Submitted To Dr. Kahkashan Y.

Danyal

FAMILY LAW- I
DIVORCE

Submitted By:
Khalida Khan
Enrollment No:20185617
B. A. LL. B (Hons.)
4th Semester
ACKNOWLEDGEMENT
I would take this opportunity to thank the people who helped me in making this project which has
been the learning experience. In that endeavour, first and foremost I would express my gratitude
towards my Professor of Family Law-I Dr. Kahkashan Y. Danyal.
Her immense knowledge and teaching skills along with her helping disposition are where all of
this stemmed from. Next, I would thanks my seniors in the faculty who gave us guidelines as to
how to go about the research.
Heartfelt Thanks to all the above mentioned people.
INDEX OF AUTHORITIES

TABLE OF CASES:

• Musst. Rebun Nessa v. Musst. Bibi Ayesha & others, AIR 2011 Gauhati 36.
• Mohd. Khan v. Mst. Shahmali, AIR 1972 J&K 8.
• Sainuddin v. Latifunnessa, (1918) 46 Cal. 141.
• Magila Bibi v. Noor Hassain, AIR 1992 Cal. 92.
• Moonshu- Buzlu-ul-Raheem v. Lateefutoonisa, 8 MIA 379.
• Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.
• Veeran Sayvu Ravuthar v. Beeva thumma, AIR 2002 Ker. 370.
• K. Muhamma Lateef v. Nishath, AIR 2004 Ker. 22.
• Noor Jahan Bibi v. Kazim Ali, AIR 1977 Cal. 90.

BOOKS REFERRED:

• Syed Khalid Rasheed- Muslim law, 4th edn. 2004, Eastern Book Co., Lucknow.
• A. A. Fyzee- Outlines of Muhammadan Law, 4th edn. 2005, Oxford University Press,
New Delhi.
• Aqil Ahmed- Mohammedan Law, 26th edn. 2016, Central Law Agency, Allahabad.
• The Holy Quran IV, 34; translated by Abdullah Yusuf Ali, edn. 2004, Ayman
Publications, New Delhi.
• Dr. R. K. Sinha- Muslim Law, 5th edn. 2003, Central Law Agency, Allahabad.
Introduction
This project will deal with divorce by wife, by Mutual consent and by judicial decree.
“Talaq” is the Urdu term for Divorce. Under a Muslim Law, a marriage is dissolved either by seat
of the husband or the wife, and by the act of the Parties.
By the Husband; Talaq, Ila and Zihar. Talaq is further classified into Talaq-ul-Sunnat and Talaq-
ul-Biddat.
The Talaq-ul-Sunnat is further classified into Ahsan and Hasan. The Ahsan form of Talaq is
considered as most approved form. The Talaq-ul-Biddat is further classified into Written divorce
and Triple Talaq.
By the wife; Talaq-e-Tafweed which is known as delegated divorce.
By Mutual consent; Khula (redemption) and Mubarat (mutual feeling).
By judicial decree under Dissolution of Muslim Marriage Act, 1939; Lian and Fask.
Pre Islamic Background
Among the pre-Islamic Arabs, the power of divorce possessed by the husband was unlimited. They
could divorce their wives at any time, for any reason or without any reason.1 They could also
revoke their divorce, and divorce again as many times as they preferred. They could arbitrary
accuse their wives of adultery, dismiss them, and leave them and would exempt themselves from
any formal responsibility of maintenance or legal punishment. 2

Divorce among the ancient Arabs was easy and of frequent occurrence.
Infact, this tendency has even persisted to some extent in Islamic law, inspite of
the fact that Prophet Mohammad showed his dislike to it. It was regarded by the
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.3
After the Advent of Islam
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.

