Chapter 1

Introduction
Among almost all the nations of antiquity, divorce was regarded as a natural corollary or
marital rights. Romans, Hebrews, Israelis etc. all had divorce in one or the other form. Even
though the provision of divorce was recognized in all religions, Islam is perhaps the first
religion in the world which has expressly recognized the termination of marriage by way of
divorce. In England, divorce was introduced only 100 years back. In India among Hindus, it
was allowed only by Hindu Marriage Act. 1955. Before the passing of the act divorce was
not
recognized by Hindu Law.
Divorce among the ancient Arabs was easy and of frequent occurrence. In fact, this
tendency
has even persisted to some extent, in Islamic law. It was regarded by prophet to be the most
hateful before the Almighty God of all permitted things: for it prevented conjugal happiness
and interfered with the proper bringing up of children.
Islamic reforms - According to Ameer Ali, the reforms of Prophet Mohammad marked a
new departure in the history of eastern legislations. The prophet of Islam is reported to
have said "with Allah, the most detestable of all things permitted is divorce", and towards
the end of his life he practically forbade its exercise by men without intervention of an
arbiter or a judge. The Quran Ordains," if ye fear a breach between them twain (the
husband and the wife), appoints an arbiter from his folk and an arbiter from her folks. If
they desire amendment Allah will make them of one mind". The Quran permits divorce
partly because of some countenance to the customs and partly to enable men get rid of an
odious union.
Prophet Mohammad restrained the power of divorce and gave to the women the right of
obtaining the separation on reasonable grounds. The Prophet is reported to have said," if a
woman be prejudiced by a marriage, let it be broken off.
People are governed simultaneously by many different laws: laws recognized by the state i.e.
codified and uncodified laws and informal laws such as customary practices which vary
according to the cultural, social and political context. A half-hearted attempt was made in
1937 when the Shariat Application Act was passed with the intention to apply the Shariat,
and not the customary laws, on the Muslim population. The Act said that in all personal
matters, Shariat laws and not the customary laws would govern the Muslims, though it did
specify the specific details of what would comprise this Shariat law. In reality, each sect in
the Muslim community continued to follow its own traditions and customs. Moreover, there
was opposition to a codified law for all Muslims from certain quarters who were benefiting
from the customary practices. Thus, the first attempts at enacting a uniform Muslim Personal
Law was rendered unsuccessful. The only advantage of this Act lay in its attempt to bring the
Muslim community under one law despite its heterogeneity. It also brings home the fact that
Muslims in India. post-Independence, have not made any serious attempt to codify diverse
practices of its different schools of thought and jurisprudence.
Another attempt was made in 1939 with the Dissolution of Muslim Marriage Act. It laid
down nine grounds on which a Muslim woman could seek divorce in the court. Islamic law
then allowed a man to divorce his wife at will but a wife did not have the right either to give
divorce or seek one. The only way out for them was to convert to another religion to annul
her marriage. Alarmed at this trend, the Ulemas coaxed the British government to pass this
Act. Although the Act allowed a woman approach the court for divorce, it did not curb the
man's right to divorce his wife orally and unilaterally. The next step was the Muslim Women
(Protection on Divorce) Act, which was enacted only in 19866 after the Shah Bano
controversy. This law prescribed the right to maintenance for a Muslim woman after her
divorce. Different courts interpreted the law differently and some women even continued to
take resort to the Cr. P.C 125 [Criminal Procedure Code sec. 125] to demand maintenance

The laws passed in 1939 and 1986, were not the result of a concerted effort towards reforms.
They were more a result of reactions by the conservatives who saw reforms in personal law
as an infringement on their right to religion and a threat to their male identity.1

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Chapter 2

History of Dissolution of Muslim Marriage Act, 1939

In 1913, a Muslim husband applied to a colonial court in India for the restitution of conjugal
rights, but his in-laws refused to let his wife join him. His in-laws claimed that the woman
had become an apostate and thus, according to Islamic law interpreted by the Hanafi was no
longer the claimant's wife. The judge asked the claimant to obtain a fatwa (legal suggestion
from certified Islamic scholar) to clarify the position of Islamic law on the status of his
marriage. The claimant, therefore, approached Maulana Ashraf Ali Thanavi for a fatwa, who
ruled that due to apostasy the marriage was annulled (Masoud, 1996).

