THE DISSOLUTION OF MUSLIM MARRIAGESACT, An Act to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of. PDF | Dissolution of Muslim Marriage Act, (DMMA) is sole document in the history of Sub continent, which is a Download full-text PDF. Grounds for decree for dissolution of marriage. Section 3. Notice to be served on heirs of the husband when the husband's whereabouts are not known.
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Full text containing the act, Dissolution of Muslim Marriage Act , with all the sections, schedules, short title, enactment date, and footnotes. The Dissolution of Muslim Marriages Act, deals with the situations in which Muslim . Print/export. Create a book · Download as PDF · Printable version. The Dissolution of Muslim Marriages Act, - Marriage laws at leccetelira.ml, a website for Indian Laws and bareacts, legal advice and law.
It became necessary to find some remedies and procedures so as to see the marriage tie intact and would not be disturbed by some petty quarrels between the spouses. Anyone spouse leaving the other without just cause and excuse would be proceeded against by the other in a court of law praying for a decree of restitution of conjugal rights. The concept of the existence of the court's power to give this relief was borrowed from English law.
It must be noted here that this is the only positive relief under the Hindu Marriage Act while other remedies tend to weaken or disrupt marriage. Section 9, HINDU MARREAGE ACT reads as under, "When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
Explanation, Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. Pre-requisites for grant of Restitution of Conjugal Rights 1 The respondent has withdrawn from the society of the petitioner. Withdrawal from the Society, The expression, "society" used in this Section should be understood as marital cohabitation that is to say that the husband cherishing and supporting his wife as a husband should do and a wife rendering duties as a housewife.
Though they may not live under the same roof yet there would be cohabitation in the wider sense of the term if they fulfil the mutual duties to each other as husband and wife.
The expression "withdrawal from the society of the other" involves a mental process besides physical separation. It means withdrawal from the totality of conjugal relationship, such as refiisal to stay together, refusal to give comfort to other, refusal to have marital intercourse and refusal to discharge matrimonial obligations. Where the husband throws out or leave a wife who is guilty of matrimonial offence adultery, cruelty or apostasy , it can not be said that she has withdrawn from the society of the husband.
The reason is that she has not left the husband on her own.
Withdrawal by the respondent takes place when the respondent does it voluntarily. In cases where husband compelled his wife to leave the matrimonial home is not withdrawal by the wife from the husband's society. Desertion and Withdrawal from the Society, In the case of judicial separation under Section 1.
The word "desertion" is not used in Section 9. The quality of permanence is one of the essential elements which differentiates "desertion" from "withdrawal from the society". Petitioner must have bona fide Intention, The decree of divorce grantable under Section 13 1 A 2 is a consequence of the decree of the restitution of conjugal rights. Where it finds that the mind of the petitioner is stuffed more with the idea of divorce than regaining comfort consortium then the court may refuse this relief.
If the petitioner wants to use the decree as a stepping stone for divorce in the long run, the court may refuse to grant this decree because the object of the petitioner is not to restore living together. There must be a bona fide desire to resume cohabitation. Restitution will be refused where the petition is not bona fide or filed with an ulterior motive or where it will be unjust to pass a decree.
In Sushil Kumari Dang Verses. Prem Kumar, where a petition for restitution of conjugal right is filed by the husband and the husband also accuses the wife of adulterous conduct, the court held that these two claims cannot stand side by side. They are incompatible. The mere fact that seven days after the decree of the restitution by lower court the husband moved another petition for judicial separation, shows the extent of his sincerity and the interest in keeping the wife with him.
Observing thus, the Delhi High Court set aside the decree of restitution which was granted by the lower court. Effect of non compliance of Decree of Restitution, Order 21 Rules 32 and 33 of the CPC lay down the procedure for the execution of the decree for the restitution of conjugal rights.
