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This article was written by Sanya Rastogi, a student of National Law University , Odisha.

A. Introduction

India is the land of multiple religions and adheres to multi-ethnic society. But the distinctive feature of India is that such diverse cultures sustain with unity. Marriage is considered as a sacrosanct bond and no personal law envisages to break the unification of the two. So as to withstand and endorse a healthy relationship among the husband and wife it is quintessential that the unification of the two must be firm. The matrimonial relationships in India are regulated by the personal laws of the religions respectively. Muslim personal law seeks to propagate that the marriage contract must sustain and the breach of the marriage contract must be abstained from. Marriages are not contracted so as to dissolve in near future but in some ill-fated cases the marriage dissolves and thus the contract is broken. Marriage will be dissolved if

1. the husband/wife dies (act of god)
2. by divorce (by virtue of action of parties)

If the husband or wife dies during the continuation of marriage period the marriage is immediately dissolved under all the personal laws. Mere non-survival of the husband/wife is a sufficient fact to destruct the bond of marriage. In the other case if the marriage ends by virtue of action of the parties then such dissolution is termed as divorce. Islam envisages both type of dissolution i.e. through a decree passed by the court of law and by the action of the parties. Divorce is construed as an exemption to marriage under Muslim law. Even Quran also endorses that the concept of divorce is the worst among all the things which are permitted.[1] Prophet also cautioned the followers to abstain from resorting to it.[2] But sometimes breaking this bond becomes an inevitable change which needs to be brought keeping in mind the contemporary and future aspects of the two. In cases where the parties are unable to continue this sacrosanct bond of relationship with mutual feeling of love, care and affection the time calls for the segregation of the two for their benefit instead of dawning upon them the aura of sufferings and hatred.

B. Status of Women Under muslim Law and Other Personal Laws

1.Under Hindu Law

Initially during the pre-enactment time period of the Hindu Marriage Act 1955, the concept of divorce was not known to the Hindus.[3] They believed in the marriage as a sacrament, an eternal holy union. By the increase in the literacy level of the country and the advent of the British rule and the changes in the social scenario the need was felt. Hence this provision was then inculcated in the Hindu Marriage Act 1955.

There are three theories on which the provisions of divorce are enunciated in the Hindu Marriage Act 1955, namely-

1. Fault theory: It necessitates the requirement of committing a fault by either of the parties. Under this theory the right to divorce rests only with the innocent party.
2. Mutual Consent Theory: this theory lays its foundation upon the principle that if the parties marry according to their free consent so they should have the right to renounce the ties of marriage.
3. Irretrievable Breakdown of Marriage: according to this theory if a marriage has reached a stage where there have been such failure in the ties of marriage that their remains no probability of restituting the bond again then such marriages shall be dissolved by abiding the principle of minimum bitterness and maximum fairness without evolving humiliation or distress towards any of the parties.

Section 13 of the Hindu Marriage Act envisages divorces and contains the provisions awarding rights to the husband and the wife pertaining to divorce. Under section 13(1) the right is with both the husband to file a petition for divorce ensuing the grounds for divorce as mentioned under the subsection. The grounds mentioned under Section 13(1) are: Adultery, Cruelty, Desertion, Conversion, mental disorder, suffering from leprosy or venereal disease, renunciation of world, no cohabitation for a period of one year, no restitution of conjugal rights and if he/she has not been heard since past seven years.[4]

Furthermore an interesting feature of Hindu Law is that there are certain grounds on which only a wife is entitled to dissolution through a decree of divorce. They are: Second marriage during the lifetime of previous wife, husband has been found guilty of sodomy or rape, when marriage was solemnized before she could have attained the age of fifteen years.

