What are the grounds for dissolution of marriage under the Dissolution of Muslim Marriage Act 1939?

 As per S 2 of the Dissolution of Muslim Marriages Act, 1939, a woman married under Muslim Law can obtain a decree for the dissolution of her marriage on the following grounds:

1. The whereabouts of the husband have not been known for a period of four years.{Missing}

2. The husband has neglected or failed to provide for her maintenance for a period of two years.

3. The husband has been sentenced to imprisonment for a period of seven years or more.

4. The husband has failed to perform marital obligations without reasonable cause  for a period of three years.

5. The husband has been impotent at the time of marriage and continues to be so.

6. The husband has been insane for a period of two years or is suffering {from leprosy}deleted or a virulent venereal disease.

7. She was married before she attained the age of fifteen years and she has repudiated the marriage before attaining the age of  eighteen years:

8. The husband has treated her with cruelty.

9. On any other ground which is recognized as valid for the dissolution of marriage under muslim law

      These are the grounds on which a woman married under Muslim Law can seek a decree of dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939.

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Whether family court can permit dissolution of Muslim marriage by mutual consent?

As already mentioned supra, the Hon'ble Division Bench of High Court of Kerala at Ernakulam, had categorically held that 'mubaraat' is a form of an extra-judicial divorce based on mutual consent under Islamic law and same is valid, as it remains untouched by the Dissolution of Muslim Marriages Act. The court below, in such circumstances, is neither called upon to adjudicate nor called upon to dissolve the marriage by decree of divorce. On the other hand, the Family Court only has to declare the marital status by endorsing the mubaraat invoking jurisdiction under Explanation (b) of Section 7(1) of the Family Courts Act. Once a declaration of joint divorce invoking bubaraat is produced before the Family Court, the Family Court has to pass a decree declaring the matrimonial status of the parties. The inquiry in such cases is limited to the extent to find out whether both parties have agreed upon to dissolve such marriage invoking mubaraat. Once the Family Court is satisfied that mubaraat is executed by both the parties, it shall declare the matrimonial status of such parties. Hence, this Court is of the considered view that the Family Court is bound to entertain a petition for declaration of the status based on mubaraat. In view of the above, the order passed by the learned Principal District Munsif, Alandur in O.S. Sr. No. 744/2020 dated 28.09.2020 is set aside and the parties are at liberty to approach the concerned Family Court with appropriate jurisdiction. Thereafter, the concerned Family Court shall dispose of the matter, if both the parties have filed petition and after making a formal inquiry without any further delay treating it as an uncontested matter in the light of the guidelines issued by the Hon'ble Division Bench, High Court of Kerala, Ernakulam in the judgment in O.P.(FC) No. 352/2020 and connected cases dated 23/3/2021 and the present Civil Revision Petition is allowed. No costs.

5. We have carefully gone through the allegations made in the complaint and also police papers. It appears that the parties have decided to get separated by mutual consent and accordingly approached the Family Court by filing a petition No. F. No. 28 of 2022 under section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 read with section 7 (1)(b) of the Family Courts Act for declaration of status. It appears that the parties have arrived at amicable settlement voluntarily.

7. In the instant case, in terms of provisions of section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, all the questions about the property, marriage, dissolution of marriage including talaq, illa, zihar, lian, khula and mubaraat, maintenance, dower, guardianship gifts, trusts and trust properties and wakfs the rule of decision in cases where the parties are Muslims shall be considered as per the provisions of Muslim Personal Law (Shariat). It further appears from the bare reading of section 7 of Family Courts Act, 1984, which prescribes jurisdiction, in terms of section 7(1), Explanation (a) and (b), suit for a declaration as to the validity of a marriage or as to the matrimonial status of any person can also be a subject matter before the Family Court. 

8. It thus appears that the learned Judge of the Family Court has rightly applied the provisions of Muslim Personal Law (Shariat) Application Act, 1937 to the parties before us and accordingly declared the status of marriage as no more in existence by mutual consent.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Application No. 166 of 2022

Decided On: 29.03.2022

 Shaikh Taslim Shaikh Hakim  Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

V.K. Jadhav and Sandip Kumar Chandrabhan More, JJ.

