The Muslim husband's right to judicial divorce

THE CONCERN AND WISDOM BEHIND THE GWALIOR RULING DESERVES APPRECIATION. BUT SOME CRITICS HAVE SEEN IN IT AN ATTEMPT TO TURN A PROCEDURAL PROVISION INTO SUBSTANTIVE LAW

- Tahir Mahmood

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. 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.