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S. S. Jain Subodh Law College, Jaipur

Affiliated to

Dr. Bhimrao Ambedkar Law University

Session 202324

“The Dissolution of Muslim Marriage

Act, 1939 – A Study”
Submitted by: Yash Sharma Submitted to: Ms. Bhavya Gangwal
Subject : Family Law II Assistant Professor of Law
Semester : VI

DECLARATION BY THE STUDENT

I hereby declare that the work reported in this project entitled, “The Dissolution
of Muslim Marriage Act, 1939 - A Study”, submitted to the S. S. Jain Subodh
Law College, Jaipur is an authentic record of my work carried out under the
supervision of Asst. Prof. Bhavya Gangwal. It is further certified that there is
no plagiarism in this work. I further attest that I am fully responsible for its
content.

(Signature of the Scholar)

Name: Yash Sharma
Place: Jaipur,
Rajasthan
Date:
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SUPERVISOR’S CERTIFICATE

This is to certify that the work reported in the project entitled, “ The Dissolution
of Muslim Marriage Act, 1939 - A Study”, submitted by Yash Sharma, to the
S. S. Jain Subodh Law College, Jaipur is a bonafide record of his original
work carried out under my supervision. It is further certified there is no
plagiarism in it. This work is being recommended for further evaluation by the
external examiner.

Place: Jaipur, Rajasthan (Signature of the Supervisor)

Date:
 ACKNOWLEDGEMENT

In successfully completing this project, many people have helped me. I would like to thank
all those who are related to this project. I have taken efforts in this project. However, it would
not have been possible without the kind support and help of many individuals and
organizations. I would like to extend my sincere thanks to all of them. I am highly indebted to
S.S.Jain Subodh Law College for their guidance and constant supervision as well as for
providing necessary information regarding the project & also for their support in completing
the project. I would like to express my gratitude towards my parents for their kind
cooperation and encouragement which help me in completion of this project. My thanks and
appreciations also go to my colleague in developing the project and people who have
willingly helped me out with their abilities.
 TABLE OF CONTENTS

CONTENTS PAGE NO.

1. Introduction………………………………........................6
2. Historical Context………………………………………...7
3. The Dissolution of Muslim Marriage Act, 1939……….….8
4. Grounds for Dissolution under the Act……………………9
5. Judicial Interpretations…………................................……11
6. Impact of the Act………………………………….……..12
7. Comparative Analysis …………………………..………13
8. Recent Developments…………………………….......…..14
9. Challenges and Criticisms…………………….…........…15
10. Conclusion…………………………………..…...……16
11. Bibliography……………………………….....………17
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ABSTRACT

CHAPTER 1. INTRODUCTION

Overview of Muslim Personal Law

Muslim Personal Law governs the private life of Muslims in matters relating to
marriage, divorce, inheritance, and family relationships. It is primarily derived
from the Quran, Hadith, Ijma (consensus), and Qiyas (analogical reasoning).
The law has evolved over time, influenced by the socio-cultural and political
landscape of the region.

Historical Background of Divorce in Islam

Divorce in Islam is a complex and sensitive issue. While Islam permits divorce
as a last resort, it emphasizes reconciliation and mediation before dissolution.
The pre-Islamic Arab society viewed women as property, and divorce was
solely the prerogative of men. However, with the advent of Islam, significant
reforms were introduced, providing women with specific rights, including the
right to seek a divorce under certain conditions.
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Purpose and Need for the Act

Before 1939, Muslim women in India faced severe challenges in seeking

divorce. The existing laws were heavily biased towards men, allowing them to
unilaterally dissolve marriages through ‘talaq.’ Women, on the other hand, had
very limited grounds for seeking dissolution of marriage. The Dissolution of
Muslim Marriage Act, 1939, was enacted to address these inequalities and
provide Muslim women with broader grounds to dissolve their marriages.

CHAPTER 2. HISTORICAL CONTEXT

Pre-1939 Divorce Laws for Muslim Women

Before the enactment of the Dissolution of Muslim Marriage Act, 1939, Muslim
women had to rely on customary laws and interpretations of Islamic
jurisprudence for divorce. The primary method available to women was
‘Khula,’ a form of divorce initiated by the wife, which required the husband’s
consent and often involved the return of the dower (Mahr). This system was
highly disadvantageous to women, as it left them vulnerable to the whims of
their husbands.

Socio-legal Factors Leading to the Act

The socio-legal landscape of British India, particularly the plight of Muslim

women, necessitated legal reforms. Several high-profile cases highlighted the
inadequacies of the existing legal framework. The agitation for reform was
spearheaded by women’s rights activists, legal scholars, and progressive leaders
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within the Muslim community. The All-India Muslim Women’s Conference

played a crucial role in advocating for the legislation.

Role of Islamic Scholars and Reformers

Prominent Islamic scholars and reformers such as Maulana Ashraf Ali Thanvi
and Maulana Shabbir Ahmad Usmani supported the need for a legal framework
that would protect women’s rights within the boundaries of Sharia. Their
interpretations of Islamic texts emphasized justice, equality, and the protection
of women’s rights, which laid the foundation for the Act.