If the party against whom a decree is passed will-fully disobeys it, the decree may be enforced by the attachment of his property. He or she cannot be detained in the civil prison for that. If the party does not obey even after the attachment of property the decree can be used as a device to obtain divorce. The expression "reasonable excuse" is not defined in the Act. The grounds on which judicial separation or nullity of marriage or divorce under Section 10,12 or 13 of this Act can be taken as reasonable excuses within the meaning of the Section but the court may consider any other ground as a ground just or sufficient as reasonable excuse on the part of respondent to live separately from the other spouse.
What would be a reasonable excuse cannot be reduced to a formula and would vary with time and circumstances and will have to be determined by the Court in each individual case in the light of the features peculiar to it.
It cannot be said that a reasonable excuse cannot exist except in the form of a ground recognised by the Act as valid for judicial separation or for divorce. Something less than such a ground of a matrimonial offence may, therefore, amount to a "reasonable excuse" within the meaning of Section 9 1 of the Act. Burden of Proof, By the explanation added to the Section, the burden of proving existence of justification or reasonable excuse has been placed on the person against whom, the allegation of withdrawal is made.
The Section unequivocally indicates that once the factum of withdrawal from society by one of the spouses is proved, the reasonableness of the withdrawal has to be proved by the withdrawing spouse. Cases of reasonable excuse In the following circumstances the courts held that there was a reasonable excuse for the respondent to withdraw from the society of the petitioner and for the reason restitution was refused, 1 Marriage was not solemnized in accordance with the customary rites.
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Resumption of cohabitation, Where the parties have resumed cohabitation the petition for restitution of conjugal rights is not maintainable. Even if the parties are living separately and their circumstances prove that the establishment of a new matrimonial home is not possible, still there can be resumption of cohabitation by resumption of intercourse.
But the resumption of cohabitation depends upon the intention of the parties. Mere acts of sexual intercourse may not be decisive of such an intention. Where a spouse has withdrawn and later made bona fide attempts to resume cohabitation but the other spouse refused, it was held that the spouse who initially withdrew from the society was entitled to a decree for restitution of conjugal rights as the original wrong was sought to be rectified by a bona fide offer to resume cohabitation.
If that offer is not bona fide there can be no question of resumption of cohabitation. Section 10 1 provides that either party to Marriage may present a petition praying for a decree of judicial separation on any of the grounds specified in Section 13 1 and in case of wife besides the above ground she can have additional grounds available as mentioned in Section 13 2 of the Act.
Thus, it is Manifest that the grounds for judicial separation and divorce are virtually the same. Whatever the grounds of divorce under Section 13 1 and 2 have been laid down, they have been similarly adopted in Section And thus, even a single act of adultery may be sufficient now for the relief under this head.
Where the other party has treated the petitioner with cruelty, the petitioner can claim the relief of judicial separation. The term cruelty is nowhere defined, nor is it capable of any definition. It has no parameters, it is subjective and relative. It would differ from place to place, from person to person and would also vary depending upon social and cultural backgrounds of the parties. The expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage.
Both the elements must be established for the grant of the relief. The expression 'mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind, and includes schizophrenia. Further, the expression psychopathic disorder means a persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment.
If a person leaves the Hindu religion to embrace some other religion that he goes out of the fold of the definition of Hindu as given under Section 2 of the Act, then he is said to have converted himself. The expression 'Virulent' has been interpreted as Malignant or Venomous. A petition by a wife for judicial separation will lie on either of the these grounds provided that the other wife is alive at the time of the presentation of the petition. This option must be exercised before attaining the age of 18 years.
The Act provides no particular form of repudiation. It may be by, filing a petition or by an overt act. If she has exercised this option to repudiate her marriage she can petition for judicial separation or divorce on this ground after completing 18 years of age. Hindu marriage Act does not recognize this theory. Muslim law recognizes this theory and a husband at his free will, without consulting anybody can divorce his wife.
In such a case the other spouse should be free to put an end to the marriage by getting divorce. Offence or Guilt or Fault Theory According to this theory when one of the spouses commits a matrimonial offence, the other may seek divorce from the delinquent spouse.
