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

Dissolution of Muslim Marriage in India - Muslim Personal Law  

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:

a.    Three menstrual courses after her divorce, if she is subjected to menstruation

b.    If she is not subjected to menstruation, that three lunar months after divorce

c.     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.

a.  The amount of dower or Maher agreed to be paid to her during marriage or after that should be paid to her.

b.  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 lawyersonia@gmail.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

Divorce: Husband not bound to maintain a Well-Qualified wife sitting idle

Divorce and Family disputes are at a raise in India and the problem is couples don’t want to solve their problems but are willing to part away without giving a second chance to their relationship. I once heard a comment “Love at First Sight and Divorce at First Fight” which seems to be true these days. In the last couple of years there are multiple instances where women are losing on the alimony claims / maintenance from husband post-divorce. Lawyers arguing and courts agreeing that a well-qualified wife and capable to earn need not fall back on the husband to claim maintenance and the trend seems to be increasingly alarming.

The point of concern is the human angle, women are different than men in many ways, although they are tough enough to face the challenges of time it is practically impossible to simply rule in the favour of husband when the wife is not working and carries no means of income at the time of divorce, first of all the plight in India is women leave their parental home and virtually all relationship ties are killed in the name of kanyadaan ceremony ( a ritual where the kanya (girl) is donated in charity to husband) and the parents bid a good bye to the girl stating now your husband’s home is your home, you will live and die there also we are no more your parents you need to accept your husband’s parents as your parents blah…blah…blah… and then the married women is subjected to various atrocities which push them to seek divorce. The tradition, culture and social stigmas of divorce haunt women more in than men, some cases the judgement in favor of husband have an aftermath making life of divorced women more miserable.

I did some research and gathered statistics of unemployment rate in India that has shot up to a five-year high of 5 per cent in 2015-16, with the figure significantly higher at 8.7 per cent for women as compared to 4.3 per cent for men, says a report by Labour Bureau. According to the fifth annual employment-unemployment survey at all-India level, about 77 per cent of the households were reported to be having no regular wage/salaried person. In rural sector, unemployment rate is 5.1 per cent whereas in urban sector, the rate is 4.9 per cent. The figure was significantly higher among females compared to males.  In urban areas, female unemployment rate was estimated to be 12.1 per cent at pan-India level compared to 3.3 per cent for males. The survey was conducted across all states and union territories during April 2015 to December 2015. A total sample of 1,56,563 households were covered in the survey – 88,783 households in the rural sector and 67,780 in the urban sector.

One very important argument I wish to make to my readers is the importance of siting the facts while filing the maintenance and divorce suits, not all cases are ruled against women, but only those where certain key points are not highlighted why the maintenance is being claimed. An example to quote from one of the cases where the Mumbai Family Court rejected the claim was because the petitioner contended that the respondent is a successful businessman and is doing business not only in India but also in Dubai and other countries, and that his total income per month is more than Rs. 15 lakhs, and therefore considering the status of her husband, she prayed for grant of maintenance of INR 2 lakhs per month. The Court relied on Mamta Jaiswal v. Rajesh Jaiswal, 24^th March 2000, a ruling by Madhya Pradesh high court, where it was held that “well qualified wife is not entitled to remain as an idle and claim maintenance from her husband”.  Now such claims are bound to be rejected… instead if certain facts be strengthened on the current lifestyle of the wife cannot be maintained and her monthly expenses are way beyond INR 2 Lakhs that include rent, home and household expenses, cost of maids / domestic help, cook, driver, health expenses, commutations, loans, parents illness, child and other commitments etc… so all boils down to how things are represented.

I wish to end this blog with a small story on the importance of communication with an anecdote which goes like this

“A blind boy sat on the steps of a building with a hat by his feet. He held up a sign which said: "I am blind, please help." There were only a few coins in the hat. A man was walking by. He took a few coins from his pocket and dropped them into the hat. He then took the sign, turned it around, and wrote some words. He put the sign back so that everyone who walked by would see the new words. Soon the hat began to fill up. A lot more people were giving money to the blind boy. That afternoon the man who had changed the sign came to see how things were. The boy recognized his footsteps and asked,

"Were you the one who changed my sign this morning? What did you write?"

The man said, "I only wrote the truth. I said what you said but in a different way."

I wrote: "Today is a beautiful day but I cannot see it."

Both signs told people that the boy was blind. But the first sign simply said the boy was blind. The second sign told people that they were so lucky that they were not blind. Should we be surprised that the second sign was more effective? 

Life is something similar in the courts too… it all depends on how strong your arguments are and evidence is. If you enjoyed this post do comment, like and share, feel free to reach me at lawyersonia@gmail.com