Hindu law gives the women an upper hand with respect to the right to divorce. There are some provisions under which both the husband and the wife have the equal right to divorce[5] and there are some provisions for women which enshrines the grounds under which exclusive right is provided to the wife only.[6]

2.Under Christian Law

Christian community in India comprises of three different categories namely Roman Catholics, Protestant followers of South Indian Church (CSI) and North Indian Church (CNI), and the Syrian Christians who follow the Greek Orthodox Churches. In these three categories it is only the Roman Catholic Church which deliberates marriage to be sacrosanct bond and concurs with the concept of dissolution of marriage. The other two categories also did not have any such objections with the concept of divorce. Then in the 12^th century the Canon law was introduced by the Roman Catholic Church which regulated marriages and divorces. Then the Napolean Code converted the status of marriage from a sacrosanct bond to contracts which were in turn dissoluble. Then the English Matrimonial Clauses Act, 1857 was passed which was then amended by the Matrimonial Act 1923 and provided for the equal status of men and wife. The grounds so deciphered under this act were then incorporated into India by way of Indian Divorce Act 1869.

Section 10 of the Act[7] encircles the grounds through which a Christian wife can file for the dissolving her marriage. But the grounds mentioned itself are discriminatory. A Christian male can file for dissolution on the grounds of commitment of adultery by the wife. But in the case of right of women to end up the ties of marriage on the grounds of adultery simpliciter is not allowed. It must be accompanied by some other matrimonial ground as well.[8] A Christian wife can seek divorce on the grounds of conversion, 2^nd marriage, adultery accompanied by marriage or bigamy or cruelty or desertion, rape, bestiality or sodomy. Furthermore the courts have added the dissolution of marriage on grounds of irretrievable breakdown of marriage and mutual consent.[9] Then the courts also struck down the arbitrary and unconstitutional portion of the section 10 and the beneficial portion of the act was retained.[10] Then the requirement of the accompanying adultery with any other ground was then struck off by the courts. The dissolution was permitted on sole grounds of desertion or cruelty without proving the involvement of adultery in it.

Christian law follows the principle of ‘what god has united let no man divide’. But very often due to irreconcilable differences and circumstances the bonds of marriage have to be severed. Now section 10 provided four grounds which are now equally available to both males and females i.e. adultery, cruelty, conversion and desertion. Furthermore the women now has exclusive rights in case the husband commits rape or sodomy. The other grounds for the dissolution of marriage which are incorporated under the act are leprosy, incurable unsound mind, veneral disease, not heard since last seven years and the wilful refusal to consummate the marriage.

So under Christian law also now the women are provided equal status with men. The law now is justified and provides women equal footing.

3. Under Muslim Law

Muslim law can be considered as a commendable structure of jurisprudence which sought for many revolutionary concepts that were not understood by other personal laws during that period. For instance it provided for the concept of inheritance for the female heirs. In addition it also provided for divorce by virtue of mutual consent, the consideration of which in other practices came after a long time. But the position which it accrued to women was of great unequal status. The practice of polygamy was widely prevalent and divorce was resorted to more by virtue of habit rather than being a necessity. A women was never free as she was given in marriage even without her consent.

In the past the power which was being conferred with the husband to claim divorce was unlimited. They could do that with or without any reason. They would act arbitrarily, call the wives as adulterer and would easily escape from any legal responsibility such as maintenance.

Pre-Islamic Arabs provided for 4 forms of divorce namely Ila, Talaq, Khula and Zihar. But by the advent of Islam the Prophet did not approve of such customs. He considered Talaq to be the most detestable thing. Fyzee iterates that the biggest defect in the Islamic system is the unfettered power of divorce being vested in the hands of a Muslim husband.[11]

The law as prescribed under the Muslim law which relates to divorce does not reflect the true Muslim law.[12] Under the law divorce can be accrued both statutorily and non-statutorily. In cases where the divorce has been obtained judicially according to the provisions as mentioned in the Dissolution of Muslim Marriage Act, 1939 is known as the statutory form. It is the least resorted method and is very cumbersome. The common practice across the country is that of the non-statutory divorce. In this case the parties by their own terminate their marriage by exercising the rights vested with the husband.

