Grounds for Dissolution of Muslim Marriage
Under 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 is 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.
Grounds for decree for dissolution of Marriage
Under the said Act, 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:
1. That the whereabouts of the husband have not been known for a period of four years;
- No decree passed 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;
2.That the husband has neglected or has failed to provide for her maintenance for a period of two years;
3. That the husband has been sentenced to imprisonment for a period of seven years or upwards;
4. That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
5. That the husband was impotent at the time of marriage and continues to be so;
- before passing a decree 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.
6. That the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
7. 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 age.
Provided that the marriage has not been consummated;
That the husband treated her with cruelty, namely:
- Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
- Associated with women of evil repute or leads an infamous life;
- Attempts to force her to lead an immoral life;
- Disposes of her property or prevents her exercising legal rights over it;
- Obstructs her in the observance of her religious profession or practice;
- If he has more wives than one and does not treat her equitably in accordance with the injunctions of the Quran.
Section 2 of the Act deals with the right of a woman married under Muslim Law to obtain a decree for dissolution that her husband assaults her or makes her life miserable by cruelty. If any incident perpetrated by the husband with cruelty had made her communal life miserable then that would amount to cruel treatment as envisaged in the clause.
- On any other ground, which is recognised as valid for the dissolution of marriage under Muslim law;
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:
- 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.
- notice of the suit shall be served on such persons, and
- such persons shall have the right to be heard in the suit:
Provided that the paternal-uncle and brother of the husband, if any, shall be cited as party even if he or they are not heirs.
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.
WHAT IS ‘IDDAT’?
Iddat is the period during which a woman, whose marriage has been dissolved by death or divorce, must remain in seclusion and abstain from marrying again. Such abstinence is imposed to ascertain whether she has been impregnated by the husband and avoid confusion about parentage.
The duration of iddat is as follows:
- When marriage is dissolved by divorce -Three courses, if she is subject to menstruation; or three lunar months, if she is not subject to menstruation; or if pregnant at the time of divorce, the whole period until delivery. If the marriage has not been consummated, she does not have to maintain iddat and is free to marry, immediately.
- When the marriage is dissolved by death- Four months and ten days if she is not pregnant. If pregnant-four months and ten days or until delivery, whichever is longer.
Iddat period means in the case of a divorced woman:
- three menstrual courses after the date of divorce, if she is subject to menstruation; and
- three lunar months after her divorce, if she is not subject to menstruation; and
- if she is pregnant at the time of her divorce, the period between the divorce and delivery of her child or the termination of her pregnancy whichever is earlier.
DIFFERENT MODES OF DIVORCE
Under Muslim law, marriage may be dissolved by way of divorce. In this respect, the husband enjoys a superior position as compared to his wife on account of two reasons. First, a husband can divorce his wife without there being any misconduct on the part of his wife. Even if he has promised not to divorce his wife, his promise is not binding on him. Secondly, he can even have four wives at a time. Thus, a Muslim wife is subjected to some disabilities.
Under Muslim law, a divorce may be effected by the following three modes:
Talak: When a husband divorces his wife, the mode of divorce is known as talak. In this case, husband enjoys the sole right and the same is decisive. There are different types of talak. According to this mode of divorce, a husband gives divorce to his wife without there being any misconduct on the part of his wife. His words are enough to make the divorce effective. However, under Shia law, the intention of a husband in uttering the words of talak must be proved. It may be further pointed out that a husband may divorce his wife even in her absence. A divorce may be even contingent and a husband can also delegate his power to divorce to any other person, including his wife.
Talak is mainly of three types: talak ahsan, talak hasan and talak – ul-biddat or talak- i – badai.
According to talak ahsan, a husband pronounces the word, “talak” and abstains from sexual intercourse for the period of iddat.
According to talak hasan, three pronouncements of talak are made, once during each of the three successive periods of purity i.e. intervals between menstruations or followed by absence of sexual intercourse until the third pronouncement.
According to talak, a husband makes three pronouncements of talak in quick succession or one after another. This form of talak is considered as irregular or sinful. The Shia Law does not recognise this type of talak.
Divorce by mutual consent: This is known as ”Khula” or ”Mubarat”. In the case of the former (Khula), divorce is initiated by the wife and once the offer is accepted by the husband, the same becomes effective. In this case, the husband has to release his wife from her marital obligations. In the latter case, however, both the parties desire separation.
