DIVORCE BY MUSLIM WIFE UNDER DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939

Section 2 of the Dissolution of Muslim Marriage Act, 1939 contains nine grounds based on which a Muslim woman may file a petition for divorce. It is to be noted that the ninth ground in section 2 is a residuary clause, under which a wife may seek divorce on any other ground recognized under the Muslim law which could not be included in the first eight grounds.

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:

   

       i. That the whereabouts of the husband have not been known for a period of four years: In this case, the wife shall be entitled to obtain a decree for dissolution of her marriage. The decree will be effective only after the expiry of six months, from the date of its issue. If the husband appears within this period, either in person or through his authorized agent, the court on being satisfied that the husband is prepared to perform his conjugal duties, the decree will be set aside by the court. 

     ii. That the husband has neglected or has failed to provide for her maintenance for a period of two years: In this case, the failure may not be wilful. Even if the husband finds himself unable to do so due to his poverty, failing health, loss of work, imprisonment or any other case, the wife is entitled to a divorce.

              Even if the wife left the marital home without reasonable cause, the husband is still under an obligation to maintain her. On failing to do so for two years, the wife may claim divorce under this section. (A Yusuf Rawther v. Sowramma, AIR 1971 Ker 261).

             The Dissolution of the Muslim Marriage Act was not intended to abrogate the general law applicable to Mohammedans, and the husband cannot be said to have neglected or failed to provide maintenance for his wife unless under the general Mohammedan law he is under an obligation to maintain her (Fazal Mahmud v. Ummatur Rahim, AIR 1949 Peshawar 7).The wife’s suit for divorce was dismissed as it was found that she was neither faithful nor obedient to her husband.

     iii. That the husband has been sentenced to imprisonment for a period of seven years or upwards: In this case the wife is entitled to decree of the court dissolving her marriage, but no decree can be passed as such unless the sentence goes final [Proviso (a) to section 2(iii), Dissolution of Muslim Marriage Act, 1939].

     iv. That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years: Where a wife being away from the husband, is residing in her own family house and the husband has never made any attempt to get conjugal company and a consortium of his wife, and he also does not take any action for restitution of conjugal rights, he has, thus failed to perform his marital obligation without any reasonable cause, which is why the wife is entitled to divorce under the said section. (Veeran Sayvu Ravuthar v. Beeva thumma, AIR 2002 Ker.370). 

   v. That the husband was impotent at the time of the marriage and continues to be so: Under Section 2(v) a wife may sue her husband for dissolution of marriage on the ground of impotency. But the wife has to prove that the husband was impotent right from the first day of marriage till the day of filing the suit.

                     But the before passing the decree against the husband, the court is bound to give to the husband a duration of one year to prove his potency provided he makes application for it. On being successful to prove his potency, no decree of divorce can be passed. [Section 2(v) read with proviso(c)]

   vi. That the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease: the Act does not specify that the unsoundness must be curable or incurable. Venereal disease is a sexually transmitted disease which should be incurable, as mentioned in the Act. The disease may be of any duration. Moreover, even if the wife herself transmitted this disease to her husband she is entitled to a divorce.

vii. That she, having been given in marriage by her father or another guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided the marriage has not been consummated: The concept of Option of Puberty finds a place in this section. If the marriage was consummated before the girl attained the age of 15 years which has been presumed as the age of puberty by the court, it was no consummation and hence she did not lose the right of option to repudiate the marriage. [Gulam Sakina v. Falak Sher Allah Bakhsh, AIR Lahore 45 (1950)]

        Mere consummation is also not sufficient, without the consent of wife [Abdul Karim v. Aminabai, AIR Bom.308 (1935)].

viii. That the husband treats her with cruelty, that is to say.—

1. habitually assaults her or makes her life miserable by cruelty of conduct does not amount to physical ill-treatment, or

2. associates with women of evil repute or leads an infamous life, or

3. attempts to force her to lead an immoral life, or

4. disposes of her property or prevents her exercising her legal rights over it, or

5. obstructs her in the observance of her religious profession or practice, or

6. if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran;

ix. on any other ground which is recognised as valid for the dissolution of marriages under Muslim law;

     Provide that—

1. no decree shall be passed on the ground (iii) until the sentence has become final;

2. a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfied the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and

3.  before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.

          Thus, those are the grounds mentioned above, on the basis of which a muslim wife may seek divorce from her husband, provided some conditions are fulfilled.