The Dissolution of Muslim Marriages Act, 1939


June 17, 2019
By Advocate Chikirsha Mohanty



Introduction to the Dissolution of Muslim Marriages Act

1. Short title and extent –

(1) This Act may be called the Dissolution of Muslim Marriage Act, 1939.

 (2) It extends to the whole of India except the State of Jammu and Kashmir.

 State Amendment

 Pondicherry.—In section 1, after sub-section (2), add the following:—

 “Provided that nothing contained in this Act shall apply to Renoncants of the Union territory of Pondicherry”, vide the Pondicherry (Extension of Laws) Act, 1968, sec. 3 and Sch.

 ———————–

1. Subs. by the Adaptation of Laws (No. 3) Order, 1956, for “Part B States”.

2.Subs. by Act 48 of 1959 sec. 3 and Sch. I, for certain words (w.e.f. 1-2-1960).
 

2. Grounds for decree for dissolution of marriage.-

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

 (i) that the whereabouts of the husband have not been known for a period of four years;

 (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;

 (iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

 (iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

 (vi) that the husband has been insane for a period of two years or is suffering from leprosy or virulent venereal disease;

(vii) 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;

 (viii) that the husband treats her with cruelty, that is to say,—

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

 (b) associates with women of evil repute or leads an infamous life, or

 (c) attempts to force her to lead an immoral life, or

 (d) disposes of her property or prevents her exercising her legal rights over it, or

 (e) obstructs her in the observance of her religious profession or practice, or

 (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;

 (ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law:

 Provided that—

(a) no decree shall be passed on ground (iii) until the sentence has become final;

 (b) a decree passed on ground (i) shall not take effect 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; and

 (c) before passing a decree on ground (v) 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.

Comments

Cruelty

(i) A wife filed an application for divorce on the ground of cruelty and non-performance of marital obligations by the husband. Thereafter both the husband and wife filed a joint application for divorce by mutual consent. Held, grounds for divorce under the section were already met out so decree of divorce can be passed in terms of the compromise between the parties even in the absence of a provision of divorce by consent under the Act, more so when the husband has already married and the wife’s marriage was also fixed up; Md. Abdul Zalil Ahmed v. Marina Begum, AIR 1999 Gau 28.

 (ii) If the husband, after taking a second wife against the wishes of the first, also wants the assistance of the Civil Court to compel the first to live with him, the Court will respect the sanctity of the second marriage but it will not compel the first wife, against her wishes, to live with the husband under the altered circumstances and share his consortium with another woman if it concludes, on a reivew of the evidence, that it will be inequitable to comple her to do so; Itwari v. Asghani, AIR 1960 All 684.

 Impotency

On a wife’s petition for dissolution of marriage on the ground of husband’s impotency, the husband sought a year’s time to prove that he had ceased to be impotent. On the expiry of one year the decree was granted on the wife’s application. The husband’s contention that during the one year period he was denied the company of his wife was negatived. Held, the Act requires an opportunity to satisfy the court about cessation of impotency and that opportunity is available only when husband makes an application for the same. It would not be right to say that subsequent acquisition of virility can be proved only by sexual act with the wife which would mean that she should make herself available to the husband again and again whenever demand during the entire period of the year. Such interpretation which subjects the wife to this queer predicament cannot be sound, according to the court; Abdul Azeem v. Fathimunnisa Begum, AIR 1969 Mys 226.

 Option of puberty

(i) Any thing done by the minor during the minority would not destroy the right which could accrue only after puberty. The cohabitation of a minor girl would not thus put an end to the option to repudiate the marriage after puberty. The assent should come after puberty and not before, for the simple reason that the minor is incompetent to contract, nor should the consummation have taken place without her consent; Ghulam Lakina v. Falak Sha Allah Baksh, AIR 1950 Lah 45.

(ii) A muslim woman, under section 2(ii) of the dissolution of Muslim Marriage Act, 1939, can sue for dissolution on the score that she has not as a fact been maintained even if there is good cause for it, the voice of the law, echoing public policy is often that of the realist, not of the moralist; A. Yusuf v. Sowramma, AIR 1971 Ker 261.
 

3. Notice to be served on heirs of the husband when the husband’s whereabouts are not known.-

In a suit to which clause (I) of section 2 applies,-

(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 the filing of the plaint shall be stated in the plaint,

(b) notice of the suit shall be served on such persons, and

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

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

 4. Effect of conversion to another faith.-

The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not be itself operate to dissolve her marriage:

 Provided that 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:

 Provided further that the provisions of this section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.
 

5. Rights to dower not to be affected.-

Nothing contained in this Act shall 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.



 

These guides are not legal advice, nor a substitute for a lawyer
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