN:

If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian. This was held in the case of Nurjahan v. Kazim Ali by the Calcutta High Court.

Dissolution of Muslim Marriages Act 1939:

Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on 17th April 1936. It however became law on 17th March 1939 and thus stood the Dissolution of Muslim Marriages Act 1939.

Section 2 of the Act runs thereunder:

A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one or more of the following grounds, namely:-

• That the whereabouts of the husband have not been known for a period of four years: if the husband is missing for a period of four years the wife may file a petition for the dissolution of her marriage. The husband is deemed to be missing if the wife or any such person, who is expected to have knowledge of the husband, is unable to locate the husband. Section 3 provides that where a wife files petition for divorce under this ground, she is required to give the names and addresses of all such persons who would have been the legal heirs of the husband upon his death. The court issues notices to all such persons appear before it and to state if they have any knowledge about the missing husband. If nobody knows then the court passes a decree to this effect which becomes effective only after the expiry of six months. If before the expiry, the husband reappears, the court shall set aside the decree and the marriage is not dissolved.

• That the husband has neglected or has failed to provide for her maintenance for a period of two years: it is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife may seek divorce on this ground. A husband may not maintain his wife either because he neglects her or because he has no means to provide her maintenance. In both the cases the result would be the same. The husband’s obligation to maintain his wife is subject to wife’s own performance of matrimonial obligations. Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to get a judicial divorce on the ground of husband’s failure to maintain her because her own conduct disentitles her from maintenance under Muslim law.

• That the husband has been sentenced to imprisonment for a period of seven years or upwards: the wife’s right of judicial divorce on this ground begins from the date on which the sentence becomes final. Therefore, the decree can be passed in her favour only after the expiry of the date for appeal by the husband or after the appeal by the husband has been dismissed by the final court.

• That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years: the Act does define ‘marital obligations of the husband’. There are several marital obligations of the husband under Muslim law. But for the purpose of this clause husband’s failure to perform only those conjugal obligations may be taken into account which are not included in any of the clauses of Section 2 of this Act.

• That the husband was impotent at the time of the marriage and continues to be so: for getting a decree of divorce on this ground, the wife has to prove that the husband was impotent at the time of the marriage and continues to be impotent till the filing of the suit. Before passing a decree of divorce of divorce on this ground, the court is bound to give to the husband one year to improve his potency provided he makes an application for it. If the husband does not give such application, the court shall pass the decree without delay. In Gul Mohd. Khan v. Hasina the wife filed a suit for dissolution of marriage on the ground of impotency. The husband made an application before the court seeking an order for proving his potency. The court allowed him to prove his potency.

• If the husband has been insane for a period of two years or is suffering from leprosy or a virulent veneral disease: the husband’s insanity must be for two or more years immediately preceding the presentation of the suit. But this act does not specify that the unsoundness of mind must be curable or incurable. Leprosy may be white or black or cause the skin to wither away. It may be curable or incurable. Veneral disease is a disease of the sex organs. The Act provides that this disease must be of incurable nature. It may be of any duration. Moreover even if this disease has been infected to the husband by the wife herself, she is entitled to get divorce on this ground.

• That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated;

• That the husband treats her with cruelty, that is to say,-

(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) Associates with women of ill-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 exercising her legal rights over it, or

(e) Obstructs her in the observance of her religious profession or practice, or

(f) If he has more than one wives, does not treat her equitably in accordance with the injunctions of the Holy Quran.

In Syed Ziauddin v. Parvez Sultana , Parvez Sultana was a science graduate and she wanted to take admission in a college for medical studies. She needed money for her studies. Syed Ziaudddin promised to give her money provided she married him. She did. Later she filed for divorce for non-fulfillment of promise on the part of the husband. The court granted her divorce on the ground of cruelty. Thus we see the court’s attitude of attributing a wider meaning to the expression cruelty. In Zubaida Begum v. Sardar Shah , a case from Lahore High Court, the husband sold the ornaments of the wife with her consent. It was submitted that the husband’s conduct does not amount to cruelty.

In Aboobacker v. Mamu koya , the husband used to compel his wife to put on a sari and see pictures in cinema. The wife refused to do so because according to her beliefs this was against the Islamic way of life. She sought divorce on the ground of mental cruelty. The Kerela High Court held that the conduct of the husband cannot be regarded as cruelty because mere departure from the standards of suffocating orthodoxy does not constitute un-Islamic behaviour.

