All Muslim marriages must be in compliance with Muslim personal law. The original concept of Divorce has undergone sea changes after the Dissolution of Muslim Marriage Act, 1939 was enacted. Conforming to this Act the concept of judicial divorce emerged in the context of Muslim marriages empowering women to file for divorce which previously was solely the prerogative of Muslim men in a male-dominated society.
Lawyer’s definition of judicial divorce is essentially taking legal action to put an end to the matrimonial bonding between partners. According to Muslim Personal law the husband is empowered in whimsically divorcing his wife. Conversely, a Muslim wife isn’t equally empowered to file for divorce nonetheless she can get divorced on the basis of Khula akin to mutual consent divorce.
As far back as in the year 1939 the concept of judicial divorce emerged as the Dissolution of Muslim Marriage Act, 1939 was enacted. With the passing of this Act, the provisions of Muslim law related to marriage dissolution suits were consolidated and clarified. This Act underscores the fact that the wife can file for divorce but not the husband.
Grounds for decree for dissolution of marriage
A woman married under Muslim law shall be entitled to obtain a decree 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 timescale 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 marital 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: 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 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
(d) obstructs her in the observance of her religious profession or practice, or
(e) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;
on any other ground which is recognised as valid for the dissolution of marriages under Muslim law: Provided that
(a)no decree shall be passed on ground (iii) until the sentence has become final;
(b)a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband
appears either in person or through an authorised agent within that period and satisfied the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and
(c)before passing a decree on ground (v) the Court shall, 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 if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.
Effect on Dower
There will be absolutely no effect on the Muslim women rights, as per the Muslim Personal Law, to dower and the provisions of the Dissolution of Muslim Marriage Act,1939 will not make any difference.
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