Before discussing this fatwa, it will be better to know about the three opinions of Hanafi
School of Islamic jurisprudence about the apostasy of a woman.

The first opinion of Hanafi jurist (Zahirul Rivaia) says that after the renunciation of Islam by
the wife, the marriage bond is finished, but she will be forced to return to Islam and remarry
her first husband, and until she does not accept Islam, she will be kept in prison (Rahman,
1965).

The second opinion of Hanafi jurist from Samarqand and Bukhara that says that in the matter
of renunciation of Islam by the wife, the marriage bond will remain valid, there will be no
breach in the marriage bond and the renunciation of women will never make any effect on the
marriage bond (Rahman, 1965).

It is evident that Ashraf Ali Thanavi gave his fatwa according to the first opinion of the
Hanafi School of Islamic jurisprudence, according to which the marriage is dissolved after
the renunciation of Islam by the wife. The first opinion also includes that a woman will be
forced to remarry her first husband. But for courts, it was enough that Ashraf Ali Thanavi
annulled the marriage. In addition, forcing a woman to again accept Islam and to remarry her
first husband was not possible in British India (Hussain, 2006).

The court dissolved the marriage on the basis of this fatwa of Maulana Thanavi. The court
verdict opened the doors for the Indian Muslim women to get separation from husbands.
Before this decision, there was no remedy for the Muslim women of India to get rid of the
marriage tie, because in case of demanding khulaa the consent of husband was necessary in
Hanafi school of Islamic jurisprudence. So, the rate of apostasy surprisingly increased after
the fatwa of Maulana Thanavi. On the other hand, the Christian missionaries also contributed
to it. They started to
motivate the Muslim women to convert to Christianity and to get rid of them husbands. A
missionary by the name of Reverend Paul in Lyallpur baptized several new converts and
issued certificates of baptism. There were a number of Christian missionaries all over the
India, who were working to convert Muslim women from Islam to Christianity (Masoud,
1996).
The religious political party of India, Jamiat-Ulema-e-Hind, were too much shocked by these
conversions. They started demanding reforms in the Islamic law about dissolution (Hussain,
2006). 2
Chapter 3

Dissolution of Muslim Marriage in the Context of Bangladesh

Where the husband and wife are not in a position to live peacefully on personal reason, Islam allows
the discontinuation of marriage. Initially no marriage is contracted to be dissolved but in unfortunate
circumstances the matrimonial contract is broken. One of the ways of such dissolution is by way of
divorce. The core topic of this study is to discuss the way to establish an equal and equitable divorce
law for man and women. It will also discuss the drawbacks of existing personal and statutory laws
enacted for met up those drawbacks. The study runs with rudimentary discussion relating to divorce
and its effect on relationship. Different religious laws have different says about the nature of divorce,
its effect, power to divorce. These laws have also different says regarding procedure to dissolve the
marriage. Here the provisions provided by the Muslim law are discussed. There exists critical
situation under these provision which are scrutinized by documentary analysis. The study tries to
find out answer of mostly debating issues regarding divorce law.

A Critical Analysis, In Islam, marriage involves legal, social and religious matters. Marriage is a
contract, which permits wedlock and procreation and gives legal recognition of the parenthood of
children. According to a verdict given by Justice Mahmud, "Muslim marriage is not a sacrament; it is
absolutely a civil contract". Islam considered divorce as an exception to the status of marriage.
Divorce means repudiation. It can simply be defined as releasing a wife or freeing her from the
bondage of marriage. The Prophet of Islam pronounced that the “Talaq to be the most detestable
before Allah of all permitted things”. Divorce can be effected in any of the following ways: (i) at the
will of the husband or without the intervention of a court by mutual consent of the wife and the
husband; and (ii) by operation of the court on the lawsuit filed by any of the parties. When Husband
made a divorce at his will is called talaq. The Muslim Family Laws Ordinance 1961 delegated the wife
to divorce her husband, provided such right is delegated to her in the formal marriage documents. 3

