DISSOLUTION OF

MUSLIM
MARRIAGES

DIVORCE BY WIFE
 DIVORCE BY WIFE
A Muslim wife has no independent right of divorce. She cannot
divorce her husband whenever she likes, as her husband may do.
Under Muslim law divorce by wife is only possible in the following
three situations:

1. Where the husband delegates to the wife the right of Talaq

(Talaq-e-Tafweez).

2.Where she is a party to divorce by mutual consent (Khula and

Mubarat).

3.Where she wants to dissolve the marriage under the Dissolution

of Muslim Marriages Act, 1939.

In the first two cases the wife’s right depends upon

the consent of the husband. In Talaq-e-Tafweez unless the husband
gives the right to pronounce, she cannot divorce. In divorce by
mutual consent she cannot get divorce unless the husband also
gives his consent. Under the Dissolution of Muslim Marriages Act,
1939 the dissolution of marriages depends upon the decision of the
court.
 DELEGATED DIVORCE
(TALAQ-E-TAFWEEZ)
A Muslim husband has an unrestricted right to either
exercise his right of divorce himself or delegate it to someone
else including his wife.
This is called Talaq-e-Tafweez or delegated divorce.
The authority is given to the wife under an agreement at the time
of the marriage or anytime after the marriage.

◎The delegation of power may either be permanent or temporary i.e. only

for a specified time.
◎The delegation may even be conditional or even unconditional. But in
case of conditional delegation the conditions must be of reasonable nature
and must not be against the principles of Islam.
◎In such cases the divorce takes place in the same manner as if the
husband himself has pronounced the Talaq.
◎If wife is delegated the authority to divorce she has complete discretion
to exercise this right and she cannot be compelled to exercise this right.
◎Even if the husband has delegated the authority to divorce he is not
debarred from pronouncing the Talaq.
 DIVORCE BY MUTUAL
CONSENT
Under Muslim Law, a divorce may take place also by mutual
consent of the husband and the wife. Existence of any prior
agreement or delegation of authority by the husband is not
necessary for a divorce by common consent. It may take place any
time whenever the husband and wife feel that it is now impossible
for them to live with mutual love and affection as desired by God.
A divorce by mutual consent of the parties is a peculiar feature of
Muslim law. Before 1976 there was no such provision under
Hindu Law. There are two forms of divorce by mutual consent:
1.Khula
2.Mubarat
 KHULA
It means divorce by the wife with the consent of her husband on the
payment of something to him. Quran lays down about Khula that:
“……and if you fear that they(husband and wife may not be able to
keep within the limits of Allah, in that case it is no sin for either of
them if the woman releases herself by giving something to the
husband”.
Essentials of Valid Khula: *(similar to the conditions of marriage)
1.Competence of Parties: Husband and wife must be of sound mind
and must have attained the age of puberty.
2.Free Consent: the offer and acceptance of Khula must be made with
the free consent of the parties
3.Formalities: There should be an offer made by the wife to the
husband. The offer of Khula must be accepted by the husband. Offer
and acceptance may be either oral or in writing. The offer and
acceptance must be made at one sitting, i.e. at one place of meeting.
4.Consideration: For her release the wife has to pay something to the
husband as compensation It may be any sum of money or property.
 MUBARAT

In Mubarat both the parties are equally willing to dissolve

the marriage. Therefore, in Mubarat the offer for separation may
come from either the husband or the wife to be accepted by the
other. So who takes the initiative is irrelevant here. One of the
important features is that here both the parties are equally
interested in the dissolution of marriage so no party is legally
bound to compensate the other by giving some consideration.
Same conditions as Khula also apply in Mubarat.

