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JUDICIAL DIVORCE UNDER MUSLIM LAW
Submitted by

SAGAR GUPTA Division A. Class BBA.LL.B

Symbiosis Law School, NOIDA Symbiosis International University, PUNE In NOVEMBER, 2011 Under the guidance of

Prof. Vikram Singh Prof Ashok Wadje
Designation and official address of research guide Symbiosis Law School (Off Campus Centre of Symbiosis International University) Sector- 62, Block-A, Plot No-47/48, Noida-201301 U.P.-India Ph: +91 (0) 120 2405061,63. Fax: 0120- 2405064, Website: www.symlaw.edu.in

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CERTIFICATE

The project entitled ³JUDICIAL DIVORCE UNDER MUSLIM LAW´ submitted to the Symbiosis Law School, NOIDA for FAMILY LAW was part of internal assessment is based on my original work carried out under the guidance of Prof. Vikram Singh and Prof Ashok Wadje from August to November. The research work has not been submitted elsewhere for award of any degree. The material borrowed from other sources and incorporated in the thesis has been duly acknowledged. I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate Date: 26-11-2011

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ACKNOWLEDGEMENT It is a great pleasure for us to put on records our appreciation and gratitude towards Dr. C.J. Rawandale, Director for his immense support and encouragement all through the preparation of this report. I would like to thank my faculty Prof. Vikram Singh (Project Guide) for his valuable support and suggestions for the improvement and editing of this project report. Last but not the least, I would like to thank all the friends and others who directly or indirectly helped me in completing my project report.

SAGAR GUPTA (B.B.A.LL.B,)

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INDEX
The first few pages of the areas under: Page 1 Page 2 Page 3 Page 4 Title page Certificate signed by candidate

- Acknowledgement -Index

Page 5-16- INTRODUCTION, Types of Divorce Page 17- BIBLIOGRAPHY

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WHAT IS JUDICIAL DIVORCE? According to the dictionary judicial divorce means a) Judicial declaration dissolving a marriage in whole or in part, especially one that releases the husband and wife from all matrimonial obligations. b) Any formal separation of husband and wife according to established custom.

WHAT IS JUDICIAL DIVORCE UNDER MUSLIM LAW? Judicial divorce means the dissolution of marriage by a judge and not by the husband. Divorce is the natural right of the husband, provided his relation with his wife run their normal course. Normally, if he wants to live with her, he should look after her, discharge all the rights belonging to her and treat her kindly. If he finds it impossible to live with her smoothly, he should pay up all her dues and part with her. Besides her dues, he is also required to pay her an additional sum as a token of goodwill and gratitude. The Holy Qur¶an says: ³Provide for them, the rich according to his means, and the strained according to his means, a fair provision¶, (Surah al-Baqarah, 2: 236). In such cases divorce does not depend on the will and pleasure of the husband. If such a man is not willing to divorce, the woman cannot be allowed to endure the agony without having a remedy. Islam does not play the role of a silent spectator in such cases. The establishment of a just society has been the basic aim of all the Prophets. The Holy Qur¶an says: Certainly we sent Our

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Messengers with clear proofs and sent down with them the Book and the Balance, so that humankind may conduct itself with equity. (Surah al-Hadid, 57:25) Under Muslim Law Dissolution is of Two Types: a) Dissolution by Death Of a party b) Dissolution by Divorce Dissolution by Divorce can further be Classified Under:  Divorce By Husband(TALAQ)  Divorce By Wife(TALAQETAFWIZ)  Divorce By Mutual Consent  Divorce By Judicial Decree Under DISSOLUTION OF MUSLIM MARRIAGE ACT,1939 (JUDICIAL DIVORCE)

A TALAQ may be affected by the husband in any of the following modes: 1) Talaq-ul-Sunnat 2) Talaq-ul-Biddat

(1)

