FAMILY LAW- II

RESEARCH PROJECT
GROUNDS OF DIVORCE UNDER FASKH

SUBMITTED BY: SUBMITTED TO:

RAKESH KUMAR SAHU DR. JISU KETAN PATTNAIK

SEMESTER - III SEC-B FACULTY (SOCIOLOGY),

ROLL NO. -704 NUSRL, RANCHI

NATIONAL UNIVERSITY OF STUDY AND

RESEARCH IN LAW, RANCHI

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 TABLE OF CONTENTS

PAGE
NO.

i. Table of Cases ………………………………….......................................(3)

ii. Introduction……………………………………………………………...(4)
iii. Faskh as a tool for divorce in Islam…………………………………...…(4)
iv. Judicial decree …………………………………………………………...(4)
v. Grounds of judicial divorce by wife……………………………………..(5)
vi. Conclusion…………………………………………………………….....(8)
vii. Bibliography…………………………………………………………......(9)

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 TABLE OF CASES.

 Janki amma v. Padmanabham

 KC moyin v. nafeesa, Khalid, J.
 Md. Abdul Zalil Ahmed vs Mustt. Marina Begum

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INTRODUCTION

Under the muslim law a lady can approach to the Qazi for dissolving her marriage. Quran
says that this is the duty of the husband to give proper treatment to his wife. The wife is also
under the duty to obey all lawful orders of her husband. If the husband and wife both come to
the conclusion that they cannot live as husband and wife, then they can refer the matter to
Qazi who after careful examination, terminate the marriage.

Faskh as a tool for divorce provided to the Muslim women in Islam:

Faskh means the cancellation, abolishment, revocation of the marriage, perhaps because of
flaws in the marriage contract, or because there are other issues that prevent the marriage
from succeeding. Before the passing of the Dissolution of Muslim marriage act, 1939, there
was no piece of legislation under which a Muslim lady could ask for the dissolution of
marriage, Muslim ladies could only apply for the dissolution of her marriages under doctrine
of Faskh. According to Tyabji, the following were the main grounds for dissolving the
marriage at the instance of the wife:-

1) that the marriage is irregular;

2) that the person having an option to avoid a marriage has exercised his option;
3) that the marriage was performed within prohibited degree or fosterage; or
4) that the marriage having been contracted by non-Muslims the parties have adopted
Islam.

JUDICIAL DECREE:
Judicial divorce means by the order of the court of law. Besides the above form of divorce
provided to husband and wife in certain situation the court may intervene and order the
dissolution of marriage. Tough the Islam does not appreciate courts interference in holy
alliance of husband and wife but in certain miserable condition kazi and court can lawfully
dissolve the marriage

In many cases the doctrine of faskh was represented wrongly. The result of this
misrepresentation was that many times marriages were contracted by the wives on the ground
that they had divorced their husbands in many cases brought action under section 494 of the
Indian penal code against their wives in janki amma v. padmanabham1, in the suit for
dissolution of marriage on husband’s petition, orders were passed by the munsif and allowing
dissolution. When this order of dissolution was in force, the first accused married with second
accused. The single bench of the Travancore Cochin High Court held that the decree
declaring the first marriage and void was in existence when the accused contracted the second
marriage and therefore, it cannot be said that he had a culpable guilty knowledge that he was
doing something unlawful2.

1
(1954) ker LT 997
2
See also isail v. khodeeja umma (1958) ker LT 1042

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In KC moyin v. nafeesa, Khalid, J., said that under no circumstances can a Muslim marriage
be repudiation of marriage by faskh at the instance of the wife has no legal sanction. The
contract of the wife of the second marriage was held punishable under section 494 of Indian
penal code. After passing of the dissolution of Muslim marriage act, 1939 the position has
become clear. This act contains various grounds under which a Muslim wife can claim for
divorce.

GROUNDS OF JUDICIAL DIVORCE BY WIFE:

Section 2 of the dissolution of Muslim marriage act, 1939 provides that a women married
under Muslim law shall be entitled to obtain a decree for the dissolution of marriage on any
one or more of the grounds enumerated therein the specified grounds are as under:

1. The husband is missing from four years [section 2(i)] : if the whereabouts of the
husband is not been known by the wife for the period of four years or more then the
wife is entitled to sue for divorce in the court under section 2 (i) of the act. When a
wife seeks faskh on this ground the court shall give notice of her suit to all heirs of
the husband (as on the date of the suit) and to his brothers or paternal uncles. All of
these persons will have a right to be heard.

2. Husband’s failure to maintain [section 2(iii)]: where the husband fails or neglect to
provide maintenance to the wife for a period of two years or more she can apply for
faskh under section 2 (ii)of dissolution of Muslim marriage act. Maintenance
includes all those things which are necessary for the support of life. Such as food,
clothes and lodging. It is a legal obligation of every husband to maintain his wife.
Mere disability of the husband to maintain his wife, or the fact that failure to
maintain is account of his, falling health, loss of work, imprisonment or any other
cause whatever, is no basis for refusing the wife’s decree for divorce, unless her
conduct has been such as to disentitled her to maintenance.

