INTRODUCTION:

The research paper deals with the changes brought in the Muslim law of divorce. It deals with
extra judicial divorce, judicial separation and judicial divorce. In extra judicial divorce, the topics
discussed are- unilateral divorce (talaq), divorce at the instance of wife (khula), divorce by
mutual consent (mubaraat), delegated divorce (talaq-i-tafweez). It also deals with the grounds of
judicial separation and grounds of divorce on which a Muslim wife can apply for divorce.

Position before advent of Islam:

Among pre-Islamic Arabs, the powers of divorce possessed by the husband were unlimited. They
could divorce their wives at any time, for any reason or without any reason. They could also
revoke their divorce, and divorce again as many times as they preferred. Moreover, they could, if
they were so inclined, swear that they would have no intercourse with their wives, though still
living with them. They could arbitrarily accuse their wives of adultery, dismiss them, and leave
them with such notoriety as would deter other suitors; while they themselves would go exempt
from any formal responsibility of maintenance or legal punishment.1 Even though, the provision
of divorce was recognized in all religions, Islam is perhaps the first religion in the world which
has expressly recognized the dissolution of marriage by way of divorce. Divorce among the
ancient Arabs was easy and of frequent occurrence2

Position after advent of Islamic Law:

The institution of arbitrary talaq at the sweet –will of the husband exists since the pre-Islamic
days. In those days, there were no restraints whatsoever. The husband was at liberty to
pronounce talaq any number of times and to revoke it by taking the women back and resuming
marital connection. This power of divorce was recognized by the Prophet but he imposed certain
restrictions, moral and legal which constitute some checks on the husband’s powers. Morally,
talaq was declared to be the most detestable before God of all permitted things, according to a
hadis.3 The legal restraints imposed are the following:
1
Ibrahim Abdel Hamid- “Dissolution of Marriage”, Islamic Quarterly, 3 (1956) 166-75, 215-223; 4 (1957)3-10, 57-
65, 97-113; cf: Syed Khalid Rashid- Muslim law, 4th edn. 2004, p.98, Eastern Book Co., Lucknow.
2
Syed Khalid Rashid- Muslim law, 4th edn. 2004, p.98, Eastern Book Co., Lucknow.

3
Jung- Muslim Law of Marriage, p. 46; Asha Bibi Ibrahim ILR 33 Mad 22 at p.25; cf: B.R. VermaIslamic Law, 6th edn.
1986, p.203, Law Publishers (India) Private Limited.
1). the fixing of dower; provision for revocation of talaq in some cases; and. restraints on re-
marriage between the parties.

The Prophet Mohammad looked upon these customs of divorce with extreme disapproval and
regarded their practice as calculated to undermine the foundation of society. However, under the
existing conditions of society, it was impossible to abolish the custom entirely. The Prophet had
to mould the mind of an uncultured and semi-barbarous community to a higher development.
Accordingly, he allowed the exercise of the power of divorce to husbands under certain
conditions.4

The reforms of Prophet Mohammad marked a new departure in the history of Eastern legislation.
He restrained the husband’s unlimited power of divorce and gave to the woman, the right of
obtaining the separation on reasonable grounds. The Prophet Mohammad is reported to have
said, “if a woman be prejudiced by a marriage, let it be broken off” 5 He pronounced “talaq” to be
the most detestable before god of all permitted things for it prevented conjugal happiness and
interfered with the proper bringing up of children.6 Divorce signifies the dissolution of the
marriage tie. All separations effected for causes directly originating in the husband are termed
Talaq, and separations effected otherwise by the decree of the court are known as Farqat. 7 Talaq
in its literal sense means “the taking off of any tie or restraint”. The right of divorce is conceded
in Muslim law, but the law prohibits its exercise by threats of divine displeasure, “it was”, says
Baillie, originally forbidden and is still disapproved, but has been permitted for the avoidance of
greater evils.8

The Gauhati High Court in Musst. Rebun Nessa v. Musstt. Bibi Ayesha & others, 9 has observed
that the correct law of Talaq as ordained by the Holy Quran is that (i) Talaq must be for a
reasonable cause; (ii) that it must be preceded by an attempt of reconciliation between the
husband and the wife by two arbiters, one from the wife’s family and the other from the husband.
If an attempt fails, talaq may be effected. The dissolution of marriage may be either by the act of
4
. Ameer Ali- The Spirit of Islam, 243-44 (London, 1965) cf: Syed Khalid Rashid- Muslim law, 4th edn. 2004, p.98,
Eastern Book Co., Lucknow
5
. Aqil Ahmad- Mohammedan Law, 21st edn. 2004, p.163, Central Law Agency, Allahabad.
6
Syed Khalid Rashid- Muslim law, 4th edn. 2004, p.98, Eastern Book Co., Lucknow.
7
. Al-Haj Mahomed Ullah ibn S. Jung: Anglo Muslim Law, p.25, cf: Mahesh Prasad Tandon, Muslim Law, 11th
edn.1999, p.116, Allahabad Law Agency, Faridabad (Haryana)
8
. Baillie’s digest p.205; cited ibid
9
AIR 2011 Gauhati 36
husband or by act of the wife. 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 is done by talaq. But he may divorce the wife also by ila and
zihar which differ from a talaq only in form not in substance.10