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Chapter 4

Modes of Dissolution of Marriage

1) Death of the parties:

The death of the husband or wife operates in law as dissolution of marriage. When the
wife dies the husband may remarry immediately, but the widow has to wait for a certain
period.
2) The act of the parties:
Among the pre-Islamic Arabs, the power of divorce possessed by the husband was unlimited.
They could divorce their wives at any time, for any reason or without any reason. There are
varieties of ways in which a marriage becomes terminated in Islamic law either automatically or
on the initiative of the husband, the wife or a judge. It is true that the "power" of divorce is in
the hands of the husband and not the wife, but this does not mean by any stretch of the
imagination that the woman has no ability whatsoever to put an end to the marriage if she is
mistreated, unsatisfied or unhappy. Men who convince their wives that they have absolutely no
alternative unless they choose to divorce them have deviated in their Islam, misled and
oppressed.
A marriage may be terminated by any of the following ways:

A. Husband may divorce in the following manner- Talaq: According to Asaf A. A. Fyzee, “In
law, it signifies the absolute power which the husband possesses.” A sound and adult
husband can divorce his wife without showing any cause. Though to give divorce is so hated
and a heinous act but recognized by law. By the husband talaq may be of (i) Talaq-e-Sunna
and (ii) Talaq-e-Biddat

i. Talaq-e-Sunna: That is a talaq which carries the approval of the Prophet. It may be of
two types:

a) Talaq-e-Ahsan: It is the most approved form by the Prophet. In that form of talaq
the husband repudiates his wife by a single pronouncement of talaq in a period of
tuhr (purity), during which he has not had intercourse with her, and then leaves her
to the observance of iddat. The divorce remains revocable during the iddat, and the
parties retain the right of inheritance.

b) Talaq-e-Hasan: Approved by the Prophet. In the case of talaq-e-hasan, the husband

successively pronounces divorce three times during consecutive period of purity. It is
called a ‘talaq upon a talaq’, where the first and second pronouncements are
revoked and followed by a third, only then talaq becomes irrevocable.

ii. Talaq-e-Biddat: It is called the triple declaration. When the husband does not follow the
approved form of talaq and neither pays any attention neither to the period of purity nor to
the abstention from intercourse. It becomes irrevocable at the time of pronouncement.
a) Ila: When a husband of sound mind takes a vow that he will abstain from all
relationship from his wife.
b) (iv) Zihar: Where husband sane and adult compares his wife to his mother or any
other female within the prohibited degrees.

B. Wife may divorce in the following manner- Talaq-e-Tafwid (Delegated right to

divorce): Talaq-e-Tafwid protects the woman’s rights. In this form of divorce, a man,
at the time of marriage, can delegate his right to divorce to his wife, and she can
exercise it when any of the conditions of the marital contract is violated. However,
this could not deprive the husband of his own right to divorce his wife under certain
circumstances. If a woman has right to divorce delegated to her either before or
after marriage, she can separate herself from her husband by divorcing herself. The
divorce considered as valid as is the husband himself has given it.

The following conditions were held to be valid and reasonable, and where there was an
agreement that the wife would have the power to divorce herself if they were not
fulfilled, it was held to be binding on the parties:

a) The husband should live a respectable life and should earn and his livelihood. He
should maintain his wife and should live in a house approved by her.
b) The husband should not beat or ill-treat his wife and if he oppresses her wrongfully
she will be entitled to reside at her father’s house and realize a maintenance charge
from him.
c) The husband should allow his wife to be taken to her father house 4 times a year or
that if the wife be in need of going to and coming back from her father’s residence
he would send her there and bring her back at his own expense.
d) The husband would not contract a second marriage without the consent of his wife
unless she be either barren or perpetually ill.
e) The husband should pay her dower on demand and that the husband would not take
any remission of dower from the wife except in the presence of her relations.

