Muslim Law – Bare Acts
The Dissolution of Muslim Marriages Act, 1939
[Act No. 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 suit 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:
The relevant portion of the statement of Objects and Reasons of the Act of 1939, which may be extracted thus:
“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, Shafii or Hambali Law”.
Acting on this principle the Ulemas have issued fatwas 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.
As the Courts are sure to hesitate to apply the Maliki Law to the case of a Muslim woman, legislation recognizing and enforcing the above mentioned principle is called for in order to relieve the sufferings of countless Muslim women.”
Before the enactment of the Act of 1939 a woman under pure Mahomedan law had no right to get a decree for divorce from the husband if he refused to divorce her. This was unboubtedly the fundamental concept of divorce as laid down by the Mahomedan law.
As, however, some of the Muslim Jurists and Theologists were of the view that where a husband becomes important or disappears for a large number of years or treats his wife with great cruelty, the wife should have some right to approach the Qazi for dissolving the marriage.
Relying on these authorities the legislature intervened and passed the Dissolution of Muslim Marriages Act, 1939 under which the wife was conferred a legal right to move the civil court for a decree for dissolution of marriage on the grounds specified in s. 2 of the Act of 1939. [Mst. Zohara Khatoon vs Mohd. Ibrahim, AIR 1981 SC 1243, 1981 SCR (2) 910]
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. It is thus seen that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform.
Surely the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste. It appears to be necessary to introduce irretrievable break down of marriage and mutual consent as grounds of divorce in all cases. The case before us is an illustration of a case where the parties are bound together by a marital tie which is better untied.
There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. We suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situations in which couples like the present have find themselves in.
We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take. [Jordan Diengdeh v. S.S. Chopra, AIR 1985 SC 935 : 1985 SCR Supl. (1) 704]
The above Act applies to Muslim women married under Muslim Law. Section 2 of the Act lays down the grounds on which a muslim wife may seek a divorce. Such grounds takes in cruelty and desertion as independent grounds among several other grounds. It is relevant to note in this connection that there was no provision enabling a Muslim woman to obtain a decree dissolving her marriage on the failure of the husband to maintain her on his deserting her or maltreating her and it was the absence of such a provision entailing ‘inspeakable misery in nnumerable Muslim women’ that was responsible for the Dissolution of Muslim Marriage Act, 1939 (See statement of objects and reasons). [Mary Sonia Zachariah v. Union Of India, II (1995) DMC 27]
1. Short title and extent
(1) This Act may be called the Dissolution of Muslim Marriage Act, 1939.
(2) It extends to the whole of India 2[except the State of Jammu and Kashmir].
Pondicherry.—In section 1, after sub-section (2), add the following:—
“Provided that nothing contained in this Act shall apply to Renoncants of the Union territory of Pondicherry”, vide the Pondicherry (Extension of Laws) Act, 1968, sec. 3 and Sch.