Citation: MANU/MH/1389/2022

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Whether parties can dissolve marriage registered under Special Marriage Act by executing divorce deed on stamp paper?

It is the requirement of the statute that once having chosen to be spouses under the Special marriage Act, it is necessary for the parties to take recourse to the very law to even permanently severe the ties. In the instant case, although the marriage took place as mentioned hereinabove under the Special Marriage Act for the reasons best known to respondent No. 4, who claims to have got the purported document executed on the Rs. 100/- stamp paper before the Notary. That itself is raising question mark in relation to this very document. However, we are not presently to adjudicate upon the said issue and any claim made on the strength of the said document or any refusal that comes from the Respondent no. 4 claiming through this document, shall need to be presently denied. For the purpose of writ of habeas corpus, we have chosen not to permit reliance on the said document noticing the very question of validity of this document coupled with serious allegations of against mother of the applicant as all these can be sorted out by the respective parties in the appropriate proceedings.

In the High Court of Gujarat at Ahmedabad

(Before Sonia Gokani and N.V. Anjaria, JJ.)

Chavda Twinkle Vs  State of Gujarat

R/Special Criminal Application No. 2800 of 2020

Decided on July 17, 2020

Citation: 2020 SCC OnLine Guj 1167

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Supreme Court: Necessary ingredients for proof of dissolution of Muslim marriage by Khula

From the discussion aforesaid, what we find is that 'Khula' is a mode of dissolution of marriage when the wife does not want to continue with the marital tie. To settle the matter privately, the wife need only to consult a Mufti (juris consult) of her school. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. Further, if the wife does not want to continue with marital tie and takes mode of 'Khula' for dissolution of marriage, she is required to propose her husband for dissolution of marriage. This may or may not accompany her offer to give something in return. The wife may offer to give up her claim to Mahr (dower). The 'Khula' is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. However, if the matter is carried to the point of litigation and cannot be settled privately then the Qazi (Judge) is required to deliver a qaza (judgment) based upon the Shariat.

15. In the present case, the Appellant stated that she has obtained an ex parte 'Khula' on 9th May, 2008 from Mufti under the Muslim Personal Law. Neither it is pleaded nor it is made clear by the Appellant or the 1st Respondent as to whether for such 'Khula' the Appellant made a proposal to husband-Ist Respondent for dissolution of marriage accompanied by an offer to give something in return. It has not been made clear that whether the Appellant gave up her claim to Mahr (dower). The husband, 1st Respondent has not accepted 'Khula' given by Mufti (jurisconsult) which is in the form of fatwa or advisory decision based on the Shariat. He, however, has not moved before the Qazi (Judge) to deliver a qaza (judgment) based upon the Shariat. Instead, he has moved before the Family Court, Bandra against the 'Khula' by filing petition-M.J. Petition No. B-175 of 2008. He has also prayed for restitution of conjugal right. Therefore, with no certainty, it can be stated that the divorce was taken on 9th May, 2008.

16. In Shamim Ara v. State of U.P. and Anr. MANU/SC/0850/2002 : (2002) 7 SCC 518, this Court considered valid 'Talaq' in Islamic Law. This Court while discussing the correct law of 'Talaq, as ordained by the Holy Quran observed that Talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters-one from the wife's family and the other from the husband's; if the attempts fail Talaq may be effected. The Court further held that the Talaq to be effective has to be pronounced.

18. In the present case, as noticed that there is no definite plea taken either by the Appellant or by the 1st Respondent that 'Khula' become effective in accordance with Muslim Personal Law (Shariat). Neither the Appellant nor the 1st Respondent placed any evidence in support of such divorce. No specific pleading was made that the Appellant proposed to her husband-1st Respondent for dissolution of marriage. On the other hand, it is clear that the 'Khula' was pronounced by the Mufti ex parte. For the said reason, the 1st Respondent challenged the same by filing M.J. Petition No. B-175 of 2008, before the Family Court, Bandra. In this background, we hold that the Sessions Judge, Sewree, Mumbai by order dated 3rd November, 2012 wrongly observed and held that the Appellant is no more wife of the 1st Respondent. The High Court has also failed to notice that no evidence was produced in support of the statement either made by the Appellant or by the 1st Respondent. It also failed to appreciate the fact that the 'Khula' was obtained from the Mufti and not from Qazi and the same was challenged by the 1st Respondent before the Family Court, Bandra, Mumbai and wrongly upheld the finding of the Sessions Judge. Therefore, with no certainty, it can be stated that the divorce has taken place on 9th May, 2008, in absence of pleading, evidence and finding.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2069 of 2014 