1 Syed Khalid Rasheed- Muslim, 4th edn. 2004, Eastern Book Co., Lucknow.
2 See, Ibrahim Abdel Hamid, “Dissolution of Marriage” Islamic Quarterly (1956)3.
3 Syed Khalid Rashid- Muslim law, 4th edn. 2004, p.98, Eastern Book Co., Lucknow.
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.4 The legal restraints imposed are the following:
1. the fixing of dower;
2. provision for revocation of Talaq in some cases; and
3. restraints on re-marriage between the parties.
Where a marriage terminates by act of parties, the dissolution is called
divorce. Under Muslim law, the divorce may take place by the act of parties
themselves or through a decree of the court of law. 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.5
The Guwahati High Court in Musst. Rebun Nessa v. Musstt. Bibi Ayesha &
others,6 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.
Divorce by the wife
Talaq-e-Tafweed (delegated divorce).
The husband may delegate the power of divorce to his wife. He may do so at the time of marriage
or at any time when he so likes.

4 Jung- Muslim Law of Marriage, p. 46; Asha Bibi Ibrahim ILR 33 Mad 22 at p.25.
5 Dr. R.K. Sinha- Muslim Law, 5th edn. 2003, p.81, Central Law Agency, Allahabad.
6 Ibid.
This doctrine is peculiar to Muslim Law and has no parallel in other systems. Fyzee says that this
form of delegated divorce is ow beginning to be fairly common in India. The Indian High Courts
have repeatedly held as valid the agreement by which the husband authorises the wife to divorce
herself from him in the event of his marrying a second wife without her consent. 7

Kinds of Tawfeed:
The power to pronounce Talaq may be conferred in three forms of
expressions, two of which are implied forms and the third, an express form. They
are:
a) Ikhtiyar (choice of option), e.g., the husband telling his wife, “Choose” or using
a similar expression (thereby intending a Talaq); delegation of power is implied.
By ‘giving the choice’ is meant giving her, the choice to get rid of the matrimonial
tie. This delegation of power of divorce to wife may be for a day, a certain period
of time or for all the times to come. This delegation may be made subject to
certain conditions, such as; a husband may say if the maintenance does not
reach you, you are given the choice, etc. However in any case, the delegation of
power of divorce must be within the knowledge of wife who had accepted it.

It is also important to note by what words power was delegated to wife by

The husband, and similarly at the time when wife divorces herself. Wife must say
‘I am divorced’ or I divorce myself and not ‘ I divorce thee’ because it is the wife
who is divorced and not the husband.

Raddul Mukhtar citing various authorities says, if a husband were to say

to his wife ‘if I marry another wife, her business shall be in thy hands’ then the
woman becomes his wife under a Fuzooli contract and if he marries again the
first wife cannot divorce herself. But if the words of the husband were, ‘if a

7 Fyzee, at p. 159.
woman enters into my Nikah, her business will be in thy hands’, “the first would
have been entitled to repudiate the second”.
b) Amar-ba-yad (liberty);
It literally means business in hand. This may, for example, be given by the
husband telling the wife “thy business is in they hand” (hereby intending a talaq);
in case the husband says ‘divorce thyself thrice (or twice)’ and she divorces only
once, divorce would take effect.
c) Musheeat (will or pleasure);
This may be given in the imperative mood by which sareeh or express
talaq may be given, e.g., by the husband saying to the wife, “give yourself talaq if
you please”.
The power to pronounce talaq in the first two forms is impliedly given and
can be effective if it is shown that talaq was intended. But the third kind is in the
express form and talaq, if pronounced, would be effective even if it is not
intended. The use of the term “talaq” being an express form, its use would
convert any form of tafweed into musheeat.
The delegation of talaq may be unconditional or subject to certain
condition or contingency. Where the delegation is conditional, the authority of
giving talaq cannot be exercised until that condition is fulfilled. But the conditions
must be of reasonable nature and must not be against the principles of Islam.
Where a right of divorce has been conferred upon the wife, she may repudiate
the marriage if the husband fails to fulfil that condition or upon the happening of
that event. In such cases, the divorce takes place in the same manner as if the
husband has himself pronounced the talaq. For example, under and agreement,
the husband may authorize his wife to divorce herself whenever his behaviour is
cruel towards her or when he refuses to pay her prompt dower. 8 It is to be

