October 4, 2022

Can a muslim male apply to court for divorce like a muslim female?

The answer is no, if we see the judgment of Jharkhand High Court in ‘Mohd. Yusuf v. Nasreen Begum’ (2018).

In muslim law, muslim males have superior rights of divorce than women. Muslim males may give talaq to women without their consent. But, women have restricted rights to get dissolved their marriage with their husband, however women have rights of Khula and mubaraat.

Before 2018 (Shayra bano case), Indian muslim men also had the right to give instant talaq, but, this type of talaq was not according to hadith, Quran and natural justice, therefore, Supreme court abolished such form of talaq.

Indian legislator enacted an act ‘Dissolution of muslim marriage act, 1939’, to give muslim women a right to get divorce through court. As muslim men had the right to give instant talaq, therefore, the trouble to go to court for divorce was not needed to them. But, now when triple talaq has been abolished, muslim men has the right to divorce by ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ only. (as other form of divorce ‘ila’ and ‘zihar’ has become obsolete)

Mohd. Yusuf v. Nasreen Begum’ (2018).

In the case of Yusuf v. Nasreen begum, an interesting situation arose, when court showed its inability to maintain the suit of divorce by muslim man, on the ground that there is no provision in law which give right to muslim men to get divorce through court.

Facts of the Case

  • A Mohd. Yusuf, asserted through his plaint that his marriage with the Nasreen begum was solemnized on 20.02.1990 as per Muslim Law and Muslim rituals. After the marriage, they lived together at Jamshedpur in their matrimonial home.
  • But, thereafter, she brought her mother and mother’s mother to live with him and they started meeting out cruelty and created troubles in his matrimonial life.
  • A daughter and two sons were born out of their wedlock on 12.04.1991, 10.12.1992 and 25.03.1998. Matrimonial life between the parties was never good. She used to demand entire salary of the applicant and it led to conflict between the spouses.
  • He had purchased a piece of land in the name of the wife however, at the instigation of her mother and grandmother, it was sold out.
  • Cases were filed against him and he was sent to jail for about one month.
  • He was ousted from his own quarter as he was not allowed to enter his quarter after coming out from custody on being enlarged on bail.
  • He was admitted in TMH on 25.03.2009 and was operated by a Doctor. Even during that period wife did not come to see him, as a result of which, relationship between the spouses became very bad.
  • Therefore, prayer for grant of decree of divorce was made.

Denial of allegations by the wife

  • wife through her written statement denied the entire allegation. She admitted the marriage and children born out of the wedlock and alleged that husband used to torture her due to non-fulfillment of demand of dowry.
  • She also denied the allegations against her grandmother, who was a bed ridden patient.
  • She had instituted a case for maintenance as her husband refused to maintain her and her children.
  • He had taken help of gangster friend in committing various forms of cruelty on her.
  • She took the plea of maintainability of suit under the Mohammedan Law.

Question before the Court

Two issues were framed-

A. Is the suit as framed maintainable?

B. Whether the applicant is entitled to a decree of divorce?

Decision of the family court

Family Court discussed the provisions of Mohammedan Law under Chapter-16 of the Mulla’s Commentary.

Trial Court dealt with the relevant provisions under Part A, B and C of Chapter-16 where under divorce can be granted by the spouses. Relevant findings of the learned Trial Court on the instant issue are being quoted herein below:

” Chapter-16 of the Mulla’s Commentary on Mohammedan Law is divided into three parts i.e. Part A, B and C. First part relates to divorce by husband and it mentioned that when divorce proceeds from husband it is called “Talak” and when it is effected by mutual consent it is called as “Khula” or “Mubarrat”.

Para 308-316 deals with different forms of Talak and in none of these provisions there is a mandate to go for a decree of divorce by the husband. Thereafter, 317, 318 deals with certain species of constructive divorce where on account of certain acts of the husband some right is created with the wife to obtain a decree of divorce. Here also husband does not have right to approach the court for a judicial divorce. 319 and 320 deals with “Khulla” and 321 and 322 are also modes of separation, but not judicial divorce.

The second part i.e. Part-B relates to judicial divorce at suit of a wife and Part-C deals with consequences/affects of divorce, hence under the whole Chapter of divorce at Chapter 16 there is no provision to show that Muslim husband is entitled to approach the court for a decree of divorce.”

Case to Jharkhand High Court

Husband reached to Jharkhand high court through appeal. Jharkhand high court also noted that there is no provision in muhammadan law that permits the husband to obtain the decree of divorce through a judicial declaration. However, other forms of divorce are available to the husband to be exercised, as per the condition stipulated thereunder.

Therefore, the high court expressed its agreement to the findings of Family Court and held that the instant suit is dismissed.

The court said that the appellant has not been able to dislodge the findings of the learned Family Court on the plea of maintainability by citing any precedent on the subject or any other provision of law, apart from those referred above, which could sustain the maintainability of the suit for divorce on the part of the husband.

Reference

Mohammad Yusuf v. Nasreen Begum (2018)