3. Imprisonment of the husband for seven years [section 2 (iv)]: A wife is entitled to
get her marriage dissolve by an order of the court if her husband has been sentenced
to imprisonment for the period of seven or more years. The wife’s right on judicial
divorce on this ground begins from the date on which the sentence has become final.

4. Husband’s failure to perform marital obligation for three years [section 2(v)]: If
the husband is failed to perform his duty to make his wife happy, or he has failed to perform
without reasonable Cause his marital obligation and treated his wife with cruelty i.e. physical
torture and ill-treatment then after the period of three years, the Muslim wife is entitled to get
divorce from her husband.

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 In the case of Md. Abdul Zalil Ahmed vs Mustt. Marina Begum3. An application for divorce is
filed by the wife under this act, to dissolve her marriage, as the husband has failed to perform
without reasonable Cause his marital obligation and that husband treated with cruelty i.e.
physical torture and ill-treatment and making her life miserable by cruelty of conduct.

5. Impotency of the husband [section 2 (v)]: a wife may sue for dissolution of her
marriage of the grounds of husband impotency. But, for getting a decree, the wife has
to prove the following two facts:
i. that the husband was impotent at time of the marriage, and
ii. that he continues to be impotent till the filing of the suit.

6. Husband’s insanity, leprosy or venereal disease for two years [section 2 (vi)]: If
the husband has been suffering from insanity, leprosy or venereal disease for two
years or more, the wife can sue for faskh under this section.

7. Wife’s option of puberty [section 2 (vii)]: That she, having been given in marriage
by her father or other guardian before she attained the age of sixteen years,
repudiated the marriage before attaining the age of eighteen years:

8. Husband’s cruelty [section 2 (viii)]: If the husband treats the wife with cruelty, she
can sue for faskh under this section of the act. Laying down the following acts of the
husband which are regarded as cruelty against wife;

a) Physical and mental cruelty [section 2(viii)(a)]: the husband habitually assault
her or make her life miserable by cruelty of conduct even if such conduct does
not amount to physical ill-treatment.

b) Husband’s association with bad women and lending infamous life [section
2(viii)(b)]: the husband associates with women of evil repute or leads an
infamous life or in other words it may be said that association with prostitutes
is indicated in this clause.

c) Attempt to force wife to be immoral [section 2(viii)(c)]: the husband attempts

to force the wife to lead an immoral or unchaste life.

d) Disposal of property and preventing her legal right [section 2(viii)(d)]: the
husband disposes off her wife’s property and prevents her from exercising her
legal right over it.

3
http://indiankanoon.org/doc/199875/

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 e) Obstruction in her religion [section 2(viii)(e)]: the husband obstruct the wife
in the observance of her religious profession or practice. In aboobacker v.
mamukoya, Krishna Iyer J. said that the religious practices, the obstruction of
which amounts to statutory cruelty under this section.

f) Inequitable treatment comparison to other wives [section 2(viii)(f)]: the

husband who is having more wives than one, does not treat her equitably in
accordance with the injunctions of the Quran. If he fails to treat his wives
equally, then any of them or all of them may sue for divorce under this clause.
For example- a husband went abroad leaving being two wives in India. He
provided behind maintenance for one wife from there but ignored the other. It
was held by the court that the other wife is entitled to get divorce from this
clause.

9. Any other ground under Muslim law:[section 2 (ix)]: besides the above eight
grounds for faskh specified in section 2, the court is also empowered to dissolve the
marriage under Muslim law.
These provisions are called ‘residuary provisions’

a) no decree passed on ground (i) shall take effect for a period of six months from the
date of such decree, and if the husband appears either in person or through an
authorised agent within that period and satisfies the Court he is prepared to perform
his conjugal duties the Court shall set aside the said decree; and

b) before passing a decree on ground (v) the Court shall, on application by the husband,
make an order requiring the husband to satisfy the Court within a period of one year
from the date of such order that he has ceased to be impotent, and if the husband so
satisfied the Court within such period, no decree shall be passed on the said ground.

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 CONCLUSION

Divorce in Muslim law is a much debated topic, not only in courts; but among social
activists, legislators and even among different groups in the community itself. Certainly that
is with respect to the divorce coming from the husband, viz. 'Talaq'. At the same time the
right of Muslim women to effect divorce is also a much debated issue among the Muslim
themselves. Marriage as per the Muslim law is in the nature of a contract. But it has got a
religious sanction as well. That contract is to subsist during the life period of the couple or
until they cannot live within the limits of the God.

In the absence of serious reason, no action justifies divorce either in the eyes of religion or
law. Thus the divorce is "the most disliked of lawful things in the sight of God."

Every marriage will go through a rocky patch now and again, and most couples can resolve
their differences by talking to each other and understanding how each other feels. Even so,
Oslam acknowledges that even the strongest of marriages may fail for any number of
different reasons. However, divorce should always be the last resort for any couple.

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 BIBLIOGRAPHY

 BOOKS REFERD
1. Mohammedan law
-by (Aqil ahmad)
(23rd edition)

2. Textbook on Muslim law

-by (rakesh kumar singh)

3. Family law on divorce and judicial separation

-by (nassem akhtar)

 SITES REFERD :-
1. http://Indiankanoon.org
2. http://books.google.co.in

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