8 Dr. .R.K. Sinha- Muslim Law, 5151 edn. 2003, p.93, Central Law Agency, Allahabad.
noted that, even after delegating his authority, the husband himself is not
debarred from pronouncing talaq.
In Mohd. Khan v. Mst Shahmali9 , a husband who was a Khana Damad,
under a pre-marriage agreement, undertook to pay certain amount of marriage
expenses incurred by his father-in-law, if he leaves the house. The husband left
the house without paying the amount of marriage expenses. Then the wife
exercised the right and divorced herself. A valid divorce came into effect.
In Sainuddin v. Latifunnessa10, there was an agreement between
husband and wife under which, the husband delegated to the wife, his own
power of giving three talaqs in the event of his marrying a second wife without
the permission of the first. The husband took second wife without the permission
of the first. Accordingly, the first wife gave herself three talaqs under the authority
of the tafweed. The court held that as the event upon the happening of which, the
wife was given the authority to divorce herself was valid under Muslim law, and
since that event has happened, the divorce by the wife was effective and the
marriage must dissolve.
If the husband delegates his authority to wife in writing and the wife also
puts her signature on that document, the delegation continues to be his own
authority given to wife; it does not become divorce by mutual agreement or does
not a bilateral delegation. In Magila Bibi v. Noor Hassain11, the husband had
given a written authority to his wife that she may, at her will, divorce him
whenever she wanted. The document was signed by both the husband and wife.
After some time, when she felt that the husband was cruel to her and also came
to know that he was not a medical graduate as she was told before the marriage,
she pronounced talaq under the above mentioned written delegated authority.

9
AIR 1972 J&K 8.
10 (1918) 46 Cal. 141.
11 AIR 1992 Cal. 92.
She informed her decision to her husband.
The Calcutta High Court held that, only because wife too had signed the
written delegation by the husband, the document does not become ‘bilateral
delegation’. It continues to be ‘unilateral delegation’ and talaq by wife is valid
even without the consent of husband.
Where a wife is given the option to divorce herself under a tafweed, he
cannot be compelled to exercise her right. She may or may not exercise the right.
Mere happening of the event under which, the wife is authorized to divorce
herself, is not sufficient to dissolve the marriage; the wife must also exercise her
right expressly.

By Mutual consent-
(i) Khula (divorce at the request of wife)-
If the Mutual relationship between the husband and wife is not good, the wife, of she so desires,
may seek a Khula divorce, e.g. by relinquishing her claim to the dower. It, however, entirely
depends upon the husband to accept the consideration of dower and to grant the divorce. A husband
may similarly propose a khula divorce; the wife may accept or refuse it. If she accepts, it means
that she has relinquished the right to get dower from her husband. Khula may be for any
consideration- dower, money, property, etc. 12
Khula or redemption literally means “to lay down”. In law it means laying down by a husband of
his right and authority over his wife. 13
Khula has been aptly defined by their Lordships of the Judicial Committee in Moonshee-Buzlu-ul-
Raheem v. Lateefutoonisa 14. A divorce by khula is a divorce with the consent and at the instance
of the wife, in which she gives or agrees to give a consideration to the husband for her release from
the marriage tie. It signifies an arrangement entered into for the purpose of dissolving a concubial
connection in lieu of compensation paid by the wife to her husband out of her property. Khula, in
fact, is thus a right of divorce purchased by wife from her husband.
In this case it was observed that a divorce by khula is at once complete from the moment when the
husband repudiates the wife. There is no period during which such a divorce can be repudiated. 15