Since the Muslim marriage is in the form of a contract it can be terminated at any time. Any muslim husband of sound mind can do so whenever he desires without citing any reason for the same. The presence of wife or notice is immaterial.  The most common form of Talaq among Muslim community is the Talaq-al-biddat which refers to the divorce of wrongs innovation. Three pronouncements in one sitting would allow instantaneous Talaq. This power can also be delegated to the wife by the husband. Muslim women can also seek relief under the heads of Khula and Mubaraat. If the divorce is by mutual consent then the muslim law requires the wife to pay compensation to her husband.

The muslim law has been very unfair as regards to the rights to women. As we can see in other personal laws the women have been given proper rights and in some cases even more than men. But in the case of Muslim personal laws the right to divorce of Muslim women has still not been given proper adherence. The women still suffer from unequal status in the society. They have very less rights as compared to that of men. The unfettered powers provided to the males under the Muslim personal law makes it very difficult for women to sever themselves from the ties of marriage.

C. Divorce under Muslim personal law

1.      Khula

Whenever a wife initiates the divorce it converges to be known as Talaq-i-tafwjd or Khula. Each muslim wife is entitled to the right of Khula.

“The wife’s right to Khula is parallel to men’s right of Talaq like the latter the former too is unconditional”.[13]

If the subject matter in a case is Khula then the court is not duty bound to check whether she wants to dissolve the marriage owing to some genuine reason or merely to marry another person. For Khula if the wife thinks that it is impossible for the marriage to continue then she can easily tell the husband that she needs divorce. If the husband does not agree then the wife can directly approach the court and get the decree of Khula. But the wife might end up losing the right of dower.

This law is liberal and pro woman. But the concept of Khula was misunderstood by the Privy Council.[14] But in the case of Khurshid Bibi v. Mohd. Amin[15] the Pakistan Supreme Court has properly adhered the law. Now the courts would focus on checking what would be the best course of action and then the Indian Court shall pass a decree under the clause residuary 2(ix) of the Dissolution of Muslim Marriage Act 1939.

The etymological meaning of the word Khula is ‘to draw’ or ‘to dig’. In law it denotes the agreement concluded between a muslim couple for dissolving or severing the ties of marital bond in return for the monetary compensation being presented by the wife to the husband. But the husband cannot reject/cancel Khula once he has consented. Not even if the compensation has not been paid.

2.                  Mubara’at

Under Muslim law when the marriage is dissolved by virtue of mutual consent of the parties to a marriage then it can be termed as Mubara’at. In Islamic system the spouses can walk out of the marital status extra-judicially by mutually agreeing upon the terms and thus dissolve their marriage. The word Mubara’at etymologically means to free one another mutually   .

The distinctive feature of Mubara’at is that both the parties wish to dissolve the marriage. Here the process can be initiated by any one of the spouse. Here both intend of getting rid of each other.

Under Sunni law as and when the parties end up marriage by way of Mubara’at all the rights and obligations any mutual right all come to an end. Whereas in Shia law it is strict. It necessitates that the spouses must bonafidely feel the marriage to be cumbersome or irksome. There has been no specific form in Sunni law but Shia law insists on adhering to the form propogated.

Under Shia law the word Mubara’at must be followed by Talaq or else it would not result in divorce. It is also essential that the pronouncement should be done in Arabic exception being the inability of the party to speak Arabic words. There must be clear expression of the intention to dissolve the marriage. Mubara’at is considered as irrevocabl  under both the Shia and Sunni law. Wife needs to undergo the period of iddat and in both the Mubara’at as well as in Khula the court’s intervention is not required.

3. Delegated Divorce

Delegated divorce is also referred to as the Talaq-i-tafweez, where tafweez refers to delegating something. Muslim personal law has given the power to a Muslim husband to delegate the power of pronouncement of talaq to his wife. Also he has the power to delegate this power to someone else as well. But delegation of power to pronounce talaq does not mean that he loses his right to pronounce talaq to his wife. He will still be entitled to pronounce talaq. He has the power to entitle any other person to do the same. Power to repudiate the marriage contract can be delegated by the husband to the wife itself or any other person who might deem fit to him.[16]

Only a husband a) who is of sound mind and b) age of puberty has been attained by him have the capacity to delegate the right of pronouncement of talaq to his wife. But if the husband became insane after the delegation of the power of pronouncement of the talaq, then such delegation will still considered to be valid. However the condition of attainment of age of puberty is not important for the wife or the other person who has received the delegated power of pronouncement of talaq by the husband.