C. Divorces by Judicial Pronouncement

Lian: Where a husband charges his wife of adultery and the charge is false, the wife is
entitled to sue for and obtain divorce. She must file a regular suit for dissolution of her
marriage as a mere application to the Court is not the proper procedure. In Zafar Husain
v. Ummat-ur-Rahman, the Allahabad High Court recognized the doctrine of lian.

D. By Mutual consent
a. Khula: Khula or redemption literally means to lay down. In law it means
laying down by a husband of his right and authority over his wife. In Mst.
Balaquis Ikram v. Najmal Ikram. It was said that under the Muslim Law the
wife is entitled to Khula as of right if she satisfies the conscience of the Court
that it will otherwise mean forcing her into a hateful union.

b. Mubarat: 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 of
mubarat is accepted, it becomes an irrevocable divorce.4

Chapter 5

The Dissolution of Muslim Marriages Act, 1939

According to Section 2 of the said Act:

A woman married under Muslim law shall be entitled to obtain a decree for divorce 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: if the husband is missing for a period of four years the wife may file a petition
for the dissolution of her marriage. The husband is deemed to be missing if the wife
or any such person, who is expected to have knowledge of the husband, is unable to
locate the husband. Where a wife files petition for divorce under this ground, she is
required to give the names and addresses of all such persons who would have been
the legal heirs of the husband upon his death. The court issues notices to all such
persons appear before it and to state if they have any knowledge about the missing
husband. If nobody knows then the court passes a decree to this effect which
becomes effective only after the expiry of six months. If before the expiry, the
husband reappears, the Court shall set aside the decree and the marriage is not
dissolved.
ii. That the husband has neglected or has failed to provide for her maintenance for a period of
two years: it is a legal obligation of every husband to maintain his wife, and if he fails to do
so, the wife may seek divorce on this ground. In Mst. Amena Khatun Vs. Sheraj-uddin
Sardar, the Court held that where the husband has failed to maintain his wife for more than
two years in violation of the marriage contract, the wife succeeds in establishing her right to
claim a dissolution of marriage. This is so even where the wife is a woman of means and is
able to maintain herself.
iii. That the husband has been sentenced to imprisonment for a period of seven years or
upwards: the wife’s right of judicial divorce on this ground begins from the date on which
the sentence becomes final. Therefore, the decree can be passed in her favors only after the
expiry of the date for appeal by the husband or after the appeal by the husband has been
dismissed by the final court.
iv. That the husband has failed to perform, without reasonable cause, his marital obligations for
a period of three years: The Act does define ‘marital obligations of the husband’. There are
several marital obligations of the husband under Muslim law.
v. That the husband was impotent at the time of the marriage and continues to be so: for
getting a decree of divorce on this ground, the wife has to prove that the husband was
impotent at the time of the marriage and continues to be impotent till the filing of the suit.
Before passing a decree of divorce of divorce on this ground, the court is bound to give to
the husband one year to improve his potency provided he makes an application for it. If the
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 husband does not give such application, the court shall pass the decree without delay. In
Md. Ibrahim vs. Altafan Impotency of the husband is a good ground for dissolution of
marriage. The court upon application of the husband if any should allow one-year time to
the husband to show that he has ceased to be impotent. If no application is filed by the
husband the court shall decide the suit forthwith.
vi. If the husband has been insane for a period of two years or is suffering from leprosy
or a virulent venereal disease: the husband’s insanity must be for two or more years
immediately preceding the presentation of the suit. But this act does not specify that
the unsoundness of mind must be curable or incurable. Leprosy may be white or
black or cause the skin to wither away. It may be curable or incurable. Venereal
disease is a disease of the sex organs. The Act provides that this disease must be of
incurable nature. It may be of any duration. Moreover, even if this disease has been
infected to the husband by the wife herself, she is entitled to get divorce on this
ground.
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 ill-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 than one wives, does not treat her equitably in accordance with the
injunctions of the Holy Quran.
ix. On any other ground which is recognized as valid for the dissolution of marriage under
Muslim Law.5