12 Syed Khalid Rasheed-Muslim, 4th edn. 2004, Eastern Book Co., Lucknow.
13
Aqil Ahmad- Mohammedan Law, 21st edn. 2004, p.184, Central Law Agency, Allahabad.
14 Aqil Ahmad- Mohammedan Law, 26th edn. 2016, Central Law Agency, Allahabad.
15 Syed Khalid Rasheed-Muslim, 4th edn. 2004, Eastern Book Co., Lucknow.
 There is no khula in pre-Islamic legislation. The relevant verses of the
Quran are:
“If a wife fears cruelty or desertion on her husband’s part, there is no
blame on them if they arrange an amicable settlement between themselves; and
such settlement is best; even though men’s souls are swayed by greed. But if
you do good and practice self-restraint, Allah is well-acquainted with all that you
do”.16
“It is not lawful for you, (men), to take back any of your gifts (from your
wives), except when both parties fear that they would be unable to keep the limits
ordained by Allah. If you (judges) do indeed fear that' they would be unable to
keep the limits ordained by Allah, there is no blame on either of them if she give
something or her freedom. These are the limits ordained by Allah; so do not
transgress them, if any do transgress the limits ordained by Allah, such persons
wrong (themselves as well as others) 17.

Essentials of Khula-
1. There must be an offer from the wife.
2. The offer must be accepted with the consideration for the release.
3. The offer must be accepted by the husband.
The consideration in Khula- As regards the property which can be given in the consideration of
the release by husband, all agree that it can be everything that can be given in the dower. 18

If consideration is unpaid- Cases occur in which the wife agrees to pay something or give
something by way of consideration for her release but after being divorced by her husband fails to
fulfil her promise. In such a case the divorce does not become invalid and the husband has the right

16 The Holy Quran, Sura- IV, Ayat- 128; translated by Abdullah Yusuf Ali, edn. 2004, Ayman
Publications, New Delhi.
17
The Holy Quran, Sura-II, Ayat-229; translated by Abdullah Yusuf Ali, edn. 2004, Ayman Publications,
New Delhi.
18 Aqil Ahmad- Mohammedan Law, 26th edn. 2016, Central Law Agency, Allahabad.
to claim the consideration, because as soon as an offer for khula is accepted, it becomes an
irrevocable divorce (talaq-ul-bain) and the wife is bound to observe iddat.

Capacity for khula- Under Shia Law, the conditions necessary for the effectuation of a valid talaq
are also requisites for the performance of khula accordingly; that is, the husband must be (i)
adult(Baligh), (ii)sound mind (Aqil), (iii) free agent (Mukhtar) and (iv) have intention to divorce
her.
Under Sunni Law, only two requisites are essential, i.e, the husband must be (i) adult, and (ii) of
sound mind.
(ii) Mubarat (Divorce by Mutual agreement) –
Mubaraat means “release”, which puts an end to matrimonial rights. The word Mubarat means an
act of freeing one from another mutually. It is a mutual discharge from marriage tie. It is a divorce
by mutual consent of the husband and wife. The formalities for Mubaraat are the same as in the
case of khula.
The aversion in Mubarat 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 Mubarat if
it is impossible for them to continue.
To enter in to Mubaraat, both the parties must be of sound mind and have attained puberty.
Formalities:
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 and if ambiguous
expressions are used, intention must be proved.
But under Shia law, proper form is required. Mubaraat must be expressed in Arabic language and
the expression “Mubaraat” must be clearly expressed.
Mutual agreement must be made at the same meeting in presence of two
witnesses under Shia law. If the husband were to say to his wife, “I have
discharged you for the obligation of marriage for such a sum, and you are
separate from me” the marriage would be dissolved. In this form, since both
the parties are equally interested in the dissolution of marriage, no party is legally
required to compensate the other by giving some consideration.

Under Sunni law, when the parties enter into a “Mubaraat”, all mutual
rights and obligations come to an end; but under Shia law, it requires that, if both
the parties bona fide find the marital relationship to be irksome, then only, a
marriage stands dissolved. The wife may agree to pay to her husband, some
compensation. When the husband receives compensation from the wife, the
divorce is Bian, and even when it is without compensation and (consequently)
rajai (reversible) at the option of the husband, if during the wife’s iddat, he-were
to accept from her a compensation, the separation would be equally Bian. The
payment of compensation is not the essential condition for divorce.