The right of divorce given to the Muslim husbands is unrestricted i.e. they can give divorce to their wives whenever they like. Since this is an absolute right, therefore he can delegate it to any person, even his own wife as well.[17] Thus delegated divorce means divorce given by such person to whom the power has been delegated to act as an agent of the husband. The effect of the delegated divorce is equivalent as if the divorce was given by the husband himself and the marriage stands dissolved.[18]

The power to delegate the right of divorce can be done absolutely or conditionally and it might be temporary or permanent as well. If the delegation is permanent it is considered to be revocable, on the other hand this is not the case with the temporary delegation of power.[19] Further the purpose as to why the delegation have been made should be mentioned clearly and it should have been made particularly favouring the person who has been delegated the power. That is why it has been said in reference to the power of delegating divorce to be one of the most potent weapons that has been given in the hands of Muslim wife so that she can obtain freedom without the court’s intervention.

Such an agreement through which the power is given to the wife is considered to be tafweez and it is always binding on the husband. Even though such a talaq that has been made by the wife is through delegation, still the effect of such talaq is same as that of the talaq by the husband himself.[20] Declaration from the court of law is not required in such cases. Such power given to the wife is sufficient in itself.

These agreements are based on time stipulation. Such stipulation which confers authority on the wife so that she can exercise her right to divorce is made either at or after the time of marriage. In case the stipulation is not there in the contract, then such delegated powers are exercised in that meeting only in which she gets to know about the fact that she has been delegated the power.[21]

Further there are three ways in which power to delegate the right of pronouncement of talaq can be exercised.

Ikhtiyar (choice of option)

Here the husband tells wife to ‘choose’ and this implies the delegation of power. The giving of choice here refers to giving the choice to wife so as to severe the matrimonial ties. This delegating of power to the wife might be for different period of time like just for a day or a few days or for all the future times. Conditions might be put on such a delegation like the husband saying to his wife that you have the power to divorce me in case you don’t get your maintenance on time.[22] Whatever the conditions be, the most important thing to keep in mind is that wife should be aware that such a power has been delegated to her i.e. it must be within her knowledge.

Amar-ba-yad

Literal meaning of this word is business in hand. Here it is at the liberty of wife to divorce.[23] Example of exercising of such power might be that a husband tells his wife that “your business is in your hand”. Such a statement will imply that he is giving his wife liberty to divorce him.

Musheeat

In the above two forms the power to pronounce talaq is given impliedly and becomes effective as soon as it is proved that talaq was intended. But this is the express form of delegation of power to pronounce talaq. It will become effective even if the talaq was not intended. The use of term ‘talaq’ is considered express form and thus it will convert all kinds of tafweez into musheeat.[24]

Delegating such power to pronounce talaq can be unconditional as well as it can be subjected to certain conditions as well or to a contingency also. If the delegation was conditional then in such cases the power to pronounce talaq by the authorised person can be exercised only if that condition has been fulfilled.[25] But these conditions binding the agreement shall be reasonable in nature and should not violate the principles of Islam.[26] If the right to pronounce has been given to wife then wife will exercise that right to pronounce talaq if the husband has not fulfilled that condition or the event that was supposed to take place for pronouncing talaq has taken place. In such situations the divorce is considered to have taken place as if the husband himself has pronounced the talaq. Example, a husband might ask her wife to divorce him if he behaves badly with her or in case he has refused to pay her prompt dower, then wife can divorce him using that delegated right.[27] But after all this, husband does not lose his right to pronounce talaq to his wife. His right will remain same.