A wife cannot divorce her husband of her own accord. She can divorce the husband only where
husband has delegated such right to her or under an agreement. Under an agreement, a wife may
divorce her husband either by Khula or Mubaraat. Before passing of the Dissolution of Muslim
Marriage Act 1939, a Muslim wife had no right to seek divorce except on the ground of false
charge of adultery by the husband (lian), Insanity or impotency of husband.11

But the Dissolution of Muslim Marriage Act, 1939 now lays down several other grounds on the
basis of any one of which, a Muslim wife may get her marriage dissolved by an order of the
court. Islam provides a modern concept of divorce by mutual consent. Today, this is known as
the break-down theory of divorce. Inspite of the fact that, a substantial reform in the pre-Islamic
system of divorce was introduced by the Holy Prophet with a view to prevent the exploitation of
women and give them a status equal to men as well as a moral, social and economic security
right from the child hood to mother hood. 12

The dissolution of marriage under Muslim law can be studied under three heads:

1. Extra judicial divorce. It can be again divided into three:

i) Divorce at the instance of husband (talaq) In this, there are two types of dissolutions:

a) talaq pronounced by the husband himself;

b) talaq delegated by the husband (talaq-i-tafweez).

ii) Divorce at the instance of wife: Under this heads, falls

a) khula b) ila c) zihar d) Lian.

iii) Divorce by mutual consent (mubaraat).

10
. Dr. R.K. Sinha- Muslim Law, 5th edn. 2003, p.81, Central Law Agency, Allahabad.
11
. Ibid. p.82.
12
. Dr. M.A. Qureshi- Muslim Law, 2nd edn. 2002, p.68, Central Law Publications, Allahabad.
2. Judicial separation.

3. Judicial divorce.

EXTRA JUDICIAL DIVORCE :

1) Unilateral divorce: (Divorce at the instance of the husband; Talaq)

Under Muslim law, husbands possess power to dissolve his marriage as and when he likes it
necessary. It is an arbitrary act of a Muslim husband who may repudiate his wife at his own
pleasure with or without showing any cause. He can pronounce talaq at any time. It is not
necessary for him to obtain the prior approval of his wife for the dissolution of marriage. The
talaq may be pronounced on mere whim or caprice without any reason.13

Talaq is an Arabic word and its literal meaning is “to release”. Under Muslim law, talaq means
‘repudiation of marriage by the husband’.14 The word talaq comes from a root (tallaqa) which
means “to release (an animal) from a tether”; hence, to repudiate the wife or free her from the
bondage of marriage.15 Muslim law does not require the existence of any fault or matrimonial
offence as an excuse for talaq.. The law gives to the husband, an absolute authority to terminate
the marriage by pronouncing talaq; because, the society is a male dominated. 16 About more than
hundred years back, the Privy Council in Moonshee Bazloor Raheem v. Shamsoonissa
Begum17said that matrimonial law of the Muhammadan like that of every ancient community
favours the stronger sex where the husband can dissolve the marital tie at his will.

In Moonshee Buzul-ul-Rahim v. Lateef-un-Nissa Begum18, the court said that a divorce by talaq
is more arbitrary act of the husband who may repudiate his wife with or without any cause. This
attitude of the court continued even after the advent of independence. A minor or unsound mind
cannot pronounce talaq. 19Talaq by minor or insane husband is void and ineffective. However, if
the husband is lunatic, the talaq pronounced by him during lucid interval is valid. The guardian
cannot pronounce talaq on behalf a minor husband. According to Tyabji, guardian of a husband
of unsound mind may pronounce talaq on behalf of such insane husband if such talaq is in the
interest of the husband.20

Except under Hanafi law, the consent of the husband at the time of pronouncing talaq must be
free. Under Hanafi law, a talaq pronounced under coercion, compulsion, fraud, voluntary