Decided On: 18.09.2014

Juveria Abdul Majid Patni  Vs. Atif Iqbal Mansoori

Hon'ble Judges/Coram:

S.J. Mukhopadhaya and S.A. Bobde, JJ.

Citation: (2014) 10 SCC 736

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Whether suit for dissolution of muslim marriage is maintainable before Civil judge Junior division?

The lower Court was therefore right in holding that Section 5 of the Shariat Act, which vested jurisdiction in the District Courts with regard to the dissolution of Muslim marriages, has not been revived. It follows, that the lower Court had jurisdiction to entertain the suit and the contention of the learned counsel for the petitioner to the contrary cannot be sustained.

IN THE HIGH COURT OF ANDHRA PRADESH

Civil Revn. Petn. No. 474 of 1961

Decided On: 26.10.1962

Syed Shamsuddin Vs.  Munira Begum

Hon'ble Judges:

P. Satyanarayana Raju, J.

Citation : AIR 1963 AP 459

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Whether suit for dissolution of marriage filed by muslim husband is maintainable?

Despite indulgence granted, the learned counsel for the appellant has not been able to show any other provision of law or judgment on the point where such a suit for dissolution of marriage on the part of the Muslim husband under Mohammedan Law is maintainable.

7. Learned counsel for the respondent-wife argued in support of the view taken by the learned Family Court. He submits that none of the provisions under Mohammedan Law permits the husband to obtain the decree of divorce through a judicial declaration. However, other forms of divorce are available to the husband to be exercised, as per the condition stipulated thereunder. Learned Family Court has rightly held that the instant suit is not maintainable.

IN THE HIGH COURT OF JHARKHAND

F.A. No. 187 of 2016

Decided On: 18.06.2018

 Md. Yusuf Vs.  Nasreen Begum

Hon'ble Judges/Coram:

Aparesh Kumar Singh and Ratnaker Bhengra, JJ.

Citation: AIR 2019 Jharkhand  39

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Whether civil court can grant reliefs incidental to main relief of dissolution of marriage under muslim law?

 Third and the most important factor which is required to be considered is that the law always expect that all the disputes between the parties should be decided in one forum and in one proceeding, so as to avoid the multiplicity of proceedings and the waste of time, energy and money of the parties in prosecuting the remedies in different forums. The right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of 'dissolution of marriage' and therefore, these reliefs are very much integral part of decree of 'dissolution of marriage'. Hence, they are required to be considered in the same proceeding, even if at times such reliefs are not asked for also. It is well recognized that the award of maintenance is the fall out of the decree of 'dissolution of marriage', hence even if at times, the Respondent has not asked for the maintenance, she is awarded that maintenance for herself and her children while passing the decree for 'dissolution of marriage'. It may be stated that, even when the decree is of 'Restitution of Conjugal Rights' under Section 9 of 'The Hindu Marriage Act, 1955' there is provision for award of maintenance under Order 21, Rule 33 of the Code of Civil Procedure, till the decree is complied with. The point to be stressed is that the relief of maintenance whether to the wife or the children is incidental to the relief of 'dissolution of marriage'. Merely because 'The Dissolution of Muslim Marriages Act, 1939', does not mention that the Court is also having the jurisdiction or power to grant such relief, it cannot be said that the Court is not having jurisdiction to grant it, if it is incidental, claimed and the Court finds it necessary to grant the same. Moreover, the right of maintenance given to wife and the minor children under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, is in addition to the right, which the minor children are having under Muslim Law to get maintenance from the father. The law expects that the parties should not be driven to approach the different forums but in one forum itself they should be granted whatever reliefs to which they are entitled.