CHAPTER 3. THE DISSOLUTION OF MUSLIM MARRIAGE

ACT, 1939

Objectives of the Act

The primary objective of the Dissolution of Muslim Marriage Act, 1939, was to
provide Muslim women with a legal mechanism to dissolve their marriages on
specific grounds. The Act sought to balance the rights of women with the
principles of Islamic law, ensuring that they were not trapped in oppressive
marriages.

Key Provisions

- Section 2: Grounds for Dissolution of Marriage

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The Act outlines several grounds on which a Muslim woman can seek a
divorce, including desertion, cruelty, non-maintenance, impotence,
imprisonment, and more. These grounds are detailed below.

- Section 3: Procedure for Dissolution

The Act prescribes the procedure for filing a petition in a civil court. It
also outlines the court’s powers to grant a decree of dissolution.

Differences from Pre-1939 Laws

Before 1939, the grounds available for a woman to seek divorce were limited
and often required the husband’s consent. The Act marked a significant
departure from this by granting women the right to seek dissolution on various
grounds without needing the husband’s approval.

CHAPTER 4. GROUNDS FOR DISSOLUTION UNDER THE

ACT

The Act enumerates specific grounds under which a Muslim woman can seek a
dissolution of her marriage. These are codified in Section 2 of the Act:

Desertion

A woman can seek a divorce if her husband has deserted her for a continuous
period of four years. Desertion implies the abandonment of the wife without any
reasonable cause or her consent.
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Cruelty

The Act provides for divorce if the husband treats the wife with cruelty. Cruelty,
in this context, includes physical abuse, mental harassment, and any conduct
that endangers the wife’s life or health. The interpretation of cruelty has been
expanded in several cases, such as in Ayesha Bibi v. Muhammad Abdulla (AIR
1964 All 191).

Non-Maintenance

If the husband fails to provide maintenance for two years, the wife can seek
dissolution. Maintenance includes basic necessities like food, clothing, and
shelter. The courts have interpreted this provision liberally to protect the rights
of women.

Impotence

The Act allows a woman to seek a divorce if her husband is impotent at the time
of marriage and continues to be so. The burden of proof lies on the wife, and the
court may grant the husband time to prove his potency.

Imprisonment

A woman can seek divorce if her husband has been sentenced to imprisonment
for seven years or more. This ground was included to protect women from the
stigma and economic hardships associated with having a husband in long-term
incarceration.

Repudiation of Marriage
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The Act provides for divorce if the wife was married before the age of 15 and
repudiates the marriage before the age of 18. This provision empowers women
to nullify child marriages.

Option of Puberty

If a girl was married before attaining puberty, she has the option to repudiate the
marriage after attaining puberty, provided the marriage was not consummated.

Lian and Zihar

The Act recognizes Lian (false accusation of adultery) and Zihar (the husband
likening his wife to his mother or another prohibited relation) as grounds for
divorce. These are based on traditional Islamic jurisprudence and provide
women with specific grounds to dissolve the marriage.

CHAPTER 5. JUDICIAL INTERPRETATION

Key Case Laws

The interpretation of the Dissolution of Muslim Marriage Act, 1939, has been
shaped by several landmark judgments. Some of the key cases include:

- Shamim Ara v. State of UP (AIR 2002 SC 3551): The Supreme Court

held that mere pronouncement of talaq without following the essential
steps prescribed by the Quran does not dissolve a marriage. This case
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reinforced the principles of justice and fairness in Muslim divorce

proceedings.

- Rahmat Ullah v. State of U.P. (2002 CriLJ 1716): The court held that a
wife is entitled to a decree of divorce under the Act if she proves the
grounds enumerated in Section 2.

Interpretations by Indian Courts

Indian courts have played a crucial role in interpreting the provisions of the Act.
The judiciary has adopted a progressive approach, ensuring that the rights of
women are protected while respecting the principles of Islamic law.

Impact of Judicial Decisions on the Application of the Act

Judicial decisions have significantly impacted the application of the Act. Courts
have expanded the scope of the grounds for divorce and provided women with
greater access to justice. The judiciary’s role in interpreting the Act has been
pivotal in shaping its application in modern India.

CHAPTER 6. IMPACT OF THE ACT

Legal Empowerment of Muslim Women

The Dissolution of Muslim Marriage Act, 1939, has legally empowered Muslim
women by providing them with broader grounds to seek divorce. It marked a
significant step forward in the struggle for women’s rights within the Muslim
community.
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Changes in Muslim Marriage Dynamics

The Act has brought about significant changes in Muslim marriage dynamics. It
has provided women with a legal recourse against oppressive marriages, leading
to greater autonomy and independence.

Criticisms and Limitations of the Act

Despite its progressive nature, the Act has faced criticism for certain limitations.
For example, the burden of proof for certain grounds remains high, and the
application of the Act varies across different regions and communities.