Talaq-ul-Sunnat: It is Talaq which is affected in accordance with the rules and regulations which are laid down by the Prophet. It can further be sub divided into i) ii) Ahsan Hasan

i)

Ahsan: Ahsan is Arabic word which means proper or accurate. The Talaq pronounced in Ahsan mode is most approved mode of Talaq

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.To be in Ahsan mode it requires fulfillment of certain terms and conditions which are as follows: a) The husband must pronounce the formula of divorce in a single sentence b) The pronouncement of divorce must be in a state of purity (TUHR). Tuhr is that period during which a woman is free from her menstrual course c) The husband must abstain from intercourse for the period of Iddat. When the marriage has not been consummated a Talaq in ahsan form may be pronounced even if the wife is in her menstruation. The Ahsan mode of Talaq is not applicable in the case where the wife is beyond the age of menstruation. ii) Hasan: Hasan is an Arabic word which means Good. The Talaq which is pronounced during Hasan form is of lesser worth as in the case of Ahsan. Just like in the Ahsan form Hasan form also needs certain terms and conditions which are to be satisfied. These conditions are: a) There must be three successive pronouncements of the formula of Divorce. b) In case if wife is menstruating then the first pronouncement should be made during a period of Tuhr, the second during the next tuhr and the next during succeeding tuhr.

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c) In case wife is non-menstruating the pronouncement can be made during successive interval of 30 days d) There should be no sexual relation between these three periods of Tuhr. Such divorce becomes irrevocable after the third pronouncement.

3) TALAQ-UL-BIDDAT: It consists of three pronouncements made during a single tuhr either in one sentence clearly indicating an intention to put an end to the marriage irrevocably or in three sentences. This is also called triple talaq and is not recognized by shias. It is condemned as sinful, harsh and against the mandate of the constitution but it is valid and the most prevalent form of divorce in India. It becomes irrevocable and final immediately irrespective of the period of iddat provided the words of divorce indicate an intention to dissolve the marriage. If the words are express, they immediately dissolve the marriage and no proof of intention is necessary but if they are ambiguous, intention must be proved.

By Mutual Consent: 1) Khula: A Muslim women has a right to ask for divorce if she does not desire to live with her husband even where he is not at fault. It may be dissolved by an agreement between the husband and the wife called khula. In accordance with the terms and conditions between the husband and the wife, the

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wife may agree to relinquish part or whole of her dower amount or any other benefit that may be agreed upon between the two. Once the offer is accepted by the husband it operates as an irrevocable divorce. However a woman may not compel her husband to give her divorce under khula and even a suit to that effect is not maintainable in law. It is only the husband or his agent who may agree to khula and neither the court nor the qazi is competent to do it. Once a khula has been accepted by the husband and affected, the husband has no power to cancel it on the ground that the consideration has not been paid and his remedy is to sue the wife for it. 2) Mubarat: Mubarat is also a form of dissolution of marriage contract. It signifies a mutual discharge from the marriage claims. In mubarat the aversion is mutual and both the sides desire separation. Thus it involves an element of mutual consent. In this mode of divorce, the offer may be either from the side of wife or from the side of husband. When an offer mubarat is accepted, it becomes an irrevocable divorce ( talaq-ul-bain) and iddat is necessary. DIVORCE BY WIFE (TALAQ-e-TAFWIZ): A muslim husband has the right to delegate the power of divorce to his wife. In India, a muslim wife may divorce her husband under his delegated power in the event of his taking a second wife. A muslim wife who has the power given to her by the marriage contract to divorce herself in the event of the husband taking a second wife does not lose her option by failing to exercise it the very moment she knows that she has done so for a second marriage is not a single but a continuing wrong to the first wife. In order to exercise the power to divorce her under delegated

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talaq, the wife is required to clearly specify the conditions that entitle her to exercise this right.

