(ACT NO. 25 OF 1986) (19th May, 1986).
An Act to protect the right of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto.
Be it enacted by Parliament in the Thirty -seventh year of the Republic of India as follows:
(1) This Act may be called the Muslim Women (Protection of Rights on Divorce) Act, 1986.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
In this Act, unless the context otherwise requires-
(a) “divorced woman” means a Muslim woman who was married according to Muslim law, and has been divorced by, or has obtained divorce from her husband in accordance with Muslim law;
(b) “ideate period” means, in the case of a divorced woman,-
(i) three menstrual courses after the date of divorce, if she is subject to menstruation;
(ii) three lunar months after her divorce, if she is not subject to menstruation;
(iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy whichever is earlier;
(c) “Magistrate” means a Magistrate of of the First Class exercising jurisdiction under the Code of Criminal Procedure, 1973 in the area where the divorced woman resides.
(d) “prescribed” means prescribed by rules made under this Act.
(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to-
(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
(b) where she herself maintains the children born to before or after he divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective date of birth of such children;
(c) an amount equal to the sume of mahr or dower agreed to be paid to her at the time or her marriage or at any time thereafter according to Muslim Law; and
(d) all the properties given to her before or at the time or marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
(2) Where a reasonable and fiar provision and maintenance or the amount of mahr or dower due had not been made or apid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.
(3) Where an application has been made under sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that-
(a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provisions and maintenance for her and the children; or
(b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub-section (1) have not been paid or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1) to the divorced woman:
Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period.
(4) If any person against whom an order has been made under sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973, and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code.
(1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order:
Provided that where such divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her:
Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the Magistrate on the ground of his or her not having the means to pay the same, the Magistrate, on proof of such inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may thin fit to order.
(2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub-section(1), the Magistrate may, by order direct the State of Wakf Board established under Section 9 of the Wakf Act, 1954, or under any other law for the time being in force in a State functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-section (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order.
It, on the date of the first hearing of the application under sub-section (2) of Section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Section 125 to 128 of the Code of Criminal Procedure, 1973, and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly.
Explanation. – For the purposes of this section, “date of the first hearing of the application” means the date fixed in the summons for the attendance of the respondent to the application.
(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the foregoing power, such rules may provide for-
(a) The form of the affidavit or other declaration in writing to be filed under Section 5;
(b) The procedure to be followed by the Magistrate in disposing of applications under the Act, including the serving of notices to the parties to such applications date of hearing of such applications and other matters;
(c) Any other matter which is required to be or may be prescribed
(3) Every rule made under this Act shall be laid as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive session, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both House agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
Every application by a divorced woman under Section 125 or under Section 127 of the Code of Criminal Procedure, 1973 pending before a Magistrate on the commencement of this Act, shall notwithstanding anything contained in that Code and subjected to the provisions of Section 5 of this Act, be disposed of by such Magistrate in accordance with the provisions of this Act.
(1) This Act may be called the Dissolution of Muslim Marriage Act, 1939.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
Pondicherry.—In section 1, after sub-section (2), add the following:—
“Provided that nothing contained in this Act shall apply to Renoncants of the Union territory of Pondicherry”, vide the Pondicherry (Extension of Laws) Act, 1968, sec. 3 and Sch.
1. Subs. by the Adaptation of Laws (No. 3) Order, 1956, for “Part B States”.
2.Subs. by Act 48 of 1959 sec. 3 and Sch. I, for certain words (w.e.f. 1-2-1960).
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, namely:—
(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 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 years:
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 Quran;
(ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law:
(a) no decree shall be passed on ground (iii) until the sentence has become final;
(b) a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and
(c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.
(i) A wife filed an application for divorce on the ground of cruelty and non-performance of marital obligations by the husband. Thereafter both the husband and wife filed a joint application for divorce by mutual consent. Held, grounds for divorce under the section were already met out so decree of divorce can be passed in terms of the compromise between the parties even in the absence of a provision of divorce by consent under the Act, more so when the husband has already married and the wife’s marriage was also fixed up; Md. Abdul Zalil Ahmed v. Marina Begum, AIR 1999 Gau 28.