In Itwari v. Asghari , the Allahabad High Court observed that Indian Law does not recognize various types of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on, and that the test of cruelty is based on universal and humanitarian standards; that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health.

Irretrievable Breakdown: Divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim Law through the judicial interpretation of certain provisions of Muslim law. In 1945 in Umar Bibi v. Md. Din , it was argued that the wife hated her husband so much that she could not possibly live with him and there was total incompatibility of temperaments. On these grounds the court refused to grant a decree of divorce. But twenty five years later in Neorbibi v. Pir Bux , again an attempt was made to grant divorce on the ground of irretrievable breakdown of marriage. This time the court granted the divorce. Thus in Muslim law of modern India, there are two breakdown grounds for divorce: (a) non-payment of maintenancy by the husband even if the failure has resulted due to the conduct of the wife, (b) where there is total irreconcilability between the spouses.

CONCLUSION:

 In contrast to the Western world where divorce was relatively uncommon until modern times, and in contrast to the low rates of divorce in the modern Middle East, divorce was a common occurrence in the pre-modern Muslim world. In the medieval Islamic world and the Ottoman Empire, the rate of divorce was higher than it is today in the modern Middle East. In 15th century Egypt, Al-Sakhawi recorded the marital history of 500 women, the largest sample on marriage in the Middle Ages, and found that at least a third of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with many marrying three or more times. According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo ended in divorce. In the early 20th century, some villages in western Java and the Malay peninsula had divorce rates as high as 70%.In practice in most of the Muslim world today divorce can be quite involved as there may be separate secular procedures to follow as well. Usually, assuming her husband demands a divorce, the divorced wife keeps her mahr, both the original gift and any supplementary property specified in the marriage contract. She is also given child support until the age of weaning, at which point the child's custody will be settled by the couple or by the courts. Women's right to divorce is often extremely limited compared with that of men in the Middle East. While men can divorce their spouses easily, women face a lot of legal and financial obstacles. For example, in Yemen, women usually can ask for divorce only when husband's inability to support her life is admitted while men can divorce at will. However, this contentious area of religious practice and tradition is being increasingly challenged by those promoting more liberal interpretations of Islam.

**********************
# Sinha R.K., Muslim Law, 5th Edn., (Allahabad:2003).

# Tyabji, Muslim Law, 4th Edn., p.143.

# The Holy Quran, IV, 35.

# Abdur Rahim, 327.

# Diwan Paras, Law of Marriage and Divorce, 5th Edn., (New Delhi:2008)

# The Raad-ul-Muhtar, II, 683-684.

# Faizee, Muslim Law, p. 156.

# The Hedaya 139, Fatwa-i-Alamgiri, I, p.669.

# Baillie, Digest of Moohummudan Law, pp.238, 109.

# A.I.R. 1972 J&K 8.

# Hamidoola v. Faizunnisa, (1812) 8 Cal 327.

# A.I.R. 1977 Cal 90.

# A.I.R. 1988 J&k 62

# ( 1979) II Andh LT 179

# (1943) 210 IC 587.

# (1971) KLT 663.

# A.I.R. 1960 All 684.

# A.I.R. 1945 Lah 51

# A.I.R. 1971 Ker 261.   

# http://en.wikipedia.org/wiki/Talaq_(Nikah)

Thanks
Dr.Zulfiqar Ali Khan
Advocate & Legal Consultant
Supreme Court of India

No. 244, H Block, Beta-II, Greater Noida
MB: 9884102961

Muslim women's right for Dissolution of Marriage

MUSLIM WOMEN'S RIGHT FOR DISSOLUTION OF MARRIAGE

Among almost all the nations of antiquity, divorce was regarded as a natural corollary or marital rights. Romans, Hebrews, Israelis etc. all had divorce in one or the other form. Even though the provision of divorce was recognised in all religions Islam perhaps the first religion in the world which has expressly recognised the termination of marriage by way of divorce. In England divorce was introduced only 100 years back. In India among Hindus, it was allowed only by Hindu marriage act, 1955. Before the passing of the act divorce was not recognised by Hindu Law.

Divorce among the ancient Arabs was easy and of frequent occurrence. In fact, this tendency has even persisted to some extent, in Islamic law. It was regarded by prophet to be the most hateful before the Almighty God of all permitted things; for it prevented conjugal happiness and interfered with the proper bringing up of children.

