In India, people are managed by laws enacted by the Parliament or concerned State legislations or custom prevailing in the society. In 1937, the Shariat Application Act was enacted for the application of Shariat law to Muslims which enunciated the principle that in governing personal affairs and it shall apply to Muslims and not the customs and traditions. But the Act could not fulfill the objectives for which it was enacted and there was opposition from certain group of Muslims for the codification of law for the whole Muslim community.
In 1939, during the British regime in India, the Dissolution of Muslim Marriage Act was enacted which prescribed the rules to be followed by Muslims in obtaining divorce. The fundamental purpose of the Act is to consolidate and explain the laws that govern Muslims for dissolving marriage by women who are married according to Muslim law and to clarify the uncertainties regarding renunciation of the husband by a woman from the bond of marriage. It is a small legislation with five sections. The Act also repealed the Shariat Application Act, 1937.
The Act under Section 2 provides for ten grounds for obtaining decree for the dissolution of marriage. A Muslim woman shall obtain a decree for dissolving marriage for the reason that for a term of four years the particulars about the husband are unknown, the woman has been abandoned by the husband or he failed to provide maintenance for the woman for a term of two years, the husband has married another woman contravening the provisions of Muslim Family laws Ordinance, 1961, the husband has been subject to imprisonment for a term of seven years or more etc. The nonperformance of marital obligations, impotency, insanity, leprosy, virulent venereal disease, cruelty etc or any other legal causes can be taken as ground for getting divorce. Where the marriage has been concluded before the woman attains the age of sixteen and the marriage has been renounced before eighteen years, she is entitled to dissolution of marriage.
If the husband or his authorized agents appears before the Court within six months from obtaining decree and consents to accomplish his marital obligations, the Court shall set aside the order. The proviso to the Act provides that where the husband satisfies the Court that he is not impotent with in one year, the Court shall not pass a decree for dissolution. The Court shall furnish a notice to the legal heirs of the deceased husband to intimate them regarding the suit and they shall have the right to be heard.
The Act further states that if a Muslim woman converts to another religion she will have the right to file a suit for dissolving marriage on the grounds mentioned under the Act. But if the woman is converted to Islam religion and returns to the former faith, she shall not enjoy the benefits of the present legislation. The women will also have the right to obtain dower given or agreed to be given at the time of her marriage.
The Act though enacted for the welfare of the Muslim married woman, the Act endures its own merits and demerits. The Act empowers a Muslim woman to obtain divorce on the ground of cruelty without affecting her right to property which she was not entitled to do in the previous legislations. But the Act deals with only a small fraction of Muslim personal law. The Act lacks clarity like the provision for custody of children, maintenance for the woman after divorce etc. Consequently the uniform standardization of Muslim law and personal law reforms for men and women could not be achieved. Moreover, customary practices prevail over these legislations which the Muslim Community has been following from ancient times. Thus, there is a critical requirement to codify the Muslim law and consistent application of these laws to the entire Muslim community without discrimination.