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A
S Parveen Akhtar vs Union of India - Madras High Court - 2002 SCC OnLine Mad
836 : (2003) 1 LW 370 : (2003) 1 LW (Cri) 115 - Paragraphs – 49
Muslim
Personal Law (Shariat) Act, 1937 provides for the application of Muslim
Personal Law to all questions regarding, inter alia, “…marriage, dissolution of
marriage, including talaq, ila, zihar, lian, Khula and mubaraat……”. That Act is
clearly a legislation dealing with Personal Law. Section 2 of that Act, in
whole or in part, cannot, having regard to the decisions of the apex Court in
the case of AWAG, 1997 3 SCC 573, and in the case of Krishna Singh v. Mathura
Ahira, AIR 1980 SC 707, be declared as void or unconstitutional by reason of
any inconsistency with Part HI of the Constitution.
·
Masroor
Ahmed vs State (NCT of Delhi) and Another - ILR 2007 II Delhi 1329 - Paragraphs
- 16 to 18
The
Muslim Personal Law (Shariat) Application Act, 1937 and the various forms of
dissolution of marriage recognised by it.
16.
In India, the confusion with regard to application of customary law as part of
muslim law was set at rest by the enactment of The Muslim Personal Law
(Shariat) Application Act, 1937. Section 2 of the 1937 Act reads as under:—
“2.
Application of Personal Law to Muslims.— Notwithstanding any customs or usage
to the contrary, in all questions (save questions relating to agricultural
land) regarding intestate succession, special property of females, including
personal property inherited or obtained under contract or gift or any other
provision of Personal Law, marriage, dissolution of marriage, including talaq,
ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts,
trusts and trust properties, and wakfs (other than charities and charitable
institutions and charitable and religious endowments) the rule of decision in
cases where the parties are Muslims shall be the Muslim Personal Law
(Shariat).”
The
key words are “notwithstanding any customs or usage to the contrary” and “the
rule of decision in cases where the parties are muslims shall be the muslim
personal law (shariat).” This provision requires the court before which any
question relating to, inter-alia, dissolution of marriage is in issue and where
the parties are muslims to apply the muslim personal law (shariat) irrespective
of any contrary custom or usage. This is an injunction upon the court13. What
is also of great significance is the expression — “dissolution of marriage,
including talaq, ila, zihar, lian, khula and mubaraat…” This gives statutory
recognition to the fact that under muslim personal law, a dissolution of
marriage can be brought about by various means, only one of which is talaq.
Although islam considers divorce to be odious and abominable, yet it is
permissible on grounds of pragmatism, at the core of which is the concept of an
irretrievably broken marriage. An elaborate lattice of modes of dissolution of
marriage has been put in place, though with differing amplitude and width under
the different schools, in an attempt to take care of all possibilities. Khula,
for example, is the mode of dissolution when the wife does not want to continue
with the marital tie. She proposes to her husband for dissolution of the
marriage. This may or may not accompany her offer to give something in return.
Generally, the wife offers to give up her claim to Mahr (dower). Khula is a
divorce which proceeds from the wife which the husband cannot refuse subject
only to reasonable negotiation with regard to what the wife has offered to give
him in return14. Mubaraat is where both the wife and husband decide to mutually
put an end to their marital tie. Since this is divorce by mutual consent there
is no necessity for the wife to give up or offer anything to the husband. It is
important to note that both under khula and mubaraat there is no need for
specifying any reason for the divorce. It takes place if the wife (in the case
of khula) or the wife and husband together (in the case of mubaraat) decide to
separate on a no fault/no blame basis. Resort to khula (and to a lesser degree,
mubaraat') as a mode of dissolution of marriage is quite common in India.
17.
Ila15 and Zihar16 as modes of divorce are virtually non-existent in India.
However, lian is sometimes resorted to. If a man accuses his wife of adultery
(zina), but is unable to prove the allegation, the wife has the right to
approach the qazi for dissolution of marriage. In India, a regular suit has to
be filed. Once such a suit is filed by the wife, the husband has the option of
retracting his charge of adultery, whereupon the suit shall fail. However, if
he persists then he is required to make four oaths in support of the charge.
The wife makes four oaths of her innocence, after which the court declares the
marriage dissolved. This is the process of dissolution of marriage by lian17.
The
Dissolution of Muslim Marriage Act, 1939
18.