Islamic reforms – According to Ameer Ali, the reforms of Prophet Mohammad marked a new departure in the history of eastern legislations. The prophet of islam is reported to have said “with Allah, the most detestable of all things permitted is divorce”, and towards the end of his life he practically forbade its exercise by men without intervention of an arbiter or a judge. The Quran Ordains,”…if ye fear a breach between them twain(the husband and the wife), appoints an arbiter from his folk and an arbiter from her folks. If they desire amendment, Allah will make them of one mind”. The Quran permits divorce partly because of some countenance to the customs and partly to enable men get rid of an odious union.

Prophet Mohammad restrained the power of divorce and gave to the women the right of obtaining the separation on reasonable grounds. The Prophet is reported to have said,” if a women be prejudiced by a marriage, let it be broken off.

INTRODUCTION:

People are governed simultaneously by many different laws: laws recognised by the state i.e. codified and uncodified laws and informal laws such as customary practices which vary according to the cultural, social and political context. A half-hearted attempt was made in 1937 when the Shariat Application Act was passed with the intention to apply the Shariat, and not the customary laws, on the Muslim population. The Act said that in all personal matters, Shariat laws and not the customary laws would govern the Muslims, though it did specify the specific details of what would comprise this Shariat law. In reality, each sect in the Muslim community continued to follow its own traditions and customs. Moreover, there was opposition to a codified law for all Muslims from certain quarters who were benefiting from the customary practices. Thus, the first attempts at enacting a uniform Muslim Personal Law was rendered unsuccessful. The only advantage of this Act lay in its attempt to bring the Muslim community under one law despite its heterogeneity. It also brings home the fact that Muslims in India, post-Independence, have not made any serious attempt to codify diverse practices of its different schools of thought and jurisprudence.

Another attempt was made in 1939 with the Dissolution of Muslim Marriage Act. It laid down nine grounds on which a Muslim woman could seek divorce in the court. Islamic law then allowed a man to divorce his wife at will but a wife did not have the right either to give divorce or seek one. The only way out for them was to convert to another religion to annul her marriage. Alarmed at this trend, the Ulemas coaxed the British government to pass this Act. Although the Act allowed a woman approach the court for divorce, it did not curb the man’s right to divorce his wife orally and unilaterally. The next step was the Muslim Women (Protection on Divorce) Act, which was enacted only in 1986 after the Shah Bano controversy. This law prescribed the right to maintenance for a Muslim woman after her divorce. Different courts interpreted the law differently and some women even continued to take resort to the Cr. P.C 125 [Criminal Procedure Code sec. 125] to demand maintenance.

The laws, passed in 1939 and 1986, were not the result of a concerted effort towards reforms. They were more a result of reactions by the conservatives who saw reforms in personal law as an infringement on their right to religion and a threat to their male identity.

DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939:

Marriages, as they define, are made in heaven and solemnized on earth. It is a sacrament for Hindus, a sanctified contract for Muslims and a sacred knot for Christians. Husbands and wives vow for each other, yet there have been innumerable cases of betrayals by the spouses.

The complexity of modern society and its possible consequences such as fast changing socio economic conditions, the disintegration of the joint family structure, the rapid development of industrialization and urbanization, education and employment and laws giving equal status and rights to women, led a tremendous impact on the institution of marriage. Few decades ago divorce was considered as an evil, the grounds of divorce were very limited and it was sought only under compelling circumstances. Positions have however, changed now. Marriage is no longer treated as an indissoluble union. In fact, there has been a considerable legislative and judicial interference in the sphere of matrimonial laws during the past few decades all over the world. In view of the changing times, divorce laws are being substantially modified and liberalized.

Like Hindu law, followers of Islam have their own personal law, which states that Nikaah or marriage is a contract and may be permanent or temporary and permits a man four wives if he treats all of them equally. There should be a proposal or `offer,` made by or on behalf of one of the two parties;

The Muslim marriage law also states that to have a valid marriage under the Muslim law, if a person is of sound mind, normal and has attained puberty at the age of 15 his or her marriage cannot be performed without his or her consent. There are certain prohibited relationships, whose marriage is considered void. Like mother and son, grandmother and grandson, uncle and niece, brother and sister and nephew and aunt.

i. An `acceptance` of such proposal or `offer` by or on behalf of the other party;

ii. The `offer` and `acceptance,` both, must be expressed in the same meeting. There is no prescribed form for proposal and acceptance. However, a proposal, made at one meeting and an acceptance, made at another meeting, will not constitute a valid marriage;

iii. The offer and acceptance must be made in the presence of two male witnesses, or one male and two female witnesses, who must be adult Mohammedans of sound mind; iv. A marriage, contracted without witnesses, is not void but is considered irregular. Such irregularity can be cured by consummation. However, according to Shia law, the presence of witnesses is not necessary in any matter. 

