Legal Advice

Muslim woman can file suit in family court for dissolution of marriage

Question: Whether civil suit for dissolving marriage of Muslim woman can be filed before District Munsif in original suit or to file original petition before family court under family court act.

Advise

Muslim woman can file suit in family court for dissolution of marriage under the provisions of Dissolution of Muslim Marriages Act, 1939. The Dissolution of Muslim Marriages Act, 1939, addresses the circumstances under which Muslim women in India are eligible to seek divorce. Its title and content are linked to The Muslim Personal Law (Shariat) Application Act, 1937, which covers matters related to marriage, succession, and inheritance within the Muslim community.

The 1939 act, officially known as Act No. 8 of 1939, serves the purpose of consolidating and clarifying the legal provisions of Muslim Law regarding divorce suits initiated by women married under Muslim Law. Within Muslim law, a wife can pursue divorce through extrajudicial or judicial means. The extrajudicial methods include Talaaq-i-tafweez and Lian, while the judicial approach is governed by the Dissolution of Muslim Marriages Act of 1939.

This act outlines the grounds for divorce and the relevant procedures for this purpose. An important aspect of this legislation is found in section 4, which explicitly states that “The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not, by itself, result in the dissolution of her marriage.”

Under this act, a woman married under Muslim Law has the right to seek a decree for the dissolution of her marriage on one or more of the following grounds:

  1. If the husband’s whereabouts have been unknown for four years.
  2. If the husband has neglected or failed to provide for her maintenance for two years.
  3. If the husband has been sentenced to imprisonment for seven years or more.
  4. If the husband has unreasonably failed to fulfill his marital obligations for three years, and this continues to be the case.
  5. If the husband was impotent at the time of marriage.
  6. If the husband has been insane for two years or is suffering from leprosy or a virulent venereal disease.
  7. If the woman was married off by her father or guardian before turning fifteen and repudiates the marriage before reaching eighteen, provided that the marriage has not been consummated.
  8. If the husband treats her with cruelty, including habitual assault, causing misery through ill-treatment, consorting with disreputable women, attempting to force her into an immoral life, interfering with her property or legal rights, obstructing her religious observance, or failing to treat her equitably if he has multiple wives as per the Quran’s instructions.
  9. On any other ground recognized as valid for dissolving marriages under Muslim Law. However, it is important to note that:
  • A decree on ground (iii) cannot be issued until the sentence becomes final.
  • A decree based on ground (i) takes effect after a waiting period of six months from the date of the decree. If the husband appears within this period and convinces the Court that he is willing to fulfill his conjugal duties, the Court will annul the decree.
  • Before granting a decree on ground (v), the Court, upon the husband’s application, may order him to satisfy the Court within one year from the date of the order that he is no longer impotent. If the husband complies within this period, no decree will be issued on this ground.

Shivendra Pratap Singh

Advocate

High Court Lucknow

Family Law

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