July  2004 
Year 10    No.99

Cover Story

‘A Muslim cannot divorce his wife at his whims’

Flavia Agnes
Senior advocate, Mumbai high court, and women’s rights activist

The Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWA) are two major instances where the Muslim leadership recommended to the government that certain portions of Islamic jurisprudence should be legislated. The Dissolution of Muslim Marriages Act, 1939 was passed to give Muslim women the right to approach the courts for a divorce, two decades before their Hindu counterparts received a similar right. Two renowned Islamic jurists, Asif Ali Fyzee and Maulana Ashraf Ali Thanavi had spearheaded this campaign to obtain for Muslim women governed by Hanafi law, the right bestowed upon women by the Maliki law, through a state enactment.

The adverse publicity around the Shah Bano controversy and the subsequent enactment created an impression that since 1986 the Muslim woman’s right to maintenance has been restricted to three months. This is because the media has not highlighted the series of positive judgements by various high courts since 1988, which held that the Muslim woman has a right to ‘fair and reasonable settlement’ for life. The right is for a lump sum settlement upon divorce. In the landmark judgement in Danial Latifi v. Union of India, a full bench of five judges of the Supreme Court confirmed the constitutional validity of the MWA as well as the Muslim woman’s right to fair and reasonable settlement for life. This right is far superior to the Hindu woman’s right to recurring maintenance every month, which is subject to the rider of sexual purity.

When a Muslim woman files an application for maintenance, the usual ploy adopted by the husband is to plead that he has divorced the wife. A series of judgements have held that mere declaration in the written statement is not sufficient to prove divorce and that the husband has to satisfy the court that there has been arbitration prior to the pronouncement of divorce.

1998: Saleem Basha v. Mumtaz Begum – Among Muslims, divorce must be preceded by attempts at reconciliation between husband and wife in the presence of two mediators, one chosen by the wife and the other chosen by the husband. A Muslim husband cannot divorce his wife at his whims and caprice. Divorce must be for a reasonable cause, preceded by pre-divorce conference, to arrive at a settlement.

2002 (Bombay HC Full Bench) Dagdu Pathan v. Rahimbi All the stages of conveying the reasons for divorce, appointment of arbitrators, conciliation proceedings by arbitrators and failure of such proceedings are required to be proved when the wife disputes the factum of talaq before a court of law. Mere statements made in writing or oral dispositions before the court regarding talaq are not sufficient.

Other important judgements on this issue are Mohd. Yunus v. Smt Shabiran (1998), Mangtu v. Noorjahan (1998), Abdul Rehman v. Nurjahan (2000) Zulekha Begum v. Abdul Rehman (2000). The Supreme Court in 2002 in Shamim Ara v. State of UP has confirmed this position.

A Muslim marriage is a contract. Only under Muslim law can conditions be stipulated at the time of marriage. This is a Koranic right bestowed upon women. No other law permits such contract. During the British period, courts upheld various conditions stipulated in the nikahnama. Some illustrations – restraint on polygamy, right to matrimonial home/residence, right to prompt mehr, fixed quantum of maintenance, acceptance of children of wife’s former marriage, right to visit parents, delegated right of divorce, etc. The stamp of approval by the AIMPLB will only serve to popularise such nikahnamas but not bestow any new rights upon the Muslim woman that she does not already have.

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