DISSOLUTION OF MARRIAGE CAN BE BY FOLLOWING WAYS:
BY DIVORCE :

A Husband may divorce in the following manner- 

a. Talaq: which is release from the marriage tie immediately or eventually.

b. Ila: where a husband of sound mind takes a vow that he will abstain from all relationship from his wife. 

c. Zihar: where husband sane and adult compares his wife to his mother or any other female within the prohibited degrees. 

A wife may divorce in the following manner- 

a. Talaqetafwiz:  talaq by the wife under the husbands delegated power.
By Judicial Decree:

Following are the grounds on which a marriage maybe dissolved under the Marriage Act.

a. Lian: Where the wife is charged with adultery and the charge is false.She can file a regular suit for dissolution of marriage as a mere application to the court is not the proper procedure.

b. Fask: The cancellation, abolition, revocation, annulment. Before the passing of the dissolution of Marriage Act, Muslim women could only apply for the dissolution of their marriage under the doctrine of Fask.

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. 

Muslim Marriage Act also has a provision for separation under the name of dissolution of Marriage act, 1939. Both the parties to the marriage contract have an opinion for divorce, but the husband`s right in this respect is much greater than that of the wife. In case of divorce a husband can leave his wife without any reasons merely by pronouncing the word "Talak" thrice. Like in Hindu marriage act, divorce can also take place due to mutual agreement between the husband and the wife which is known as Mubarat. 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).

Khula (redemption) is another way of ending a Muslim marriage which is a form of divorce with the consent and at the initiative of the wife. The wife gives or agrees to give a consideration to the husband for her release from the marriage tie. In this form relieving the husband from payment of mahr to the wife may be a consideration.

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:

(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has filed to provide for her maintenance for a period of two years;

(ii-A) that the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of sixteen years, repudiated the marriage before attaining the age of eighteen years: 

Provided that the marriage has not been consumated; 

(viii)that the husband treats her with cruelty, that is to say,

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute of leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran, 

(ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law,

Provided that:
(a) no decree passed on ground (i) shall take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court he is prepared to perform his conjugal duties the Court shall set aside the said decree; and

(b) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfied the Court within such period, no decree shall be passed on the said ground.

A husbands failure to provide for the maintenance of the wife for a period of 2 years mentioned in Cl.(ii) of Section 2 entitles the wife to a decree for dissolution of marriage whether or not the husband has reasonable cause for withholding such maintenance.

Cl.(ii) of section 2 should be read in contradistinction with Cl.(iv) as per which the wife is entitled to to decree for dissolution of her marriage on the ground that the husband has failed to perform without reasonable cause his marital obligations for a period of 3 years. The words “without reasonable cause” are significantly absent in Cl.(ii). The duty to provide wife with maintenance is self imposed to keep the relationship intact and it is ot a duty corresponding to the right of the wife to claim maintenance against the husband. As against the arbitrary power of the husband yo liquidate the marriage the wife gets a right to dissolution of maariage on the husband’s neglect or failure to provide for maintenance for a period of 2 years. This construction of Cl.(ii) of Sec.2 is in consonance with the Islamic law on the subject. There is therefore no jurisdiction in introducing the words “without reasonable cause” into Cl.(ii). The legislature in its wisdom, by providing those words in Cl(iv) has not thought it necessary to provide this restriction in Cl.(ii).[1]

In a suit brought by wife for dissolution of marriage on the ground that her husband was impotent at the time of marriage and continued to be so that facts were as follows. Marriage was celebrated on June 12, 1960 and the suit was brought on Oct 3, 1960. the husband asked for and was granted one year to prove that he has ceased to be impotent. On the expiry of the period the court granted a decree on the application of the wife.