13
5. Dr. M.A. Qureshi- Muslim Law, 2nd edn. 2002, p.68, Central Law Publications, Allahabad.
14
Dr.R.K. Sinha- Muslim Law, 5th edn. 2003, p.82, Central Law Agency, Allahabad
15
Asaf A.A. Fyzee- Outlines of Muhammadan law, 4th edn. 2005, p.150, Oxford University Press, New Delhi
16
DR. Nishi Purohit- The Principles of Mohammedan law, 2nd edn. 1998, p.183, Orient Publishing Company,
Allahabad.
17
(1867)11 MIA 551 (610); cf: Dr. M.A. Qureshi- Muslim Law, 2nd edn. 2002, p.68, Central Law Publications,
Allahabad.
18
(1918)8 M.I.A. 397 (395); cf: Dr. M.A. Qureshi- Muslim Law, 2nd edn. 2002, p.68, Central Law Publications,
Allahabad
19
Tyabji- Muslim Law, Ed. IV, p.153; cf: Dr.R.K. Sinha- Muslim Law, 5th edn. 2003, p.83, Central Law Agency,
Allahabad.
20
P.L.D. 1965 (W.P.) Lah. 141 at 173-74; cf: B.R. Verma- Islamic Law, 6th edn. 1986, p.203, Law Publishers (India)
Private Limited.
intoxication and undue influence etc, is valid and dissolves the marriage. 21 Divorce given under
the influence of intoxication is valid according to Hanafi law; whereas Shias do not recognize
it.22

If the words of talaq used by the husband are express, the talaq is valid, even if it is pronounced
under compulsion. Under Hanafi law, the intention is unnecessary, and mere use by the husband
of a formula of talaq even in jest, or under compulsion or in voluntary drunkenness, is valid. The
reason given for this is that, a man must not be allowed to plead the illegal condition of
drunkenness as an excuse for the detestable act of talaq.23 According to Shia School24 and Shafii
sub-School of Sunni law25, a talaq pronounced under compulsion, intoxication or jest is not valid.

For the validity of talaq, neither the notice nor communication to the wife is not necessary. The
talaq becomes effective from the moment of its pronouncement and not from the date on which,
the wife comes to know about it. However, knowledge of talaq is required for claiming dower
and maintenance from her former husband.26

i) Talaq-ul-Sunnat:

It is the talaq, which is effected in accordance with the traditions of Prophet. It is regarded to be
the approved form of talaq. It has been further divided into two parts:

a) Talaq Ahsan (most approved form or most proper form)- This Arabic word ‘ahsan’
means ‘best’. The best feature this kind of talaq is that, it is revocable. So, hasty divorce
can be prevented.27 This mode of talaq consists of a single pronouncement of divorce
made in a period of tuhr (purity, i.e., the period between two menstruations) or at any
time if the wife is free from menstruation, followed by abstinence from sexual intercourse

21
Dr.R.K. Sinha- Muslim Law, 5th edn. 2003, p.82, Central Law Agency, Allahabad.
22
Syed Khalid Rashid- Muslim law, 4th edn. 2004, p.103, Eastern Book Co., Lucknow
23
Fitzgerald: Mohammad Law, 1931 edn. 73; cf: Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn. 2008, p.69,
Central Law Publications, Allahabad
24
Baillie: Digest of Mohammaden Law, Vol. II, 108; cf: Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn. 2008,
p.69, Central Law Publications, Allahabad.
25
Hedaya, 76; cf: Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn. 2008, p.69, Central Law Publications,
Allahabad
26
. Dr.R.K. Sinha- Muslim Law, 5th edn. 2003, p.85, Central Law Agency, Allahabad.
27
Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn.2008, p.70, Central Law Publications, Allahabad.
 during the period of iddat. In case of a pregnant woman, there must be no sexual
intercourse till the birth of the child.28
b) Talaq Hasan (Approved form)- In Arabic, Hasan means “good”. While Ahsan means
very good, Hasan means good. But it is not the best mode because evil words of talaq are
to be pronounced three times in the successive tuhrs. In this form, the husband is required
to pronounce the formula of talaq (i.e., the utterance of the words, “I divorce thee”) three
times during three successive tuhrs. If the wife has crossed the age of menstruation, then
the pronouncement of talaq may be made after an interval of 30 days between the
successive pronouncements. It is therefore, “a divorce upon a divorce”, where the first
and second pronouncements are revoked and followed by a third, only then talaq
becomes irrevocable.29
ii) Talaq –ul- Biddat-

This is also known as Talaq-ul-Bain. It is a disapproved mode of divorce. It is sinful form of

divorce.30Biddat means disapproved, wrong innovation or to some extent, forbidden. In
common parlance, this is also called ‘instant triple talaq’.31 This form of talaq was allowed by
second caliph of Islam, Omar. It is recognized only under Sunni law. The talaq-ul-biddat in
any of its forms is not recognized by the Shias and Malikis. It consists of three
pronouncements made during a single tuhr either in one sentence clearly indicating an
intention to put an end to the marriage irrevocably or in three sentences.

2) Talaq delegated by the husband (talaq-i-tafweez).