At this juncture it would be relevant to mention the Dissolution of Muslim
Marriages Act, 1939 which enabled muslim women of all sects to seek dissolution
of marriage by a decree of the court under the various grounds enumerated in
section 218” thereof which included the husband's cruelty, impotency, failure
to maintain, leprosy, virulent venereal disease, etc. Section 2(ix) of the 1939
Act contained the residuary clause entitling a muslim woman to seek dissolution
of her marriage through a court on any other ground which is recognised as
valid for the dissolution of marriages under Muslim law. So, the position after
the 1937 and 1939 Acts is that dissolution of a muslim marriage is permissible
by the modes of talaq, ila, zihar, lian, khula and mubaraat (as mentioned in
the 1937 Act) as also on a wife's suit under the 1939 Act, on any of the
grounds mentioned therein or on any other ground which is recognised as valid
for the dissolution of marriages under Muslim law which would include lian.
Divorce through talaq, ila, zihar, khula and mubaraat takes place without the
intervention of the court. Divorce under the 1939 Act (which would also include
lian) is through a wife's suit and by a decree of the court. The muslim wife,
therefore, can seek divorce either outside the court (through khula) or through
court (under the 1939 Act or lian). She can also put an end to the marital tie
by pronouncing talaq upon herself in the case of talaq-e-tafwiz where the
husband delegates the power of pronouncing talaq to his wife. On the other
hand, the muslim husband can dissolve the marriage only outside court through
talaq (ila and zihar being virtually non-existent in India). Both the husband
and wife can mutually decide to dissolve the marriage, again without the
intervention of court, through mubaraat.
·
Munavvar-ul-Islam
vs Rishu Arora and Rukhsar - ILR 2014 III Delhi 1886 - Paragraphs – 52
This
Court bears in mind that the legislation enacted 75 years ago was to empower
Muslim women to seek redress from a miserable marriage, which otherwise was
wholly dependent upon the husband's prerogative to give her a talaq (divorce;
un-tethering from the bonds of marriage). It must be noted that even khula,
which was a procedure for dissolution initiated at the instance of the wife,
required the consent of the husband. However, with the enactment of the Act,
the husband's right to talaq has to be seen in the context of the wife's
competing rights. An equitable scheme as per Islamic tenets has been recognised
in the Act and attitudes of parties would need a subtle adjustment to align
with the basic tenets. Accordingly, the contention that the impugned judgement,
if upheld, would adversely affect the appellant's prerogative of talaq, is
rejected.
·
Jorden
Diengdeh vs S S Chopra - (1985) 3 SCC 62 - Paragraph – 06
6.
Under the Mohammedan Law, a Muslim husband may divorce his wife by the
pronouncement of talaq. A Muslim wife may after the passing of the dissolution
of Muslim Marriages Act, 1939, obtain a decree for a dissolution of a marriage
on one of the following grounds:
"(i)
that the whereabouts of the husband have not been known for a period of four
years;
(ii)
that the husband has neglected or has failed to provide for her maintenance for
a period of two years;
(iii)that
the husband has been sentenced to imprisonment for a period of seven years or
upwards;
(iv)
that the husband has failed to perform, without reasonable cause, his martial
obligations for a period of three years;
(v)
that the husband was impotent at the time of the marriage and continues to be
so;
(vi)
that the husband has been insane for a period of two years or is suffering from
leprosy or a virulent venereal disease;
(vii)that
she, having been given in marriage by her father or other guardian before she
attained the age of fifteen years, repudiated the marriage before attaining the
age of eighteen years (Proviso has been omitted as it is not necessary)
(viii)that
the husband treats her with cruelty that is to say-
(a)
habitually assaults her or makes her life miserable by cruelty of conduct even
if such conduct does not amount to physical ill- treatment, or
(b)
associates with women of evil repute or leads an infamous life, or
(c)
attempts to force her to lead an immoral life, or
(d)
disposes of her property or prevents her exercising her legal rights over it,
or
(e)
obstructs her in the observance of her religious profession or practice, or
(f)
if he has more wives than one, does not treat her equitably in accordance with
the injunctions of the Qoran;
(ix)
on any other ground which is recognised as valid for the dissolution of
marriages under Muslim Law." (The proviso has been omitted as it is not
necessary in the present case).
We
may add that under strict Hanafi Law, there was no provision enabling a Muslim
women to obtain a decree dissolving her marriage on the failure of the husband
to maintain her or on his deserting her or maltreating her and it was the
absence of such a provision entailing 'inspeakable misery in innumerable Muslim
women' that was responsible for the dissolution of the Muslims Marriages Act,
1939. (See Statements of Objects and Reasons of that Act). If the legislature could
so alter the Hanafi Law, we fail to understand the hallabalcoo about the recent
judgment of this court in the case of Mohd. Ahmed Khan v. Shah Bano Begum &
Ors. interpreting the provisions of sec. 125 of the Criminal Procedure Code and
the Muslim Law. it is also necessary to add that Mohammedan Law provides for a
decree for divorce known as Khula and mubara' at by agreement of parties.
