To
bring about a positive change in society, the conventional laws must change
according to the needs and requirements of the society. Probably lack of this
important element in muslim law is one reason why even today a muslim husband,
except if he is a minor or of unsound mind, can unilaterally divorce his wife
at any time without any reason or just cause or even her consent or knowledge. This
caused a lot of violation of rights of muslim wives as they then began to be
treated as objects of possession disposed off whenever so desired. This whole
situation was an offspring of the Hanafi Code of Muslim Law which is prevalent
in India. The code nowhere provides for the right of a muslim wife to dissolve
her marriage even if she was being mistreated or was deserted or neglected or
maltreatment was brought to her by any other means. The absence of a codified
law to outdo such unspeakable misery of muslim women further made matters
worse.
Muslim
marriages are basically governed by conventional norms rather than a set of
legislations While the personal laws of other communities have been codified
for better administration of justice in cases of family or matrimonial discord,
the better part of muslim law still remains uncodified. In the words of Dr.
Tahir Mahmood expressed by him in his paper at a workshop in Copenhagen in 2010
named Interpreting Women’s Access to
Divorce in Present Day Islamic Family Laws: Transnational and Cross-Cultural
Developments in the Law of Divorce in Europe and the Muslim World., “ …the
classical Shariah Law has been subjected to legislative reforms in several
muslim countries. Nothing of this sort has thus far happened in India and
whatever Legislation has been undertaken hardly goes beyond the traditional
understanding of law.” Till date, there are only two statutes relating to
muslim family laws in India- Muslim Women (Protection of Rights on Divorce)
Act, 1989 and Dissolution of Muslim Marriages Act, 1939.
The hanafi jurists had however created a
backdoor to escape a situation in case the code caused hardships. They allowed
the application of “Malliki”, “Shafi” or “Hanbali” law under such hard
circumstances. Hence acting on this principle, the Ulemas issued fatwas to the
effect that a muslim wife can obtain a decree of divorce under the
circumstances where she was treated with cruelty, was deserted, was not
maintained, r in cases where her husband was impotent or suffered from
insanity, leprosy or any other virulent venereal disease.
A
lucid exposition of this principle can be found in the book called “Heelatun
Najeza” published by Maulana Ashraf Ali Sahib who has deeply studied the
provisions of Malliki Law which may be applicable to muslims of India under
special circumstances. This has earned a nod of many Ulemas who have put their
seals of approval on the book.
Also
the marital status of married muslim woman remained a question if she renounced
Islam or converted to some other faith.
Hence,
to create uniformity and cure the miserable position of muslim women in India,
the act called Dissolution of Muslim Marriages Act, 1939 was brought into force.