Talaq-i-tafweez is also known as Talaq-i-Tawhid. Literally, tafweez means ‘delegate’. A Muslim

husband can delegate his power of pronouncing talaq to his wife or to any other person. 32 But
such power does not deprive the husband of his own right to pronounce a talaq. 33 A Muslim
husband is entitled to pronounce a talaq. He is also entitled to delegate his power to another

28
. DR. Nishi Purohit- The Principles of Mohammedan law, 2nd edn. 1998, p.193, Orient Publishing Company,
Allahabad.
29
Syed Khalid Rashid- Muslim law, 4th edn. 2004, p.102, Eastern Book Co., Lucknow
30
Aqil Ahmad- Mohammedan Law, 21st edn. 2004, p.169, Central Law Agency, Allahabad.

31
Yawer Qazalbash- Principles of Muslim Law, 2nd edn. 2005; p.130, Modern Law House, Allahabad.
32
Baillie, I, 328; Hedaya, 86; cf: DR. Nishi Purohit- The Principles of Mohammedan law, 2nd edn.1998, p.201, Orient
Publishing Company, Allahabad
33
Nag Kyw v. Mi Hia 49 IC 67 (Rang); cited ibid.
person to do so.34 He may confer the power upon the wife herself or a third party to repudiate the
marriage. He may confer the power upon the wife herself or a third party to repudiate the
marriage. Capacity to delegate the power: A husband:

a) Who is of sound mind, and

b) Who has attained the age of puberty may delegate his right of pronouncing talaq.

If a husband becomes insane after delegating his power, the delegation will not be invalidated.35

II) Divorce at the instance of wife:

a) Khula: The word Khula literally means “to take off clothes” and thence, to lay down
36
one’s authority over wife. In law, it is laying down by a husband of his right and
authority over his wife for an exchange. 37 It signifies an arrangement entered into for the
purpose of dissolving a connubial connection in lieu of compensation paid by the wife to
her husband out of her property. Khula infact is thus a right of divorce purchased by the
wife from her husband.38
b) Ila (vow of continance) : Ila means “oath” or “vow”. In law, it means that, when a
husband takes an oath that he will not do sexual intercourse with his wife for four months
or above on the expiry of four months after making ila, if the husband has abstained from
sexual intercourse during this period, the marriage shall stand dissolved.39
c) Zihar (Injurious assimilation): The term “zihar” is derived from ‘zuhar’, the back.
When the husband compares his wife with the back of his female relations within the
degrees of prohibited relationship.40

34
Baillie, I, 246; cf: B.R. Verma- Islamic Law, 6th edn. 1986, p.229, Law Publishers (India) Private Limited
35
. Baillie, I, 247; cf: DR. Nishi Purohit- The Principles of Mohammedan law, 2nd edn. 1998, p.201, Orient Publishing
Company, Allahabad.
36
. Asaf A.A. Fyzee- Outlines of Muhammadan law, 9th impression., 2005, p.163, Oxford University Press, New
Delhi.
37
Baillie 31; Hedaya, 112; cf: Dr. Paras Diwan- Muslim Law in Modern India, 9th edn. 2005, p.91, Allahabad Law
Agency, Faridabad (Haryana).
38
Aqil Ahmad- Mohammedan Law, 21st edn. 2004, p.185, Central Law Agency, Allahabad
39
DR. Nishi Purohit- The Principles of Mohammedan law, 2nd edn. 1998, p.198, Orient Publishing Company,
Allahabad.
40
Dr. M.A. Qureshi- Muslim Law, 2nd edn. 2002, p.87, Central Law Publications, Allahabad
 d) Lian- The word lian literally means “imprecation”. Muslim law provides very severe
punishments for adultery and slander. The hudd (or specific punishment) for adultery was
stoning to death, if the wife.41

III) Divorce by mutual consent: (Mubarrat)

Mubaraat means “release”, which puts an end to matrimonial rights. The word Mubaraa
means an act of freeing one from another mutually. It is a mutual discharge from marriage
tie.42 To enter in to Mubaraat, both the parties must be of sound mind and have attained
puberty.43 In this mode of divorce, the offer may be either from the side of wife or from the
side of husband. When an offer mubarat is accepted, it becomes an irrevocable divorce
(talaq-ul-bain) and iddat is necessary.44 The aversion in Mubaraat is mutual and the proposal for
divorce may emanate from either the husband or the wife. Under Shia law, the parties con dissolve
their marriage by way of Mubaraa if it is impossible for them to continue.45 Under Sunni law, no
particular form is required. But mutual agreement must be made at the same meeting and the word
“Mubaraat” must be clearly expressed in the proposal 46 and if ambiguous expressions are used,
intention must be proved.

