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Dissolution of Muslim Marriages Act, 1939 (Act VIII SC 1939)
Need for Amendment
by M. Fazlul Haq, Advocate, Varkala
Cite as : (1973) 1 SCC (Jour) 28
Under the Dissolution of Muslim Marriages Act, 1939 (Act VIII of 1939), in order that a woman married under Muslim Law may get a decree for dissolution, she should prove any one or more of the grounds mentioned in Section 2 of the Act or any other ground which is recognised as valid for dissolution of marriages under Muslim Law.
The restriction imposed by this Act on the right of women married under Muslim Law is against Qur'anic injunctions relating to dissolution of marriages and also unreasonable.
The Qur'an declares that when a split arises among spouses efforts should be made for reconciliation, by appointing one arbitrator from the people of the wife and one arbitrator from the people of the husband and permits separation consequent upon the failure of such efforts: (See verses 35, 128 and 130 of Chapter IV of Holy Qur'an). In the words of a Full Bench of the Lahore High Court (speaking through Cornelius, C.J.) in Sayeeda Khanam v. Muhammad Sami PLD 1952 (WP) Lahore 113, "when this verse (i.e. 130) is read in conjunction with the repeated injunctions in verses 35 and 128, that reconciliation and agreement is the better course, its effect may be appropriately understood to be that, having made every effort at restoring normal relations between themselves, then if still the spouses cannot agree, and they separate, their action will not merit disapproval."
The Qur'an does not contemplate that if the aggrieved party is a wife she should go to a Quazi or a court and obtain an order of dissolution on proof of her grounds therefor. The reason why such a provision has not been enunciated is obvious from the fact that a marriage may come to a breakdown for causes which one may not be able to prove before a Quazi or a court, or which, even if proved, may be discarded by a Quazi or a court as "too subtle for legal forceps". In spite of all possible efforts for reconciliation and agreement if a wife does not give up her demand for separation, there is no reason why she should be directed to undergo the ordeal of obtaining a decree of dissolution from a court of law on proof of her case. The Qur'an enjoins on Muslim males to retain their wives in kindness or to release them in kindness. If a woman wants to separate from her husband, the only reasonable thing that can be done by a third party, whether be a Quazi or a Judge, is to try for a compromise and to separate them if no compromise is possible.
Thus, the Iraqi Law of Personal Status, 1959 provides that if either of the spouses alleges injury on the part of the other, making continuance of company with the other impossible or if a split emerges between them, an order of separation may be sought for from the Quazi and that the Quazi shall appoint arbitrators from both sides for effecting reconciliation. The arbitrators shall make all efforts for a compromise and on their report where the Quazi is satisfied that either spouse has caused injury to the other or that a split between them is continuing and that no reconciliation is possible, the Quazi shall separate them.
Similar provisions have been brought forth in Morocco, Syria, Jordan, Sudan, Egypt and some other countries also: (see "Family Law Reform in the Muslim World" by Tahir Mahmood).
Those who plead for restriction on the right of woman quote very often the following traditions of the Prophet:
"(1) Whichever woman asks her husband for divorce without fault, the fragrance of paradise is unlawful for her.
(2) The most detestable of lawful things near Allah is divorce."
Thus it seems that the motive behind the plea for restriction on the right of women married under Muslim Law to obtain divorce is the pious wish that the women may not lose the chance of entering paradise by making unjust demand for divorce. But even after these and similar traditions of the Prophet and the Qur'anic injunctions on the subject are made known, if the woman demanding divorce, does not retract nobody need worry over her fate in the world hereafter and she should be allowed to separate. However, provision may be made for granting KHULA, in consideration of the whole or part of dower, if the arbitrators find that the fault is that of the wife.
The first Khula in Islam is reported in the commentary of Imam Razi on the Holy Qur'an, entitled 'Tafsir-ul-Kabir', Vol. II, as follows:
"It has been reported that this verse (i.e. verse 35 of Chapter IV) was revealed respecting the case of Jamila, daughter of Abdullah, son of Ubayy and her husband Sabet, son of Qais, son of Shemas. The facts were that she hated him with intense hatred and he loved her with intense love. She came up to the Holy Prophet and, said: 'Effect separation between me and him as I hate him. I saw him from the side of my veil, coming amongst people. He was of the shortest stature, the ugliest in face and blackest in complexion. I do not prefer infidelity (Kufr) after having accepted Islam.' Sabet addressed the Prophet as follows: 'O Prophet of Allah, order her that she should return the garden I gave her.' The Holy Prophet said to her: 'What have you to say?' She replied: 'I agree and I will give more.' Then the Holy Prophet said: 'No, only the garden.' Then the Holy Prophet said to Sabet: 'Take from her what you gave and clear her way.' Sabet did this and it was the first Khula in Islam."
What Sabet did on his wife's demand for divorce was the right thing and at the same time reasonable also and let his conduct be a guideline for all Muslim husbands placed in similar situation.
It is high time that the Act 8 of 1939 is amended in accordance with the Qur'anic injunctions, since such an amendment is highly necessary to ameliorate the lot of women married under Muslim Law, in the present time.
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