1

JUDICIAL DIVORCE UNDER MUSLIM LAW

Submitted by

SAGAR GUPTA

Division A. Class BBA.LL.B

Symbiosis Law School, NOIDA

Symbiosis International University, PUNE

In

NOVEMBER, 2011

Under the guidance of

Prof. Vikram Singh

Prof Ashok Wadje

Designation and official address of research guide

Symbiosis Law School

(Off Campus Centre of Symbiosis International University)

Sector- 62, Block-A, Plot No-47/48, Noida-201301

U.P.-India Ph: +91 (0) 120 2405061,63.

Fax: 0120- 2405064, Website: www.symlaw.edu.in

C E R T I F I C A T E

2

The project entitled “JUDICIAL DIVORCE UNDER

MUSLIM LAW” submitted to the Symbiosis Law School,

NOIDA for FAMILY LAW was part of internal assessment

is based on my original work carried out under the

guidance of Prof. Vikram Singh and Prof Ashok

Wadje from August to November. The research work

has not been submitted elsewhere for award of any

degree.

The material borrowed from other sources and

incorporated in the thesis has been duly acknowledged.

I understand that I myself could be held responsible and

accountable for plagiarism, if any, detected later on.

Signature of the candidate

Date: 26-11-2011

ACKNOWLEDGEMENT

3

It is a great pleasure for us to put on records our

appreciation and gratitude towards Dr. C.J.

Rawandale, Director for his immense support

and encouragement all through the

preparation of this report. I would like to

thank my faculty Prof. Vikram Singh (Project

Guide) for his valuable support and suggestions for

the improvement and editing of this project report.

Last but not the least, I would like to thank all the

friends and others who directly or indirectly helped

me in completing my project report.

SAGAR GUPTA

(B.B.A.LL.B,)

INDEX

4

The first few pages of the areas under:

Page 1 - Title page

Page 2 - Certificate signed by candidate

Page 3 - Acknowledgement

Page 4 -Index

Page 5-16- INTRODUCTION, Types of Divorce

Page 17- BIBLIOGRAPHY

WHAT IS JUDICIAL DIVORCE?

According to the dictionary judicial divorce means

5

a) Judicial declaration dissolving a marriage in whole or in part,

especially one that releases the husband and wife from all

matrimonial obligations.

b) Any formal separation of husband and wife according to

established custom.

WHAT IS JUDICIAL DIVORCE UNDER MUSLIM LAW?

Judicial divorce means the dissolution of marriage by a

judge and not by the husband.

Divorce is the natural right of the husband, provided his relation

with his wife run their normal course. Normally, if he wants to live

with her, he should look after her, discharge all the rights belonging

to her and treat her kindly. If he finds it impossible to live with her

smoothly, he should pay up all her dues and part with her. Besides

her dues, he is also required to pay her an additional sum as a token

of goodwill and gratitude. The Holy Qur’an says: “Provide for

them, the rich according to his means, and the strained

according to his means, a fair provision’, (Surah al-Baqarah,

2: 236).

In such cases divorce does not depend on the will and pleasure of

the husband. If such a man is not willing to divorce, the woman

cannot be allowed to endure the agony without having a remedy.

Islam does not play the role of a silent spectator in such cases.

The establishment of a just society has been the basic aim of all the

Prophets. The Holy Qur’an says: Certainly we sent Our

Messengers with clear proofs and sent down with them the

Book and the Balance, so that humankind may conduct itself

with equity. (Surah al-Hadid, 57:25)

Under Muslim Law Dissolution is of Two Types:

6

a) Dissolution by Death Of a party

b) Dissolution by Divorce

Dissolution by Divorce can further be Classified Under:

Divorce By Husband(TALAQ)

Divorce By Wife(TALAQETAFWIZ)

Divorce By Mutual Consent

Divorce By Judicial Decree Under DISSOLUTION OF

MUSLIM MARRIAGE ACT,1939 (JUDICIAL DIVORCE)

A TALAQ may be affected by the husband in any of the following

modes:

