Concept of Marriage and Divorce under Muslim Law
1. Marriage or “Nikah” in Islamic law is a contract pure and simple needing no writing and no scared rites. All that is necessary is offer and acceptance made in the presence and hearing of two male or female witnesses and recording the factum of marriage in the “Nikah” Register maintained in every mosque signed by the parties and attested by witnesses. It is payable to the wife on the dissolution of marriage or death or divorce. In India, there is no need to register the Muslim marriage, as there is no law requiring registration.
2. There are six forms of divorce recognized under Islamic Law. They are Talaq, Talaq bu Tafweez, Kula and Mubaraat, Illah, Zibar and Lian. Talaq confers on Muslim husband the privilege of being able to discard his wife whenever he chooses to do so for reasons good, bad or indifferent indeed for no reason at all. Talaq-i-Tufeez is the exercise of the right of divorce by the wife by virtue of the power delegated to her husband at the time of marriage or even thereafter, Kula and Maturate are two forms of dissolution of marriage by consent. It is thus a kind of divorce by mutual consent. Illah is a constructive divorce in which the husband swears not to have sexual intercourse with his wife for 4 months and abstains from doing so. Zihar is a mode of divorce in which the husband compares his wife with his mother or any other female within prohibited degree. Lian is a divorce in which there is imputation of adultery to the wife by the husband and the wife is entitled to file a suit for dissolution of marriage on the false charge of adultery.
3. The Dissolution of Muslim Marriage Act, 1939 enables a Muslim wife to seek divorce through court on the ground of, whereabouts of the husband are unknowns for 4 years, failure of husband to provide for the maintenance of the wife for 2 years, sentence of imprisonment of the husband for 7 years, failure to perform martial obligations, impotency of the husband, or insanity of the husband, Repudiation of marriage by the wife before attaining the of 18 years cruelty of the husband and any other ground relevant at that point of time.
Muslim Marriage Laws
Under Muslim personal law a suit has to be filed either by husband or wife on withdrawal from the society of other without lawful ground.
No provision so far enabling parties to the marriage parties to the marriage to seek the remedy of judicial separation.
No provision in Mohammedan Law for declaration of marriage as nullity for it can be annuted, though it may be repudiated by a Muslim wife and husband.
Muslim Law recognizes two forms of divorce by mutual consent khul or khula (divorce at the request of wife) and Mubaraa or mubaraat (dissolution of marriage by agreement).
Section 2 of the Dissolution of Muslim Marriage Act, 1939
Grounds for Muslim Woman.
1. Not heard for 4 years.
2. Failure to provide maintenance for two years.
3. Husband sentenced for 7 years imprisonment or upwards.
4. Failure to platform martial obligations for three years.
5. Impotency at the time of marriage and continuation.
6. Insanity for two years or suffering from leprosy or a virulent venereal disease.
7. Marriage before attaining age of 15 years and repudiation before attaining the age of 18 years.
8. Cruelty in the form of habitually assaulting, associating with women of evil repute, force to lead an immoral life, interfering into the wife’s property, obstruction to observe her religious practice, not equally treating with other wives etc.,
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