Immediately on the completion of divorce by way of Mubaraat, the parties

must be separated, even if the wife has not paid compensation. A wife, who has
obtained a release from the marital tie by Khula or Mubaraat, is entitled to
maintenance during her iddat period.
Distinction between Khula and Mubaraat-
1. Khula is a redemption of the contract of marriage while Mubarat is a mutual release from
the marriage tie.
2. In Khula the offer is made by the wife and it’s acceptance is made by the husband: in
Mubarat, any of the two may make an offer and the other accepts it.
3. In Khula, a consideration passes from wife to the husband. In Mubarat the question of
consideration does not arise.
4. In Khula, the aversion is on the side of the wife while in Mubarat there is mutual aversion.
Both Khula and Mubarat are to be followed by the observance of iddat. 19
Legal effects of Khula and Mubaraat:
1. Under Hanafi and Ismaili School, the dissolution of marriage on a Khula or
Mubaraat has the same effect as a single divorce after it has become
irrevocable. The parties cannot resume sexual intercourse until and unless a
fresh marriage was arranged between them.
2. Under Shia law, when the Khula is effected, the husband has no power of

19 Aqil Ahmed- Mohammedan Law, 26th edn. 2016, Central Law Agency, Allahabad.
revocation. However, the wife is at liberty to re-claim the consideration during the
iddat period. Under such circumstances, the husband can revoke the Khula at his
option.
3. The wife is required to observe iddat and is also entitled to be maintained by
the husband during the period of iddat.
4. After completion of Khula or Mubaraat, the marriage dissolves and
cohabitation between the parties becomes unlawful. If the consideration in Khula
is not the release of wife’s dower, the wife is entitled to get her dower. 20
By Judicial decree
1. Lian (False charge of adultery) –
What is Lian? - where a husband charges his wife of adultery and the
charges is false, the wife is entitled to sure for and obtain divorce. She must file a regular suit for
dissolution of her marriage as a mere application to the Court is not the proper procedure. In Zafar
Husain v. Ummat-ur-Rahman21, the Allahabad High Court recognised the doctrine of Lian. In this
case The wife of the plaintiff alleged that her husband had stated before several persons that she
had illicit intercourse with her brother and imputed fornication to her. Its was argued that the law
of Lian had no place in Anglo-Mohammedan Law and must be considered obsolete. This argument
was rejected. It was held that Qazi of the Muslim Law was replaced by the Court. Its was held that
a Muslim wife in entitled to bring a suit for divorce against her husband and obtain a decree on the
ground that the latter falsely charged her with adultery.
Features of Lian-
1.Husband (adult and sane) charged his wife (adult and sane) of adultery or, denies
the paternity or her child.
2. Such charge is false. If such charge is proved to be true, decree for the dissolution of
marriage would not be granted in favour of the wife.
3. Such false charge does not ipso facto dissolve the marriage, it only gives an opportunity to the
wife to

20 Dr. R.K. Sinha- Muslim Law, 5th edn. 2003, p.96, Central Law Agency, Allahabad.

21 (1919) 17 All. LJ 78. AIR 1919 All. 182.

