1

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

2

CERTIFICATE

The project entitled “JUDICIAL 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
3

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,)
4

INDEX

The first few pages of the areas under:

Page 1 - Title page

Page 2 - Certificate signed by candidate

Page 3 - Acknowledgement

Page 4 -Index

Page 5-16- INTRODUCTION, Types of Divorce

Page 17- BIBLIOGRAPHY

5

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: “Provide
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
6

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) Ahsan
ii) Hasan

i) Ahsan: Ahsan is Arabic word which means

proper or accurate. The Talaq pronounced in
Ahsan mode is most approved mode of Talaq
7

.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.
8

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
9

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
10

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

1
Sofia begum v Zabeer hasan AIR 1947 All 16
2
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
11

appears either in person or through an advertised agent within that

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 wrong8. 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

5
Dissolution of Muslim Marriages Act 1939, sec 2(b)
6
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
12

martial duties. Thus, where a Muslim wife voluntarily and without

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 ground9.

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 ‘without 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

9
Zoona v Ykub AIR 1983 J&K 78
13

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

10
Dissolution of Muslim Marriages Act 1939, SEC 2 (iii)
11
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
14

on the ground that the husband has been insane for a period of two
years, or is suffering from leprosy or virulent venereal diseases.

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 consummated13. By this provision all
restrictions on her right to exercise option of puberty (Khayar-ul-
Bulugh) where the marriage was arranged by her father or
grandfather have been abolished14 .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:

13
Dissolution of Muslim Marriages Act 1939, SEC 2 (vii), Zubeda begum v Vazir mohammad 190 IC 94
14
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)
15

1) Habitually assaults he r of makes her life miserable by cruelty of

conduct17 even where such conduct does not amount to physical ill-
treatment 18

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

17
Shahina Praveen v Mohd Shakeel AIR 1987 Del 210
18
Kadir v Koleman Bibi (1935) ILR 62 Cal 1088
19
Siraj Mohamed Khan v Hafizunnissia AIR 1982 SC 1972
20
Itwari v Asgari AIR 1960 All 684
16

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
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 ground23 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

21
Siraj Mohammad Khan v Hafizunnissia AIR 1982 SC 1972

22
Ahmed v Bai Fatima AIR 1931 Bom 76
23
Siju Bibi v Muksed Mollah 45 Cal WN 122
24
Dissolution of Muslim Marriages Act 1939, Sec 4 prov (1)
17

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.

BIBLIOGRAPHY

Books Referred:

1) Halsburys laws of India

2) Family Law in India
3) Mohammedan Law by Aqil Ahmed

Cases Referred:

1) Sofia begum v Zabeer hasan AIR 1947 All 16

2) Sarwar yar khan v Jawahar devi (1964) 1 andh
WR 60
3) Badrunnissa Bibi v Usuf AIR 1944 All 23
4) Zafar Hussain v Akbari Begum AIR 1944 Lah
336

5) Peer Mohammad v State of Madhya Pradesh

AIR 1960, MP 24
6) Mahomad Shariff v Khuda Baksh AIR 1936, Lah
683
7) Kadir v Koleman Bibi (1935) ILR 62 Cal 1088
8) Siraj Mohamed Khan v Hafizunnissia AIR 1982
SC 1972
9) Itwari v Asgari AIR 1960 All 684

ACTS:
18

1) Dissolution of Muslim Marriages Act, 1939

2) Muslim Laws in India