A Muslim marriage is a covenant by which the parties enter the state of marriage. The parties are permitted to stipulate the conditions upon which they will do so, provided the conditions are not illegal according to Muslim law. The subsistence of the marriage confers certain essential rights and imposes certain duties upon the husband and the wife. These rights and duties are stated in the Quran, which speaks of them as “the limits of Allah” (Cf.e.g., verse II, 229), within which the husband and the wife have to five. The conditions of the covenants of marriage have also to be fulfilled. Not only does the Quran repeatedly exhort every Muslim to fulfil the covenants which he enters into, but the prophet has particularly emphasised: “Of all the conditions which you have to fulfil, those most entitled to fulfilment are the conditions upon which you enter the union of marriage” (Bukhari 67:53). The Muslim marriage differs from the Hindu and from most Christian marriages in that it is not a sacrament.
This involves an essentially different attitude towards dissolutions. There is no merit in preserving intact the connection of marriage when the parties are not able to fail ‘to live within the limits of Allah’, that is to fulfil their mutual marital obligations, and there is no desecration involved in dissolving a marriage which has failed. The entire emphasis is on making the marital union a reality, and when this is not possible, and the marriage becomes injurious to the parties, the Quran enjoins a dissolution. The husband is given an almost unfettered power of divorce, the only restraints upon him being those imposed by the law relating to dower and by his own conscience. He has to remember the Prophet’s words: ‘Of all things permitted by the law, the word is divorce’. The Quran enjoins a husband either to render to his wife all her rights s a wife and to treat her with kindness in the approved manner, or to set her free by divorcing her, and enjoins him not to retain a wife to her injury (Cf. verses II, 229 and 231). Any suspension of the marriage is strongly condemned (Cf.e.g. Quran IV, 129).
The attitude of the Prophet is illustrated by the well-know instance of Jameela, the wife of Sabit Bin Kais, who hated her husband intensely although her husband was extremely fond of her. According to the account given in Bukhari (Bu 68.11) Jameela appeared before the Prophet and admitted that she had no complaint to make against Sabit either as regards his morals or as regards his religion. She pleaded, however, that she could not be whole heartedly loyal to her husband, as a Muslim wife ought to be, because she hated him, and she did not desire to live disloyally (‘in kufr’). The Prophet asked her whether she was willing to return the garden which her husband had given to her, and on her agreeing to do so, the Prophet sent for Sabit, asked him to take back the garden, and to divorce Jameela. From the earliest times Muslim wives have been held to be entitled to a dissolution when it was clearly shown that the parties could not live ‘within the limits of Allah’, when (1) instead of the marriage being a reality, a suspension of the marriage had in fact occurred or (2) when the continuance of the marriage involved injury to the wife. The grounds upon which a dissolution can be claimed are based mainly on these two principles. The grounds stated in Section 2 of Act VIII (8) of 1939 Sub-clauses (i) to (iv) are based on the principle that a suspension of the marriage had occurred which justified a dissolution, and in Sub-clauses (v) to (viii) on the principle that the continuance of the marriage in those cases would be injurious to the wife.
It is important to remember that the breach of a valid condition in the marriage covenant does not as such give the wife a right to claim a dissolution. The law regarding the enforcement of the terms of a marriage contract is entirely distinct and is governed by entirely different principles from the law regarding the dissolution of a marriage. When a husband and a wife have been living apart, and the wife is not being maintained by the husband, a dissolution is not permitted as a punishment for the husband who had failed to fulfill one of the obligations of marriage, or allowed as a means of enforcing the wife’s rights to maintenance. In the Muslim law of dissolutions, the failure to maintain when it had continued for a prolonged period in such circumstances, is regarded as an instance where a cessation or suspension of the marriage had occurred. It will be seen therefore that the wife’s disobedience or refusal to live with her husband does not affect the principle on which the dissolution is allowed.
Dissolution of Muslim Marriage Act, 1939