4.  Judicial divorce: (Faskh)

Aside from the divorce which might exude from the either party without the mediation of a court or whatever other authority, there is one more way under the muslim law for the dissolution, which is decree called “Furkat” under the same law, whose literal meaning is Separation. Whereas, Faskh’s meaning is annulment. Bassically it is done by the “kazi” if the wife applies for it. Section 2 of the 1939 Act gives this power to the kazi. According to Abdul Rahim:

 “If a decree of separation be for a cause imputable to the husband, it has generally speaking, the effect of a talak, if the decree for separation be for a cause imputable to the wife, then it will have the effect of annulment of marriage.”[28]

Accordind to the Quranic version of the same:

“If there is a chance of breaking amongst them twain, assign (two) arbiters, one from each family; if yet they want peace, Allah can help them do so: as Allah knows everything, and is familiar with everything”[29]

According to Ameer Ali ‘at the point when the husband is blameworthy of behavior which makes the wedding life grievous to the wife, when he fails to perform the obligations which the law forces on him as commitments coming about because of marriage or when he neglects to satisfy the engagements willfully went into at the season of the marital contract, she has the privilege of inclining toward a dissension under the watchful eye of the Kazi or judge and requesting a separation from the court’.[30] In the expression of Prophet Mohammad the authority of Kazi or judge to give away a divorce is in the following verse: “If a woman be prejudiced by a marriage, let it be broken off’.[31]

Before passing of the act of 1939, a Muslim woman could apply for dissolution of marriage on three grounds:

1. impotency of the husband;
2. lian (false charge of adultery),

• repudiation of marriage by the wife.

Be that as it may, under the Shafii and Maliki laws, a wife was qualified for getting a pronouncement from the court for disintegration of her marriage on the grounds of spouse’s inability to look after her, departure, remorselessness and so forth. In this way there were clashing procurements in the different Schools of Muslim law in appreciation of separation by a wife through legal mediation.[32]

The Dissolution of Muslim Marriages Act, 1939 rolled out progressive improvements in the current law and gave six more grounds on which the wife might apply to the court for the disintegration of marriage. Along these lines, under the demonstration, 9 grounds have been given under which a Muslim wife might acquire an announcement for disintegration of her marriage

Before the end of the demonstration of 1939, the established Hanafi law of separation was bringing on difficulties as it comprised no procurement whereby a Hanafi wife could look for separation on such grounds as vanishing of the spouse, his long detainment, his disregard of wedding commitments, and so forth., finding no other approach to dispose of undesired conjugal bonds, numerous Muslim ladies felt constrained by their circumstances to disavow their confidence. Before 1939, the court, taking after the Hanafi understanding of the law, had denied to Muslim ladies, the privileges of disintegration accessible to them under the Shariat.

After a lot of open unsettling, Qazi Muhammad Ahmad Kazmi presented a bill in the focal council on seventeenth April 1936. At last, the bill was gone by the Assembly with suitable changes and got to be law on seventeenth March 1939, and since the time that, it has been hailed as a standout amongst the most dynamic authorizations went by the council inside of late yeas. It accomplished two items: it restored to Muslim wives, an essential right concurred to them by the Shariat, and it treated all Muslims the same.[33]

 The statement of the Reasons and Objects of this Act indicates the circumstances in which this Act was passed:

“There is no provision in the Hanafi code of Muslim law enabling a married Muslim woman to obtain a decree from the courts dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or persistently ill-treating her or 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 I which the application of Hanafi law causes hardship, it is permissible to apply the provision of the Maliki, Shafii or Hanbali law.

Following up on this standard, the ulema have issued Fatawas such that in cases specified in Clause 3, Pat An of this Bill, a wedded Muslim lady might acquire an announcement dissolving her marriage. A clear composition this guideline can be found in the book called Heelat-un-Najeza distributed by Maulana Ashraf Ali Sahib (Thanvi) who has made a thorough investigation of the procurements of Maliki law which the situation being what it is winning in India might be connected to such cases, this has been affirmed by a substantial number of ulema who put their seats of endorsement on the book.