It is similar to divorce by mutual agreement under section

24 of the Special Marriage Act, 1954 and under section 13-B of
the Hindu Marriage Act, 1955.
THE DISSOLUTION OF MUSLIM
MARRIAGES ACT, 1939
This act is regarded as a landmark in respect of matrimonial
relief for Muslim wife. The salient features of the Dissolution
of Muslim Marriages Act, 1939 are:
1.Section 2 of the Act contains certain grounds on the basis
of which a wife married under Muslim law may file a petition
for divorce. There are 9 grounds out of which seven grounds
are matrimonial guilts (or faults) of the husband which
entitle a wife to get her marriage dissolved by a court of law.
2.These grounds are available only to the wife and not the
husband as Muslim law has already given an absolute right
to the husband to divorce his wife without judicial
intervention and without any reason.
3.For filing a petition for divorce under the Act the wife must
be of 18 years of age so the age of puberty as per Muslim
law is not applicable in this case. However a wife less than
18 years may file the petition through her next friend.
 CONTD.

4.Section 4 provides that if wife renounces Islam and ceases to

be a Muslim then the marriage does not dissolve ipso-facto. So
the wife even after renouncing her religion is entitled to exercise
her rights of divorce under this Act. The grounds of divorce are
available to a woman married under Muslim law, so at the time
of filing of the Petition the wife need not be a Muslim.

5.The Act extends to the whole of India except Jammu and

Kashmir and it applies to all the Muslim wives of any sect or
school. Therefore, it made a uniform law in respect of judicial
divorce by a wife in any part of the country.
 I- HUSBAND IS MISSING
FOR FOUR YEARS
Section 2(i) of the Act provides that if the husband is
missing and his whereabouts are not known for a period of four
years or more then the wife may file a petition for dissolution of
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.
Section 3 provides if the wife files the petition on this ground then she has
to provide the names and addresses of all such persons who would have
been legal heirs of the husband upon his death.
The court issues notice to all such persons to appear before the
court and to state if they have any knowledge about the missing husband.
The decree under this section becomes effective only after the expiry of
six months from the date of such decree.
If the husband appears in person or communicates through his agent to
the court and satisfies the court that he is prepared to perform his
conjugal duties, the court shall set aside the said decree and marriage is
not dissolved.
 II- HUSBAND’S FAILURE TO
MAINTAIN WIFE FOR TWO YEARS

Section 2(ii) provides that if he husband has neglected or

failed to provide maintenance to the wife for two or more years the
wife is entitled to obtain a decree for the dissolution of marriage.
◎It casts a legal obligation upon every husband to maintain his wife. If the
husband is unable to maintain his wife due to poverty, unemployment,
imprisonment, ill-health or any other misfortune, even then the wife has a
right to get the decree for dissolving the marriage.

◎However, the husband’s obligation to maintain his wife is subject to

wife’s performance of matrimonial obligations. Therefore, if the wife lives
separately without an reasonable excuse then she is not entitled to get a
judicial divorce on this ground.
 III- IMPRISONMENT OF
HUSBAND FOR SEVEN YEARS
Section 2(iii) ,read with proviso (a), lays down that a
wife is entitled to get her marriage dissolved by an
order of the court of law if her husband has been
sentenced to imprisonment for a period of seven years
or more. The wife’s right of judicial divorce on this
ground begins from the date on which the sentence has
become final. Therefore, the decree can be filed 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- HUSBAND’S FAILURE TO
PERFORM MARITAL OBLIGATIONS
FOR THREE YEARS
Under section 2(iv) a wife is entitled to the dissolution of her
marriage if her husband fails to perform his marital obligations for
a period of three years without any reasonable excuse.

The Act does not define “marital obligations of the husband”. But
there are several matrimonial obligations of the husband under
Muslim law. But for the purposes of this section only those
conjugal obligations will be taken into account which have not
been accounted for in any of the clauses in section 2 of the Act.. If
the husband deserts his wife or does not cohabit with her without
any reasonable excuse then it amounts to failure of the husband to
perform marital obligations.
 V- HUSBAND’S IMPOTENCY

Under Section 2(v) of the Act a wife may sue for dissolution of her
marriage on the ground of husband’s impotency. But for getting a
decree the wife has to prove the following two facts:

1.That the husband was impotent at the time of the marriage; and

2.That he continues to be impotent till the filing of the suit.

Before passing a decree on this ground the court is bound to give to

the husband one year’s time to prove his potency provided he makes
an application. Where the husband is able to prove his potency within
one year then the decree of divorce cannot be passed.