The expression matrimonial offence is important, it includes 1 adultery 2 desertion 3 cruelty 4 Rape 5 sodomy 6 Bestiality 7 Refusal to obey court's order to pay maintenance to the wife 8 Marrying an underage person.
This implies that there should be personal injury to the marital relations of the spouses. This theory implies that one party is guilty and the other is innocent. But if the aggrieved party condones the act of the guilty party, no divorce can be granted. According to the English Law of Doctrine of Recrimination, if both the parties independent of one another have committed matrimonial offence the marriage should not be dissolved. The guilt theory is criticized on the basis that it recognizes divorce only on certain above mentioned grounds.
Some more grounds are recognized which led to the renaming of guilt theory as fault theory. The grounds like insanity and epilepsy are added to the list. Here both the parties make a joint petition to the court for divorce between them.
They genuinely desire to get rid of each other and they part amicably for good. If divorce is not given their life would be spoiled and it would result in moral degradation. If divorce by mutual consent is given the parties will not wash their dirty linen in public. There are unfounded objections against this type of divorce that consent of the unwilling party would be obtained by force, fraud or some other contrivance, and this is a divorce by collusion.
But both these arguments and doubts are unfounded. Every collusion is no doubt by consent but every consent does not mean collusion. Collusion is a secret agreement for a fraudulent purpose, it is a secret agreement by two or more persons to obtain an unlawful object.
Collusion is different from compulsion. Compulsion occurs when one party can dominate the will of the other. One may well say that from an unbreakable bondage under the Smritis, a Hindu Marriage has been transferred under the Hindu Marriage Act into a consensual union between one man and one woman. Everything static must drop and die and ideas of marriage and divorce are no exception. It is to be remembered that owing to their sexual relations, interdependence and social censure it is difficult for them to live without each other for a long time.
Therefore there must be some stronger reason for them to live apart and get divorce. There should be complete absence of emotional attachment between them and there must develop intense hatred and acrimony between them, so much so, that their marriage is only in name, a dead one or like a shell sans substance. It is now beyond the hope of salvage. It is therefore an irretrievable breakdown of marriage. The breakdown of marriage is defined as "such failure in the matrimonial relationship or circumstances so adverse to that relation that no reasonable probability remains for the spouses to live together as husband and wife.
Such marriage should be dissolved even if one of the parties to the marriage does not desire it. The empty shell is to be destroyed with the maximum fairness and minimum bitterness, distress and humiliation. In Yousuf Verses. Sowramina, the learned judge said, "While there is no rose which has no thorns but if what you hold is all thorn and no rose, better throw it away. The ground for divorce is not conjugal guilt but breakdown of marriage.
Sometimes the determination of the question whether in fact a marriage has broken down or not is left to the courts. At other times, the legislature lays down the criterion of breakdown of a marriage and if that is established, the courts have no option but to dissolve the marriage. For instance, the petitioner must show that before the presentation of the petition he has been living separate from the respondent for a specified period [as per, Section The Law Commission of India in its Seventy first Report Reforms of the Grounds for Divorce has recommended that irretrievable breakdown of marriage should be made a ground of divorce for Hindus.
It suggests the period of three years' separation as a criterion of breakdown. But its recommendation have not been implemented so far. What are the grounds of divorce under the Hindu Marriage Act? Under the Hindu Marriage Act, divorce can be obtained by one spouse through court on the ground of following types of conduct or circumstances of the other spouse, 1 adultery, 2 treating with cruelty, 3 desertion for at least 2 years, 4 conversion to another religion of the other spouse , 5 incurable insanity or mental disorder, 6 incurable and virulent leprosy, 7 venereal disease in a communicable form not contacted from the petitioning spouse , 8 renouncing the world and becoming a Sanyasi, 9 not being heard of for seven years, 10 non-resumption of cohabitation after a decree of judicial separation, for at least one year, 11 non-compliance with a decree of restitution of conjugal rights for at least one year, 12 husband being guilty of rape or unnatural sex after marriage, 13 husband failing to pay the wife maintenance ordered by a court, and 14 mutual consent.
