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Judicial Divorce under Muslim Law | 22 Dec 2023
Introduction
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.
A wife cannot divorce her husband of her own accord. She can divorce the husband only when the
husband has delegated such a right to her or under an agreement.
Under an agreement, the wife may divorce her husband either by Khula or Mubarat. Before 1939, a
Muslim wife had no right to seek divorce except on the ground of false charges of adultery, insanity or
impotency of the husband.
But the Dissolution of Muslim Marriages Act, 1939 lays down several other grounds on the basis of
which a Muslim wife may get her divorce decree passed by the order of the court.
Under Muslim Law divorce can be taken by Extra Judicially and By Judicial Method.
Extra Judicial:
By husband- Talaab, Ila, and Zihar.
By wife- Talaaq-i-tafweez, Lian.
By mutual agreement- Khula and Mubarat.
Judicial divorce was introduced in 1939 by the dissolution of the Muslim Marriage Act, 1939 under
which only wife could sue for divorce.
Dissolution by Judicial Process:
Lian (Mutual Imprecation): - It is mentioned in the ‘Quran’ and is supported by the traditions of
the prophet. The procedure of ‘Lian’ may be described briefly as follows:
A husband accuses his wife of adultery but is unable to prove the allegation. The wife in such
cases is entitled to file a suit for dissolution of marriage.
Faskh: The word ‘Faskh’ means annulment or abrogation. Hence, it refers to the power of the
Muslim Qazi to annul a marriage on the application of the wife or 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.
It may be defined as ‘the dissolution or rescission of the contract of marriage by judicial
degree’. Before the passing of the dissolution of Muslim Marriage Act, 1939, there was no piece
of legislation under which, a Muslim lady could ask for the dissolution of their marriage.
Judicial Divorce (dissolution of Muslim Marriage Act, 1939)
This act may be regarded as a landmark in respect of the matrimonial relief of a Muslim wife. The
wife’s right of divorce which was denied to her due to misinterpretation and misconception of Islamic
law by the courts was restored to her under the act.
This act is applicable to all Muslims irrespective of their schools to which they belong.
Section 2 of the act,1939, provides nine grounds under which a Muslim wife can obtain a decree for
the dissolution of her marriage. The grounds are:
Absence of Husband:
If where abouts of the husband is not known for a period of four years, a woman married
under Muslim Law shall be entitled to obtain a decree of the dissolution of her marriage.
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 the divorce.
Imprisonment of Husband:
If the husband has been sentenced to imprisonment for a period of seven years or
upwards the wife is entitled to a decree of the court dissolving her marriage, but no decree
can be passed on this ground unless the sentence has become final.
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Failure to Perform Marital Obligations:
If the husband has 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.
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.
Insanity, Leprosy and 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. It is to be noted that leprosy
and virulent disease need not to be two years old. It may be even recent.
Repudiation of marriage by wife:
If a wife, having been given in marriage by her father or other guardian before attaining
the age of 15 repudiated the marriage before the age of 18 years and the marriage is not
consummated, she is entitled to a decree of divorce.
Cruelty of husband:
Judicial divorce may also be claimed by a Muslim wife, if the husband treats her with cruelty,
that is to say:
i. Habitually assaults her makes her life miserable by cruelty or bad conduct even if
such conduct does not amount to physical ill-treatment.
ii. Associates with women of ill repute or leads an infamous life, or
iii. Attempts to force her to lead an immoral life.
iv. Disposes of her property or prevents her from exercising her legal rights over it, or
v. Abstracts her in observance of her religious profession or practice, or
vi. If he has more wives than one, does not treat her equitably in accordance with the
injunction of the Quran.
Effect of Dissolution
Matrimonial Intercourse:
After the dissolution is effective, matrimonial intercourse between the parties becomes unlawful.
Remarriage Reconciliation:
A divorced couple cannot always remarry.
Fresh Marriage:
Where the marriage was not consummated, the parties can marry immediately.
When the marriage was consummated, the wife has to wait till the expiration of her ‘iddat’ in order
to be able to remarry.
Dower:
If the marriage was consummated, the whole dower is immediately due; if not half the dower is
payable.
Maintenance:
The husband has to provide maintenance to the wife during ‘iddat’.
Inheritance:
So long as the divorce is revocable, the spouse can inherit from the other; but when the divorce
becomes irrevocable, the rights of inheritance terminate inter se.
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