JUDICIAL SEPARATION:

The remedy of judicial separation may be used by the parties who still hope for an ultimate
reconciliation. The relief of judicial separation is not much significant under Muslim law. The
reason is that Muslim law permitted unfettered powers of terminating the marriage to the Muslim
husbands. The wife cannot separate herself from him except under the agreement known as
khula.47 The right of Muslim wives to live separately carries no force. However the law has

41
1945 Cal WN 122; cf: Noshirvan H. Jhabvala- Principles of Muhammadan Law, 25th edn. 2009, p. 59, C. Jamnadas
& Co. Mumbai.
42
Hedaya, Vol. I, p. 322; cf: Dr. M.A. Qureshi- Muslim Law, 2nd edn. 2002, p.83, Central Law Publications,
Allahabad.
43
. Durr-ul-Mukhtar, 247; cited ibid. Dr.R.K. Sinha- Muslim Law, 5th edn. 2003, p.88, Central Law Agency, Allahabad
44
Dr. M.A. Qureshi- Muslim Law, 2nd edn. 2002, p.62, Central Law Publications, Allahabad.
45
Ameer Ali, II, 508, 516; cf: B.R. Verma- Islamic Law, 6th edn. 1986, p.228, Law Publishers (India) Private Limited.
46
Durr-ul-Mukhtar, 247; cited ibid. Dr.R.K. Sinha- Muslim Law, 5th edn. 2003, p.88, Central Law Agency, Allahabad.
47
Dr. M.A. Qureshi- Muslim Law, 2nd edn. 2002, p.62, Central Law Publications, Allahabad.
recognized the following grounds where a Muslim wife will refuse to live with the husband and
will be entitled for judicial separation.48

1. Husband’s impotency: Where the husband is impotent, the kazi should permit him to prove his
potency within a period of one year from the date of litigation. If he has sexual relation with the
wife, then there will be no divorce. However if he has no sexual relation, the kazi must
pronounce a separation.

2. Cruelty: If there was cruelty rendering it unsafe for the wife to return to his dominion, she
could refuse to give company to her husband.

3. A Muslim wife can claim separation if her marriage was irregular.

4. If there was gross failure on the husband’s part to perform the obligation imposed on him by
the marriage contract, then also she was permitted to live separately.

5. A Muslim wife may enter into an agreement at the time of marriage. Such a contract will be
enforced by the courts if it is lawful and not opposed to the principles of Islam.

Divorce being an evil, it must be avoided as far as possible. But sometimes, this evil becomes a
necessity. When it is impossible for the parties to carry on their union with mutual love and
affection, it is better to allow them to be separated instead of compelling them to live together in
an atmosphere of hatred and sufferings. The basis of the Islamic law of divorce is the inability of
the spouses to live together than any specific cause on which, the parties cannot live together.

JUDICIAL DIVORCE (FASKH)

Apart from the divorce which may emanate from the husband or the wife without the
intervention of eh court or any other authority, the Muslim law givers also provided for the
dissolution of marriage by a decree of the court. It is called “Furkat” which literally means
separation. Faskh means annulment. It refers to the power of Kazi (in India, law court) to annul a
marriage on the application of the wife. In India, such judicial annulments are governed by
Section 2 of the Dissolution of Muslim Marriages Act, 1939.
48
Ibid.
The Quranic verse on judicial divorce runs thus: “If you fear a breach between them twain,
appoint (two) arbiters, one from his family and the other from hers; if they wish for peace, Allah
will cause their reconciliation: for Allah has full knowledge, and is acquainted with all things”.49

PRIOR TO THE LEGISLATION:

Before passing of the act of 1939, a Muslim woman could apply for dissolution of marriage on
three grounds: i) impotency of the husband; ii) lian (false charge of adultery), iii) repudiation of
marriage by the wife. But under the Shafii and Maliki laws, a wife was entitled to get a decree
from the court for dissolution of her marriage on the grounds of husband’s failure to maintain
her, desertion, cruelty etc.50

The Dissolution of Muslim Marriages Act, 1939 made revolutionary changes in the existing law
and provided six more grounds on which the wife may apply to the court for the dissolution of
marriage. Thus, under the act, 9 grounds have been provided under which a Muslim wife may
obtain a decree for dissolution of her marriage. Prior to the passing of the act of 1939, the
classical Hanafi law of divorce was causing hardships as it consisted no provision whereby a
Hanafi wife could seek divorce on such grounds as disappearance of the husband, his long
imprisonment, his neglect of matrimonial obligations, etc., finding no other way to get rid of
undesired marital bonds, many Muslim women felt compelled by their circumstances to
renounce their faith. Before 1939, the court, following the Hanafi interpretation of the law, had
denied to Muslim women, the rights of dissolution available to them under the Shariat.51