Impotency here means impotency with respect to wife and not with
respect to any other woman.
 VI- HUSBAND’S INSANITY,
LEPROSY OR VENEREAL
DISEASE
Section 2(vi) entitles the wife to obtain divorce on the
ground that her husband is insane or is suffering from leprosy or
venereal disease.

◎The husband’s insanity must be for two or more years

immediately preceding the presentation of the suit but the Act
does not specify whether the unsoundness of mind should be
curable or incurable.

◎Leprosy may be white or black or cause the skin to wither away.

It may be curable or incurable. The Act does not specify its form
nor its duration.

◎Venereal disease is a disease of the sex organs. The Act provides

that this disease must be of virulent (permanent) nature i.e.
incurable. It may be of any duration.
 VII-OPTION OF PUBERTY

This ground of dissolution of marriage is not based on any

fault of the husband. It is an independent provision under which a
marriage is voidable at the option of the wife .
Under section 2(vii) a wife can obtain a decree for dissolution of
marriage if her marriage was contracted by her father or any other
guardian during her minority. Thus this clause gives her the option
of repudiating the marriage before attaining the age of thirteen
years, provided the marriage has not been consummated. This
right was also available under the old Muslim law and was known
as Khayar-ul-Bulugh but this right was not available to the wife
under the old law when:
1. The minor's marriage was contracted by her father or father’s
father. But now this exception has been removed under the Act.
2.The wife had to exercise her option of puberty immediately after
attaining the age of puberty. Now the Act provides that wife can
exercise this right up to the age of eighteen years provided the
marriage has not consummated.
 VIII- CRUELTY BY
HUSBAND
Section 2(viii) provides that a wife can sue for divorce if her husband
treats her with cruelty. Even under the old law this ground was recognized
but its scope was limited to physical tortures and mental cruelty by
husband was not a sufficient ground for dissolution of marriage. The Act
has now enlarged the scope of the Act to include mental cruelty. The Act
defines cruelty by laying down following acts on the husband which are
regarded as cruelty against the wife:-
1.Habitual assault on the wife or making her life miserable by cruelty of
conduct if such a conduct does not amount to physical ill-treatment.
2.Association of the husband with women of evil repute or that he leads
an infamous life .
3.The husband attempts to force his wife to lead an immoral life.
4.The husband disposes off her property or prevents her from excersing
her legal rights over it.
5.The husband obstructs her in the observance to her religious profession
or practise.
6.If the husband has more wives than one and he does not treat her
equitably in accordance with injunctions of Quran.
IX- ANY OTHER GROUND RECOGNIZED AS
VALID FOR DISSOLUTION FOR MARRIAGE
UNDER MUSLIM LAW
Section 2(ix) a residuary clause under which a wife may
seek dissolution of her marriage on any ground which could not be
included in this section, but it is recognized under the Muslim
personal law. A false charge of adultery by the husband against his
wife (Lian) was a sufficient ground for judicial divorce under Muslim
law. This ground may be invoked under this provision.

However section 2(ix) is not limited to Lian. The wife may

seek divorce on any other ground not included under any of the
clauses of section 2. Under this clause complete breakdown of
matrimonial relations or total mental incompatibility in itself ahs
been regarded as a reasonable ground for dissolution of marriage.
 LEGAL EFFECTS OF
DIVORCE
Divorce operates as complete severance of matrimonial
relationship between husband and wife. After divorce the
parties cease to be husband and wife and its legal
consequences are:-
1.Cohabitation between husband and wife becomes unlawful
2.The wife is required to observe Iddat of three lunar months
after divorce or if pregnant till the delivery of child. If divorce
was before consummation had taken place so no need of Iddat.
3.During Iddat the divorced wife is entitled to be maintained by
her former husband which is governed by Muslim
Women(protection of Rights on Divorce) Act, 1986.
4.The unpaid dower becomes immediately payable to the
divorced wife.
5.Both the parties are free to contract another marriage.
6.The mutual rights of inheritance between the spouses cease
to exist.