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Chapter 6
The Muslim Family Laws Ordinance, 1961
Talaq: According to Section 7,
1. Any man who wishes to divorce his wife shall as soon as may be after the
pronouncement of talaq, in any form whatsoever give the chairman notice in writing
of his having done so and shall supply a copy thereof to the wife.
In the case of Abdul Aziz vs Rezia Khatoon, it was held that the non-compliance with the
provisions of section 7(1) makes talaq legally ineffective. However, very recently the
Appellate Division of the Supreme Court of Bangladesh in apparent contradiction to Section
7 of the Ordinance held: the petitioner husband divorced his wife by swearing an affidavit
before Magistrate and accordingly sent the copy thereof to the Nikah Register in whose
office the divorce was registered as required under Section 6 of the Act, 1974 and the
marriage tie is in consequence stands dissolved and as such he wife is entitled to the
payment of entire, dower, both prompt and deferred. He cannot take the advantage of his
own wrong in respect of no service of notice to the Chairman as required under section 7 (1)
of the Ordinance 1961.
2. Whoever contravenes the provision of sub-section (i) shall be punishable with simple
imprisonment for a term which may extend to one year or with fine which may
extend to five thousand taka or with both.
3. Save as in sub-section (5), a talaq unless revoked earlier, expressly or otherwise shall
not be effective until the expiration of ninety days form the day on which notice
under sub-section (i) is delivered to the chairman.

4. Within thirty days of the receipt of notice under sub-section (i) the chairman shall
constitute an arbitration council for the purpose of bringing about a reconciliation
between the parties and the arbitration council shall take all steps necessary to bring
about such reconciliation.
5. If the wife be pregnant at the time of talaq is pronounced, talaq shall not be effective
until the period mentioned in sub-section (3) or the pregnancy whichever be later
ends.
6. Nothing shall debar a wife who marriage has been terminated by talaq effective
under this section from remarry the same husband without an intervening marriage
with a third person, unless such termination is for the third time so effective.
Formalities necessary for remarriage: Where the husband has divorced his wife by three
pronouncements, remarriage with her is possible only if the following formalities are
observed:
(i) After the divorce, the wife should observe iddat;
(ii) When the period of iddat expires, she should marry another person;
(iii) The marriage should be actually consummated.
(iv) The second husband should voluntarily divorce the wife.
(v) Then the wife should have observed iddat, after which remarriage with the first husband
In the case of Editor, Daily Bangla Bazar Patrika and two others vs. District Magistrate,
Naogaon, it was held that Section 7 of the Muslim Family Laws Ordinance, 1961 prescribes
the procedure of divorce. “Hila’, intervening marriage with third person is not necessary in
case of retaking of a divorced wife by former husband. Fatwa is declared illegal and
unauthorized.
2. Dissolution of marriage otherwise than by talaq: According to Section 8, Where the
right to divorce has been duly delegated to the wife and she wishes to exercise the
right, or where any of the parties to a marriage wishes to dissolve the marriage
otherwise than by talaq, the provisions of section 7 shall, mutatis mutandis (as near
as possible), and so far as applicable, apply.
The Muslim Family Laws Ordinance 1961 provides the rules of divorce, that any person who
wishes to divorce his wife should, after pronouncing 'talaq', is to inform the chairman (of
Union Council) in writing as soon as possible and deliver a copy thereof to the wife. A talaq
shall not be effective before the expiry of ninety days from the day of serving the notice to
the Chairman. In fact, the Act makes a combination between 'talaq-e-hasan' and 'talaq-e-
ahsan'. A wife on whom the right to divorce has been duly delegated and who wishes to
exercise the right as per provisions of the Section 8 of the said Ordinance. These sections
incorporate the provisions of two forms of Talaq-e-Sunna.
In Sayed Ali Newaz Grdezi vs. Lt. Col.Md Yusuf, the court held that the objection of section 7 is to
prevent hasty dissolution of marriage by talaq, pronounced by the husband, unilaterally, without an
attempt being made to prevent disruption of the matrimonial status. Sub-section 7(1) required the
husband gives notice in writing of his having pronounced talaq but if the husband himself thinks
better of the pronouncement of talaq and abstains from given a notice to the chairman, he should
perhaps be deemed, in view of section 7, to have revoked the pronouncement that would be to the
advantage to the wife. Sub-section (3) of the section precludes the talaq from being effective as such
for a certain period and with the period, consequently, I could not be said that the marital status of
the parties had in any way been changed.