As the courts are certain to falter to apply the Maliki law on account of a Muslim lady, enactment perceiving and authorizing the aforementioned standard is called for so as to calm the sufferings of endless Muslim ladies”. In perspective of the above reasons, The Dissolution of Muslim Marriages Act, 1939 was passed. The Dissolution of Muslim Marriages Act, 1939 contains a few deficiency grounds. The pre-Act shortcoming grounds too have been spared. Area 2 contains 8 issue grounds. Proviso (ix) of segment 2 spares the current grounds on which, wife might sue for separation. The wife might get an announcement of separation on any of the grounds determined in the Act by documenting a suit in the most reduced common court. The advantages of this Section might be given to a wife whether her marriage was solemnized before or after the initiation of the Act. The procurements of Section 2 might be given review impact.[34]

The Latest Grounds of divorce are given under Section 2 of the Dissolution of Muslim Marriage Act, 1939.

Conclusion

We find that the hypothesis was correct. The muslim women suffer a lot due to the arbitrary use of unfettered power by their husbands. The situation is not so in comparison to other personal laws. In Hindu law and Christian law the women are now been provided equal footing and in addition to this their power is greater in some situations as compared to that of husbands.

[1] P.C. Pant, Law of Marriage, Divorce and other Matrimonial Disputes 189 (3^rd Ed., Orient Publishing Co.).

[2] Id.

[3] Pant, Id at 1.

[4] Hindu Marriage Act, S. 13(1).

[5] Id.

[6] Hindu Marriage Act, S. 13(2).

[7] Indian Divorce Act 1869.

[8] Indian Divorce Act 1869.

[9] Jorden Deindeh v Chopra,  AIR 1985 SC 935

[10] Mary Sonia Zachariah v. Union of India & Ors, II (1995) DMC 27, Pragati Varghese vs. Cyril George Varghese, AIR 1997 Bom 349.

[11] Sheikh Fazher v. Aisa, I.L.R. (1929) 8 Pat. 690.

[12] Tahir Mohmood, The Muslim Law in India 95 (2^nd Ed., Law Book Co., 1982).

[13] A. A. Maududi, Haquq al-Zawjayan 10 (4^th ed., 1964).

[14] Tahir Mohd., Personal laws in crisis 78 (1986).

[15] PLD 1967 SC 97

[16] A.A.A. Fyzee, Agreement for Dissolution of Marriage, Outlines of Muhammadan Law 158, 159 (4^th Ed.,Oxford University Press, 1993).

[17] Faiz Badruddin Tyabji, Muslim Law: The Personal Law of Muslims in India and Pakistan 157 (1968).

[18] 2 Imam Fakhruddin Hassan Bin Mansur al-Uzjandi al Farghani, Fatawa-i-Kazee Khan 258 (Law Publishing Co., 1977).

[19] Muhammad Ala-ud-Din Haskafi, Durr-ul-Mukhtar 181 (1913 Ed., Law Publishing Co.).

[20] Seymour Vesey-Fitzgerald, Muhammadan Law: An Abridgement According to its Various Schools 77 (Oxford University Press, 1931).

[21] Supra note 16.

[22] Roland Knyvet Wilson, An Introduction to the Study of Anglo-Muhammadan Law138-139.

[23] Id.

[24] Faiz Badruddin Tyabji, Muslim Law: The Personal Law of Muslims in India and Pakistan 62 (1968).

[25] Supra note 18

[26] Muhammad Ala-ud-Din Haskafi, Durr-ul-Mukhtar 11 (1913 Ed., Law Publishing Co., 1913).

[27] Id at 172.

[28]Abdul Rahim, 339; DR. Nishi Purohit – The Principles of Mohammedan law, 211

(2^nd Ed. Orient Publishing Company,1998).

[29] The Holy Quran, translated by Abdullah Yusuf Ali (Ed. 2004 , Ayman Publications).

[30] Ammer Ali, Dr. Paras Diwan – Muslim Law in Modern India 95 (9^th Ed., Allahabad Law Agency).

[31] Id at 519.

[32] Dr. R.K. Sinha, Muslim Law 96 (5^th Ed., Central Law Agency, 2003).

[33] Asaf A.A.Fyzee, Outlines of Muhammadan Law169 (9^th Ed., Oxford University Press 2005).

[34] Dr. R.K. Sinha, Muslim Law 98 (5^th Ed., Central Law Agency, 2003).