Judicial decree: judicial decree may be brought both by a husband or a wife. A Muslim wife may file for divorce on the ground of impotence of the husband, lian (false change of adultery), whereabouts of husband not being known, failure to provide maintenance to her, husband undergoing imprisonment for period of seven years or more, his failure to perform marital obligation without any reasonable cause for a period of three years, his insanity for two years or his being suffering from leprosy or virulent venereal disease or repudiating of marriage on attaining puberty, etc. This mode of divorce is provided for under the Dissolution of Muslim Marriage Act, 1939.
Ila: where a husband of sound mind takes a vow that he will abstain from all relationship from his wife.
Zihar: where a husband, a 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:
Delegation of power to divorce (tufweez): Ordinarily, the husband alone can give talaq to his wife. However, a husband may delegate the power to give talaq to the wife or even a third person. This ‘delegated power’ is operative only on the existence of certain circumstances, which must be reasonable and consistent with the principles of Muslim law. If the circumstances that are mentioned exist, the wife is at liberty to divorce her husband. Such authority, if delegated for a temporary period, is considered irrevocable. On the other hand, if it is delegated permanently, it is revocable.
Talak becomes irrevocable:
A talak hasan becomes irrevocable on the third pronouncement
When a talak is given by way of writing, it operates immediately on the execution of the document, unless a contrary intention appears.
Until a talak becomes irrevocable, it is open to a husband to revoke the same. He may revoke it either expressly or by implication.
REPUDIATION OF MARRIAGE
The right of repudiation of marriage of a Muslim, who is married by his father or grandfather, is available only under certain circumstances i.e., on attaining the age of 18 years or before she attained the age of 15 years. Muslim jurists have not been unanimous as to whether a child who is married by his father or grandfather can repudiate the marriage on attaining puberty. However, a Muslim wife can repudiate such marriage, if the marriage, has not been consummated.
If the father or father”s father has acted carelessly, fraudulently or negligently or where the minor is married to a lunatic, impotent person, or to a person of unsound mind or the marriage is to the manifest disadvantage of the child, the child, male or female, has the right to of repudiate the marriage.
With regard to Muslim males, married by their fathers or grandfathers before they attained the age of puberty, a marriage can be repudiated only when marriage is manifestedly to the disadvantage of the minor. Most of the cases that have come before the court relate to repudiation of marriage by females who were married before they attained puberty. But, on the same basis, the marriage of male can also be repudiated.
OPTION OF PUBERTY
Though a Muslim minor can be contracted in marriage by his or her guardian, it does no mean that such a marriage is irrevocable and binding on the minor. The law gives him/her right, either to ratify or repudiate such a marriage on attaining puberty. This is known as the option of puberty. This is one of the safeguards which protect the interest of women and children of the Muslim community. This does not, however, mean that every such a marriage contracted by the father or paternal grandfather can be repudiated by a minor. In order to repudiate the same, it is necessary to show that such a marriage is detrimental to the interests of the minor concerned. This principle, governing a marriage of a Muslim minor, should be considered in the light of provision contained in the Dissolution of Muslim Marriage Act, 1939. This 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 a grandfather and consequently, a Muslim wife is entitled to the dissolution of her marriage, provided that she proves that:
- She was given in marriage by her father or other guardian
- Marriage has not been consummated
- Marriage was contracted before she attained the age of 15 years of age, and
- She has repudiated the marriage before attaining the age of 18 years.
Therefore, it is important to note that if the marriage, contracted by any other guardian, the minor does not lose the right to repudiate the same on attaining puberty, without specifying reasons for doing so.
Under Shia Law, a marriage contracted by a person other than a father or grandfather is entirely ineffective, unless and until it is ratified by the minor on attaining puberty. As per the law, the option of puberty is to be exercised as follows:
i) A wife must exercise this option immediately on attaining puberty, and on being informed of the marriage and of her right to repudiate it.
ii) A husband must exercise this option anytime before he ratifies the marriage either by way of paying the dower or by co habitation. If he fails to do so, his right of repudiating the marriage is lost
When the option of puberty is exercised, a marriage ceases to be a marriage and therefore, it is treated as if it never took place. However, they (husband and wife) remain husband and wife for the purpose of inheritance and therefore, if either of them dies, the other is entitled to inherit from her/him in the capacity of husband or wife, as the case may be.