IN THE HIGH COURT OF BOMBAY

Second Appeal (ST.) No. 11650 of 2017 and Civil Application No. 1570 of 2017 in Second Appeal (ST.) No. 11650 of 2017

Decided On: 02.08.2018

 Adnan Chara Vs.  Farhat Adnan

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation:AIR 2018 Bom 282

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When decree for divorce by mutual consent is liable to be set aside?

 We have also gone through the Lower Court Record. The record shows
that the petition under Section 13-B of the Act was filed by the parties on
10.11.2006. There was some amendment in the date of marriage and the suit
was admitted on 30.11.2006 and it was fixed to be listed after six months on
14.7.2007. There is no order preponing the date, but the suit has been allowed by
dissolving the marriage between the parties on 16.5.2007, which is before the
expiry of the period of six months from the date of the amendment made in the5
petition, on which date, the case was admitted. The Lower Court Record also
shows that on 10.11.2006, both the applicants had filed affidavits in support of
the petition and on the back of the same affidavit on 15.5.2007, their statements
were recorded by the Court below stating that they had filed the petition out of
their freewill and they want their marriage to be dissolved by divorce and on that
basis only, the petition under Section 13-B of the Hindu Marriage Act has been
allowed by the Court below. In other words, the record clearly shows that the
Court below had not taken any step to satisfy itself after hearing the parties and
after making any enquiry, about the solemnization of marriage between the
parties and the truthfulness of the averments in the petition, nor the Court below
had taken any effort to satisfy itself that the consent of the parties had not been
obtained by force, fraud, or undue influence, as required under Section
23(1)(bb) of the Hindu Marriage Act. The Court below had not taken any efforts
for assisting or pursuing the parties in arriving at a settlement in respect of their
dispute, which is the mandatory requirement, both under Section 9 of the Family
Courts Act, as also under Order XXXII-A Rule 3 of the Code of Civil Procedure.
15. In the present case, we find that the Court below has ignored all these
mandatory provisions of law while passing the decree of divorce by mutual
consent. In our considered view, the impugned order passed by the learned
Principal Judge, Family Court, Ranchi, suffers from inherent illegality and the
same cannot be sustained in the eyes of the law.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
 First Appeal No. 198 of 2008

Seema Pathak .
 V
Chotelal Pandey .
PRESENT :  MR. JUSTICE H. C. MISHRA
 MR. JUSTICE Dr. S.N. PATHAK
Citation: AIR 2017 Jharkhand 59

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Whether supplying money to wife for her treatment of breast cancer amount to consideration for dissolution of marriage?

From the above mentioned admitted facts, it is evident
that the petitioner needs sufficient amount of money for the
treatment of breast cancer. Hence, it cannot be ruled out that
in order to save her life by getting money, she agreed for a
settlement of dissolution of marriage. On these facts, a
question that came in our mind is as to whether the Court
would be justified in granting a decree for divorce on the basis
of settlement when the wife is suffering with breast cancer and
is in need of money for her treatment and can that be the
consideration for dissolution of marriage.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) NO. 702 OF 2015
Vennangot Anuradha Samir 
v
Vennangot Mohandas Samir 
Dated;December 02, 2015

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Dissolution of marriage by reconverting to original faith

Delhi High Court: While deciding a case of dissolution of marriage due to apostasy under Muslim Personal Law, where the woman reconverted to her original faith after converting to Islam after marriage, the Court said that taking view of the authoritative literature by various scholars on the subject and interpreting the 75 year old legislation on Muslim Personal Law, it cannot be said that apostasy per se does not dissolve marriage governed by Muslim Personal Law, nor can’t it be said that the Act makes a change to this general law. Quoting Charles Hamilton from his translation of the “Hedaya” and Sir D. F. Mulla prior to enactment of the Act, the Court observed that apostasy from Mohammedan religion of either party to a marriage operates as a complete and immediate dissolution of the marriage. Discussing the application of Section 4 of the Act, the Court said that to interpret Section 4 so as to mean that the renunciation or conversion does not per se operate to dissolve the marriage would be incorrect, inasmuch as it would render the words “by itself” as appearing in the provision otiose. Section 4 was enacted to prevent women married under Muslim personal law from committing fraud upon the courts by apostatizing solely to escape marital ties.

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