The requirements of Sec.2(v) that the husband is not only impotent at the time of the marriage but that he continues to be impotent when the suit is filed. The evidence in the case was held to establish impotency at both the point of time. On the question raised that during the period of grace, the husband was denied the company of his wife in his own house, the court held that after the act the rule of Mohammedan Law about the duty of the wife did not apply. The act requires an opportunity to satisfy the court about the cessation of the condition and that the opportunity is available only on application to the court. The provision of the act abrogated the Mohamrdan Law. It is not the rule that the acquisition of virility can be proved only by sexual act with the wife. Such a procedure is likely to subject the wife to some peril.

In case of Abdul Azeem v. Fahimunnisa Begum[2] the facts were: In this case the wife sued the husband for dissolution of her marriage for failure to maintain her for 2 years. She was married in 1952. in 1955 she went away to her parents. The husband then performed the second marriage. The suit failed. It was held that under Mahomaden Law polygamy was allowed and could not be a ground for living apart and claiming for the maintenance in the absence of other grounds which would justify the wife to follow other course.

In Munnawarbai v. Sabir Mohammad[3] case the wife left the marital house and stayed away without any justifiable cause and then asked for dissolution of marriage on the ground that husband was not maintaining her, it was held that the wife is not entitled to relief under section 2 (ii) of Dissolution of Marriage Act, 1939. 

Other than these situations Cl.(ix) of Section 2 states that “on any other ground which is recognised as valid for dissolution of marriage under Muslim Law”. This clause covers the divorces by ila, zihar, khula, mubarat and tafweez. Imputation of unchastity or false charge of adultery against the wife (Lian) makes a good ground for dissolution of her marriage. This ground falls under clause(ix) of section 2 of the act.

In Noor Jahan Bibi v. Kazim Ali[4], one Noor Jahan filed a suit against her husband Kazim ali who charged her that she was of bad character and she was enamoured of one Asghar Ali and committed adultery with him. It was held by the court that the doctrine of Lian has not been absolute under the Muslim Law and therefore a muslim wife can bring a suit for divorse against her husband on the ground that her husband has charged her with adultery falsely under section 2(ix) of the act.

In M.B. Rahim v. Shamsoonnissa Begum[5], the privy council observed that wherin the husband disposed of the property of her wife and confined her to a room as if she was in a jai. He also misbehaved with his wife. In appeal Husband raised contention that as far as Muslim Law is concerned a wife has no right to live seperatly even though the conduct of the husband is not good. It was held by privy council that if under the muslim law no wife can separate herself from her husband then such law is clearly contrary to the principle of natural justice. This case was decided in favour of wife by the privy council.

CRUELTY: The general notion of cruelty is very subjective- depending on time, place, persons and other factors also. The legal concept of cruelty, which is not defined by statute, is generally described as act or conduct of such a nature as to have caused to life, limb or health- physical or mental or as to make a reasonable apprehension of such danger.

Cruelty, no doubt, constitutes a pompous ground for dissolution of marriage, as the term cruelty and love and affection are repugnant to each other. There is no strait jacket formula to define cruelty. Even a gesture, an angry look, a sugar coated joke, an ironic look may be more cruel than beating. Every act or conduct of one spouse which makes the other spouse unhappy or miserable can not amount to cruelty. The mere fact is that the erring spouse is moody, whimsical, mean, stingy, selfish, boorish, irritable, inconsiderable, irascible etc. will not be sufficient to amount to cruelty.

Cruelty in marital relationship, is a course of conduct of one spouse which adversely affecting the other. Cruelty may be mental or physical, intentional or unintentional. If it is physical, it is an issue of fact and degree. If it is mental, the enquiry must begin as to the nature of the cruel treatment and then as to the treatment of the mind of the spouse. Whether it caused reasonable apprehension that it would be harmful or injurious to live with the other, is ultimately a matter of inference to be drawn by taking into account the nature of the conduct and its effect on the complaining spouse. Cruelty is a ground for matrimonial relief.

In Islamic law, the concept of cruelty (zirar) is not limited. The cruelty provision is to be interpreted in the light of the Prophet’s exhortations that women are as tender as glasses (qawarir) and he is the best man who is kind to his wife. It is worth mentioned here that under Muslim law cruel nature is a disqualification for eligibility to marry.

Section 2(viii)(a) of the concerned Act uses the words by cruel conduct even if such conduct does not amount to physical ill treatment. This language is wide enough to include all cases of cruelty, not merely this, it would cover all types of misconduct or misbehaviour, serious and not very serious on the part of the husband calculated to break spirit of the wife by physical or moral force which was systemically exerted on her to such a degree and to such a length of time resulting in undermining her health, it will amount to cruelty.

