Legal Advice

Muslim woman can seek divorce if her husband is willing to live with her

Question: My wife is not willing to live with me but I love her much. She wants divorce but I am refusing. Can my wife invoke the provisions of Dissolution of Muslim Marriage Act, 1939 for getting divorce if husband is not willing to divorcer his wife?

Advise

Under the Dissolution of Muslim Marriage Act, 1939, a Muslim woman has the right to seek a divorce if she meets certain conditions. Even if the husband is not willing to divorce his wife, the wife can initiate divorce proceedings under the Act if:

  1. The husband has neglected or has failed to provide for her maintenance for a period of two years.
  2. The husband has been sentenced to imprisonment for a period of seven years or more.
  3. The husband has failed to perform his marital obligations for a period of three years without any reasonable cause.

If your wife fulfills any of these conditions, she can seek a divorce under the provisions of the Dissolution of Muslim Marriage Act, 1939, even if you are not willing to divorce her. It’s important to note that the Act provides women with the right to initiate divorce in specific circumstances to protect their rights and well-being.

The Dissolution of Muslim Marriage Act, 1939, is a legislative act in India that provides for the grounds on which a Muslim woman can seek the dissolution of her marriage. The act primarily focuses on protecting the rights of Muslim women in matters of divorce. Here are some of the salient features and provisions of the Dissolution of Muslim Marriage Act, 1939:

  1. Grounds for Divorce: The act outlines specific grounds on which a Muslim woman can seek a divorce. These grounds include the husband’s neglect or failure to provide maintenance, his imprisonment for a significant period, or his failure to perform marital obligations without reasonable cause.
  2. Maintenance Provision: The act allows the court to order the husband to provide maintenance to his wife during the course of the divorce proceedings.
  3. Jurisdiction: The wife can file a petition for divorce in the court that has territorial jurisdiction over the area where she resides.
  4. Rights of Women: The act is primarily aimed at protecting the rights and interests of Muslim women, ensuring that they have legal recourse in situations where they face difficulties in their marriage.
  5. No Absolute Right: The act does not grant an absolute right to divorce for the wife but provides specific grounds and procedures for seeking a divorce.
  6. Codification of Muslim Law: The act represents an attempt to codify certain aspects of Muslim personal law related to divorce, providing a legal framework for divorce among Muslims in India.
  7. Remedies for Wife: The act provides remedies for Muslim wives who are facing hardship within their marriages and offers them a legal path to seek divorce and financial support.
  8. Dissolution of Marriage: Upon satisfaction of the specified conditions and grounds, the court may grant a decree of dissolution of the marriage, thereby ending the marital relationship.

In India, as in many other countries, gender bias can be observed in various aspects of divorce proceedings, including those involving Muslims. This bias can be attributed to a combination of social, cultural, and legal factors, and it may affect both men and women differently. Here are some key points to consider:

  1. Triple Talaq: One of the most significant issues in the context of gender bias in Muslim divorces was the practice of “triple talaq” (instant divorce) where a husband could divorce his wife by uttering “talaq” thrice. This practice was widely criticized for its potential misuse and harm to women. The Indian government passed a law in 2019 that criminalized the practice of triple talaq, aiming to protect Muslim women from arbitrary divorces.
  2. Maintenance and Alimony: In some cases, there can be disparities in the amount of maintenance or alimony awarded to women after divorce. While the law provides for maintenance, women may face challenges in enforcing these rights.
  3. Custody of Children: The issue of custody of children after divorce can also exhibit gender bias. In many cases, the mother is granted custody, but the father has a role in the child’s upbringing as well.
  4. Legal Procedures and Delay: Delays and complexities in the legal system can disproportionately affect women, making it harder for them to access their rights. This can be especially burdensome for women who may not be as familiar with legal processes.
  5. Social and Family Pressure: Muslim women may face social and familial pressure to reconcile with their husbands or to not pursue divorce, even in situations of hardship.

Shivendra Pratap Singh

Advocate

High Court Lucknow