move the Court to dissolve the marriage. The marriage continues till the decree is passed.
4. She must file a regular suit for the dissolution of marriage. Mere ‘application’ is not enough. No
such
suit will lie the marriage was irregular.
5. The judicial separation due to lian is irrevocable.
6. Lian is applicable only to sahih marriage not to fasid ones.
Mere charge levied by the husband will not automatically dissolve the marriage. The wife has to
apply to the Court for the dissolution for her marriage. In Jauri Beebee v. Sheikh Moonshee
Beparee22, it was said that the charge of adultery of the wife made by the husband could not be the
ground of divorce by the wife.
It has been argued that in India the doctrine of lian has become obsolete. But this is not true. In
Nurjahan Bibi v.Mohd Kazim Ali, 23 it was said by Bhattacharya, J. that the doctrine of lian or laan
has not become obsolete. A Muslim wife can bring a suit for divorce against her husband on the
ground that her husband has charged her with adultery falsely. According to Muslim Law the wife
is entitled to a divorce if the husband make false charge of adultery against the wife.
Retraction of charge.- The Muslim law permits the man to retract the charge. Social conscience
views with extreme disapprobation any attempt to break up a home and the principal of retraction
gives the husband locus potentia before the marriage is dissolved. Its object is to establish cordial
relationship between husband and wife.
The retraction must be
i. Bona fide and not a mere device for defeating suit for dissolution,
ii. Unconditional, and
iii. Made at or before the commencement of hearing and not after the close of evidence.
Three conditions are necessary for a valid retraction-
1. The husband must admit that he has made the charge of adultery against wife.
2. He must admit the charge was false, and
3. He must make the retraction before the end of trial(i).24
2. Termination of marriage through Faskh (cancellation of marriage).-
Under the Muslim Law a lady can approach to the Qazi for dissolving her marriage. Quran says
that this is duty of the husband to give proper treatment to his wife. The wife is also under the duty

22
(1865) 3 WR 93.
23 AIR (1977) Cal. 90.
24 M. Ali Mohammaed v. Hazara Bai, AIR 1955 Bom. 469.
to obey all lawful order of her husband. If the husband and wife both come to the conclusion that
they cannot live as husband and wife, they can refer the matter to Qazi who after careful
examination, terminate the marriage.Faskh means the cancellation, abolishment, recision,
revocation, abrogation annulment. Before the passing of the Dissolution of Muslim Marriage Act,
1939, there was no piece of legislation under why Muslim lady could ask for the dissolution of her
marriage. Muslim ladies could only apply for the dissolution of their marriages under doctrine of
Faskh. According to Tyabji, the following were the main grounds for dissolving the marriage at
the instance of the wife:-
I. That the marriage is irregular;
II. That person having an option to avoid a marriage has exercised his option;
III. That marriage was performed within prohibited degrees or fosterage; or
IV. That the marriage having been contacted by non- Muslims the parties have adopted
Islam.
In many case the doctrine of Faskh was represented wrongly. The result of this
misrepresentation was that many times marriages were contacted by the wives on the ground
that they had divorced their husband. On the other hand, the husband in many case brought
action under section 494 of the Indian penal code against their wives. In Janki Amma v.
Padmanabhan25, in a suit for dissolution of marriage on husband’s petition, orders were passed
by the Munsif and allowing dissolution. When this order of dissolution was in force, the first
accused married with second accused. The single Bench of the Travancore-Cochin High Court
held that the decree declaring the first marriage void was in existence when the accused
contacted the second marriage and, therefore, it cannot be said that he had a culpable guilty
knowledge that he was doing something unlawful 26. In K.C. Moyin v. Nafeesa, Khalid , J.,said that
under no circumstance can a Muslim marriage be repudiated by the wife and he further said
that a unliateral repudiation of marriage by Faskh at the instance of the wife has no legal sanction.
The contract of the wife of the second marriage was held punishable under section 494 of the
Indian panel code. After passing of the dissolution of Muslim marriage act, 1939 the position has
become clear. This app contents virous ground under which a Muslim wife can claim divorce.27