Besides this, there can be customary divorce. Consummation of marriage is immaterial here. Under this clause a wife can get divorce if 1 at the time of her marriage she was below the age of 15 years, and 2 after that, but before attaining the age of 18 years, she has repudiated the marriage.
The Act or the Section does not prescribe or lay down any procedure for repudiation of marriage. The fact of repudiation has to be proved therefore by the wife.
The clause only gives a right of repudiation as therein mentioned but the petition for dissolution of marriage on this ground is maintainable by her after completing 18 years of age. This clause was added by the Amending Act of There was no such right prior to the Amendment. Thus, if she has exercised this option to repudiate her marriage she can petition for divorce on this ground.
One important point must be noted that the Act indirectly accepts that a minor's marriage is not void though penal. Because, if it was void, the question of allowing a divorce should not arise.
It was inserted by the Marriage Law Amendment Act, The provision is retrospective as well as prospective from the commencement. Hence parties to a marriage whether solemnized before or after the Amending Act can avail themselves to this provision. Section 13B reads as follows, " 1 Subject to the provisions of this Act, a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws Amendment Act, , on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
They may petition together under Section 13B in a district court that they may be granted a decree of divorce. The parties have to get it processed in a Matrimonial court. Even proceedings before a Panchayat does not effect divorce. Three different types of provisions regarding maintenance to a wife have been provided in three different piece of legislation, 1 Hindu Marriage Act, , Sections 24 and The former grants maintenance pendente lite whereas the latter makes provision for the grant of permanent alimony.
The dismissal of an earlier application under Section 24 of the Act does not affect the application under Section 25 of the Act. The obligation to maintain a wife is personal in character, and arises from the very existence of the relation between the parties. Is there any Inconsistency between Sec.
The jurisdiction vested in the court under both the enactment is separate and distinct. Jawaharlal Dhavvan, 3 SCC makes it manifest that claim of maintenance under Section 25 is awardable when the marriage is "diseased or broken" as an ancillary or incidental remedy to the strained marital status due to passing of a decree for restitution of conjugal rights, or of judicial separation in favour of or against her or of nullity or divorce with or without her consent.
The wife who is getting maintenance under Section , Cr. But Section , Cr. Right to Maintenance is a Substantive and Continuing Right, The Hindu law cast a duty on the husband to maintain the wife. The amount of maintenance, whether it is fixed by a decree or agreement is liable to be increased or diminished, whenever there is a change of circumstances as would justify a change in the rate.
The Hindu law recognised that the right of maintenance is a substantive and continuing right and the quantum of maintenance was variable from time to time.
Even in such a case the adoption would be the husband's act and not the wife's and she could be only an agent on his behalf. The question of adoption by an unmarried female Hindu was unimaginable.
This Act confers oh the female Hindu a right to adopt for herself. During the Continuance of Marriage the wife has no right to adopt except where the husband is suffering from any of the disabilities.
Thus the wife assumes independent power of adopting a child where the husband has a completely and finally renounced the world, which means that he has become Sanyasi, or b has become a convert by embracing other religion like Christianity and Islam, or c has been declared to be of unsound mind by a court of competent jurisdiction. It may be noted that such a declaration must actually be obtained, merely on the basis of unsoundness of mind of the husband, the wife does not acquire the competence to adopt a child independently.
Adoption by the Divorcee, A divorcee can adopt a child in her own right and in such a case the divorced husband stands in no relation to the child at all. However, if the divorcee later marries, the husband is in the position of step father to the adopted child whereas the female adopting will in her own right be the adoptive mother of the child.
Adoption by the Widow, Formerly, a widow tould not adopt without the consent and express authority of her deceased husband or in some cases without the consent of her sapindas. But the Act removes any such bar to an adoption by a widow. Moreover, formerly a woman could adopt only to her husband but now she can adopt for herself. Section 8 recognizes the right of a Hindu Widow to'adopt a son or daughter to herself in her own right. But such adoption will not only be to herself but also to her deceased husband.