(ii) If the husband, after taking a second wife against the wishes of the first, also wants the assistance of the Civil Court to compel the first to live with him, the Court will respect the sanctity of the second marriage but it will not compel the first wife, against her wishes, to live with the husband under the altered circumstances and share his consortium with another woman if it concludes, on a reivew of the evidence, that it will be inequitable to comple her to do so; Itwari v. Asghani, AIR 1960 All 684.
On a wife’s petition for dissolution of marriage on the ground of husband’s impotency, the husband sought a year’s time to prove that he had ceased to be impotent. On the expiry of one year the decree was granted on the wife’s application. The husband’s contention that during the one year period he was denied the company of his wife was negatived. Held, the Act requires an opportunity to satisfy the court about cessation of impotency and that opportunity is available only when husband makes an application for the same. It would not be right to say that subsequent acquisition of virility can be proved only by sexual act with the wife which would mean that she should make herself available to the husband again and again whenever demand during the entire period of the year. Such interpretation which subjects the wife to this queer predicament cannot be sound, according to the court; Abdul Azeem v. Fathimunnisa Begum, AIR 1969 Mys 226.
Option of puberty
(i) Any thing done by the minor during the minority would not destroy the right which could accrue only after puberty. The cohabitation of a minor girl would not thus put an end to the option to repudiate the marriage after puberty. The assent should come after puberty and not before, for the simple reason that the minor is incompetent to contract, nor should the consummation have taken place without her consent; Ghulam Lakina v. Falak Sha Allah Baksh, AIR 1950 Lah 45.
(ii) A muslim woman, under section 2(ii) of the dissolution of Muslim Marriage Act, 1939, can sue for dissolution on the score that she has not as a fact been maintained even if there is good cause for it, the voice of the law, echoing public policy is often that of the realist, not of the moralist; A. Yusuf v. Sowramma, AIR 1971 Ker 261.
In a suit to which clause (I) of section 2 applies,-
(a) the names and addresses of the persons who would have been the heirs of the husband under Muslim law if he had died on the date of the filing of the plaint shall be stated in the plaint,
(b) notice of the suit shall be served on such persons, and
(c) such persons shall have the right to be heard in the suit:
Provided that paternal uncle and brother of the husband, if any, shall be cited as party even if he or they are not heirs.
The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not be itself operate to dissolve her marriage:
Provided that after such renunciation, or conversion the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned, in section 2:
Provided further that the provisions of this section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.
Nothing contained in this Act shall affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage.
Under the Muslim Law, Mehr (dower) means money or property which the wife is entitled to receive from the husband in consideration of the marriage but this consideration is not the same as that of the civil contract.
Dower is an obligation imposed upon the husband and the object of the dower is to provide the wife for her subsistence after the dissolution of her marriage so that she may not become helpless after the death of the husband or termination of the marriage by divorce.
Mehr is also considered as the part of maintenance while fixing the amount of maintenance under Section 125 of Criminal Procedure Code,1973. Since there is no clear-cut definition as per Muslim Personal Laws regarding the dower (Mehr) amount, different High Courts and Supreme Court of India in different cases rendered different conceptions relating to Mehr.
Muslim law is a contract between the husband and wife. And Mehr is the amount of consideration paid to or promised to be paid to the wife. Just like a contract is declared invalid, in the event of non – payment of the consideration. A talaaq is also considered invalid if the Mehr amount is not paid.
A Mehr is a right of the married Muslim women and she can sue her husband if he refuses to pay her Mehr.
A Mehr is generally of two types –
Prompt Mehr: This means the total amount of Mehr payable by the Husband at the time of the signing of marriage contract.
Deferred Mehr: This means the portion of the Mehr which is payable to the wife at a specified point in the marriage or at the time of the dissolution of the marriage through divorce or death of the husband. Any deferred Mehr that remains unpaid at the time of dissolution becomes a debt against the former husband’s assets.
A wife may relinquish or remit her right to Mehr in favour of her husband. She may do so either out of natural love or to gain affection from her husband. This act is termed as remission of Mehr by the wife. The wife may remit the whole or only a part of her specified Mehr.
After a lawful remission, the husband is under no legal obligation to pay the remitted part of Mehr to the wife.
Muslim law recognizes two types of heirs, Sharers and Residuaries. Sharers are the ones who are entitled to a certain share in the deceased’s property and Residuaries would take up the share in the property that is left over after the sharers have taken their part.