25
(1954) Ker LT 977.
26 See also Ismail v. Khodeeja Umma (1958) Ker LT 1042.
27 (73) A. Ker. 176.
Judicial divorce (Dissolution of Muslim Marriage act 1939).-
Piror to the passing of dissolution of Muslim marriage Act 1939, the British Courts had denied to
muslim women the rights after solution available to them under the shariat. The wife could apply
for the dissolution for her marriage only on the following grounds. :-
a) Impotency of the husband,
b) Lian,
c) Opinion of puberty (khyar-ul-bulugh)
Finding no other way to get rid of this material tie, the Muslim wives were compelled to renounce
their faith. The statement of the reasons and object of the Act indicates the circumstances in which
Act was passed :
“ There is no provision in the Hanafi code of Muslim law enabling a married Muslim women to
obtain a decree from the courts dissolving her marriage in case the husband neglects to maintain
her, makes her life miserable by deserting or persistently ill-treating her or certain other
circumstances. The absence of such provision has entailed unspeakable misery to innumerable
Muslim women in British India, the Hanafi jurists, however, have clearly laid down that in cases
in which application of Hanafi law causes Hardship, it is permissible to apply the provision of the
Maliki, Shafie, Hanbali Law. A lucid exposition of this principle can be found in the book called '
Heelat-un-Najeza' published of Maulana Ashraf Ali (Thanvi) who has made an exhaustive study
of provisions of Maliki law which under the circumstance prevailing in India maybe applied to
such cases, this has been approved by larger number of Ulemas who put their seal of approval on
the book.”
In the above circumstances, the dissolution of Muslim marriage act, 1939 was passed. It is
applicable to the Muslims irrespective of their school to which the belong. The act is in force
throughout India expect J.& K., where a similar enactment by the name of Jammu and Kashmir
state dissolution of Muslim marriage act, 1942 is in force.
But now, the dissolution of the Muslim marriage act, 1939 has introduced a revolutionary change
in this respect and had restored to her, right it of divorce granted to her under shariat.
Section 2 of dissolution of Muslim act, 1939 provides nine grounds under which a Muslim wife
can obtain a decree for the discussion of her marriage.
The grounds are:
(i) Absence of Husband.-
If the whereabouts of the husband are not known for a period of four years a woman married under
Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage, but, a decree
passed on this ground will not 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 authorized agent within that period, and
satisfied the court that he is prepared to perform his conjugal duties, the court must set aside the
said decree. 28
(ii) Failure to maintain. –
If the husband has neglected Or has failed to provide for her maintenance for a period of two years,
a married Muslim woman can obtain a decree for divorce.
Yusuf v. Sowaramma29, In this case, a girl of 17 years was married to the appellant-defandant, who
was twice of her age. After having lived for a month in her husband’s house, she went back to her
parents and lived separately for two years. During this period the appellant admitted his failure to
maintain his wife but alleged that he was willing and anxious to keep her with him. Mr. Justice
Krishana Iyer rejected the husband’s please and upheld the decree for dissolution of marriage. The
court held that a Muslim woman under Section 2 (ii) of the Act, can sue for dissolution of the score
that she has not as a fact been maintained even if there is a cause for it. In the opinion of the Court,
the reason why the husband has not maintained the wife for statutory period of two years is
immaterial. The wife is entitled to decree for the dissolution of her marriage on this ground if the
husband does not maintain her for two years, although during this period she lives separately from
him without any reasonable excuse.
In Fazal Mahmud v. Ummatur Rahim, 30 the Court held that “the Act was not intended to abrogate
the general law Applicable to Mohammedans, and the husband cannot be said to have neglected
or failed to provide maintenance for his wife unless under the general Mohammedan law he is
under an obligation to maintain her “. The wife’s suit for divorce was dismissed as it was found
that she was neither faithful nor obedient to her husband.
This case was followed by the Bombay High Court. 31 But the Sind High Court has taken different
view. In Mst Nur Bibi v. Pir Bux, 32 it was laid down that where a husband has failed to provide
maintenance for his wife for a period of two years immediately preceding the suit, the wife would
be entitled to a dissolution of her marriage under Section (ii) of the Act in spite of the fact that on
account of her conduct in refusing to live with her husband, she would not have been entitled to
enforce any claim for maintenance against the husband in respect of the period during which the
husband has failed to maintain her.
The husband cannot defend the suit merely on the ground that he was unable to maintain her due
to his poverty, failing health, unemployment, imprisonment or any other ground, such as, personal
properties of his wife, unless it is submitted, that her conduct has been such as to Disentitle her to
maintenance under Muslim Law.
(iii) Imprisonment of husband. –