1) Talaq-ul-Sunnat

2) Talaq-ul-Biddat

(1) Talaq-ul-Sunnat: It is Talaq which is affected in

accordance with the rules and regulations which are laid

down by the Prophet. It can further be sub divided into

i) Ahsan

ii) Hasan

i) Ahsan: Ahsan is Arabic word which means

proper or accurate. The Talaq pronounced in

Ahsan mode is most approved mode of

Talaq .To be in Ahsan mode it requires

fulfillment of certain terms and conditions

which are as follows:

a) The husband must pronounce the

formula of divorce in a single sentence

b) The pronouncement of divorce must be

in a state of purity (TUHR). Tuhr is that

7

period during which a woman is free

from her menstrual course

c) The husband must abstain from

intercourse for the period of Iddat.

When the marriage has not been consummated a Talaq in ahsan

form may be pronounced even if the wife is in her menstruation.

The Ahsan mode of Talaq is not applicable in the case where the

wife is beyond the age of menstruation.

ii) Hasan: Hasan is an Arabic word which means

Good. The Talaq which is pronounced during

Hasan form is of lesser worth as in the case of

Ahsan. Just like in the Ahsan form Hasan form

also needs certain terms and conditions which

are to be satisfied. These conditions are:

a) There must be three successive

pronouncements of the formula of

Divorce.

b) In case if wife is menstruating then the

first pronouncement should be made

during a period of Tuhr, the second

during the next tuhr and the next

during succeeding tuhr.

c) In case wife is non-menstruating the

pronouncement can be made during

successive interval of 30 days

d) There should be no sexual relation

between these three periods of Tuhr.

Such divorce becomes irrevocable after

the third pronouncement.

8

3) TALAQ-UL-BIDDAT: 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. This is also called triple

talaq and is not recognized by shias. It is condemned as sinful,

harsh and against the mandate of the constitution but it is

valid and the most prevalent form of divorce in India. It

becomes irrevocable and final immediately irrespective of the

period of iddat provided the words of divorce indicate an

intention to dissolve the marriage. If the words are express,

they immediately dissolve the marriage and no proof of

intention is necessary but if they are ambiguous, intention

must be proved.

By Mutual Consent:

1) Khula: A Muslim women has a right to ask for divorce if she

does not desire to live with her husband even where he is not

at fault. It may be dissolved by an agreement between the

husband and the wife called khula. In accordance with the

terms and conditions between the husband and the wife, the

wife may agree to relinquish part or whole of her dower

amount or any other benefit that may be agreed upon

between the two. Once the offer is accepted by the husband it

operates as an irrevocable divorce. However a woman may

not compel her husband to give her divorce under khula and

even a suit to that effect is not maintainable in law. It is only

the husband or his agent who may agree to khula and neither

the court nor the qazi is competent to do it. Once a khula has

been accepted by the husband and affected, the husband has

no power to cancel it on the ground that the consideration has

not been paid and his remedy is to sue the wife for it.

9

2) Mubarat: Mubarat is also a form of dissolution of marriage

contract. It signifies a mutual discharge from the marriage

claims. In mubarat the aversion is mutual and both the sides

desire separation. Thus it involves an element of mutual

consent.

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.

DIVORCE BY WIFE (TALAQ-e-TAFWIZ): A muslim husband has

the right to delegate the power of divorce to his wife. In India, a

muslim wife may divorce her husband under his delegated power

in the event of his taking a second wife. A muslim wife who has

the power given to her by the marriage contract to divorce

herself in the event of the husband taking a second wife does not

lose her option by failing to exercise it the very moment she

knows that she has done so for a second marriage is not a single

but a continuing wrong to the first wife. In order to exercise the

power to divorce her under delegated talaq, the wife is required

to clearly specify the conditions that entitle her to exercise this

right.

JUDICIAL DIVORCE

Under Dissolution of Muslim Marriages Act 1939: By the

Dissolution of Muslim Marriage Act, 1939 the legislature has made a

distinct Endeavour to ameliorate the lot of wife and the courts, must

apply the law in consonance with the spirit of the legislature1.

