DISSOLUTION OF MUSLIM MARRIAGE ( PART 2 )

Legislative Reforms in the Area of Divorce 

3.1 Dissolution of Muslim Marriages Act 1939

Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on 17th April 1936. It however became law on 17th March 1939 and thus stood the Dissolution of Muslim Marriages Act 1939.

Section 2 of the Act runs there under:

A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one or more of the following grounds, namely:-

  • That the whereabouts of the husband have not been known for a period of four years: if the husband is missing for a period of four years the wife may file a petition for the dissolution of her marriage. The husband is deemed to be missing if the wife or any such person, who is expected to have knowledge of the husband, is unable to locate the husband. Section 3 provides that where a wife files petition for divorce under this ground, she is required to give the names and addresses of all such persons who would have been the legal heirs of the husband upon his death. The court issues notices to all such persons appear before it and to state if they have any knowledge about the missing husband. If nobody knows then the court passes a decree to this effect which becomes effective only after the expiry of six months. If before the expiry, the husband reappears, the court shall set aside the decree and the marriage is not dissolved.
  • That the husband has neglected or has failed to provide for her maintenance for a period of two years: it is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife may seek divorce on this ground. A husband may not maintain his wife either because he neglects her or because he has no means to provide her maintenance. In both the cases the result would be the same. The husband’s obligation to maintain his wife is subject to wife’s own performance of matrimonial obligations. Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to get a judicial divorce on the ground of husband’s failure to maintain her because her own conduct disentitles her from maintenance under Muslim law.
  • That the husband has been sentenced to imprisonment for a period of seven years or upwards: the wife’s right of judicial divorce on this ground begins from the date on which the sentence becomes final. Therefore, the decree can be passed in her favour only after the expiry of the date for appeal by the husband or after the appeal by the husband has been dismissed by the final court.
  • That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years: the Act does define ‘marital obligations of the husband’. There are several marital obligations of the husband under Muslim law. But for the purpose of this clause husband’s failure to perform only those conjugal obligations may be taken into account which is not included in any of the clauses of Section 2 of this Act.
  • That the husband was impotent at the time of the marriage and continues to be so: for getting a decree of divorce on this ground, the wife has to prove that the husband was impotent at the time of the marriage and continues to be impotent till the filing of the suit. Before passing a decree of divorce of divorce on this ground, the court is bound to give to the husband one year to improve his potency provided he makes an application for it. If the husband does not give such application, the court shall pass the decree without delay. In Gul Mohd. Khan v. Hasina the wife filed a suit for dissolution of marriage on the ground of impotency. The husband made an application before the court seeking an order for proving his potency. The court allowed him to prove his potency.
  • If the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease: the husband’s insanity must be for two or more years immediately preceding the presentation of the suit. But this act does not specify that the unsoundness of mind must be curable or incurable. Leprosy may be white or black or cause the skin to wither away. It may be curable or incurable. Venereal disease is a disease of the sex organs. The Act provides that this disease must be of incurable nature. It may be of any duration. Moreover even if this disease has been infected to the husband by the wife herself, she is entitled to get divorce on this ground.
  • 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 years, provided that the marriage has not been consummated;
  • 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 ill-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 than one wives, does not treat her equitably in accordance with the injunctions of the Holy Quran.

3.2 Divorce under Muslim Family Laws Ordinance, 1961

From a comparison of forms of talaq it appears that under S. 7 the Ordinance has enforced in Pakistan a kind of talaq which is in consonance with talaq-i-ahasn and talaq-i-hasan. In the case of Talaq-i-ahsan the divorce becomes irrevocable after the period of iddat, and in case of talaq-i-hasan it becomes irrevocable on pronouncement for the third time in the third tuhr after the first pronouncement. Thus the least period after which a talaq becomes irrevocable according to Talaq-us-Sunna, i.e. approved form of divorce, is approximately 90 days. In this sense there has been no change in Muslim Law. On the other hand it has been consolidated and enforced by the Ordinance. The only form affected by the Ordinance is the Bedai form which becomes effective immediately after it is either uttered orally or written down on a price of paper of on something else from which it can be deciphered. Now even a talaq in that form win become effective after the expiry of 90 days.

As per the provisions of sec-7 of the Muslim Family law Ordinance:

  1. Any man who wishes to divorce his wife shall as soon as may be after the pronouncement of talaq, in any form whatsoever give the chairman notice in writing of his having done so and shall supply a copy thereof to the wife.
  2. Whoever contravenes the provision of sub-section (i) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand taka or with both.
  3. Save as in sub-section (5), a talaq unless revoked earlier, expressly or otherwise shall not be effective until the expiration of ninety days form the day on which notice under sub-section (i) is delivered to the chairman.
  4. Within thirty days of the receipt of notice under sub-section (i) the chairman shall constitute an arbitration council for the purpose of bringing about a reconciliation between the parties and the arbitration council shall take all steps necessary to bring about such reconciliation.
  5. If the wife be pregnant at the time of talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy whichever be later ends.

A Muslim man can marry of a Christian Woman; But a Muslim woman cannot do that. She cannot marry without a Muslim legally. Under the Muslim Family Laws Ordinance 1961, a man can marry more than one by the permission of the Arbitrary Council. But a Woman cannot do this. It is not only illegal But also serious offence.

The same procedure for divorce has also been made applicable to a wife on whom the right to divorce has been duly delegated and who wishes to exercise the right as per provisions of the section-8 of the said ordinance. These sections incorporate the provisions of two forms of talak-us- sunnat viz. talak Ahsan and talak Hasan.

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