After a great deal of public agitation, Qazi Muhammad Ahmad Kazmi introduced a bill in the
central legislature on 17th April 1936. Ultimately, the bill was passed by the Assembly with
suitable modifications and became law on 17th March 1939, and ever since, it has been hailed as
one of the most progressive enactments passed by the legislature within recent years. It achieved
two objects: it restored to Muslim wives, an important right accorded to them by the Shariat, and
it treated all Muslims alike. 52 The Dissolution of Muslim Marriages Act, 1939 contains several
49
Quran, Sura IV; Ayat 35; The Holy Quran, translated by Abdullah Yusuf Ali, edn. 2004, Ayman Publications, New
Delhi.
50
Dr. R.K. Sinha- Muslim Law, 5th edn. 2003, p.96, Central Law Agency, Allahabad
51
Hedaya, Vol. I, p.323; cf: Dr. M.A. Qureshi- Muslim Law, 2nd edn. 2002, p.83, Central Law Publications,
Allahabad.
52
Asaf A.A.Fyzee- Outlines of Muhammadan Law, Ninth impression 2005, p. 169, Oxford University Press, New
Delhi.
fault grounds. The pre-Act fault grounds too have been saved. Section 2 contains 8 fault grounds.
Clause (ix) of section 2 saves the existing grounds on which, wife may sue for divorce. The wife
may obtain a decree of divorce on any one of the grounds specified in the Act by filing a suit in
the lowest civil court. The benefits of this Section may be given to a wife whether her marriage
was solemnized before or after the commencement of the Act. The provisions of Section 2 may
be given retrospective effect.53

AFTER THE LEGISLATION:

(i) Missing husband:

Section 2 (i) of the Dissolution of Muslim Marriages Act, 1939 provides that a woman shall be
entitled to obtain a decree for the dissolution of her marriage if the whereabouts of the husband
has not been known for a period of four years. A wife is required not to marry for a period of six
months from the date of passing of the decree. In case the husband appears within six months
from the date of the passing of the decree, and satisfies the court that he is willing to perform his
marital obligations, the court may set aside the decree.54

(ii) Failure to maintain:

If the husband has neglected or failed to provide maintenance to the wife for two or more years,
the wife is entitled to obtain a decree for the dissolution of her marriage. If the husband is unable
to maintain his wife due to poverty, unemployment, imprisonment, ill-health or any other
misfortune, even then the wife has a right to get the decree for dissolving her marriage. 55 But the
husband cannot be said to have neglected her or has failed to provide maintenance for his wife
unless he was under an obligation to maintain her. Under Muslim law, the husband is not bound
to maintain his wife who is not faithful or obedient to her husband, or who does not perform her
marital duties. Therefore, where a wife files a suit for the dissolution of her marriage on the
ground of failure of maintenance, and it is found that she was neither faithful nor obedient to her
husband, the suit must be dismissed.56Therefore, if the wife lives separately without any

53
Dr. R.K. Sinha- Muslim Law, 5th edn. 2003, p.98, Central Law Agency, Allahabad
54
See Clause (i) of Section 2 of the Dissolution of Muslim Marriage Act, 1939.
55
Satgunj v. Rahmat AIR 1945 Sind 48; cf: Dr.R.K. Sinha- Muslim Law, 5th edn. 2003, p.98, Central Law Agency,
Allahabad.
56
Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn. 2008, p. 77, Central Law Publications, Allahabad
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 for maintenance under Muslim law.57

(iii) Imprisonment of husband:

If the husband has been sentenced to imprisonment for a minimum period of seven years, the
wife may file a suit for dissolution of marriage. But no decree shall be passed until the sentence
has become 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.58

(iv) Failure to perform marital obligation59:

If the husband without reasonable excuse, has failed to perform his marital obligations for a
period of three years, the wife may file a suit to dissolve her marriage. The Act does not define
‘marital obligation of the husband’. Under Muslim law, there are several matrimonial obligations
of the husband. But for purpose of this clause, husband’s failure to perform only those conjugal
obligations may be taken into account which is not included in any of the clauses of Section 2 of
this Act. Thus, where the husband deserts his wife or does not cohabit with her without any
reasonable excuse, it amounts to failure of the husband to perform marital obligations.231 Such
failure of the husband without reasonable justification for at least three years, entitles the wife to
get a decree for dissolution of the marriage. But, if the husband does not cohabit with wife for
three years due to some reasonable excuse e.g., illness, or remains away from her because of his
business or studies etc., the wife cannot get the decree of dissolution of marriage under this
clause.

