Marriage and Divorce under the Muslim Law


Marriage under the Muslim Law

Marriage in Islam is considered to be a social contract. The husband and the wife and their respective families enter into an agreement whereby the husband’s family pays an amount of money called the (Mehr) to the girl and her family and in return, the girl agrees to marry the boy. Therefore, this is a social arrangement which is called ‘Nikah’ in Islam.

Essentials of a valid Muslim marriage

Following are the essentials of a valid Muslim marriage

  1. Every Muslim of a sound mind, who has attained the age of puberty i.e. age of 15 years, may enter into a contract of marriage.
  2. There should be a proposal made by or on behalf of one of the parties and acceptance of that proposal by or on behalf of the other party.
  3. Proposal and acceptance of marriage must be in presence and hearing of two male witnesses who must be Muslims and are of sound mind and major. (In Shia law witnesses are not required).
  4. The words used in proposal and acceptance must be clear and unequivocal which can convey the intention of marriage.
  5. Neither writing nor any religious ceremony is required.
  6. Proposal and acceptance must be reciprocal to each other i.e. to say, the acceptance must be exactly for the proposal and nothing else.
  7. There must be consideration in terms of dower.

Divorce under the Muslim Law

The firm union of husband and wife is a necessary condition for a happy family life. Islam therefore, insists on subsistence of marriage. But under unfortunate circumstances the dissolution of marriage takes place and matrimonial contract is broken.

Divorce may be given either by the act of husband or wife. A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which signify the intention to divorce his wife is sufficient.

Initially a wife could not divorce her husband of her own accord. She could divorce her husband only where husband has delegated such rights to her or under an agreement. But after enactment of the Dissolution of Muslim Marriage Act, 1939, Muslim wives also got right to dissolve their marriage by an order of the court

Muslim Personal Law Legislations

These laws are not applicable in Goa state, where the Goa Civil Code is applicable for all persons irrespective of religion. These laws are not applicable to Muslims who married under the Special Marriage Act, 1954.

The Muslim Personal Law (Shariat) Application Act, 1937

All the Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937. This law deals with marriage, succession, inheritance and charities among Muslims.

The Dissolution of Muslim Marriages Act, 1939

The objective of the The Dissolution of Muslim Marriages Act is to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie.

Under this act, a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds :

  • (i) that the whereabouts of the husband have not been known for a period of four years;
  • (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;
  • (iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;
  • (iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
  • (v) that the husband was impotent at the time of the marriage and continues to be so;
  • (vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
  • (vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen year, provided that the marriage has not been consummated;
  • (viii) that the husband treats her with cruelty, that is to say,
    (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
    (b) associates with women of evil repute or leads an infamous life, or
    (c) attempts to force her to lead an immoral life, or
    (d) disposes of her property or prevents her exercising her legal rights over it, or
    (e) obstructs her in the observance of her religious profession or practice, or
    (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Koran;
  • (ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim law

The Muslim Women (Protection of Rights on Marriage) Act, 2019

On 22 August 2017, the Supreme Court of India deemed instant triple talaq unconstitutional. The Muslim Women (Protection of Rights on Marriage) Act, 2019, which declared instant talaq illegal and void, came into effect retroactively from 19 September 2018 after being given assent by the president of India on 31 July 2019.


Question

Whether a Muslim woman has right to divorce her husband?

Previously, a  Muslim wife could not divorce her husband of her own accord. She could divorce her husband only where husband has delegated such rights to her or under an agreement.

But after enactment of the Dissolution of Muslim Marriage Act, 1939 Muslim wives also got right to dissolve their marriage by an order of the court.


Acknowledgement : This article is adapted from Swayam – NIOS course material.

Marriage and Divorce under the Muslim Law LawMint For LLB and LLM students