Section 2 of the Dissolution of Muslim Marriages Act, 1939, outlines the various grounds for a woman married under Muslim law to seek a decree to dissolve her marriage.
Grounds for Decree
Section 2 of the Dissolution of Muslim Marriages Act specifies the following grounds on which a woman can seek the dissolution of her marriage:
- Absence of husband for four years: If the whereabouts of the husband have not been known for a period of four years.
- Neglect of maintenance: If the husband has neglected or failed to provide maintenance for the wife for a period of two years.
- Husband’s imprisonment: If the husband has been sentenced to imprisonment for seven years or more.
- Failure to perform marital obligations: If the husband has failed to perform his marital obligations without reasonable cause for a period of three years.
- Husband’s impotence: If the husband was impotent at the time of marriage and continues to be so.
- Husband’s insanity or diseases: If the husband has been insane for two years or suffers from leprosy or a virulent venereal disease.
- Repudiation of child marriage: If the wife was given in marriage before the age of fifteen and repudiated the marriage before turning eighteen, provided that the marriage was not consummated.
- Cruelty by the husband: If the husband habitually assaults the wife, associates with women of ill repute, forces her into immoral activities, disposes of her property, obstructs her religious practices, or mistreats her when having multiple wives.
- Any other valid ground: Any other ground recognized as valid for dissolution under Muslim law.
Note: Provisions and Conditions:
- The section contains provisions regarding passing decrees based on these grounds, including the requirement that a decree under ground 3 (Husband’s imprisonment) can only be passed when the sentence has become final.
- It also mandates a waiting period of six months for a decree based on ground 1 (Absence of husband for four years). It provides an opportunity for reconciliation if the husband appears willing to fulfil his marital duties.
- Ground 5 (Husband’s impotence), related to impotence, requires the husband to prove his ability to perform within one year if he wishes to avoid a decree on that ground.
Related: 13 Ways of Divorce in Muslims
Protection of Women’s Rights
Section 2 of the Dissolution of Muslim Marriages Act aims to protect Muslim women’s rights by allowing them legal recourse to seek the dissolution of their marriages under specific circumstances.
Legal Safeguards
The Dissolution of Muslim Marriages Act incorporates legal safeguards to ensure fairness and the protection of both parties’ rights, such as the waiting periods and opportunities for reconciliation.
Applicability
Section 2 of the Dissolution of Muslim Marriages Act applies to women married under Muslim law and provides a legal framework for seeking dissolution of marriage in cases of hardship or injustice.
Cases Related to Section 2 of the Dissolution of Muslim Marriage Act
Here are ten important cases related to this.
Itwari vs Asghani, AIR 1960 ALL 684
According to the court, if the husband marries a second woman against the wishes of the first wife and then asks the civil court for help, forcing the first wife to live with him, the court will respect the sanctity of the second marriage, but it will not force the first wife to live with the husband against her will and share his consortium with another woman if the court determines after reviewing the evidence that it will be unfair.
Mahmooda Begum vs Mohd. Abdul Majeed 1971 APHN 70
The phrase “neglected or has failed to provide for her maintenance for two years” indicates that the husband is accountable for the dissolution of the marriage if he does not support his wife for two years. The wife’s motives for living separately from her spouse are unimportant.
Amna Khatoon vs Md. Kasim Ansari, AIR 2001 Jhar 28
Islam acknowledges the existence of marriage upon the wife’s request, and the law itself upholds this as a saving clause under this section. In this instance, it was determined that the wife was entitled to a divorce judgment due to the husband’s harsh behaviour.
Abdul Zalil Ahmed vs Mustt. Marina Begum, II (1999) DMC (Gau.) 172
The ruling in this case that the Dissolution of Muslim Marriage Act, 1939, does not allow for divorce by mutual consent is correct. Still, it should also be remembered that the parties can settle this issue, and a decree may be issued by the settlement agreement if doing so does not conflict with the grounds listed in section 2.
Nurjehan Bibi vs Md. Kajim Ali. AIR 1977 Cal 90
Any other reason recognized by Muslim Law as sufficient for the dissolution of a marriage would be constituted when one spouse falsely accuses the other of adultery.
Ahmed Abdul Qadeer vs Raffat Banu 1978 (1) ALT 533
The husband’s failure to provide maintenance to his wife, who has been living separately for two years, does not grant the wife the right to seek divorce on those grounds.
Akila vs Shafi Mohd, I (1993) DMC (MP) 581
The lower appellate court’s decree was overturned, and the trial court’s findings were reinstated because the lower appellate court had reserved the trial court’s conclusions on the issue of whether the plaintiff could use the grounds for divorce.
A Yusuf vs Sowramma, AIR 1971 Ker 261
According to section 2(ii) of the Dissolution of Muslim Marriage Act, 1939, a Muslim woman may file a dissolution lawsuit because she has not been maintained as a reality, even if there is justification for it. The voice of the law, echoing public policy, is frequently that of the realist, not the moralist.
Ghulam Lakina vs Falak Sha Allah Baksh, AIR 1950 Lah 45
Anything a minor did while still being a minor would not invalidate a right that could only develop after puberty. Thus, a minor female cohabitating would not eliminate the opportunity to end the marriage after puberty. The consent and the consummation should have happened with her consent, and neither should have happened before puberty.
Abdul Azeem vs Fathimunnisa Begum, AIR 1969 Mys 226
The court ruled that the Dissolution of Muslim Marriage Act of 1939 demands an opportunity to convince the court that the impotence has ended, and that opportunity is only accessible when the husband requests it.
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