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Dissolution of Marriage under Muslim Law in India

January 18, 2019 0 Comment

(1) By act of God i.å. death of the husband or wife, or

(2) By act of the parties i.e. divorce.

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Death of the husband or wife during subsistence of marriage dissolves the marriage immediately under all ‘he personal law systems. The very fact of the death of any party to the marriage is sufficient to terminate the marriage.

There is no need of any formality or decree of the court to dissolve the marriage. Where a marriage terminates by act of the parties, the dissolution is called divorce. Under Muslim law the divorce may take place by the act of parties themselves or through a decree of the court of law.

However, in whatever manner a divorce is effected, it has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of marriage. The Prophet declared that among the things which have been permitted by law, divorce is the worst.

Divorce being an evil, it must be avoided as far as possible. But sometimes this evil becomes a necessity. When it is impossible for the parties to carry on their union with mutual love and affection, it is better to allow them to be separated instead of compelling them to live together in an atmosphere of hatred and sufferings.

The basis of the Islamic law of divorce is the inability of the spouses to live together rather than any specific cause (or guilt of a party) on account of which the parties cannot live together. It is to be noted that with this idea behind a divorce, Muslim law recognises several modes of divorce.

A divorce (or dissolution of marriage by act of parties) may be either by act of husband or by act of the wife. A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of such words which signify his intention to disown the wife, is sufficient. Generally this is done by Talaq. But he may divorce the wife also by Ila and Zihar which differ from a Talaq only in form not in substance.

A wife cannot divorce her husband of her own accord. She can divorce the husband only where husband has delegated such right to her or under an agreement. Under an agreement a wife may divorce the husband either by Khala or Mubarat. Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charge of adultery by the husband (lian), insanity or impotency of husband.

But the Dissolution of Muslim Marriages Act, 1939, now lays down several other grounds (including lian) on the basis of any one of which a Muslim wife may get her marriage dissolved by an order of the court. The chart given below, presents a clear picture of the various kinds of dissolution of a Muslim marriage.

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