Divorce by Muslim wife under Dissolution of Muslim Marriage Act, 1939

It has been lain down in Section 2 of the Dissolution of the Muslim Marriage Act, 1939 that a wife can apply for divorce in the Court on the following grounds: -

 

(1) Husband Missing.

 

(2) Failure to maintain.

 

(4) Failure to perform mutual obligations.

 

(5) Impotency of husband

 

(6) Insanity, leprosy and virulent venereal disease

 

(7) Option of puberty

 

(8) Cruelty of husband

 

(9) Any other ground recognised by Shariat.

 

Let us discuss –

 

       (1) Husband missing - If the whereabouts of husband have not been known for a period of four years, a Muslim wife can apply in the court for the decree of dissolution of marriage. In case a decree is passed by the court, it will be enforceable after six months of its issue. In the meantime, if husband appears either in person or through an authorised agent and satisfies the court that he is prepared to perform his conjugal relations, such decree will be set aside by the court. In such a suit-

 

(a) The names and addresses of the persons who would have been the heirs of the husband under Muslim law if he had died on the date of filing of the plaint shall be stated in the plaint;

 

(b) notice of the suit shall be served on such person;

 

(c) such persons shall have the right to be heard in the suit.

 

         The parental uncle and brother of the husband, if any, must be cited as party even if he or they may not be heirs

 

         (2) Failure to maintain - The wife is entitled to obtain a decree for the dissolution of her marriage if the husband has neglected or has failed to provide for her maintenance for a period of two years. Such failure may not be wilful. Even when husband finds himself unable to do so due to his poverty, failing health, loss of work, imprisonment or due to any other case, the wife will be entitled to divorce. In case of Nur-Bibi v Pir Bux, AIR 1950 Sindh 8, it has been held by Sindh High Court that where a husband has failed to provide maintenance for his wife for a period immediately preceding the suit, the wife would be entitled to a dissolution of marriage under section 2 of the Dissolution of Muslim Marriage Act, 1939. It has been held by the Chief Court of Sindh in Khatijan v Abdulla, AIR 1942 Karachi 535, 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 was under an obligation to maintain her.

 

        If the wife lives separately from her husband without any reasonable cause or she intentionally refuses to perform her part of marital duties, she can neither claim the maintenance nor divorce from her husband; Bai Fatima vs. Mumna Miranji, 1957 Bom 453.

 

        (3) Imprisonment of husband - If the husband of a Muslim wife has been sentenced by a court to imprisonment for the period of seven years or more such wife is entitled to obtain the decree for the dissolution of marriage. Such decree cannot be passed on this ground until the sentence has become final.

 

       (4) Failure to perform marital obligations - If a husband, without any reasonable cause, fails to perform his marital obligations for a period of three years, the wife is entitled to obtain the decree for the dissolution of her

 

        (5) Impotency of husband - The wife is entitled to obtain a decree for the dissolution of her marriage if the husband was impotent at the time of marriage and continues to be so.

 

         In such a case before the passing of decree, a court is bound to make an order requesting the husband to satisfy the court within one year from the date of such order that he has ceased to be impotent. If husband does so, a court cannot pass decree of dissolution of marriage on this ground. The order of the court will be subject only to application of the husband before passing of the decree of dissolution of marriage.

 

        The following alterations were, afterwards made in this Act regarding suit for dissolution of marriage due to impotency of husband-

 

(a) It is no longer necessary for the wife to prove that she did not know of her husband's impotency at the time of marriage.

 

(b) It is no longer necessary for the wife to prove after the year of probation that the husband is still impotent. It is for the husband to prove within the period of one year that he has ceased to be impotent, Mohammed Ibrahim v Altafan, 1925 47 All 243: 83 IC 27.

 

        (6) Insanity, leprosy and virulent venereal disease - If a husband of a Muslim wife is insane for two years or he is suffering from leprosy, or a virulent venereal disease, the wife may obtain a decree for the dissolutions of marriage.

 

        (7) Option of Puberty - If the marriage of a Muslim wife was performed by her father or grand-father when she was minor, i.e., under the age of fifteen years, she can repudiate such marriage before attaining the age of eighteen years provided that the marriage has not been consummated.

 

        (8) Cruelty of husband - If a Muslim husband treats his wife with cruelty, she is entitled to a decree for the dissolution of marriage. Even before the Dissolution of Muslim Marriage Act, 1939, the court recognised this ground for dissolution of a marriage. In Mustafa Begum v Mirza Kazim Paza Khan, (1932) 8 Luck 204, it has been held by the court that a cruelty is considered as sufficient ground for dissolving the marriage on the suit of the wife but mere incompatibility of temperament was not regarded as good ground.

 

The word ‘cruelty’ means and includes the following: -

 

(a) when a husband habitually assaults his wife or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment, or

 

(b) when a husband associates with a woman of evil repute or leads an infamous life; or

 

(c) when a husband attempts to force his wife to lead an immoral life; or

 

(d) when a husband disposes of her property or prevents her from exercising her legal right over it; or

 

(e) when a husband obstructs his wife in the observance of her religious profession or practice, or

 

(f) when a husband keeps more than one wife and does not treat her equitably as per Quaranic injunctions

 

        In Moonshi Buzloor Raheem v Shumsoonissa Begum, (1867) 11 MIA 551, it has been held by Privy Council that “the cruelty should be of a type that endangers life.” The observation of Privy Council however, has no application in this view of the Act. Now, the question is what actually includes ‘cruelty’ by conduct. In reply to this question, it was said in the case of Begum Zohra v Mahmmod Ishfaq-ul-Majid, (55) Sindh 378, that cruelty by conduct includes habitual use of abusive and insulting language to the wife.

 

        (9) Any other ground recognised by Shariat - The wife is entitled to a decree for the dissolution of her marriage on any other ground which is recognised as valid under Muslim law. If a wife sues for dissolution of marriage on the ground of lian, but the husband bona fidely retracts the charge of adultery, the marriage cannot be dissolved. In Umar Bibi v Mohammad Din, (1944) Lah 542: 220 IC 9 (45) AL 51, it has been held by the court that incompatibility of temperaments and hatred of the wife for her husband are not recognised by the Muslim law as grounds for divorce.

 

Conclusion

 

The Dissolution of Muslim Marriages Act, 1939, is a progressive statute ensuring that Muslim women have the legal right and effective means to dissolve marriages that deny them dignity, safety, and happiness. By clearly specifying grounds, protecting financial rights, and eliminating discriminatory practices like automatic dissolution on conversion, the Act asserts the legal autonomy of Muslim women and advances gender justice within the framework of personal law.