Muslim Marriage Law in India: Dissolution of Marriage by a Woman Under the Act of 1939
From the 9th century onwards the Muslims became increasingly the masters of the sub-continent. They enforced the Jizzia and the Sharia. This state of affairs continued till the 18th century, when Muslim power was overthrown by the British. The British brought in a modern judicial system, but did not touch personal law.
Muslim law recognizes several modes of divorce. These can be summarized as follows Divorce by husband- This can take the form of
a) Divorce by Husband-Talaq, ila and Zihar
b) Divorce by wife- Talaq-i-tafweez, lian
c) By mutual consent- Khula and Mubarat.
Divorce by wife is the subject of the Dissolution of Muslim Marriages Act 1939. This act was introduced in the legislature by Qazi Mohammad Ahmad Kazmi on 17th April 1936. The law after discussion was passed and became law on 17th March 1939. The purpose was to regulate divorce by wife as per the Sharia. In addition the viceroy was of the opinion that divorce by Muslim women needed to be codified to prevent exploitation and victimization by a male dominated society.
Section 2 of the act lays down the conditions when a wife can ask for a divorce. These are
a) When a husband is sentenced to imprisonment for a jail term of 7 years or more. The wife’s right of Judicial separation and divorce commences from the date the sentence is confirmed by the highest court.
b) When a husband has failed to perform his marital duties for a period of more than 3 years. This refers to conjugal duties which have great importance in Islamic law.
c) When it is proved that the husband was impotent at the time of marriage and continues to be so. The onus of proving this is on the wife, however the court is bound to give one year to the husband to get his ailment cured in case he applies for the same.
d) When a husband become insane and continues to be insane for a period of 2 years or more. A wife will also be entitled for dissolution of her marriage in case the husband contracts leprosy or any virulent venereal disease. The act provides that the provisions of this section will only apply in case the VD is incurable.
e) When a Muslim girl is married off by her father or guardian before she had attained the age of 15 years. Provided that she applies for dissolution of her marriage under the act before she attains 18 years of age and the marriage is not consummated.
f) When a husband treat his wife with cruelty. The act further delineates cruelty as
i) Association with women of ill repute
ii) Attempts to force his wife to lead an immoral life.
iii) Habitually assaults and beats her
iv) Obstructs her observance of religious practices
v) If he has more than one wife and does not treat equitably in accordance with injunction of the Koran, which enjoins a man to treat all his wives equitably.
The Dissolution of Muslim Marriages act 1939 is an important piece of legislation. It is not an ideal law, but does give some comfort to Muslim women.