JUDICIAL DIVORCE
Under Dissolution of Muslim Marriages Act 1939: By the Dissolution of Muslim Marriage Act, 1939 the legislature has made a distinct Endeavour to ameliorate the lot of wife and the courts, must apply the law in consonance with the spirit of the legislature1. However it does not have any retrospective application2.The grounds on which a female can claim divorce under this act are: When whereabouts of husband not known: A woman married under Muslim law would be entitled to a decree of divorce on the ground that whereabouts of her husband are not known for a period of 4 years3. As a notice, has to be served on heirs of the husband, the suit must give: 1) The names and addresses of the persons who would have been the heirs of the husband under Muslim law where, he had died on the date of the filing of the plaint must be served in the plaint. 2) Notice of the suit must be on such persons and 3) Such persons must have the right to be heard in such suits. However, the paternal uncle and brother of the husband, where any must be cited as party even where he or they are not heirs4. A decree passed on this ground must not take effect for a period of six months from the date of such decree, and where the husband appears either in person or through an advertised agent within that
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Sofia begum v Zabeer hasan AIR 1947 All 16 Sarwar yar khan v Jawahar devi (1964) 1 andh WR 60 3 Dissolution of Muslim Marriages Act 1939, sec 2(i) 4 Dissolution of Muslim Marriages Act 1939, sec 2(i) provision

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period and satisfied the court that he is prepared to perform his conjugal duties, the court must set aside the said decree5. Failure to maintain for a period of two years: A woman married under Muslim Law would be entitled to a decree of divorce on the ground that the husband has neglected or has failed to provide for her maintenance for a period of two years6. The word neglect implied willful failure and the words, has failed to provide implied an omission of duty7, and where the wife was at fault granting her, divorce on this ground would mean giving her a benefit of her own wrong 8. Mere inability of the husband to provide maintenance is not a ground for refusing divorce and it is totally immaterial whether failure to maintain is due to poverty, failing health, loss of work or imprisonment or any other cause unless the conduct of the wife disentitles her to maintenance. Looking into the grounds mentioned in the Dissolution of Muslim Marriage Act, 1939 it is not appropriate to introduce a ground that entitles a wife to divorce even though the husband¶s conduct is totally baseless and the conduct of the wife is blameworthy. The Dissolution of Muslim Marriages Act 1939 crystallizes a portion of Muslim law and it is precisely for this reason that that it must be taken in conjunction with the whole of the Muslim law as it stands. The words to provide for her maintenance occurring in the Dissolution of Muslim Marriages Act, 1939, imply maintenance only in such circumstances as is allowed under general Muslim law. The Orissa High Court has observed that where the wife sues for dissolution on the ground of failure of the husband to provide for her maintenance for two years she must also show her readiness and willingness to perform her martial duties. Thus, where a Muslim wife voluntarily and without

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Dissolution of Muslim Marriages Act 1939, sec 2(b) Dissolution of Muslim Marriages Act 1939, sec 2 (ii) 7 Badrunnissa Bibi v Usuf AIR 1944 All 23 8 Zafar Hussain v Akbari Begum AIR 1944 Lah 336

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reasonable excuse leaves the house of the husband and makes herself unavailable to him despite his request, or is neither faithful nor obedient or was not ready and willing to do her martial duties, she cannot take the benefit of this provision. The husband is entitled to the society of the wife and where despite his request she insists on living at her parents place and refuses to come back, her prayer for dissolution of her marriage on the ground of failure to maintain her would be dismissed despite the fact that the husband has married again. However there is no distinction between a rich wife and poor wife as the obligation of husband is despite, the financial condition of the wife. Where the wife has not been paid her prompt dower she is entitled to stay away from him and where the husband does not maintain her for a period of two years she can sue for divorce on this ground 9. The Kerala High court however, observed that the wife is entitled to get a decree of divorce on the ground that the husband has failed to maintain her irrespective of the fact that the wife may not have placed herself at a place where she might, have been maintained as there is absence of words µwithout reasonable cause¶. The husband must also create conditions and circumstances suitable for the wife to come back to the house of the husband. Thus where the wife left the house of the husband against his wishes and filed a suit praying for a decree of divorce on the ground that he has not maintained her for a period of two years, the divorce was granted to her.

