Almost every religion recognizes marriage as a sacred union of man and woman which cannot be or rather should never be broken by any force on earth, and Islam is no different to this philosophy. In fact, it is also believed that happy family can only be achieved when the bond between the husband and the wife is strong and resilient.
Islamic perspective on divorce
The religion of Islam preaches its followers to avoid breaching the holy marriage between husband and the wife and should be used as the last resort, despite the fact that a Muslim Marriage is contract. As a matter of fact, even the Prophet preached that out of all the things which were sanctioned or allowed by law, divorce is by far the worst of its kind and in any case should be avoided. Having said so, there are times and situations when divorce becomes more of a necessity than a luxury. This is particularly when it is practically impossible to continue their marital relationship. This is exactly why under Islamic law, there are only two situations when divorce between husband and wife can take place. These are:
- By act of God
- By act of the parties, meaning divorce.
Legislative background and history to Islamic divorce
When it comes to aspects like marriage, divorce, succession etc, people are largely governed and regulated by their personal laws. If we try to trace the history of codifying the Islamic personal laws for the Muslims residing in India, then an attempt to codify their laws made as early as in 1937 by way of the Sharia Application Act. But even after enacting this law, it was observed that people continued following their personal practices which defeated the whole purpose and rendered it unsuccessful.
Following this, in 1939, another attempt to do the same was made which eventually led to the passing of the Dissolution of Muslim Marriage Act, 1939 (“Act”). This Act prescribed as many as nine grounds based on which Muslim woman could seek divorce from her husband. One startling differentiation, however, which this Act made, was that this Act granted a Muslim man to divorce his wife at will. On the other hand, however, the wife did not enjoy such an unrestricted right either to give divorce or get one. As a result, the only way out for her was to get converted to another religion in order to call off her marriage. Although this also paved way to lot of amendments nevertheless, it did not restrict the unilateral right of the man to divorce his wife.
Understanding grounds for divorce for women
A glimpse on the grounds on which a Muslim woman can claim for divorce against her husband clearly shows that the woman can get divorce only when her husband has been absconding for at least four years or has failed to provide her maintenance for two years; or he has been serving imprisonment for seven or more than seven years; or has failed to perform his marital obligations for three years; or is impotent since marriage or has been suffering from any mental disorder for two years or is suffering from leprosy or any virulent venereal disease or if the woman has got married when she was below the age of fifteen years and hence, it was her father or guardian who had taken this decision for her and she now wants to repudiate it or has subjected her to cruelty.
Apart from the above, there are only two ways in which a Muslim woman is allowed to seek separation from her husband, which is either through mutual agreement between the husband and the wife which is known as ‘Khula’; or secondly, by filing a suit and getting a formal judicial decree against the husband in a court of law which is called ‘Fask’ and which falls under the category of Table-i-tafwid. Thus, unlike her male counterpart, the Muslim woman cannot release herself from marriage easily and unilaterally.
Analysis on the perspective of divorce
As compared to the Islamic states, where the rights of women particularly in relation to divorce are quite rigid and obsolete, the Indian law aims to put the Islamic woman almost on similar pedestal as her male counterpart under ‘khula’. That could also be the reason why in Neorbibi v. Pir Bux AIR 1971 Ker 261, which came in almost twenty five years later to Umar Bibi v. Mohammed Din AIR 1945 Lah 51, the court recognized the principle of irretrievable breakdown of marriage’ and granted divorce on the grounds of incompatibility unlike in the latter where incompatibility was outright rejected by the court.
Virtues:
Muslim Law is based on “Shariat Law” and is a Qitabiya Law i.e. interpretation of Quran. Enactment of Dissolution of Muslim Marriage Act, 1939, was a revolutionary step for the Indian Legislature. The Act was enacted despite the fact that Muslim Law was primarily recognizing the rights of Males and entitling them to marry and have 4 wives thereby glorifying polygamy. Furthermore, before enactment of this act only Males had the right to divorce their wives. Albeit, enactment of this act gave certain grounds to the woman to seek shelter under the Law and exercise their statutory right. This Act gave right to woman to raise their voice against cruelty and seek separation.
Vices:
This Law is a law on papers only and was never exercised by the women for the reason it only highlighted few aspects of the Muslim Personal Law. This Act is a very brief Act only highlighting few grounds of divorce for woman to initiate proceedings. This Act does not prescribe the post divorce measures . The Muslim marriage is a Contract where the ‘Mehr’ is consideration. This Act is silent as to what will happen to the ‘Mehr’ post dissolution under this Act. This codification was lacking in codification of Muslim Law pertaining to child custody, maintenance or uniform applicability of the same. Where the right to woman were given but the cruel pronouncement of unilateral ‘Talaq’ by men was not curbed. There was no uniform applicability of this Act and the customary laws continued to prevail and the Muslim woman continued to suffer.