The adoptee acquires the same status as that of a natural-born child with all the consequences and incidents of that status. As such, the deceased husband becomes the adoptive father of the child adopted and not a step father. It is to be noted that on adoption by a widow, the adopted son becomes the son of the deceased adoptive father and the position under the old Hindu law as regards ties in the adoptive family is not changed, Ankush Narayan Verses.
Janabai, AIR Bom The provision that a widow can now adopt a son or daughter to herself in her own right only indicates the unequivocal right and freedom of the widow to adopt without the express consent and authority of the deceased husband or the consent of sapindas.
Adoption by Married woman during the subsistence of Marriage in the lifetime of her husband , A married woman cannot adopt at all during the subsistence of the marriage except when her husband has completely and finally renounced the world, or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. If the husband is not under such disqualification the wife cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife, Sitabai Verses.
Ramachandra, 2 SCC Section 18 1 is of a mandatory nature and lays down that every Hindu wife must be maintained by her husband throughout her life. The condition precedent for the application, of Section 18 1 will be that the woman must be legally married to the man against whom she is seeking its enforcement.
In Kamla Jain Verses Rathnavelu, the husband by his conduct made it evidently clear that she was not wanted in the house and her presence was prevented by him. It was held that this amounted to cruelty and justified her living separately.
The burden of proof that the husband treated her with the cruelty is on the wife, c Leprosy, If he is suffering from a virulent form of leprosy, d Bigamy, If he has any other wife living.
It is immaterial that the claimant is the first wife or second wife of the husband. A wife is entitled to maintenance and separate residence under this clause where the former wife is alive and it is not necessary that the latter should have been or is living with the husband [Kalawanti Verses Relen].
It is also essential that both the marriages of the husband are valid, e Concubinage, If he keeps-a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere, f Conversion, If he was ceased to be a Hindu by conversion to another1 religion, g Residuary provisions, If there is any other cause justifying her living separately. It is submitted that all those cases where the court may refuse husband's petition of restitution of conjugal right will be covered under this clause entitling a wife to claim separate residence and maintenance from the husband.
Thus, it will be seen that sub-section 1 reiterates the principle of pure Hindu Law that a wife is entitled to be maintained by her husband whether he possesses property or not. There is an absolute right vested in Hindu wife to be maintained by her husband and this maintenance is dependent on her living with him and discharging the duties as wife. The wife will also be entitled to claim maintenance while living separately from her husband, if any of the conditions laid down in Section 18 2 is fulfilled.
She is entitled to maintenance so far as she is Hindu and chaste. The husband shall not be absolved from his liability to maintain his wife simply because he has ceased to be Hindu. Section 18 3 takes away the right of wife to claim maintenance if she ceases to be Hindu by conversion to another religion. The effect of husband ceasing to be Hindu would be that the wife would be entitled to separate residence and claim for maintenance. The word "living" at the time of adoption, is significant because under the old law a child in the womb was considered a child in existence for some purposes.
But under the present Act, it is only when a son or grandson etc. Hence, subsequent birth of a son, cannot invalidate the adoption of a son. A person can adoption in the presence of a stepson also because he is not a son by legitimate blood relationship. It is necessary that the son or grandson or great grandson whose presence bars adoption must be a Hindu.
If he has ceased to be a Hindu by apostasy to a non-Hindu religion, his existence does not bar adoption. Though existence of an illegitimate son is not a bar to the adoption of a son the existence of a son out of a void or voidable marriage or out of marriage which is dissolved by a decree of divorce, acts as an impediment to the person taking in adoption as in those cases the sons are considered legitimate under Section 16 HINDU MARREAGE ACT.
Under the old law it was not permissible. If the adoption is to be made of a daughter the adoptive father or mother must not have a Hindu daughter or son's daughter living at the time of adoption. The existence of a stepdaughter or step granddaughter is not a bar to the adoption of a daughter. The daughter or granddaughter must be a Hindu. If she is converted to a non-Hindu religion then her father or mother may adopt a daughter.