(v) Husband’s impotency60:

‘Impotency’ means inability to consummate the marriage. The marriage is consummated by

sexual intercourse. The sexual intercourse is an act where the male acts as an active partner and
the female acts as a passive one. Impotency with reference to a male means non-erection of the
male organ, or erection but non-penetration of it into female’s body. If the husband was impotent
57
Rabia Khatoon v. Mukhtar Ahmad AIR 1966 All 548; Bai Fatima v. Munna Miranji, AIR 1957 453.
58
Clause (iii) of Section 2 of the Dissolution of Muslim Marriage Act, 1939.
59
Clause (iv) of Section 2 of the Dissolution of Muslim Marriage Act, 1939,
60
Clause (v) of Section 2 of the Dissolution of Muslim Marriage Act, 1939.
at the time of marriage and continues to be so, the wife may file a suit to dissolve her marriage.
But for getting a decree, the wife has to prove two facts: 1) that the husband was impotent at the
time of the marriage, and 2) that he continues to be impotent till the filing of the suit. The wife
can get divorce on this ground only if both the above mentioned facts are fully satisfied. 61 If a
husband claims that he ceases to be impotent, he must satisfy the court that he is now capable of
performing sexual intercourse with his wife.62

The physical impotency of a man may be of two types—absolute and relative. It is absolute
where a person is impotent in relation to all the persons. It is complete and universal. In cases of
relative impotency, a man is impotent with a particular woman but not with other. Examples of
Physical impotency are: i) Failure of erection-- where sexual desire is present but the power of
erection is so feeble that intrusion is impracticable, such impotence is termed as ‘bridegroom’s
impotence’. ii) homosexuality-- Homosexuals and person suffering from sexual perversions are
often unable to copulate with a normal partner; even they may love and respect that partner. Such
persons are generally impotent with the opposite sex. iii) Absence of penis. iv) Malformation or
defect of male organ-- for example, the loss or absence of both testicles;237 Sharply bent of the
penis when erect; tumors of or near the penis, elephantiasis of the genitals, tight urethral
structure causing dribbling of semen after subsidence of erection instead of ejaculation during
erection, abnormal or very small size of the penis, a tight phimosis and a hydrocele.

The mental or psychological impotency consists in the uncontrollable repugnance to the act of
sexual intercourse either generally or with the particular individual. It can arise from various
causes: from nervousness, excessive sensibility or unconquerable aversion.63

(vi)Insanity, leprosy or venereal disease of husband:64

A wife married under Muslim Law can obtain divorce on the ground that he husband is insane or
is suffering from leprosy or venereal disease. The husband’s insanity must be for a period of two
or more years immediately preceding the presentation of the suit. But the Act does not specify

61
Where the husband was potent at the time of marriage; but becomes impotent after the marriage, the wife
cannot get divorce under this clause. In other words, husband’s subsequent impotency cannot be a ground for
divorce under Section 2 of the Act.
62
Gulam Mohd. Khan v. Hasina, AIR 1988 J &K 62.
63
Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn. 2008, p. 78, Central Law Publications, Allahabad.
64
Clause (vi) of Section 2 of the Dissolution of Muslim Marriage Act, 1939.
whether unsoundness of mind should be curable or incurable. 65 The Act does not define insanity.
It is the term ‘insanity’ should not be interpreted strictly. Section 84 of the Indian Penal Code
should not be made applicable. General unsoundness or derangement of the mind or mental
disorder resulting in the disability to manage one’s own affairs and lack of proper sense of social
behaviour to manage one’s won duties be generally sufficient for the purposes of the Act. Mere
eccentricities would not be sufficient.66

Leprosy may be white or black or cause the skin to wither away. it may be curable or incurable
(permanent). The Act neither specifies the form of leprosy nor its duration. She can get the
decree of dissolution of her marriage only where the leprosy is lothsome, i.e., the husband is
unfit for social contact and is shunned by the society. For this purpose, leucoderma (white skin)
is not considered as leprosy.67

Venereal disease is a disease of the sex-organs. The Act provides that this disease must be of
virulent (permanent) nature i.e., incurable. 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.68 “Taking advantage of one’s own wrong” doctrine of Hindu law has not been enacted in
the Act.

(vii) Option of Puberty by wife:69

This ground for the dissolution of marriage is not based on any ‘fault’ of the husband. It is an
independent provision under which, a marriage is voidable at the option of the wife. Under
Section 2 (vii), a wife can obtain a decree for dissolution of her marriage if her marriage was
contracted by her father or any other guardian during her minority. Thus, this clause gives her,
the option to repudiate the marriage before attaining the age of eighteen years; provided, the
marriage has not been consummated. This right was also available to the wife under the old law.
But this Act has made following changes in the law of option of puberty (Khyar-ul-Bulugh) by a
wife: 1. Under the old law, the option of puberty was not available where the minor’s marriage
was contracted by father or father’s father. But now, a wife may exercise this right even if she

65
Insanity as a ground for matrimonial relief under the Hindu Marriage Act, 1955 must be of incurable form.
66
Dr. M.A. Qureshi- Muslim Law, 3nd edn. 2007, p.106, Central Law Publications, Allahabad.
67
Ibid.
68
Dr. R.K. Sinha- Muslim Law, 5th edn. 2003, p.101, Central Law Agency, Allahabad..
69
Clause (vii) of Section 2 of the Dissolution of Muslim Marriage Act, 1939.
was given in marriage by her father or father’s father. 2. Under the old law, the option of puberty
by a wife was to be exercised by her, immediately after attaining the age of puberty. Now, the
Act of 1939 provides that, a wife can exercise this right up to the age of eighteen years; provided,
the marriage is not consummated.

