INTRODUCTION

The intricate framework of Muslim matrimonial law encompasses various aspects of marriage, including restitution of conjugal rights, divorce (talaq), iddat, and mahr (dower). While the provisions of Muslim law do not provide a comprehensive statutory basis for all these matters, they reflect the cultural and religious nuances that govern marital relationships. The right to restitution of conjugal rights emphasizes the importance of cohabitation and mutual obligations, while the concept of talaq highlights the differing rights and responsibilities of husbands and wives in dissolving the marriage bond. Understanding these elements is crucial for grasping the complexities of Muslim family law and its impact on individuals and society.

RESTITUTION OF CONJUGAL RIGHTS

The Muslim law does not specifically statutorily provide for the matrimonial relief of restitution of conjugal rights. However, ‘where a wife, without lawful cause, ceases to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights,’[i] and similarly, ‘the wife has the right to demand the fulfilment by the husband of his marital duties.’. [ii] Generally, however, it is the husband who brings the suit for restitution because of the dominant position of the husband, especially in regard to divorce. His right is not absolute and the wife has her defenses where a husband files a suit for restitution.

Cruelty is a very strong defense. In Moonshee Buzloor Ruheem v. Shumsoonnissa Begum [iii], the Court held that a suit for restitution of conjugal rights would lie in a civil court by a Muslim husband to enforce his marital rights; but if there were cruelty to a degree rendering it unsafe for her to return to his dominion, or if there were a gross failure on his part to perform the obligations imposed on him by the marriage contract, the court would be justified in refusing such relief.

A false charge of adultery by a husband against his wife is a good ground for refusing a decree of restitution. However, if the charge is true and it was made at a time when the wife was actually living in adultery, then it is no ground for refusing the decree on the husband’s petition. Expulsion of the husband from the caste is another valid defense for the wife to resist the husband’s suit for restitution. A wife is not bound to live with him in such a case.

TALAQ (DIVORCE)

A contract of marriage under the Muslim law may be dissolved:

1. By the husband at his will, i.e., talaq;
2. By the wife under a power delegated to her, i.e., talaq-e-tafweez;
3. By mutual consent of the husband and wife, i.e., khula and mubara’at; and
4. By judicial decree under the Dissolution of Muslim Marriages Act, 1939.

 

1. Talaq

Talaq in its original sense means repudiation or rejection, but under Muslim law, it means a release from the marriage tie. It is a generic name for all kinds of divorce but is particularly applied to the repudiation by or on behalf of the husband. Any Mohammedan of sound mind, who has attained puberty, may divorce his wife whenever he desires, without assigning any cause.[iv] A talaq pronounced under compulsion or intoxication or fraud is also effective under Sunni law [v] but void under Shia law. [vi]

A talaq may be effected either orally, by spoken words, or by a written document called talaqnama. No particular form of words is prescribed for effecting a talaq. Unlike the husband, a wife has no absolute right to divorce her husband. She can, however, seek a divorce under certain conditions and grounds through a court.

Prior to the Shariat Act, i.e., the Muslim Personal Law (Shariat) Application Act, 1937, the wife could sue the husband for divorce on the following grounds, viz.:

1. Impotence: it had to be proved that:
   1. The wife was a virgin at the date of filing the suit;
   2. The husband was impotent at the time of marriage;
   3. The wife had no knowledge of his impotency at the time of marriage; and
   4. The husband was unable to consummate the marriage during the one year during which the case was to be adjourned.
2. Li’an, i.e., false charge of adultery.

After the Shariat Act of 1937, ila, i.e., the vow of continence followed by actual abstinence for four months, and zihar were recognized by the strict Mohammedan law as good grounds for judicial divorce at the instance of the wife. The wife’s right on these grounds was, however, not enforced by Indian courts. Ila and zihar are not grounds recognized under Section 2 of the Shariat Act, 1937.