The Sharers are 12 in number and are as follows: (1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a son (or son’s son or son’s son and so on), (5) Father, (6) Paternal Grandfather, (7) Mother, (8) Grandmother on the male line, (9) Full sister (10) Consanguine sister (11) Uterine sister, and (12) Uterine brother.
The share taken by each sharer will vary in certain conditions. For instance, a wife takes 1/4th of share in a case where the couple is without lineal descendants, and a one-eighth share otherwise. A husband (in the case of succession to the wife’s estate) takes a half share in a case where the couple is without lineal descendants, and a one-fourth share otherwise. A sole daughter takes a half share. Where the deceased has left behind more than one daughter, all daughters jointly take two-thirds.
If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers and become residuaries instead, with the residue being so distributed as to ensure that each son gets double of what each daughter gets.
In Non-testamentary succession, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied. On the other hand, in case of a person who dies testate i.e. one who has created his will before death, the inheritance is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis.
In cases where the subject matter of property is an immovable property, situated in the state of West Bengal, Chennai and Bombay, the Muslims shall be bound by the Indian Succession Act, 1925. This exception is only for the purposes of testamentary succession.
Inheritance of property in Muslim law comes only after the death of a person, any child born into a Muslim family does not get his right to property on his birth. If an heir lives even after the death of the ancestor, he becomes a legal heir and is therefore entitled to a share in the property. However, if the apparent heir does not survive his ancestor, then no such right of inheritance or share in the property shall exist.
Under the Muslim law, distribution of property can be made in two ways – per capita or per strip distribution.
The per capita distribution method is majorly used in the Sunni law. According to this method, the estate left over by the ancestors gets equally distributed among the heirs. Therefore, the share of each person depends on the number of heirs.
The per strip distribution method is recognised in the Shia law. According to this method of property inheritance, the property gets distributed among the heirs according to the strip they belong to. Hence the quantum of their inheritance also depends upon the branch and the number of persons that belong to the branch.
Muslim does not create any distinction between the rights of men and women. On the death of their ancestor, nothing can prevent both girl and boy child to become the legal heirs of inheritable property. However, it is generally found that the quantum of the share of a female heir is half of that of the male heirs. The reason behind this is that under the Muslim law a female shall upon marriage receive mehr and maintenance from her husband whereas males will have only the property of the ancestors for inheritance. Also, males have the duty of maintaining their wife and children.
Under Muslim law, no widow is excluded from the succession. A childless Muslim widow is entitled to one-fourth of the property of the deceased husband, after meeting his funeral and legal expenses and debts. However, a widow who has children or grandchildren is entitled to one-eighth of the deceased husband’s property. If a Muslim man marries during an illness and subsequently dies of that medical condition without brief recovery or consummating the marriage, his widow has no right of inheritance. But if her ailing husband divorces her and afterwards, he dies from that illness, the widow’s right to a share of inheritance continues until she remarries.
A child in the womb of its mother is competent to inherit provided it is born alive. A child in the embryo is regarded as a living person and, as such, the property vests immediately in that child. But, if such a child in the womb is not born alive, the share already vested in it is divested and, it is presumed as if there was no such heir (in the womb) at all.
Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by Government through the process of escheat.
Where a Muslim contracts his marriage under the Special Marriage Act, 1954, he ceases to be a Muslim for purposes of inheritance. Accordingly, after the death of such a Muslim his (or her) properties do not devolve under Muslim law of inheritance. The inheritance of the properties of such Muslims is governed by the provisions of the Indian Succession Act, 1925 and Muslim law of inheritance is not applicable.
There are two categories of divorce under the Muslim law:
The category of extra judicial divorce can be further subdivided into three types, namely,
The Judicial divorce category is the right of the wife to give divorce under the Dissolution of Muslim Marriages Act 1939.
‘Triple Talaq’ is the term used to signify the methodology of divorce in Islam. Usually the term is used to signify that after saying divorce three times, the couple cannot be together.
In Sharia law, there are broadly two kinds of talaq :
Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. In Islam, divorce is considered as an exception to the status of marriage.
Under the “Shariah” law in India, there are three forms of Express divorce- Ahsaan Talaq, Hasan Talaq (both are forms of Talaq-ul-sunnat) and Triple Talaq (Talaq-ul-bidaat).