In Mustafa v. Khursida,70 The mere exercise of the option of puberty does not operate as
dissolution of marriage. The repudiation is only a ground to file a suit to dissolve the marriage.
The repudiation must be confirmed by the decree of the Civil Court. Until then, the marriage
subsists, and if either party to the marriage dies, the other party will inherit.71

(VIII) CRUELTY OF HUSBAND:

Section 2 (viii) of The Dissolution of Muslim Marriages Act, 1939 provides that a Muslim wife
will be entitled for divorce if her husband treats her with cruelty. Even before passing of the Act
of 1939, cruelty was recognized as a good ground for the wife to seek divorce. Section 2 (viii) of
the Act of 1939 contains various instances of cruelty. These instances are:

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 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 in 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;

a) Physical and Mental Cruelty:

Any conduct of the husband, which may not be a physical ill-treatment, but is of such a nature
which makes the life of the wife miserable, is also a cruelty against her. If the husband stops
talking to his wife for a considerably long period, or deliberately ignores her, it may make her
life miserable although there is no physical assault in it. Similarly, if the husband habitually
abuses the wife or repeatedly makes insulting statements against her character, the conduct of the
husband may be regarded as mental cruelty against the wife.72

70
AIR 2006 Raj 31.
71
Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn. 2008, p. 79, Central Law Publications, Allahabad.
72
Ibid.
In Siddique v. Amina,73 it was established that, husband had administered his wife with some
drug causing miscarriage. He also physically tortured her. The court held that, it amounts to
cruelty. In Begum Subanu v. A.M. Abdul Gafoor,74 the Supreme Court held that, sharing the
matrimonial bed with the second wife of the husband constituted ‘matrimonial injury’ affording
her, a ground to live separately from the husband. b) Concubinage—Associates with woman of
evil repute or leads an infamous life: Section 2 (viii) (b) of the Act of 1939 confers on a Muslim
wife, a judicial divorce, if her husband associates with woman of evil repute or leads an
infamous life. It appears that, if the husband associates with a woman of evil repute, the clause
will not apply. Association should be with women (more than one). This is something like living
in adultery, and that too, not with ordinary women; it should be with prostitutes. One or two
lapses from virtue will not be enough.75 The bringing of a second wife or keeping a mistress will
definitely adversely affect on the mind of the wife and it amounts to cruelty. In such cases, the
wife can refuse to live along with her husband.76

(ix) A Residuary Clause77:

Section 2 (ix) is a residuary clause under which, a wife may seek dissolution of her marriage on
any ground which is recognized as valid for the dissolution of marriage under the Muslim
personal law. It covers other grounds such as Lian, Khula, Talaq-i-Tafweez, ila, Mubaraat, zihar,
apostasy from Islam. This is a residuary ground on which, a Muslim wife may seek the
dissolution of her marriage. The Act proceeds to lay down a residuary provision in order that, the
wife may not lose the benefit of any other ground which may have escaped the attention of the
Parliament.78 Section 2 (ix) has been regarded as the ‘residuary clause’ because it is the last
clause which entitles a wife to seek decree for dissolution of her marriage in absence of any of
the grounds expressly provided under the Act. This clause has been interpreted by courts to give
new dimensions to ‘mental cruelty’ in the light of changing socio-economic changes in the
Muslim community of the modern sensibility. Under this clause, complete ‘break-down’ of
matrimonial relations or total mental incompatibility in itself, has been regarded as a ‘reasonable
73
Dr. Paras Diwan- Muslim Law in Modern India, 9th edn. 2005, p.98, Allahabad Law Agency, Faridabad (Haryana).
74
AIR 1987 SC 1103
75
Dr. Paras Diwan- Muslim Law in Modern India, 9th edn. 2005, p.99, Allahabad Law Agency, Faridabad (Haryana).
76
Anis Begum v. I. Istafa AIR 1933 All 634; cf: Dr. M.A. Qureshi- Muslim Law, 3nd edn. 2007, p.109, Central Law
Publications, Allahabad.
77
Clause (ix) of Section 2 of the Dissolution of Muslim Marriage Act, 1939
78
Dr. Mohammad Nazmi- Mohammadan Law, 2nd edn. 2008, p. 80, Central Law Publications, Allahabad.
ground’ for dissolution of a Muslim marriage. Such interpretation of this clause would not only
be realistic, rational and modern approach but generally, it would also be in consonance with
Islamic policy of dissolution of marriage.79

79
Yousuf Rowthan v. Swaramma AIR 1971 Ker 261.