Muslims Divorce Procedure in India – Part 1

Wish you all a very happy new year, most of my previous blog post have procedures on Hindu Marriage Act and the Indian Divorce Act, this blog post is dedicated to all my fellow Muslim brothers and sisters in India.

Islam is the second largest religion in India, with ~14.5% of the country’s population or roughly 200+ million people make the Muslim population in India.  A Muslim is someone who follows or practices Islam or Mohamaden religion. A Muslim can be by birth or by conversion. Sharia, Sharia law or Islamic law is a set of religious principles which form part of the Islamic culture. The Sharia law is applicable to all Muslims, Ahmadis, Shias, Sunnies, Cutchi Memons, Khojas, Bhoras, Meos, Moplahs, and various other sub categories of Muslims.

In India, the Muslims are governed by

• The Muslim Personal Law (Shariat) Application Act, 1937: This law deals with marriage, succession, inheritance and charities among Muslims

• The Dissolution of Muslim Marriages Act, 1939: This law deals with the circumstances in which Muslim women can obtain divorce.

• The Muslim Women (Protection of Rights on Divorce) Act, 1986: This law deals with the rights of Muslim women who have been divorced by their husbands and to provide for matters connected therewith

Unlike the Hindu Marriage Act which has only two ways to seek divorce (Mutual Consent or Contested) the Muslim Male and Female has many ways to seek separation from the marital bonds both judicially and extra judicially.

If a Muslim male and female get married and the Marriage is registered under the special marriage act than the procedure followed for divorce need not follow the Muslim Personal law. The procedure can be understood by going thru my blog post on divorce by mutual consent visiting the link here http://lawyersonia.blogspot.com/2017/02/how-to-get-divorce-by-mutual-consent-in.html

If the Marriage is registered as per the provisions of Muslim law, the divorce too will be governed under the procedures of and as per the provisions of Muslim Law.

Below image is a quick representation of various ways a Muslim Male / Female residing in India can dissolve their marriage and seek divorce as per the Muslim Personal Laws

The Divorce under Muslim law is provisioned in the mosque with the Maulvi completing all formalities and registering in the mosque register hold good and valid divorce as per the Sharia law and the divorce can be of any of the means mentioned above.

Beyond the above means of any Muslim woman can obtain divorce under the following 8 grounds of which are applicable to any Muslim woman of India as per the Dissolution of Muslim Marriage Act, 1939 which are as follows

• Husband absconded and not heard for at least four years

• If a Husband fails to provide the wife with maintenance for 2 years. It may be due to poverty, ill health, imprisonment and on such ground the wife can claim dissolution of marriage. The Wife cannot claim dissolution if she refuses to live with the husband with no fault of his.

• Husband sentenced for 7 years imprisonment or more

• Husband Failing to perform marital duties for 3 years without any reasonable cause

• Insanity of husband for 2 years or suffering from Leprosy or any Venereal disease.

• For legal cruelty inflicted upon the wife, e.g. beating, ill treatment compared to other co-wives, forcing her to immorality etc.., are instances of cruelty.

• Of the ground that she had been given in marriage before the age of 15 and she can repudiate the marriage before her 18^th year, and the marriage was unconsummated.

• Wife can also claim divorce under any other valid ground recognized under Muslim law like Lian, Ila and Zihar.

The position of marriage women is improved under the act of 1939 and she is not entirely under the control of her husband. She can exercise her legal rights and power and obtain divorce from her husband.

As per the Muslim Women’s Protection of Rights on Divorce act 1986 a divorced Muslim woman is entitled for the following

•  Reasonable maintenance within period of Iddat. Iddat in case of divorced women is:

1. Three menstrual courses after her divorce, if she is subjected to menstruation
2. If she is not subjected to menstruation, that three lunar months after divorce
3. If she is pregnant at the time of divorce, the duration from divorce till delivery

• If the divorced woman maintains her children born either before or after divorce, the former husband should provide a reasonable maintenance for two years from the birth of such children.

1. The amount of dower or Maher agreed to be paid to her during marriage or after that should be paid to her.
2. All the properties given to her before or after her marriage by her relatives, friends, husband or relatives and friends of the former husband should be given to her.

Remedies for the Divorced Muslim Woman in case of failure to get maintenance

• The Divorced Muslim Woman or her duly authorized person may make an application for payment of such amount to the Magistrate

• The Magistrate after ascertaining the claims has the power to dispose the matter within one month or a justifiable period of time and order the former husband to pay such amount

• If the order is not followed by the former husband, the Magistrate has power to issue a warrant for levying the dower or maintenance amount in the manner provided for fines under Cr.P.C.

• After the Iddat period, if the Divorced Muslim Woman has not remarried and is unable to maintain herself the Magistrate may make an order directing the relatives who will inherit her property or children (grown up and earning) to pay her the maintenance

• If the divorced woman has no relatives or children or parents the Magistrate may order the State Wakf Board to pay the maintenance

Trust this blog post is helpful and the reader has fair knowledge on the procedure for divorce that prevail in India for my fellow Muslim Citizens in India, If you need assistance or need to discuss about your case feel free to reach me at mail@lawyersonia.com or WhatsApp / Call at 9845944896.

In Part 2 of this blog post I will highlight the detailed process to seek divorce by Muslim Men under the grounds of Cruelty and various other ways to defend themselves of false charges of domestic violence or matrimonial cruelty