The Dissolution of Muslim Marriages Act, 1939, was passed in order to consolidate and clarify the provisions of Muslim law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie. The following are the grounds on which a woman married under the Muslim law is entitled to obtain a decree of dissolution of her marriage:

1. The whereabouts of the husband have not been known for a period of four years. A decree passed on this ground, however, will 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 authorized agent within that period and satisfies the court that he is prepared to perform his conjugal duties, the court will then set aside the decree.
2. Failure of the husband to provide for the maintenance of the wife for a period of two years.
3. Sentence of imprisonment on the husband for a period of seven years.
4. Failure without reasonable cause to perform marital obligations for a period of three years.
5. Impotence of the husband at the time of the marriage and continuing. However, on an application by the husband, the court shall make an order requiring the husband to satisfy the court within one year from the date of such order that he has ceased to be impotent; if the husband so satisfies the court within such period, a decree on this ground cannot be passed.
6. Insanity of the husband for two years, or that he is suffering from leprosy or a virulent venereal disease.
7. Repudiation of marriage by the wife.
8. The husband is treating the wife with cruelty; that is to say:
   1. Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
   2. Associates with women of evil repute or infamous life, or
   3. Attempts to force her to lead an immoral life, or
   4. Disposes of her property or prevents her exercising her legal rights over it, or
   5. Obstructs her in the observance of her religious profession or practice, or
   6. If he has more than one wife, he does not treat her equitably in accordance with the injunctions of the Quran.
9. Any other ground that is recognized as valid for the dissolution of marriage under Muslim law.

IDAT

When a marriage is dissolved by death or divorce, the woman is prohibited from marrying within a specified time. This is known as iddat. It is a period of continence imposed on the woman. The purpose of iddat is to ascertain whether the woman is pregnant and to avoid any confusion as to paternity. A marriage could be dissolved either by the death or divorce of the husband. The period of iddat in these situations is as follows.

1. Death—in the case of a woman who is pregnant at the time of her husband’s death, the period of iddat is four months and ten days, or until delivery, whichever period is longer.
2. Divorce—if the woman is subject to menstruation, the period of iddat upon divorce is three courses; if the woman is not subject to menstruation, the period of iddat is three lunar months.

If the marriage is dissolved by death, the period commences from the date of death; in the case of divorce, it commences from the date of divorce. If the information of the husband’s death or divorce does not reach the wife until after the expiration of the period of iddat, then she is not bound to observe the iddat. If the marriage is dissolved by death, observance of iddat by the wife is compulsory whether there has been consummation or not.

MAHR (DOWER)

Mahr or dower, is a sum of money or other property that the wife is entitled to receive from the husband in consideration of the marriage. Dower has generally been defined as consideration for a marriage contract. Under the Muslim law, marriage is a civil contract and dower is an essential part of it. The various kinds of dower are:

1. Specified Dower
2. Prompt Dower
3. Deferred Dower
4. Proper Dower

CONCLUSION

Muslim matrimonial law presents a unique perspective on marriage, emphasizing both rights and responsibilities within the marital framework. The provisions regarding restitution of conjugal rights, divorce, iddat, and mahr illustrate the balance of power and the legal recourse available to both husbands and wives. Despite the challenges and evolving interpretations of these laws, they continue to play a significant role in the lives of Muslim families, reflecting deep-rooted traditions and contemporary societal dynamics. As society progresses, ongoing discussions and reforms in Muslim family law remain essential to ensure justice and equity for all parties involved.

[i]Mulla, Principles of Mohammedan Law, 1972.

[ii] Fyzee, Outlines of Mohammedan Law, 1974.

[iii] Moonshee Buzloor Ruheem v. Shumsoonnissa Begum, (1867) 11 MIA 551.

[iv] Mulla, Principles of Mohammedan Law, 1972.

[v] Ibrahim v. Enayetur, (1869) 4 Beng LR 13.

[vi] Baille, II.