Regarding cruelty of conduct the general test should apply, since the conduct that is cruel for one woman can not be civilized enough for another just because of the religion of the parties. The point lies in the statutory words ‘makes her life miserable’ and the social status and standard of self-respect of the wife should be decisive to ascertain if the man’s conduct amounts to cruelty. A simple allegation of the wife, unsupported by independent testimony, is not sufficient in law to establish any charges mentioned in the law.

In case of inequitable treatment between the co-wives which amounts to cruelty, the courts earlier providing maintenance to one wife only and ill-treatment forcing co-wife to leave the husband as instances of unequal treatment. In Umat-Ul-Hafiz v. Talib Hussain[6], husband went abroad leaving behind his two wives in India. He provided maintenance to one wife and neglected the other. The court granted divorce to the neglected wife.

The Allahabad High Court in Itawari v. Smt. Asghari[7] observed that a Muslim has the legal right to take a second wife even during the subsistence of the first marriage, but if he does so, and then seeks the assistance of the Civil court to compel the wife live with him against her wishes on pain of severe penalties including attachment of properties, she is entitled to ask whether the court, as a court of equity, ought to compel her to submit to co-habitation with such a husband. In that case the circumstances in which his second marriage took place are relevant and material in deciding whether his conduct in taking a second wife was in itself an act of cruelty to the first.

The onus in these days would be on the husband who takes a second wife to explain his action and prove that his taking a second wife involved no insult or cruelty to the first. For example, he may refute the presumption of cruelty by proving that his second marriage solemnized at the suggestion of the first wife or in order to gain some financial benefit( may be through contract) the first wife may indulge or insist her husband or reveal some other relevant circumstances will prove cruelty. But in the absence of a strong and proper explanation the court will presume, under modern prevailing systems, that the action of the husband in taking a second wife involved cruelty to the first and that it would be inequitable for the court to compel her against her wishes to live with such a husband.

It will amount to cruelty if the husband disposes of his wife’s property or prevents her from exercising her legal rights over it. In caseZubaidaa v. Sardar Shah[8], the view expressed by Abdul Rahman J., that, ‘it is not always easy to determine for what purpose, husband sells or assigns his wife’s property of any value’. Property may be used for the treatment of wife, for the benefit of the family members, for the education of children, for the maintenance of any other liabilities. If the property disposed of not for the selfish ends of the husband, not with the object of meeting a pressing needs but more in the sense of waste and this done to deprive the wife of her property and without the consent of wife then it shall constitute the offence of cruelty.

In Shamsunnissa Begum’s case, II. M.I. 551 the test of cruelty is based on universal and humanitarian standards by the husband which would cause such bodily or mental pain as to endanger the wife’s safety of health.

In another case the Bombay High Court in Shakla Bano v. Ghulam Mustafa[9], has observed that an unwilling wife cannot be compelled to live along with her husband. Cruelty can be of various shapes. It depends on various factors like health, environment, education, economic and social backgroung. It is settled position that persistent charges of adultery and immorality may amount to cruelty[10].

It is clear that to constitute cruelty it is not necessary that there should be actual violence or a reasonable apprehension of it. Likelihood of violence is a good ground for the grant of relief[11]. Presently physical violence is not the only essential ingredient of cruelty. Mental agony also amounts to cruelty.

It is to be noted that the term cruelty includes habitual assaults, concubinage, associated with the women of ill repute or leads an infamous life, attempts to force her to live her an immoral life, dispose of her property, or prevent her to exercise her legal rights, obstructs her in the observance of her religious profession or practice and if Muslim husband has more than one wives, he doesn’t treat her equitably.

Today, there is a large volume of case laws on cruelty in India and abroad. Since human nature and conduct are infinitely diverse. No hard and fast rules can be laid down as to what acts or conducts will amount to cruelty in any given case. However, there is a sea change in the attitudes of the courts. There is no difficulty in holding when physical violence amounts to cruelty. However deciding some clear cases, questions do arise in the sphere of mental cruelty or not. The reason is that mental cruelty may be of any kind or of infinite variety, new concept of mental cruelty may reveal. It may be subtle or brutal. It may be by words, gestures or even by mere silence. 

Section 3: Notice to be served on heirs of the husband when the husband’s whereabouts are not known.

In a suit to which clause (i) of section 2 applies:

(a) the names and addresses of the persons who would have been heirs of the husband under Muslim Law if he had died on the date of the filing of the plaint shall be stated in the plaint.

