In India, divorce laws are subject to the personal religious laws of different communities. These laws govern marriage, divorce, and related matters within specific religious groups. For example, Hindu marriages and divorces are primarily governed by the Hindu Marriage Act, 1955, while Christians follow the Indian Divorce Act, 1869. Similarly, Muslims adhere to principles derived from the Quran and Hadith, interpreted differently by various schools of Islamic jurisprudence. The Dissolution of Muslim Marriages Act, 1939, provides a legal framework for Muslim women seeking divorce. Under the Hanafi Code of Muslim law, specific provisions for women seeking divorce are not present. However, Hanafi jurists have permitted the application of Maliki, Shafi'i, or Hanbali Law in cases where complexities arise under Hanafi law. The Dissolution of Muslim Marriage Act, 1939, is rooted in the Maliki School of Law, prioritizing the protection of Muslim women's rights in seeking divorce. Before the enactment of this Act, women could seek divorce through judicial remedies as per Section 5 of the Muslim Personal Law (Shariat) Application Act, 1937. This mechanism, known as "Faskh," allowed dissolution on grounds recognized under Muslim law such as cruelty, discretion, and incompetence. However, the practice of "Faskh" was abolished by the Dissolution of Muslim Marriage Act, 1939. The Dissolution of Muslim Marriages Act, 1939, provides legal provisions for Muslim women to petition for divorce. Section 2 specifies who may present such petitions, while other sections enumerate grounds for divorce, including cruelty, desertion, and impotence, in accordance with Islamic law."
Grounds for divorce under the Dissolution of Muslim Marriage Act, 1939
That the whereabouts of the husband have been unknown for a period of four years.**
That the husband has neglected or has failed to provide for a maintenance for a period of two years.
That the husband has been sentenced to imprisonment for a period of seven years or upwards.**
That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years
That husband was impotent at the time of marriage, and continuous to be so**
That husband has been insane for a period of two years or suffering from a virulent venereal diseases.
That she having been given in marriage by her father or other guardian. Before she attend the age of 15 years, repudiated the marriage before attending the age of 18 years, provided that the marriage has not been consumed.
That the husband treats her with cruelty that is is to say 1) Habitually assault makes her life miserable by cruelty of conduct, even if the conduct does not amount of 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 4) Disposal of a property of prevents a legal rights over it 5) Obstructs her in the observance of religious profession or practice
Or on any other grounds which is recognised as valid for the resolution of marriage under Muslim law provided that Ground (3) Clause: No decree can be issued based on Ground (3) until the sentence has become final. Ground (1) Clause: A decree passed on Ground (1) will not become effective immediately; instead, there will be a delay of six months from the date of the decree. During this period, if the husband appears either in person or through an authorized agent and satisfies the court that he is ready to fulfill his conjugal duties, the court will revoke the decree. Ground (5) Clause: Before the court can issue a decree based on Ground (v), if requested by the husband, the court shall issue an order. This order will require the husband to demonstrate to the court within one year from the date of such order that he is no longer impotent. If the husband successfully satisfies the court within this stipulated period, no decree shall be issued on the aforementioned ground. Section 3: Noticed to be served on heirs of the husband, when the husband whereabouts are not know for Second 2 Ground (1) The names and address of person who would have been the heirs of the husband under Muslim law if he had died on the date of the filing of the plaint, shall be stated in the plaint Notice of the suit shall be served on such persons and Such persons shall have the right to be heard in the suit.
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Furthermore, it's imperative to point out that Section 4 of the Act provides that the conversion of a woman to another religion or the repudiation of the Muslim religion won't automatically dissolve the marriage. However, if she reconverts to her former faith, the marriage will be dissolved automatically in similar cases. It's important to note that if the husband renounces the Muslim religion or converts to another religion, the marriage automatically stands dissolved.
To seek relief of divorce under the 1939 Act, a civil suit will be filed by the complainant, where the burden of evidence will remain on the woman to prove the grounds for relief of divorce. The court, upon being satisfied, will pass a decree of dissolution of marriage in the given case. It's also important to note that the woman can seek relief through a family court if it falls within the jurisdiction of a family court.
Extra Judicial Grounds:
Khula: Khula refers to divorce initiated by the wife. It involves the wife seeking divorce from her husband, often by offering a financial settlement or relinquishing her right to the mahr (dower). The husband has the right to accept or refuse the khula.
Mubarat: Mubarat is a mutual divorce initiated by both spouses by mutual consent. Unlike khula, where the wife seeks divorce from the husband, in mubarat, both parties agree to end the marriage.
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