THE DISSOLUTION OF MUSLIM MARRIAGES

ACT, 1939

List of Amending Acts/Adaptation Orders

1. Repealing and Amending Act,1942 (25 of 1942) .                  

2. Adaptation of Laws (No. 3) Order, 1956

3. Miscellaneous Personal Laws (Extension) Act, 1959 (48 of 1959)

THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937

List of Amending Acts/Adaptation Orders

1. Muslim Personal Law (Shariat) Application (Amendment) Act, 1943 (16 of 1943)

2. Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948

3. Ad aptation of Laws Order, 1950

4. Adaptation of Laws (No. 3) Order, 1956

5. Miscellaneous Personal Laws (Extension) Act, 1959 (48 of 1959)

6. Pondicherry (Extension of Laws) Act, 1968 (26 of 1968)

7. Delegated Legislation Provisions (Amendment) Act, 1983 (20 of 1983)

 

THE DISSOLUTION OF MUSLIM MARRIAGES

ACT, 19391

(8 OF 1939)

[17th March, 1939]

An Act to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie.

whereas it is expedient to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie;

It is hereby enacted as follows:—

Statement of Objects and Reasons.—There is no proviso in the Hanafi Code of Muslim law enabling a married Muslim woman to obtain a decree from the Court dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her or absconds leaving her unprovided for and under certain other circumstances. The absence of such a provision has entailed unspeakable misery to innumerable Muslim women in British India. The Hanafi Jurists, however, have clearly laid down that in cases in which the application of Hanafi law causes hardship, it is permissible to apply the provisions of the “Maliki, Shaft’s or Hambali law”. Acting on this principle the Ulemas have issued farwas to the effect that in cases enumerated in clause 3, Part A of this Bill [now see section 2 of the Act] a married Muslim woman may obtain a decree dissolving her marriage. A lucid exposition of this principle can be found in the book called “Heelatum Najeza” published by Maulana Ashraf AH Sahib who has made an exhaustive study of the provisions of Maliki law which under the circumstances prevailing in India may be applied to such cases. This has been approved by a large number of Ulemas who have put their seals of approval on the book.

As the Courts are sure to hesitate to apply the Maliki law to the case of a Muslim woman, legislation recognising and enforcing the abovementioned principle is called for in order to relieve the sufferings of countless Muslim women.

 

One more point remains in connection with the dissolution of marriages. It is this. The Courts in British India have held in a number of cases that the apostasy of a married Muslim woman ipso facto dissolves her marriage. This view has been repeatedly challenged at the bar but the Courts continue to stick to precedents created by rulings based on an erroneous view of the Muslim law. The Ulemas have issued Fatwas supporting non-dissolution of marriage by reason of wife’s apostasy. The Muslim community has, again and again, given expression to its supreme dissatisfaction with the view held by the Courts. A number of articles have been appearing in the press demanding legislation to rectify the mistake committed by the Courts; hence clause 5 [now see section 4] is proposed to be incorporated in this Bill.

Thus, by this Bill the whole law relating to dissolution of marriages is brought at one place and consolidated in the hope that it would supply a very long felt want of the Muslim community in India.

l.TheActhas been extended to the new Provinces and merged States by the Merged States _ – ws) Act 59 of 1949 and to the States of Manipur, Tripura and Vindhya Pradesh by the Union

-ritories (Laws) Act 30 of 1950. Manipur and Tripura are full-fledged States now, see Act 81

- 971. Vindhya Pradesh is a part of the State of Madhya Pradesh now, see Act 37 of 1950.

                                                DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939                      

1. Short title and extent.—(1) This Act may be called the dissolution of muslim marriages act, 1939.

(2) It extends to the whole of India 2[except the State of Jammu and Kashmir].

State Amendment—[Pondicherry].—In S.I, after sub-S. (2), insert the following provi? namely:—

“Provided that nothing contained in this Act shall apply to the Renoncants of the Union Territory of Pondicherry.”—Act 26 of 1968, S. 3 and Sch. (w.e.f. 1-8-1968).

2. 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:—

(z) that the whereabouts of the husband have not been known for a period of four years;

(it) that the husband has neglected or has failed to provide for her mainte­nance for a period of two years;

(iit) 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;

(iff) that the husband has been insane for a period of two years or 15 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 c: 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, c -

(f) if he has more wives than one, does not treat her equitably u accordance with the injunctions of the Qoran;

(zx) on any other ground which is recognised as valid for the dissolution c: marriages under Muslim law;

Provided that—

(«) no decree shall be passed on ground (iit) until the sentence ha~ become final;

2. Substituted by Act 48 of 1959, S. 3 and Sch. I, for certain words (w.e.f. 1-2-1960).