However it does not have any retrospective application2.The

grounds on which a female can claim divorce under this act are:

1 Sofia begum v Zabeer hasan AIR 1947 All 162 Sarwar yar khan v Jawahar devi (1964) 1 andh WR 60

10

When whereabouts of husband not known: A woman married

under Muslim law would be entitled to a decree of divorce on the

ground that whereabouts of her husband are not known for a period

of 4 years3. As a notice, has to be served on heirs of the husband,

the suit must give:

1) The names and addresses of the persons who would have

been the heirs of the husband under Muslim law where, he

had died on the date of the filing of the plaint must be served

in the plaint.

2) Notice of the suit must be on such persons and

3) Such persons must have the right to be heard in such suits.

However, the paternal uncle and brother of the husband, where any

must be cited as party even where he or they are not heirs4.

A decree passed on this ground must not take effect for a period of

six months from the date of such decree, and where the husband

appears either in person or through an advertised agent within that

period and satisfied the court that he is prepared to perform his

conjugal duties, the court must set aside the said decree5.

Failure to maintain for a period of two years: A woman

married under Muslim Law would be entitled to a decree of divorce

on the ground that the husband has neglected or has failed to

provide for her maintenance for a period of two years6. The word

neglect implied willful failure and the words, has failed to provide

implied an omission of duty7, and where the wife was at fault

granting her, divorce on this ground would mean giving her a

benefit of her own wrong8. Mere inability of the husband to provide

maintenance is not a ground for refusing divorce and it is totally

3 Dissolution of Muslim Marriages Act 1939, sec 2(i)4 Dissolution of Muslim Marriages Act 1939, sec 2(i) provision5 Dissolution of Muslim Marriages Act 1939, sec 2(b) 6 Dissolution of Muslim Marriages Act 1939, sec 2 (ii)7 Badrunnissa Bibi v Usuf AIR 1944 All 238 Zafar Hussain v Akbari Begum AIR 1944 Lah 336

11

immaterial whether failure to maintain is due to poverty, failing

health, loss of work or imprisonment or any other cause unless the

conduct of the wife disentitles her to maintenance. Looking into the

grounds mentioned in the Dissolution of Muslim Marriage Act, 1939

it is not appropriate to introduce a ground that entitles a wife to

divorce even though the husband’s conduct is totally baseless and

the conduct of the wife is blameworthy. The Dissolution of Muslim

Marriages Act 1939 crystallizes a portion of Muslim law and it is

precisely for this reason that that it must be taken in conjunction

with the whole of the Muslim law as it stands. The words to provide

for her maintenance occurring in the Dissolution of Muslim

Marriages Act, 1939, imply maintenance only in such circumstances

as is allowed under general Muslim law. The Orissa High Court has

observed that where the wife sues for dissolution on the ground of

failure of the husband to provide for her maintenance for two years

she must also show her readiness and willingness to perform her

martial duties. Thus, where a Muslim wife voluntarily and without

reasonable excuse leaves the house of the husband and makes

herself unavailable to him despite his request, or is neither faithful

nor obedient or was not ready and willing to do her martial duties,

she cannot take the benefit of this provision. The husband is entitled

to the society of the wife and where despite his request she insists

on living at her parents place and refuses to come back, her prayer

for dissolution of her marriage on the ground of failure to maintain

her would be dismissed despite the fact that the husband has

married again. However there is no distinction between a rich wife

and poor wife as the obligation of husband is despite, the financial

condition of the wife. Where the wife has not been paid her prompt

dower she is entitled to stay away from him and where the husband

does not maintain her for a period of two years she can sue for

divorce on this ground9.

9 Zoona v Ykub AIR 1983 J&K 78

12

The Kerala High court however, observed that the wife is entitled to

get a decree of divorce on the ground that the husband has failed to

maintain her irrespective of the fact that the wife may not have

placed herself at a place where she might, have been maintained as

there is absence of words ‘without reasonable cause’. The husband

must also create conditions and circumstances suitable for the wife

to come back to the house of the husband. Thus where the wife left

the house of the husband against his wishes and filed a suit praying

for a decree of divorce on the ground that he has not maintained

her for a period of two years, the divorce was granted to her.