The fact that the daughter or granddaughter is married or not, is not material. Existence of an Illegitimate daughter is not, however, a bar to a male or even a female Hindu taking a daughter in adoption, although the illegitimate daughter is entitled under the Hindu Succession Act to succeed to the property of the mother.
But if the adopter and the adopted child belong to the opposite sexes, the adopter must be 21 years older than the adopted child. The rule is mandatory and is not subject to variation by any custom or usage to the contrary. It is a condition of precaution, lest the institution of adoption be turned into an institution of ulterior purposes and corruption. Illustration, 1. A, a Hindu male of 25 years of age adopted a daughter of 14 years of age.
The adoption is invalid as A adoptive father is not twenty-one years older than the female adoptee. In Md. Khan v. Shahmai, under a prenuptial agreement, a husband, who was a Khana Damad, undertook to pay certain amount of marriage expenses incurred by the father-in-law in the event of his leaving the house and conferred a power to pronounce divorce on his wife. The husband left his father-in-law's house without paying the amount.
The wife exercised the right and divorced herself. It was held that it was a valid divorce in the exercise of the power delegated to her. Delegation of power may be made even in the post marriage agreements. Thus where under an agreement it is stipulated that in the event of the husband failing to pay her maintenance or taking a second wife, the will have a right of pronouncing divorce on herself, such an agreement is valid, and such conditions are reasonable and not against public policy. It should be noted that even in the event of contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not.
The happening of the event of contingency does not result in automatic divorce. Lian: If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds.
Such a mode of divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behaviour and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian.
This was held in the case of Nurjahan v. Kazim Ali by the Calcutta High Court. It however became law on 17th March and thus stood the Dissolution of Muslim Marriages Act Section 2 of the Act runs thereunder: A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one or more of the following grounds, namely:- That the whereabouts of the husband have not been known for a period of four years: if the husband is missing for a period of four years the wife may file a petition for the dissolution of her 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 that where a wife files petition for divorce under this ground, she is required to give the names and addresses of all such persons who would have been the legal heirs of the husband upon his death. The court issues notices to all such persons appear before it and to state if they have any knowledge about the missing husband.
If nobody knows then the court passes a decree to this effect which becomes effective only after the expiry of six months. If before the expiry, the husband reappears, the court shall set aside the decree and the marriage is not dissolved. That the husband has neglected or has failed to provide for her maintenance for a period of two years: it is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife may seek divorce on this ground.
A husband may not maintain his wife either because he neglects her or because he has no means to provide her maintenance. In both the cases the result would be the same. The husband's obligation to maintain his wife is subject to wife's own performance of matrimonial obligations. Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to get a judicial divorce on the ground of husband's failure to maintain her because her own conduct disentitles her from maintenance under Muslim law.
That the husband has been sentenced to imprisonment for a period of seven years or upwards: the wife's right of judicial divorce on this ground begins from the date on which the sentence becomes final. Therefore, the decree can be passed in her favour 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.
That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years: the Act does define 'marital obligations of the husband'. There are several marital obligations of the husband under Muslim law. But for the purpose of this clause husband's failure to perform only those conjugal obligations may be taken into account which are not included in any of the clauses of Section 2 of this Act.
That the husband was impotent at the time of the marriage and continues to be so: for getting a decree of divorce on this ground, the wife has to prove that the husband was impotent at the time of the marriage and continues to be impotent till the filing of the suit.
Before passing a decree of divorce of divorce on this ground, the court is bound to give to the husband one year to improve his potency provided he makes an application for it. If the husband does not give such application, the court shall pass the decree without delay. In Gul Mohd. Hasina the wife filed a suit for dissolution of marriage on the ground of impotency. The husband made an application before the court seeking an order for proving his potency. The court allowed him to prove his potency.