A single pronouncement of Talaq (‘I divorce you’) is made by the husband during wife’s menstruation free time (called Tuhr). In another form of express divorce – Hasan Talaq, the Husband is required to make three pronouncements during consecutive menstruation free period of his wife. Divorce becomes effective after the third declaration if it has not been revoked earlier. And the most popular form of Talaq is instant ‘Triple Talaq’ or (Talaq-ul-bidaat). it is also the most controversial.
This Talaq is also known as Talaq-ul-Bain. The most distinctive feature of this Talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. Triple divorce is a recognized but disapproved form of divorce and is considered by the Islamic jurists as an innovation within the fold of Sharia. It commands neither the sanction of Holy Quran nor the approval of the Holy Prophet.
There have been Numerous court judgements which have established that Triple Talaq is invalid and have set some definite requirements for its validity.
In Masroor Ahmed v. State (NCT of Delhi) [2008 (103) DRJ 137 (Del.), Triple Talaq was held to be one revocable Talaq meaning that the divorce can be revoked at any time before the completion of a waiting period of 90 days (called Iddat) after which the marriage is dissolved. Talaq must be for a reasonable cause. (Talaq given in anger is not valid).
In Riaz Fatima v Mohd. Sharif [(2007) DMC 26], evidence must be given by the husband of the reasons that has compelled him to seek divorce. A proof that talaq was proclaimed thrice in the presence of witnesses or in the letter must be provided and an attempt of reconciliation has been made. There has to be proof of payment of meher (dowry) amount and observance of iddat (the period of waiting by a woman after divorce or the spouse’s death before she can marry again).
While many Muslim countries have amended their legal strictures in terms of divorce procedure, India, as far as this practice is concerned, continues to be stuck in the medieval age by continuing to uphold provisions of the archaic Muslim Personal Law (Shariat) Application Act 1937.
Although there has been a wave of debates, petitions and uproar over the constitutional validity of this mode of Talaaq, the archaic law continues to persist in India due to country’s rules protecting Muslim, Christian and Hindu communities following religious law.
India being a Hindu majority nation has to assure the Muslim community that it is not doing injustice with them. And in order to appease the Muslim community, Indian political leadership refrains from taking a risk of involving their personal laws. The frequent communal riots are an example of the sensitivity of the personal laws in India. Furthermore, any attempt to trifle with these laws is met with ferocious opposition from religious boards like All India Muslim Personal Board and other Authorities, who support that there is no scope of change in the triple talaq system. Their contention is that the abolition of triple talaq would be contrary to the teachings of the Quran; second, that men are more capable of making decisions; third, that polygamy, although not desirable, is Islamic and that it actually helps rather than hurts women; and fourth, that the Supreme Court does not have the right to intervene in religious law.
After first divorce, there is a waiting period. This waiting period is callediddah and depends on the state of the woman (usually three menstrual cycles). The couple can reunite in this iddah without having to have a new marriage contract.
After this period has ended and the couple wants to reunite then there will be a new marriage contract and new mahr’ (dowry given by the groom to the bride.) If the husband does not want his wife back then after this iddah, the woman can marry another person.
Majority of Muslimpopulation work as per the Sharia law. Sharia is derived from the religious precepts of Islam, particularly the Quran and the Hadith.
In Sharia law, a couple which undergoes a divorce cannot remarry unless the woman marries another man, consummates the marriage and then her second husband dies or divorces her. In this case, the marriage (Nikah) of the women with her second husband is called Nikah Halala.
Muslim women in India can get a divorce from their husband through two customary ways –
However, divorce through personal Sharia law has to be under the scrutiny of Quazi, mostly guided under the regulations of All India Muslims Personal Law Board (AIMPLB).
A husband may delegate his power to give Talaq to any third party or even to his wife. He may delegate the power absolutely or conditionally, temporarily or permanently. A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated. This delegation is called tafweez. An agreement made either before or after the marriage providing that the wife is at liberty to divorce her husband under certain specified conditions is valid, provided that such power is not absolute and unconditional and that the conditions are reasonable and are not opposed to public policy. Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis.
If the husband points false charges of unchastity or adultery against his wife, then this amounts to character assassination and the wife will have the right to ask for a divorce on these grounds. Such divorce is called Lian. However, it is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle the wife to get the decree of divorce on the ground of Lian. Where a wife hurts the feelings of her husband with her behavior and the husband hits back an allegation of infidelity against her, then what the husband says in response to the bad behavior of the wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian.
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 thereunder:
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:-