The Muslim husband’s right to judicial divorce

The wisdom behind the Gwalior ruling deserves appreciation. But some critics have seen in it an attempt to turn a procedural provision into substantive law

The Gwalior Bench of Madhya Pradesh High Court (HC) has pronounced a decision which may significantly impact the course of Muslim law on divorce in India. The verdict is that a Muslim husband who wants to put an end to his marriage has the right to petition a family court for it. In other words, he need not necessarily pronounce an extrajudicial divorce as per traditional Muslim law. The veracity of this ruling is to be judged with reference to three legislative enactments — the Dissolution of Muslim Marriages Act of 1939, the Muslim Women (Protection of Rights on Marriage) Act of 2019 and the Family Courts Act, 1984.

The Muslim law of divorce is cognisant of both the fault and the breakdown theories on the subject. (Representative image)

The Muslim law of divorce is cognisant of both the fault and the breakdown theories on the subject. In pursuance of this policy, Muslim law empowered both spouses to put an end to their undesirable marriage with or without the intervention of a judicial or quasi-judicial authority. An extrajudicial termination of marriage may be in the form of talaq (divorce by husband), khula (divorce by wife), or mubara’at (divorce by mutual consent). Where a competent external authority sanctions divorce, it is called faskh-e-nikah (dissolution of marriage). Family laws in Muslim countries provide for all these with checks and balances.

In India, Muslim divorce law has so far been reformed twice. The Dissolution of the Muslim Marriages Act, 1939 was enacted to recognise Muslim women’s right to judicial divorce. No such law has ever been enacted for married men, and the only option for them is divorce without judicial intervention. As the rules of Muslim law in this regard were being terribly misused in society, some learned judges expressed great concern about it in their judgments. Emboldened by these, a group of married girls knocked at the doors of the apex court for relief. This led to the Constitution Bench decision in the Shayara Bano case of 2017 which “set aside” the practice of talaq-ul-bid’at (unilateral divorce by men disapproved by Muslim law yet resulting in instant divorce). In pursuance of the court’s recommendation for an appropriate law on the subject, Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019. This law invalidated and criminalised the so-called talaq-ul-bid’at only, leaving intact the rest of the Muslim law on divorce, both judicial and extrajudicial, and for both men and women.

The Family Courts Act of 1984 is essentially a procedural law, which was enacted to establish special courts to decide family disputes promptly through a special procedure. Section 7 of the Act confers on family courts the jurisdiction “exercisable” by the general civil courts “under any law for the time being in force” relating to specified family matters. Among such matters (mentioned in an explanation appended to the section) are the nullity of marriage, restitution of conjugal rights, judicial separation, and dissolution of marriage.

In the Gwalior case under reference, a Muslim husband had filed a plea for divorce in a family court alleging adultery on the part of his wife. The court dismissed his suit on the ground that there was “no law” under which it could entertain and decide his case (wrongly presuming that such a law must be statutory). Against this decision, the man went in appeal to the Gwalior Bench of the state HC. The appeal was allowed by the Bench with an observation that though the Dissolution of Muslim Marriages Act, 1939 makes no provision for men desirous of divorce, they can still initiate divorce proceedings under Section 7 of the Family Courts Act. This provision, the Bench said, “does not distinguish on the basis of caste and community” and is “all-pervasive” in its nature. “Even the constitutional morality and its spirit mandates that no person can be rendered remediless” the Bench observed, adding that a Muslim male cannot be “denied the valuable right to access justice or judicial forum to ventilate his grievances”.

The words “any law for the time being in force” in Section 7 of the Act cannot be restricted to legislative enactments only, especially since, unlike other personal laws, Muslim law remains largely uncodified. Its principles beyond the two Muslim law Acts of 1939 and 2019 are also “law for the time being in force” within the meaning of Section 7 of the Family Courts Act, 1984.

The concern and wisdom behind the Gwalior ruling deserve appreciation. But some critics have seen in it an attempt to turn a procedural provision into substantive law. Even if it is so, such judicial ingenuity is not unprecedented. Section 112 of the Indian Evidence Act, 1872 (now Section 116 of Bharatiya Sakshya Adhiniyam, 2023) is also a procedural provision, but by virtue of the judicial stand on its scope, it became a substantive law. So are the provisions on divorced women’s maintenance under Sections 125 to 128 of the Code of Criminal Procedure, 1973 (now Sections 144 to 147 of the Bharatiya Nagarik Suraksha Sanhita, 2023), which also gradually assumed the nature of a substantive law.

For a long time past, I have been suggesting that the Dissolution of Muslim Marriages Act, 1939 should be amended to replace the words (used in its opening section) “a woman married under Muslim law” with “any person married under Muslim law”, which would make the Act applicable equally to both men and women even without changing its title. Had such an amendment been carried out, in the Gwalior case under consideration, the family court would have certainly admitted the aggrieved husband’s plea for divorce and there would have been no need for an appeal to the HC. The Madhya Pradesh HC’s decision in the case under reference merits statutory recognition by reforming the 1939 Act on these lines.

Tahir Mahmood is professor of law and former member of the Law Commission of India.The views expressed are personal