28 Section 2(1) read with the proviso (b) of the dissolution of Muslim Marriages Act, 1939.
29 AIR 1971 Ker. 261.
30
AIR 1949 Peshawar 7.
31 Bai Fatima v. Munna Miranji, AIR 1957 Bom. 453.
32 AIR 1950 Sind 8.
 If the husband has been sentenced to imprisonment for a period of seven years or upward the
wife is entitled to decree of the Court dissolving her marriage, but no decree can be passed on
this ground unless the sentence has become final [Sec.2(iii) read with proviso (a), Dissolution
of Muslim Marriage Act, 1939].
(iv) Failure to perform marital obligations. –
If the husband had failed to perform, without reasonable cause, his marital obligations for a
period of three years, the wife can get her marriage dissolved by means of a decree. 33
In Veeran Sayvu Ravuthar v. Beeva thumma, 34 the Court has held that where a wife, is residing
in her own family house and away from husband and the husband has never made any attempt to
get conjugal company and consortium of wife, moreover, he does not take any action for restitution
of conjugal rights. He has thus, failed to perform his marital obligations without any reasonable
cause. The wife is, therefore, entitled to a divorce decree under Section 2(iv) of the Dissolution of
Muslim Marriage Acr, 1939.
(v) Impotency of husband. –
If the husband was impotent at the time of the marriage and continues to be so, the wife is entitled
to judicial divorce for the dissolution of her marriage.
Before passing a decree on this ground the Court shall, on application by 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 he does so satisfy, no decree shall be passed on this
ground. 35
(vi) Insanity, leprosy or venereal disease. –
If the husband has been insane for a period of two years or is suffering from leprosy or a virulent
venereal disease the wife may claim a judicial divorce under Section 2(vi) of the above Act. It is
to be noted that leprosy and virulent disease need not be two years old, it may be even recent.
(vii) Repudiation of Marriage by wife. –
If she, having been given in marriage by her father or other guardian before attaining the age of 15
years, repudiated the marriage before attaining the age of 18 years and the marriage is not
consummated, she is entitled to a decree of divorce. Detailed study of this provision (including the
old law on the point) has been made in the chapter of Marriage.
(viii) Cruelty of husband. –
Judicial divorce may also be claimed by a Muslim wife, if the husband treats her with cruelty, that
is to say-

33
Section 2(iii) read with proviso (a), Dissolution of Muslim Marriages Act, 1939.
34 AIR 2002 Ker. 370.
35 Section 2(v) read with proviso ( c), Dissolution of Muslim Marriages Act, 1939.
 (a) habitually assaults her or make her life miserable by cruelty or bad conduct even if
such conducts does not amount to physical ill-treatment.
(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 from exercising her legal right 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) Grounds of dissolution recognised by Mohemmedan Law. –

The wife is also entitled to a decree for the dissolution of her marriage on any other ground which
is recognised as valid for the dissolution of marriages under Muslim Law.
This clause also covers the divorce by ila, zihar, khula, mubarat and tafweed. Imputation of
unchastity or a false charge of adultery against the wife (Lian) makes a good ground for the
dissolution of her marriage. This ground falls in clause (ix) of section 2 of this Act.
In Noorjahan Bibi v. Kazim Ali36, wife filed a suit against her husband who charged her that she
was of bad character and she was enamoured of a man named Asghar Ali and committed adultery
with him. It was held by the court that doctrine of Lian has not become obsolete under the Muslim
Law and, therefore, a Muslim wife can bring a suit for divorce against her husband on this ground
according to Section 2(ix) of Dissolution of Muslim Marriages Act, 1939.

36 AIR 1977 Cal. 90.