If the husband has been insane for a period of two years or is suffering from leprosy or a virulent veneral disease: the husband's insanity must be for two or more years immediately preceding the presentation of the suit. But this act does not specify that the unsoundness of mind must be curable or incurable. Leprosy may be white or black or cause the skin to wither away.
It may be curable or incurable. Veneral disease is a disease of the sex organs.
Law Audience Journal
The Act provides that this disease must be of incurable nature. It may be of any duration. Moreover even if this disease has been infected to the husband by the wife herself, she is entitled to get divorce on this ground. 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; 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 illtreatment, or b Associates with women of ill-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 than one wives, does not treat her equitably in accordance with the injunctions of the Holy Quran.
In Syed Ziauddin v. Parvez Sultana, Parvez Sultana was a science graduate and she wanted to take admission in a college for medical studies. She needed money for her studies. Syed Ziaudddin promised to give her money provided she married him. She did. Later she filed for divorce for non-fulfillment of promise on the part of the husband. The court granted her divorce on the ground of cruelty.
Thus we see the court's attitude of attributing a wider meaning to the expression cruelty. In Zubaida Begum v. Sardar Shah, a case from Lahore High Court, the husband sold the ornaments of the wife with her consent.
It was submitted that the husband's conduct does not amount to cruelty.
Pre- and post-nuptial agreements
In Aboobacker v. Mamu koya, the husband used to compel his wife to put on a sari and see pictures in cinema. The wife refused to do so because according to her beliefs this was against the Islamic way of life. She sought divorce on the ground of mental cruelty. The Kerela High Court held that the conduct of the husband cannot be regarded as cruelty because mere departure from the standards of suffocating orthodoxy does not constitute un-Islamic behaviour.
In Itwari v.
Bare Act: Dissolution Of Muslim Marriages Act, 1939
Asghari, the Allahabad High Court observed that Indian Law does not recognize various types of cruelty such as 'Muslim cruelty', 'Hindu cruelty' and so on, and that the test of cruelty is based on universal and humanitarian standards; that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife's safety or health.
Irretrievable Breakdown: Divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim Law through the judicial interpretation of certain provisions of Muslim law. In in Umar Bibi v. Din , it was argued that the wife hated her husband so much that she could not possibly live with him and there was total incompatibility of temperaments. On these grounds the court refused to grant a decree of divorce. But twenty five years later in Neorbibi v. Pir Bux, again an attempt was made to grant divorce on the ground of irretrievable breakdown of marriage.
This time the court granted the divorce.
Thus in Muslim law of modern India, there are two breakdown grounds for divorce: a non-payment of maintenance by the husband even if the failure has resulted due to the conduct of the wife, b where there is total irreconcilability between the spouses. Conclusion: In contrast to the Western world where divorce was relatively uncommon until modern times, and in contrast to the low rates of divorce in the modern Middle East, divorce was a common occurrence in the pre-modern Muslim world.
In the medieval Islamic world and the Ottoman Empire, the rate of divorce was higher than it is today in the modern Middle East.
In 15th century Egypt, Al-Sakhawi recorded the marital history of women, the largest sample on marriage in the Middle Ages, and found that at least a third of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with many marrying three or more times.
According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo ended in divorce. In practice in most of the Muslim world today divorce can be quite involved as there may be separate secular procedures to follow as well.
Usually, assuming her husband demands a divorce, the divorced wife keeps her mahr, both the original gift and any supplementary property specified in the marriage contract. She is also given child support until the age of weaning, at which point the child's custody will be settled by the couple or by the courts.In Ila, the husband takes an oath not to have sexual intercourse with his wife.
Marriage D. Talaaq-i-Biddat: It came into vogue during the second century of Islam. It is a support group for lesbian and bisexual women in India. Husband was impotent at the time of the marriage and continues to be so.
She is also given child support until the age of weaning, at which point the child's custody will be settled by the couple or by the courts. Held, neither declaratory nor retrospective. Indian statutes require residence as a ground for jurisdiction.
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