In Sayed Ali Newaz Grdezi vs. Lt. Col.Md Yusuf, the court held that the objection of section 7
is to prevent hasty dissolution of marriage by talaq, pronounced by the husband,
unilaterally, without an attempt being made to prevent disruption of the matrimonial
status. Sub-section 7(1) required the husband gives notice in writing of his having
pronounced talaq but if the husband himself thinks better of the pronouncement of talaq
and abstains from given a notice to the chairman, he should perhaps be deemed, in view of
section 7, to have revoked the pronouncement that would be to the advantage to the wife.
Sub-section (3) of the section precludes the talaq from being effective as such for a certain
period and with the period, consequently, I could not be said that the marital status of the
parties had in any way been changed.6

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Chapter 7
Judicial Pronouncements

In Abdul Aziz vs. Rezia Khatoon case the court held that the petitioner is the present case
failed to prove compliance with the provisions sub-section (1) of section 7 of the Family Law
Ordinance 1961, with the consequence that the alleged talaq, if it was pronounced by him,
was to effective in law, so that in the eye of law the marriage between him and the opposite
party subsists. Clause 7(3) says, save as provided in sub-section (5), a talaq unless revoked
earlier, express or otherwise, shall not be effective until the expiration of 90 days from the
day on which notice under sub-section (5)
In Ataul Hoque (MD) vs. Anwar A Karim case the court held that as the notice of talaq was
given on 2-3-89 to the Administrator, Dhaka City Corporation and also to the petitioner
talaq has, on the expiry of days from the date of receipt of notice by the Administrator,
taken effect as provided in sub-section (3) of the ordinance.

In Syaed Ali Newaz Gardezi vs. Lt. Col. Md yusuf case the court held that to effect a legal
divorce, section 7(1)(3) must be complied with- The question arose what are the deed of
divorce, even if held be genuine, would operate as a valid divorce under the Shia Law and
further in view of the fact that the alleged divorce has been taken place on 16-11-61,
whether the marriage of the divorced woman alleged to have been held on 2-12-62 was
valid under provision of section 7 of the Ordinance. Clause 7(4) within 30 days of the receipt
of the notice under sub-section (1), the Chairman shall constitute an Arbitration Council for
the purpose of bringing about a reconciliation between the parties, and the Arbitration
Council shall take all steps necessary to bring about such reconciliation.
In Syed Ziauddin vs. Parvez Sultana, Parvez Sultana was a science graduate and she wanted
to take admission in a college for medical studies. She needed money for her studies. Syed
Ziaudddin promised to give her money provided she married him. She did. Later she filed for
divorce for non-fulfillment of promise on the part of the husband. The court granted her
divorce on the ground of cruelty. Thus we see the court’s attitude of attributing a wider
meaning to the expression cruelty. In Zubaida Begum vs. Sardar Shah, a case from Lahore
High Court, the husband sold the ornaments of the wife with her consent. It was submitted
that the husbands conduct does not amount to cruelty.

In Aboobacker vs. Mamu koya, the husband used to compel his wife to put on a sari and
see pictures in cinema. The wife refused to do so because according to her beliefs this was
against the Islamic way of life. She sought divorce on the ground of mental cruelty. The
Kerela High Court held that the conduct of the husband cannot be regarded as cruelty
because mere departure from the standards of suffocating orthodoxy does not constitute
un-Islamic behavior.