When husband sentenced to imprisonment: A woman married

under Muslim Law would be entitled to a decree of divorce on the

ground that the husband has been sentenced to imprisonment for

seven years or upwards10. However until the sentence has became

final no decree may be passed on this ground11.

Failure to perform marital obligations: A woman married under

Muslim Law would be entitled to a decree of divorce on the ground

that the husband has failed to perform without reasonable excuse

his marital obligations for three years12.

Impotency: A woman married under Muslim Law would be entitled

to a decree of divorce on the ground that the husband was impotent

at the time of marriage and continues to be so. Where the

impotence of the husband was established at the time of the

marriage and during the pendency of the litigation, it was observed

that the impotency continued till the date of the suit and divorce

was granted to the wife. Where the husband has ceased to be

impotent within a period of one year from the date of passing of the

order to this effect by the court no decree would be passed. A wife

10 Dissolution of Muslim Marriages Act 1939, SEC 2 (iii)11 Dissolution of Muslim Marriages Act 1939, Sec 2(ix) prov (a)12 Dissolution of Muslim Marriages Act 1939, Sec 2(iv); Said Ahmad v Sultan Bibi AIR 1943 Pesh 73

13

cannot be compelled to submit herself to the husband in order to

test the truth of his claim that he has ceased to be impotent.

Before passing a decree on ground mentioned in the Dissolution of

Muslim Marriages Act, 1939 the court may on application by the

husband made 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 where the husband satisfies the court

within such period of time, no decree may be passed on the said

ground.

Insanity, Leprosy or virulent venereal diseases: A woman

married under Muslim law would be entitled to a decree of divorce

on the ground that the husband has been insane for a period of two

years, or is suffering from leprosy or virulent venereal diseases.

Repudiation of Marriage: A woman married under Muslim law

would be entitled to a decree of divorce on the ground that she

having been given in her marriage by her father or other guardian of

marriage before she attained the age of 15 years repudiated the

marriage before attaining the age of 8 years provided that the

marriage has not been consummated13. By this provision all

restrictions on her right to exercise option of puberty (Khayar-ul-

Bulugh) where the marriage was arranged by her father or

grandfather have been abolished14 .Where at the time of the

marriage the girl was seven years old and the marriage was

contracted by her parents, and she was entitled to a degree of

divorce as the marriage was not consummated. Similarly, where the

wife was given in marriage when she was barley one year old and

she repudiated the marriage on attaining 17 years of the age, the

court observed that the marriage is repudiated despite the fact that

it may have been consummated before the age of 15 years. The

question of age is a question of fact and it can be proved by the

13 Dissolution of Muslim Marriages Act 1939, SEC 2 (vii), Zubeda begum v Vazir mohammad 190 IC 9414 Peer Mohammad v State of Madhya Pradesh AIR 1960, MP 24

14

other evidence in absent of a birth certificate. For ascertaining the

age of the girl, she can be subject to a medical examination and a

refusal to undergo medical examination will justify the court in

adopting an adverse inference15.

Cruelty: A woman married under Muslim Law would be entitled to a

decree of divorce on the ground that the husband treats her with

cruelty16 that is to say:

1) Habitually assaults he r of makes her life miserable by cruelty of

conduct17 even where such conduct does not amount to physical ill-

treatment 18

2) Attempts to force her to lead an immoral life

3) Associates with women of ill repute or leads an infamous life.

4) Disposes of her property or property or prevents her exercising

her legal rights over it.

5) Obstructs her in the observance of her religious profession or

practice

6) Where he has more wives than one and does not treat her

equitably in accordance with the injunctions of the Quran.