CHAPTER 7. COMPARATIVE ANALYSIS

Comparison with Hindu, Christian, and Parsi Divorce Laws

The Dissolution of Muslim Marriage Act, 1939, is unique in its provisions,

particularly the recognition of religious grounds for divorce. In contrast, Hindu,
Christian, and Parsi divorce laws are primarily secular, with fewer religious
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considerations. For instance, Hindu law under the Hindu Marriage Act, 1955,
provides for divorce on grounds like cruelty, desertion, and adultery, similar to
the Dissolution of Muslim Marriage Act, but without the religious context.

Comparison with Dissolution Laws in Other Muslim-Majority Countries

When compared with other Muslim-majority countries, the Dissolution of

Muslim Marriage Act, 1939, is progressive. For instance, in Pakistan, the
Muslim Family Laws Ordinance, 1961, provides similar grounds for divorce,
but the process is more regulated by the state. In contrast, countries like Saudi
Arabia still follow strict interpretations of Sharia, where the grounds for a
woman seeking divorce are limited.

CHAPTER 8. RECENT DEVELOPMENTS

Amendments to the Act

Over the years, there have been discussions about amending the Act to address
its limitations and align it with contemporary legal standards. However,
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significant amendments have not been enacted, and the Act largely remains as it
was originally passed.

Role of the Act in Modern-Day Muslim Divorce Cases

The Act continues to play a crucial role in modern-day Muslim divorce cases.
Courts regularly refer to its provisions when adjudicating disputes, and it
remains a vital piece of legislation for Muslim women seeking dissolution of
marriage.

Influence of the Act on Other Personal Law Reforms

The Dissolution of Muslim Marriage Act, 1939, has served as a model for
subsequent reforms in personal laws. Its emphasis on providing women with
legal rights within the framework of religious law has influenced other personal
law reforms in India, including the introduction of progressive amendments to
the Hindu Marriage Act, 1955, and the Christian Marriage Act, 1872.

CHAPTER 9. CHALLENGES AND CRITICISMS

Gender Bias in Implementation

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One of the primary criticisms of the Act is the gender bias in its implementation.
Despite its progressive provisions, the Act is sometimes applied in a way that
disadvantages women, particularly in patriarchal communities where societal
norms overshadow legal rights. This bias can manifest in the reluctance of
courts to grant divorces on grounds like cruelty or non-maintenance, where the
burden of proof on the woman is often substantial.

Social and Religious Opposition

The Act has faced opposition from conservative elements within the Muslim
community who view it as an intrusion into religious matters. Some argue that
the Act deviates from traditional Islamic jurisprudence and imposes a secular
legal framework on religious practices. This opposition has, at times, hindered
the Act’s acceptance and effective implementation, particularly in conservative
regions.

Gaps in the Legal Framework

While the Act provides a much-needed legal avenue for Muslim women seeking
divorce, it does have certain gaps. For instance, the Act does not address issues
related to post-divorce maintenance (beyond what is stipulated in the Muslim
Women (Protection of Rights on Divorce) Act, 1986) or the custody of children.
These gaps can leave women vulnerable even after securing a divorce,
particularly in cases where the husband refuses to provide adequate
maintenance or support for children.

10. CONCLUSION
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The Dissolution of Muslim Marriage Act, 1939, represents a landmark in the

legal empowerment of Muslim women in India. By codifying specific grounds
for divorce, the Act provides women with a clear and legally recognized
pathway to exit oppressive marriages. It reflects a balanced approach, respecting
religious principles while addressing the social realities of the time.

While the Act has been a significant step forward, there is a need for further
reforms to address its limitations. Future legislative efforts could focus on
easing the burden of proof for women, expanding the grounds for divorce to
include more contemporary issues such as domestic violence, and integrating
provisions for post-divorce maintenance and child custody within the Act itself.

The legacy of the Dissolution of Muslim Marriage Act, 1939, is one of progress
and empowerment. Despite its challenges and criticisms, the Act has provided
Muslim women in India with legal protection and autonomy, setting a precedent
for subsequent legal reforms. Its continued relevance in the modern legal
landscape underscores the importance of balancing religious and legal principles
in personal law.
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11. BIBLIOGRAPHY

Books and Articles:

1. Mulla, D.F., Principles of Mahomedan Law, 21st Edition.

2. Fyzee, A.A.A., Outlines of Muhammadan Law, 5th Edition.
3. Mahmood, Tahir, Muslim Law in India and Abroad, 2nd Edition.
4. N.R. Madhava Menon, Introduction to Indian Legal System, 5th Edition.

Case Laws:

1. Shamim Ara v. State of UP (AIR 2002 SC 3551)

2. Ayesha Bibi v. Muhammad Abdulla (AIR 1964 All 191)
3. Rahmat Ullah v. State of U.P. (2002 CriLJ 1716)
4. Sarabhai v. Rabiabai (AIR 1966 SC 1057)