When husband sentenced to imprisonment: A woman married under Muslim Law would be entitled to a decree of divorce on the ground that the husband has been sentenced to imprisonment for

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Zoona v Ykub AIR 1983 J&K 78

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seven years or upwards10. However until the sentence has became final no decree may be passed on this ground11. Failure to perform marital obligations: A woman married under Muslim Law would be entitled to a decree of divorce on the ground that the husband has failed to perform without reasonable excuse his marital obligations for three years12. Impotency: A woman married under Muslim Law would be entitled to a decree of divorce on the ground that the husband was impotent at the time of marriage and continues to be so. Where the impotence of the husband was established at the time of the marriage and during the pendency of the litigation, it was observed that the impotency continued till the date of the suit and divorce was granted to the wife. Where the husband has ceased to be impotent within a period of one year from the date of passing of the order to this effect by the court no decree would be passed. A wife cannot be compelled to submit herself to the husband in order to test the truth of his claim that he has ceased to be impotent. Before passing a decree on ground mentioned in the Dissolution of Muslim Marriages Act, 1939 the court may on application by the husband made 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 where the husband satisfies the court within such period of time, no decree may be passed on the said ground. Insanity, Leprosy or virulent venereal diseases: A woman married under Muslim law would be entitled to a decree of divorce on the ground that the husband has been insane for a period of two years, or is suffering from leprosy or virulent venereal diseases.
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Dissolution of Muslim Marriages Act 1939, SEC 2 (iii) Dissolution of Muslim Marriages Act 1939, Sec 2(ix) prov (a) 12 Dissolution of Muslim Marriages Act 1939, Sec 2(iv); Said Ahmad v Sultan Bibi AIR 1943 Pesh 73
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Repudiation of Marriage: A woman married under Muslim law would be entitled to a decree of divorce on the ground that she having been given in her marriage by her father or other guardian of marriage before she attained the age of 15 years repudiated the marriage before attaining the age of 8 years provided that the marriage has not been consummated 13. By this provision all restrictions on her right to exercise option of puberty (Khayar-ulBulugh) where the marriage was arranged by her father or grandfather have been abolished 14 .Where at the time of the marriage the girl was seven years old and the marriage was contracted by her parents, and she was entitled to a degree of divorce as the marriage was not consummated. Similarly, where the wife was given in marriage when she was barley one year old and she repudiated the marriage on attaining 17 years of the age, the court observed that the marriage is repudiated despite the fact that it may have been consummated before the age of 15 years. The question of age is a question of fact and it can be proved by the other evidence in absent of a birth certificate. For ascertaining the age of the girl, she can be subject to a medical examination and a refusal to undergo medical examination will justify the court in adopting an adverse inference15. Cruelty: A woman married under Muslim Law would be entitled to a decree of divorce on the ground that the husband treats her with cruelty16 that is to say: 1) Habitually assaults he r of makes her life miserable by cruelty of conduct 17 even where such conduct does not amount to physical illtreatment
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Dissolution of Muslim Marriages Act 1939, SEC 2 (vii), Zubeda begum v Vazir mohammad 190 IC 94 Peer Mohammad v State of Madhya Pradesh AIR 1960, MP 24 15 Mahomad Shariff v Khuda Baksh AIR 1936, Lah 683 16 Dissolution of Muslim Marriages Act 1939, SEC 2 (viii) 17 Shahina Praveen v Mohd Shakeel AIR 1987 Del 210
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2) Attempts to force her to lead an immoral life 3) Associates with women of ill repute or leads an infamous life. 4) Disposes of her property or property or prevents her exercising her legal rights over it. 5) Obstructs her in the observance of her religious profession or practice 6) Where he has more wives than one and does not treat her equitably in accordance with the injunctions of the Quran. Where the husband is guilty of cruelty and willful neglect to maintain the wife she may ask for divorce. Similarly where he is impotent and refuses to consummate the marriage this would amount to cruelty and would entitled the wife to stay apart from him and yet claim maintenance19. Where the husband during the subsistence of the first marriage gets married again, the onus would be on him to show that his getting married again does not amount to cruelty to his first wife20. Where the husband went abroad leaving behind his two wives in India and provided maintenance to one of them but ignored the other the court observed that the other wife was entitled to divorce under this provision. Mere incompatibility of temperament or hatred does not amount to cruelty but a reasonable apprehension in the mind of the wife due to persistent dowry demands of the husband and in laws that, it would not be safe for her to live in the house of the husband is justified as it amounts to cruelty21. Lian or false accusation of adultery: A woman married under Muslim Law would be entitled to a decree of divorce on any other
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Kadir v Koleman Bibi (1935) ILR 62 Cal 1088 Siraj Mohamed Khan v Hafizunnissia AIR 1982 SC 1972 20 Itwari v Asgari AIR 1960 All 684 21 Siraj Mohammad Khan v Hafizunnissia AIR 1982 SC 1972

