Understanding Faskh : Judicial Divorce Under Muslim Law

Introduction

Modern Muslim law does not recognize judicial divorce at the instance of the husband, as it grants him an absolute and unilateral power in marriage matters. The annulment of marriage initiated by the wife through judicial decree is termed as “faskh.” Under Mohammedan law, a wife does not have an absolute right to obtain a divorce; rather, her right to dissolve the marriage is limited to specific conditions and circumstances.

The Dissolution of Muslim Marriages Act, 1939, was enacted to consolidate and clarify the provisions of Muslim law relating to women’s right to sue for dissolution of marriage under Muslim law. It also aimed to remove any ambiguity regarding the effect of a woman’s renunciation of Islam on her marriage. The main purpose of the Act was to align the law applied in this subcontinent with authoritative Islamic texts.

Historical Context

Before the Act’s passage, Muslim women in British courts were denied the right to dissolve their marriages based on the provisions available under the Shariat Act of 1937, which included Ila and Zihar. Prior to 1939, a wife could only seek dissolution on limited grounds such as:

• Impotence of the husband
• Lian (false accusation of adultery)
• Option of puberty

This Act is applicable to all schools of Muslim law and extends to the entirety of India, except the state of Jammu and Kashmir (where the J&K State Dissolution of Muslim Marriage Act, 1942 governs, though it is largely similar to the 1939 Act).

Grounds for Decree of Dissolution of Marriage

According to Section 2[1] of the Act, a woman married under Muslim law is entitled to obtain a decree for the dissolution of her marriage on one or more of the following grounds:

1. Husband’s Absence for Four Years

According to Section 2 (i) of the Dissolution of Muslim Marriages Act, 1939[2], if the whereabouts of the husband have been unknown for a period of four years, the wife can obtain a dissolution decree. This decree will take effect six months from the date of passing unless the husband reappears within that period, either in person or through an authorized agent, and demonstrates his willingness to resume his marital duties. In such a case, the court may set aside the decree.

2. Failure to Provide Maintenance for Two Years

As provided under Section 2 (ii) of the Act[3], if the husband has neglected or failed to provide for his wife’s maintenance for two years, she can seek a decree of dissolution. Notably, the husband cannot offer poverty, ill health, or unemployment as a defense against this claim.

3. Seven Years’ Imprisonment of Husband

As per under Section 2 (iii) of the Act[4], if the husband has been sentenced to imprisonment for seven years or more, the wife is entitled to a divorce, provided the sentence has become final after any appeals. The decree will not be affected if the sentence is later reduced or remitted.

4. Failure to Perform Marital Obligations

According to under Section 2 (iv) of the Act[5], if the husband has failed, without any reasonable cause, to perform his marital obligations for a period of three years, the wife may obtain a decree for the dissolution of her marriage.

5. Impotency of Husband

As provided under Section 2 (v) of the Act[6], if the husband was impotent at the time of the marriage and remains so, the wife may seek a divorce. However, if the husband, within one year from the date of the order, proves that he is no longer impotent, the court cannot pass a decree on this ground.

6. Insanity, Leprosy, or Venereal Disease

According to under Section 2 (vi) of the Act[7], if the husband has been insane for two years or suffers from leprosy or a virulent venereal disease, the wife may seek a divorce on these grounds. Notably, leprosy or venereal disease need not have persisted for the full two years to qualify for dissolution; even recent cases may suffice.

7. Repudiation of Marriage by Wife (Option of Puberty)

As per under Section 2 (vii) of the Act[8], a woman who was married by her father or guardian before the age of 15 has the right to repudiate the marriage upon attaining the age of 18, provided the marriage has not been consummated. She is entitled to a decree of divorce on these grounds.

8. Cruelty

Cruelty as defined in the Act under Section 2 (viii)[9] includes:

• Habitual physical or mental abuse, including dowry demands.
• Associating with women of ill repute or leading an infamous life, such as living in adultery with prostitutes.
• Forcing the wife into immoral acts, as in Dawn v. Handerson[10], where compelling a wife to have immoral relations was deemed extreme cruelty. In this case the court emphasized that forcing a chaste wife to submit to the advances of others constitutes extreme cruelty. There is no greater form of cruelty than compelling a woman to lead an immoral life. Outraging a woman’s modesty also falls under the definition of cruelty.
• Disposing of the wife’s property or obstructing her from exercising her legal rights over it.
• Preventing the wife from practicing her religion. This applies even to non-Muslim wives.
• Failing to treat the wife equitably when the husband has more than one wife. For example, in Umatal-Hafiz v. Talib Hussain[11], failing to provide for one of the two wives was deemed cruel. In Itwari v Asghari[12], the court observed that second marriage of the husband raises a presumption of cruelty to the first wife.

9. Other Grounds

This provision covers other valid grounds under Muslim law, such as Ila, Zihar, Khula, Mubara’at, Talak-i-tafweez, and Lian.

Conclusion

The Dissolution of Muslim Marriages Act, 1939, plays a vital role in empowering Muslim women by granting them clear legal grounds to seek divorce under specific circumstances. It provides women with recourse to dissolve their marriages based on grounds such as the absence, neglect, imprisonment, impotency, cruelty, or illness of the husband.

The legal effects of dissolution, such as the cessation of lawful matrimonial intercourse, limitations on remarriage, obligations related to dower and maintenance, and changes to inheritance rights—underscore the practical consequences for both spouses. While remarriage may be possible immediately if the marriage was not consummated, the requirement of observing the iddat period before remarriage in consummated marriages reflects a key aspect of Islamic law. Additionally, the entitlement to dower and maintenance during iddat ensures financial support for the wife during this transitional period.

By codifying these provisions and expanding the grounds upon which a divorce can be sought, the Act modernized the application of Muslim personal law in India, providing clarity and protection to women in a legal framework that balances religious principles with social justice.

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[1] The Dissolution of Muslim Marriages Act, 1939, s. 2.

[2] Id. at s. 2(i).

[3] Id. at s. 2(ii).

[4] Id. at s. 2(iii).

[5] Id. at s. 2(iv).

[6] Id. at s. 2(v).

[7] Id. at s. 2(vi).

[8] Id. at s. 2(vii).

[9] Id. at s. 2(viii).

[10] AIR 1970 Mad 104.

[11] AIR 1945 Lah. 56.

[12] AIR 1960 All. 684.