In Itwari vs. Asghari, the Allahabad High Court observed that Indian Law does not recognize
various types of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on, and that the test
of cruelty is based on universal and humanitarian standards; that is to say, conduct of the
husband which would cause such bodily or mental pain as to endanger the wife’s safety or
health.7

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Chapter 8
Judicial Actions Against Arbitrary Use of Divorce
The Supreme Court of India through a judgement dated 1st October, 2002 in Shamim Ara vs State of
UP, has laid the issue to rest by stating that talaq must be for a reasonable cause, and that it must be
proved. A summary of the principles laid down by the judiciary with regard to husband's right to
unilateral arbitrary divorce are as follows:

(a) Plea taken in a reply to the maintenance claim filed by the wife does not constitute
divorce;
(b) A mere statement in writing or in oral disposition before the court regarding the talaq
having been effected in the past is not sufficient to prove the fact of divorce;
(c) An oral talaq, to be effective, has to be pronounced;

(d) It is mandatory to have a pre-divorce conference to arrive at a settlement. This

mediation should be in the presence of two mediators, one chosen by the wife & the other
by the husband;
(e) If wife disputes the fact of talaq before a court of law, all the stages of conveying the
reasons for divorce, appointment of arbitrators, conciliation proceedings for reconciliation
between the parties by the arbitrators and failure of such proceedings are required to be
proved;
(f) A Muslim husband cannot divorce his wife at his whims and caprice; and
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Chapter 9
MERITS
Dissolution of Muslim Marriage Act. 1939 has enabled women to seek divorce on the
grounds of cruelty without having a free of losing a substantial part of her property. Earlier,
before the enactment of this act Muslim women did not have this advantage to file an
application for divorce on the grounds of cruelty but now she can do so. This act has proved
to be a boom for all Muslim women. Women's struggles are interconnected and
complementary and therefore have a commitment to international solidarity. 9

DRAWBACKS
These laws were piecemeal, targeting only certain aspect of the personal law. For instance
the Dissolution of Muslim Marriage Act only laid down grounds on which women could seek
divorce. It never curbed men's right to unilateral oral divorce nor did it lay down any
procedure for the recovery of mohr, post-divorce maintenance or about the custody of
children. All three instances of codification of certain aspects of Muslim personal law show
that religious men from the community used their influence on the entire process to protect
the Shariat from any pro-women reform. Accordingly all attempts at bringing about pro
women reforms and some uniformity in the Muslim law failed. Even statutory legislations are
not without flaws. Some aspects of the law like the right of Muslim women to seek divorce
and the post-divorce maintenance have been codified. But other aspects like inheritance,
custody of children etc. have not been codified. On top of all these is the prevalence of
customary laws, which the community has been following as a matter of tradition. In the last
20 years except for some pro-women judgments, there has been no forward movement in the
effort to reform the Muslim law by codifying it and making it uniformly applicable to the
entire Muslim population across the country. 10

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Chapter 10
Why Did Women Choose Apostasy for Separation?
The Islamic law has given the right of talaq (divorce) to men. The literal meaning of talaq is
“to leave” or to “snap off” or “to separate”. Divorce is right of the husband. He may use this
right with reason or without reason. Islam has bounded men not to give divorce but legally no
restriction is imposed on them. It has repeatedly said that divorce is only an evil. It is most
detestable one among the lawful things, but whenever a husband wants to get rid of his wife,
legally he can women have the right of khulaa and faskh to untie relation with their husbands.
Khula is when wife has a dislike for her husband and ask him to be released her in exchange
of some, or all parts of her Mohr. The real problem starts when wife wants separation and
husband does not agree (Mansoori, 2006). Majority of Muslim scholars are of the opinion
that the consent or approval of the husband is necessary in case of khulaa. It cannot be
granted by the court on the request of wife if husband does not agree. It is also a fact that all
the four Sunni schools of Islamic jurisprudence do not allow khulaa without the consent of
husband. So in the early part of twentieth century, the women started renouncing Islam
because they were not having the right of khulaa, both Hanafi jurists and courts were having
the same opinion that the khulaa can only happen if husband agrees. The word faskh means
annulment or abrogation. In faksh, power lies with the Muslim judges to annul a marriage on
the application of the wife. Majority of Muslims in the Subcontinent are follower of the
Hanafi School of thought, which
in this regard is considered to be quite strict (Fayzee, 1999). Hanafi jurists admit that only the
wife of an impotent husband can apply for faskh (dissolution of marriage). In the matter of
faskh, Maliki School of Islamic jurisprudence is considered to be more liberal for women. It
requires ruling by the court in the following instance.
1) Illness or any defect in male.
2) Impotency of male
3) Cruelty or immoral treatment by husband
4) Missing of husband
5) Imprisonment of husband
6) Non-performing Maintenance