(b) notice of the suit shall be served on such persons, and

(c) such persons shall have the right to be heard in the suit:

Provided that paternal-uncle and brother of the husband, if any, shall be cited as party even if he or they are not heirs. 

Section 4: Effect of conversion to another faith.

The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage:
Provided that after such renunciation, or conversion, the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in section 2;

Provided further that the provisions of this section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.

Section 5: Right to dower not be affected.

Nothing contained in this Act shall 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

Section 6: (Repeal of section 5 of Act, XXVI of 1937) Rep. by the Repealing and Amending Act, 1942 (XXV of 1942), section 2 and First Sch.

After the dissolution of marriage by any means discussed above the man and the woman can remarry immediately. In fact, unlike in a Hindu marriage, Muslim widow is encouraged to be remarried and that`s a responsibility of the Muslim community.

MERITS: 

Dissolution of Muslim Marriage Act 1939, has enabled women to seek divorce on the grounds of cruelty without having a free of loosing a substantial part of her property. Earlier, before the enactment of this act Muslim women did not have this advantage to file an application for divorce on the grounds of cruelty but now she can do so. This act has proved to be a boom for all Muslim women. Women’s struggle are interconnected and complementary and therefore has a commitment to international solidarity.

DRAWBACKS:

These laws were piecemeal, targeting only certain aspect of the personal law. For instance, the Dissolution of Muslim Marriage Act only laid down grounds on which women could seek divorce. It never curbed men’s right to unilateral oral divorce nor did it lay down any procedure for the recovery of mehr, post-divorce maintenance or about the custody of children.All three instances of codification of certain aspects of Muslim personal law show that religious men from the community used their influence on the entire process to protect the Shariat from any pro-women reform. Accordingly all attempts at bringing about pro-women reforms and some uniformity in the Muslim law failed. Even statutory legislations are not without flaws. Some aspects of the law like the right of Muslim women to seek divorce and the post-divorce maintenance have been codified. But other aspects like inheritance, custody of children etc. have not been codified. On top of all these is the prevalence of customary laws, which the community has been following as a matter of tradition. In the last 20 years except for some pro-women judgments, there has been no forward movement in the effort to reform the Muslim law by codifying it and making it uniformly applicable to the entire Muslim population across the country.

SUGGESTIONS:

The Muslim women, meanwhile, continued to suffer because of polygamy, oral unilateral divorce, low mehr amounts, lack of maintenance and other ills which plague Muslim law. In the last two decades except for some pro-women judgments, there has been no forward movement in the effort to reform the Muslim law by codifying it and making it uniformly applicable to the entire Muslim population across the country. Therefore a reform should be brought in the Muslim law to uplift the position of the women. More of women organisations should be encouraged because of the fact that the women’s organizations have played a remarkable role in highlighting the plight of the Muslim women. They have continued to play a catalyst in organising the Muslim women around the issues like demand for the abolition of oral unilateral divorce. This movement got a fillip recently with the fatwa against Imrana. Imrana, a mother of five children, from Muzaffar Nagar, was raped by her own father-in-law. The shariah jamaat passed a fatwa, which nullified Imrana’s marriage with her husband. The All India Muslim Personal Law Board, later put its stamp of approval on the fatwa issued by the Darul Uloom Deoband’s above ruling. It also pinned down the State in taking more responsibility in protecting the rights of the Muslim women who are equal citizens and are entitled to all such benefits, which the women of other faiths inherit by right.The progressive elements within the Muslim community must make themselves known to the self-styled regressive leaders and to the State and demand a gender-just codified Muslim law.

[1] AIR 1978 Andh. Pra. 417 and AIR 1971 Cal. 218 

[2] (‘69)A. Mys. 226. 

[3] 1970 M.P.L.J. Notes 23.

 [4] AIR 1977 Cal.90.

 [5] (1967) 11 M.I. A.551.

 [6] AIR1945 Lah.56 

[7] AIR1960 All.684 

[8] AIR1943Lah. 310 

[9] AIR 1971 Bom. 167.

 [10] Iqbal Kaur v. Pritam Singh, AIR 1963 Punj 242( A Hindu case)

 [11] Hamid Husaain v. K. Begum,(1918) ILR 40 All. 332

Thanks

Dr.Zulfiqar Ali Khan

Advocate

High Court of Madras

Chennai-104

MB: 9884102961