·
Zohara
Khatoon vs Ibrahim - (1981) 2 SCC 509 - Paragraphs - 22,23
22.
In these circumstances we are therefore, satisfied that the interpretation put
by the High Court on the second limb of clause (b) is not correct. This seems
to be borne out from the provisions of Mahomedan law itself. It would appear
that under the Mahomedan law there are three distinct modes in which a muslim
marriage can be dissolved and the relationship of the husband and the wife
terminated so as to result in an irrevocable divorce.
(1)
Where the husband unilaterally gives a divorce according to any of the forms
approved by the Mahomedan law, viz, Talaq ahsan which consiss of a single
pronounce-ment of divorce during tuhar (Period between menstruations) followed
by abstinence from sexual intercourse for the period of iddat; or Talak hasan
which consists of three pronouncement made during the successive tuhrs, no
intercourse taking place between three tuhrs; and lastly Talak-ul-bidaat or
talalk-i- badai which consists of three pronouncements made during a single
tuhr either in one sentence or in three sentences signifying a clear intention
to divorce the wife, for instance, the husband saying 'I divorce thee
irrevocably' or 'I divorce thee, I divorce thee, I divorce thee'. The third
form referred to above is however not recognised by the Shiah law. In the
instant case, we are concerned with the appellant who appears to be a Sunni and
governed by the Hanafi law (vide Mulla's Principles of Mahomedan Law, Sec. 311,
p. 297). A divorce or talaq may be given orally or in writing and it becomes
irrevocable if the period of iddat is observed though it is not necessary that
the woman divorced should come to know of the fact that she has been divorced
by her husband.
(2)
By an agreement between the husband and the wife whereby a wife obtains divorce
by relinquishing either her entire or part of the dower. This mode of divorce
is called 'khula' or Mubarat. This form of divorce is initiated by the wife and
comes into existence if the husband gives consent to the agreement and releases
her from the marriage tie. Where, however, both parties agree and desire a
separation resulting in a divorce, it is called mubarat. The gist of these mode
is that it comes into existence with the consent of both the parties
particularly the husband because without his consent this mode of divorce would
be incapable of being enforced. A divorce may also come into existence by
virtue of an agreement either before or after the marriage by which it is
provided that the wife should be at liberty to divorce herself in specified
contingencies which are of a reasonable nature and which again are agreed to be
the husband. In such a case the wife can repudiate herself in the exercise of
the power and the divorce would be deemed to have been pronounced by the
husband. This mode of divorce is called 'Tawfeez' (vide Mulla's Mohmedan Law,
Sec. 314. p. 300.
(3)
By obtaining a decree from a civil court for dissolution of marriage under s. 2
of the Act of 1979 which also amounts to a divorce (under the law) obtained by
the wife. For the purpose of maintenance, this mode is governed not by clause
(b) but by clause (c) of sub-section (3) of s. 127 of the 1973 Code; whereas
the divorce given under modes (1) and (2) would be covered by clause (b) of
sub-section (3) of s. 127.
23.
These are the three distinct modes in which a dissolution of marriage can be
brought about. It is, therefore, manifest that clause (b) Explanation to s. 125
envisages all the three modes, whether a wife is divorced unilaterally by the
husband or where she obtains divorce S under mode numbers 2 and 3, she
continues to be a wife for the purpose of getting maintenance under s. 125 of
the 1973 Code. In these circumstance the High Court was not at all justified in
taking the two separate clauses 'who has been divorced' and 'has obtained a
divorce from her husband' conjunctively so as to indicate a divorce proceeding
from the husband and the husband alone and in not treating a dissolution of
marriage under the 1939 Act as a legal divorce. We might like to mention here
that the 1973 Code has by extending the definition of wife, not excluded the
various modes of divorce but has merely abrogated that part of the Mahomedan
law under which the wife ceased to get maintenance if the conjugal relationship
of the husband and wife came to an end. Nevertheless, the personal law is
applied fully and kept alive by clause (b) of sub-section (3) of s. 127 which
may be extracted thus:
"(b)
the woman has been divorced by her husband and that she has received, whether
before or after the date of the said order, the whole of the sum which, under
any customary or personal law applicable to the parties, was pay able on such
divorce, cancel such order:-
(i)
in the case where such sum was paid before such order, from the date on which
such order was made,
(ii)
in any other case, from the date of expiry of the period, if any, for which
maintenance has been actually paid by the husband to the woman."
