The legal separation of a man and a woman’s civil relationship is known as divorce. Divorce law and procedures in India differ significantly depending on the pair’s community. Almost every religion acknowledges marriage as a holy relationship between a man and a woman that can’t or shouldn’t be violated by any power on earth, and Islam is no different from this philosophy. According to Islam, “divorce is a blunder.” The most abhorrent of lawful things before Allah, as proclaimed by Prophet Muhammad, is divorce. So, while the divorce is permissible, Muslims should seek to discourage it if at all possible. However, for the sake of the community’s health, it is an unavoidable step and it is the only cure for another potentially harmful damage. Divorce prohibition, whatever damage it may mean, is analogous to surgery prohibition since the surgeon is forced to amputate any of the patient’s limbs. Divorce is the only way to bring an end to any animosity that might exist between a husband and his wife until it escalates and becomes an intolerable social blight.
There are two forms of divorce prevalent under Muslim Law:
1) Extrajudicial divorce and
2) Judicial divorce
The extra-judicial categories of divorce under Muslim law are namely Talaq, Zihar, Khula, Mubarat, Talaq-e-Tafweez, and so on. A Muslim husband of sound mind has the right to divorce (Talaq) his wife at any time and for any cause. Talaq may be given orally or in writing, and there is no set format for delivering a Talaq. Other forms for a Muslim man to gain a divorce include Ila and Zihar, which vary only in the description but not in nature from Talaq.
A woman, on the other hand, may obtain a mutually agreed-upon divorce by Khula or Mubarat. A divorce cannot be sought by a woman based on her own free will. She can only divorce her husband if he has granted her this right, i.e. Talaq-e-Tafweez, or if they have negotiated an agreement As a result; her only option is to adhere to a different religion to end her marriage.
The Shariat Application Act, passed in 1937, was an endeavor to codify the Muslim Personal laws. However, soon after the bill was passed, it was discovered that citizens preferred to pursue their personal practices, defeating the entire purpose and rendering it ineffective. But, when it comes to essential reforms in personal laws, the Indian legislature is cautious. Following this, another effort was made in 1939, which resulted in the enactment of the Dissolution of Muslim Marriage Act of 1939 aimed at providing Muslim women the same right to divorce as their Hindu and other religious counterparts. This Judicial form of Divorce was enforced under the British regime in India, and it stipulated the laws that Muslims would obey when seeking divorce. The Act’s overall purpose is to resolve the ambiguities around a woman’s renunciation of her husband from the marriage contract, as well as to consolidate and illustrate the rules that regulate Muslims for dissolving marriage by women who are married according to the Muslim Law. Before 1939, Muslim women appeared to have no right to divorce unless they were convicted of adultery by their husbands and sought a divorce by the extrajudicial procedure called Lian. However, the Dissolution of Muslim Marriages Act of 1939 establishes several grounds on which a Muslim wife may have her divorce decree authorized through a court order. Excluding the state of Jammu and Kashmir, the Act applies to the entire country of India.
Grounds for decree for dissolution of marriage: A woman married under Muslim law has the right to access a decree dissolving her marriage on any one or more of the following grounds, as per Section 2 of the Act:
- If the husband’s whereabouts have been unknown for more than four years; in this situation, the decree may not take effect until six months after it was issued, and the husband will reappear during that time and have the decree revoked by demonstrating to the Court that he is fulfilling his conjugal duties.
- If the husband has been sentenced to a minimum of seven years imprisonment
- If at the time of marriage, the husband was impotent and appears to be so, the court may, before delivering the decree, issue an order on an appeal submitted by the husband, requiring the husband to convince the court, within one year of the order’s issuance, that he has ceased to be impotent; if the husband satisfies the court to this extent, no decree would be issued.
- If the husband has refused to cooperate with his marital duties for a span of three years without due cause. In Muslim law, the man has a range of marital obligations. However, only those conjugal duties that are not contained in any of the provisions of Section 2 of this Act can be taken into consideration for the purposes of this provision.
- If the husband is insane or has had leprosy or some other venereal disorder for more than two years, the wife will seek judicial divorce on the same terms.
- If the husband treats the wife with inhuman behavior and cruelty, she may file an appeal for a judicial separation order based on the same grounds. Sexual abuse, making defamatory remarks against the wife’s integrity, pressuring her to live an unethical existence, hindering her from exercising her religion, or possessing more than one wife and not treating them fairly are all instances of grounds for cruelty.
- If a girl is married by her father or guardian before the age of 15, she has the right under Muslim law to condemn the marriage once she reaches the age of 18, as long as the marriage is not consummated. For the same, she is entitled to a separation decree.
- If the husband has ignored or refused to pay for her maintenance for a duration of two years.
- Or on any other terms approved by Muslim law as legitimate for the separation of marriages.
Besides, a married Muslim woman’s renunciation of Islam or conversion to a religion besides Islam does not completely dissolve her marriage: The woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the conditions listed in Section 2 after such renunciation or conversion. The regulations of this section do not extend to a woman who converts to Islam or another religion and then re-embraces her former religion.
The male-dominated Muslim community must acknowledge women’s rights, and it is beyond time for us, Indians, to do so as well. Individuals must stand together to speak up for the plight of Muslim women who have been oppressed for a long time. There has been an improper interpretation of Islam, and it is the responsibility of the Legislature and the Judiciary to correct this. It is essential for India to consider that times are changing and that personal laws need to be restructured. India has always stood up for what is right and overlooked what is wrong. One such remarkable example of this is the Dissolution of Muslim Act 1939 which upheld the wife’s right to divorce, which had once been denied to her. About the fact that the Dissolution of Muslim Marriage Act of 1939 paved the way for numerous modifications, it did not limit a man’s exclusive right to divorce his spouse.