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ground recognized under Muslim law. Thus, a false aggressive and voluntary accusation of adultery by the husband called lian, would entitle the wife to sue for divorce. A wife who has attained majority according to Muslim Law can file a suit herself without a guardian22. The charge must be false and not true. A mere charge or accusation does not dissolve the marriage and the wife must file a regular suit for claiming divorce on this ground and not a mere application to this effect. Till the court grants a decree of divorce the marriage continues. Where the charge is retracted bonafide before the

commencement of the hearing the wife cannot sue for divorce under his ground 23 but not when it is retracted after the closure of evidence or of the trial, it is not a bonafide withdrawal. Thus, there are three conditions that are necessary for a valid retraction 1) The husband must admit that he made a charge of adultery against the wife 2) The husband must admit that the charge was false 3) The husband must make a retraction before the end of the trial. Conversion of the spouse to another religion: Where a Muslim husband during the subsistence of the marriage converts to another religion and ceases to be a Muslim, the marriage comes to an end immediately24, and the wife can contract another marriage. She is not guilty of committing bigamy despite the fact that during the period of Iddat the husband reconverted to Islamic faith. Where Christian women embraced Islam, got married to a Muslim man and then re-embraced Christianity, her marriage also came to an end immediately. Prior to the enactment of the Dissolution of Muslim Marriages Act, 1939, apostasy of any of the spouse operated as an immediate dissolution of their marriage.
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Ahmed v Bai Fatima AIR 1931 Bom 76 Siju Bibi v Muksed Mollah 45 Cal WN 122 24 Dissolution of Muslim Marriages Act 1939, Sec 4 prov (1)

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BIBLIOGRAPHY Books Referred: 1) Halsburys laws of India 2) Family Law in India 3) Mohammedan Law by Aqil Ahmed

Cases Referred:
1) 2) 3) 4) Sofia begum v Zabeer hasan AIR 1947 All 16 1 Sarwar yar khan v Jawahar devi (1964) 1 andh WR 60 Badrunnissa Bibi v Usuf AIR 1944 All 23 1 Zafar Hussain v Akbari Begum AIR 1944 Lah 336 5) 6) 7) 8) 9) Peer Mohammad v State of Madhya Pradesh AIR 1960, MP 24 1 Mahomad Shariff v Khuda Baksh AIR 1936, Lah 683 Kadir v Koleman Bibi (1935) ILR 62 Cal 1088 1 Siraj Mohamed Khan v Hafizunnissia AIR 1982 SC 1972 1 Itwari v Asgari AIR 1960 All 684 ACTS: 1) Dissolution of Muslim Marriages Act, 1939 2) Muslim Laws in India