How can a muslim woman take divorce from her husband?

Under Muslim Law, dissolution of marriage may be granted at the instance of woman thorough ‘Khula’ and ‘Mubaraat’.

There are four schools in Sunni Islam which give different Interpretations of Quran. These are Hanafi, Maliki, Shafii, and Hanbali School. Among these, Hanafi school is more important. In India, more than 80% muslims are the followers of Hanafi Schools.

There was no provision in the Hanafi Code of Muslim law for a married Muslim woman, to seek dissolution of marriage, as of right. Accordingly, Hanafi jurists had laid down, that in cases in which the application of Hanafi law caused hardship, it was permissible to apply the principles of the Maliki, Shafii or Hanbali law.

This position was duly noticed in 1939 and ‘Dissolution of Marriage Act, 1939’ was introduced by Indian Legislature.

Statement of Objects and Reasons

The statement of objects and reasons of the above enactment is relevant, and is accordingly extracted hereunder:

“There is no proviso in the Hanafi Code of Muslim Law enabling a married Muslim woman to obtain a decree from the Court dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her or absconds leaving her unprovided for and under certain other circumstances. The absence of such a provision has entailed unspeakable misery to innumerable Muslim women in British India.

The Hanafi Jurists however, have clearly laid down that in cases in which the application of Hanafi Law causes hardship, it is permissible to apply the provisions of the Maliki, Shafii or Hanbali Law.

Acting on this principle the Ulemas have issued fatwas to the effect that in cases enumerated in clause 3, Part A of this Bill (now see section 2 of the Act), a married Muslim woman may obtain a decree dissolving her marriage.

A lucid exposition of this principle can be found in the book called Heelatun Najeza published by Maulana Ashraf Ali Sahib who has made an exhaustive study of the provisions of Maliki Law which under the circumstances prevailing in India may be applied to such cases. This has been approved by a large number of Ulemas who have put their seals of approval on the book.

As the Courts are sure to hesitate to apply the Maliki Law to the case of a Muslim woman, legislation recognizing and enforcing the above mentioned principle is called for in order to relieve the sufferings of countless Muslim women. One more point remains in connection with the dissolution of marriages. It is this. The Courts in British India have held in a number of cases that the apostasy of a married Muslim woman ipso facto dissolves her marriage. This view has been repeatedly challenged at the bar, but the Courts continue to stick to precedents created by rulings based on an erroneous view of the Muslim Law. The Ulemas have issued Fatwas supporting non-dissolution of marriage by reason of wife’s apostasy. The Muslim community has, again and again, given expression to its supreme dissatisfaction with the view held by the Courts.

Any number of articles have been appearing in the press demanding legislation to rectify the mistake committed by the Courts; hence clause 5 (now see section 4) is proposed to be incorporated in this Bill. Thus, by this Bill the whole Law relating to dissolution of marriages is brought at one place and consolidated in the hope that it would supply a very long felt want of the Muslim Community in India.

Thus, by this Bill the whole Law relating to dissolution of marriages is brought at one place and consolidated in the hope that it would supply a very long felt want of the Muslim Community in India.”

Dissolution of Muslim Marriages Act, 1939

The Dissolution of Muslim Marriages Act, 1939 provided, the grounds on which a Muslim woman, could seek dissolution of marriage. Section 2 of the enactment is reproduced below:

A woman married under Muslim law shall be entitle to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: ––

1. that the whereabouts of the husband have not been known for a period of four years; but decree passed under this ground shall not be effective for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree;
2. that the husband has neglected or has failed to provide for her maintenance for a period of two years;
3. that the husband has been sentenced to imprisonment for a period of seven years or upwards; However, no decree of divorce shall be passed until the sentence has become final.
4. that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
5. that the husband was impotent at the time of the marriage and continues to be so; before passing a decree under this ground, the Court shall, on application by the husband, make 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 if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.
6. that the husband has been insane for a period of two years or is suffering from a virulent venereal disease;
7. that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated;
8. that the husband treats her with cruelty, that is to say, —
   1. habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
   2. associates with women of evil repute or leads an infamous life, or
   3. attempts to force her to lead an immoral life, or
   4. disposes of her property of prevents her exercising her legal rights over it, or
   5. obstructs her in the observance of her religious profession or practice, or
   6. if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;
   7. on any other ground which is recognised as valid for the dissolution of marriages under muslim law.

Divorce procedure in case of husband’s whereabouts are not known (Section 3)

If a woman wants divorce on the ground that her husband’s whereabouts are not known (see section 2(ii)), In that case, a notice shall be served to the heirs of the husband and such person shall have the right to be heard in the suit.

Also, paternal uncle and brother of the husband, if any, shall be cited as party even if he or they are not heirs.

Effect of conversion to another faith. (Section 4)

• The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage;
• After such renunciation, or conversion, the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in section 2;
• The provisions of this section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.

Effect on a dower (Mahr) (Section 5)

This Act shall not affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage.

Reference

Dissolution of muslim marriage act, 1939