Tuesday, February 4, 2014

WHY DISSOLUTION OF MUSLIM MARRIAGES AND A CODED LAW FOR THE SAME FOUND ITS PLACE IN INDIA.

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.

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