So from the above discussion it is clear that in Hanafi law, women do not have the right of
khulaa without the consent of husbands. Similarly, in case of faskh (dissolution of marriage)
only the wife of an impotent husband could apply for faskh (dissolution of marriage). So if an
Indian Muslim woman wanted to get rid of her cruel husband, she was not having any option.
The Hanafi School never recognizes the dissolution of marriage on the basis of non-
maintenance, cruelty, imprisonment of the husband, missing husband, or on the basis of any
defect in the husband. The most miserable condition was in the case of missing husband.
According to the Hanafi School of Islamic jurisprudence, the wife of the missing husband
cannot get separation until the people of the same age of her husband are living alive. So,
according to Ahnaf, the period is approximately eighty to one twenty years. Therefore, in
practical, she can never contract a second marriage. So these things forced the Muslim
women of India to renounce Islam just to get rid of their cruel husbands. The Hanafi law
regarding dissolution of marriage was greatly blamed for these conversions.11

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 Chapter 11
Effect of Divorce

(a) Cohabitation becomes illegal between the couple;

(b) Dower becomes payable to the wife.
(c) The husband and the wife are entitled to inheritance from the other, if either of them
dies during iddat following a revocable;
(d) The wife becomes entitled to maintenance during the period of iddat;
(e) Remarriage between the couple is only possible after observing a strict procedure;
Remarriage with another man can be contracted by the widow after observing iddat
only.12

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 Conclusion
Divorce of course, a social evil in itself, but it is a necessary evil. It is better to wreck the unity of the
family than to wreck the future happiness of the parties by binding them to a companionship that
has become odious. That’s why Quran permits divorce partly because to enable men to get rid of an
odious union. It is argued that Islam has given unfettered power to the husband to give divorce to
his wife without any cause. But experience shows that greater suffering is endangered by the
husband’s withholding divorce than by his irresponsible exercise of this right. There is no doubt that
Muslim women have recourse to the courts to challenge arbitrary unilateral talaq, and hence
arbitrary talaq becomes a non-issue if recourse to law is taken. However, many women are unable to
take recourse to law due to lack of awareness, poverty, illiteracy, financial implications of litigation
and community opposition against such a move. 13

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 Bibliography

List of relevant status on Dissolution of Muslim Marriage:

1) https://www.scribd.com/doc/61695333/Dissolution-of-Muslim-Marriages-Act?
fbclid=IwAR3c_Acx1w_0U-
7ZqHO8ammViUROXUGfNJWUZk0b8T9dIBu6h9ccDKukkV4

2) https://www.researchgate.net/publication/331274867_The_Dissolution_Of_Muslim
_Marriage_Act_1939_May_Provide_More_Rights_To_Women_Of_Subcontinent_If_
Applied_According_To_True_Doctrine_Of_Maliki_School_Of_Islamic_Jurisprudence_
An_Overview

3) http://www.legalservicesindia.com/article/2414/Dissolution-of-Muslim-Marriage-in-
the-Context-of-Bangladesh.html?fbclid=IwAR2rpH34BI76F4JB0Hq3u0-
UnLKTmZeJxgnpWGVcuWoI0COGLYFhY-YsmNQ