Where the husband is guilty of cruelty and willful neglect to

maintain the wife she may ask for divorce. Similarly where he is

impotent and refuses to consummate the marriage this would

amount to cruelty and would entitled the wife to stay apart from him

and yet claim maintenance19. Where the husband during the

subsistence of the first marriage gets married again, the onus would

be on him to show that his getting married again does not amount

15 Mahomad Shariff v Khuda Baksh AIR 1936, Lah 683 16 Dissolution of Muslim Marriages Act 1939, SEC 2 (viii)17 Shahina Praveen v Mohd Shakeel AIR 1987 Del 21018 Kadir v Koleman Bibi (1935) ILR 62 Cal 108819 Siraj Mohamed Khan v Hafizunnissia AIR 1982 SC 1972

15

to cruelty to his first wife20. Where the husband went abroad leaving

behind his two wives in India and provided maintenance to one of

them but ignored the other the court observed that the other wife

was entitled to divorce under this provision. Mere incompatibility of

temperament or hatred does not amount to cruelty but a reasonable

apprehension in the mind of the wife due to persistent dowry

demands of the husband and in laws that, it would not be safe for

her to live in the house of the husband is justified as it amounts to

cruelty21.

Lian or false accusation of adultery: A woman married under

Muslim Law would be entitled to a decree of divorce on any other

ground recognized under Muslim law. Thus, a false aggressive and

voluntary accusation of adultery by the husband called lian, would

entitle the wife to sue for divorce. A wife who has attained majority

according to Muslim Law can file a suit herself without a guardian22.

The charge must be false and not true. A mere charge or accusation

does not dissolve the marriage and the wife must file a regular suit

for claiming divorce on this ground and not a mere application to

this effect. Till the court grants a decree of divorce the marriage

continues. Where the charge is retracted bonafide before the

commencement of the hearing the wife cannot sue for divorce

under his ground23 but not when it is retracted after the closure of

evidence or of the trial, it is not a bonafide withdrawal. Thus, there

are three conditions that are necessary for a valid retraction

1) The husband must admit that he made a charge of adultery

against the wife

2) The husband must admit that the charge was false

3) The husband must make a retraction before the end of the

trial.

20 Itwari v Asgari AIR 1960 All 68421 Siraj Mohammad Khan v Hafizunnissia AIR 1982 SC 1972

22 Ahmed v Bai Fatima AIR 1931 Bom 7623 Siju Bibi v Muksed Mollah 45 Cal WN 122

16

Conversion of the spouse to another religion: Where a Muslim

husband during the subsistence of the marriage converts to another

religion and ceases to be a Muslim, the marriage comes to an end

immediately24, and the wife can contract another marriage. She is

not guilty of committing bigamy despite the fact that during the

period of Iddat the husband reconverted to Islamic faith. Where

Christian women embraced Islam, got married to a Muslim man and

then re-embraced Christianity, her marriage also came to an end

immediately. Prior to the enactment of the Dissolution of Muslim

Marriages Act, 1939, apostasy of any of the spouse operated as an

immediate dissolution of their marriage.

BIBLIOGRAPHY

Books Referred:

1) Halsburys laws of India

2) Family Law in India

3) Mohammedan Law by Aqil Ahmed

Cases Referred:

1) Sofia begum v Zabeer hasan AIR 1947 All 162) Sarwar yar khan v Jawahar devi (1964) 1 andh

WR 603) Badrunnissa Bibi v Usuf AIR 1944 All 234) Zafar Hussain v Akbari Begum AIR 1944 Lah

336

5) Peer Mohammad v State of Madhya Pradesh AIR 1960, MP 24

6) Mahomad Shariff v Khuda Baksh AIR 1936, Lah 683

24 Dissolution of Muslim Marriages Act 1939, Sec 4 prov (1)

17

7) Kadir v Koleman Bibi (1935) ILR 62 Cal 10888) Siraj Mohamed Khan v Hafizunnissia AIR 1982

SC 19729) Itwari v Asgari AIR 1960 All 684

ACTS:

1) Dissolution of Muslim Marriages Act, 1939

2) Muslim Laws in India