MUSLIM WOMEN GOT THE RIGHT TO DIVORCE IN 1939.

DAY 15

THE DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939 [DMMA]

What were the provisions of the DMMA?

As seen in the previous article, The Shariat Application Act was passed in 1937. Within 18 months of the same, the next legislation came for the Muslims in the form of the DMMA. This Act gave Muslim women the right to divorce through the court. While many loopholes can be found in the legislation, it goes without saying that it gave unprecedented legal rights to Muslim women who could now come out of a bad marriage through court intervention. 

Under what grounds could she give divorce through the court?     

The Act permitted the wife to seek a judicial divorce on grounds permitted by the Maliki school of jurisprudence. The grounds were, husband’s:

• Cruelty

• Insanity

• Impotence

• Disappearance 

• Imprisonment

• Failure to perform his marital obligations 

• Failure to  provide maintenance for specified periods of time, ranging from two to seven years.

• She could also divorce based on the ‘option of puberty’, that is, if a woman had been married off by her elders before puberty and the marriage had not been consummated, she could ask for its dissolution. 

It stated grounds of divorce in very definite, clear and precise terms, and any judge, whether Muslim or non-Muslim, would not have much room left for doubt with regard to them. 

What were the preceding conditions before the law was passed? 

While the Quran ensured that women are equally entitled to divorce, the clerics misled and misinformed the community. As a result many Muslim women began to convert out of Islam in order to escape a bad marriage. This alarmed the clerics and social reformers alike. Not so much out of the concern for women, but to ensure that conversions out of Islam would subvert the numerical strength of the community thus endangering the new political arrangements which required community solidarity. So in order to tide over this crisis, this legislation was passed. 

What were the different religious points of view then linked to this law? 

The clerics were not on the same page while discussing this legislation. Many felt strongly that women truly do not have the right to divorce. She is in all manners inferior to men. He is her hakim, owner so to say, and only when he wants to get rid of her, can he do it. It was his and his right alone to terminate the marriage which was a relationship of maintenance against sexual accessibility or that of a master and slave. Her will for divorce is dependent on his consent. 

Many also believed that conversion cannot dissolve a marriage. Conversion itself is a sin and anyone who converts must be forced into coming back in the fold and till such time imprisoned. But the British courts did not approve of this arrangement at all. 

Some others were worried that with legislation and judicial processes, the entire personal law domain would shift to the courts and into the hands of, in most parts, non-Muslim judges. And by extension the state will start to play a role in personal matters. This insecurity is prevalent even now when the current religious organisations do not want the state to intervene in personal law matters. 

How did they find a way out?

A way out was necessary. The Hanafi jurists, because most Indians are Hanafis by sect, clearly laid down that in cases where Hanafi law is not upto it, it is permissible to apply laws from other schools of jurisprudence, Malliki, Shafi or Hambali. So the provisions of the DMMA were inspired by the Malliki school. Ulemas also issued a fatwa that a married woman may obtain a decree dissolving her marriage, thereby, bringing her divorce out of the ambit of their influence. A Muslim woman, now can approach the court of law to dissolve her marriage, and not remain at the mercy of her husband. This was a revolutionary legislation which restored to women her rights ensured in the Quran and put her a step ahead of women from other communities who still had no legislation.

Looks like the clerics played an important role unlike during the time of triple divorce law!

To sum, both the Acts, 1937 and 1939 had the involvement of the Ulemas. In fact they played a crucial role in the getting the legislations while cohorting with their political masters then. Today when the clerics deplore the involvement of the state in the shariah matters forget their own role in making the state to legislate for them, and that too a foreign state. 

Muslim women too played an active role in supporting the two legislations. It also reiterates that until women’s issues do not become political issues, they do not matter to the powers that are at the helm. 

What were the limitations of this law?

This law while it gave Muslim women the right to divorce, did not put any curbs on the man to not unilaterally divorce his wife. So while the wife had to struggle with the court process, the husband was free to divorce orally and get away from the marriage instantly which went on till 2019 when the legislation against triple divorce was passed. The law was not comprehensive as it did not make any provisions for post-divorce maintenance, custody of children, matrimonial property rights of the wife. Hence BMMA has been constantly seeking a comprehensive legislation that takes care of every aspect of family life. 

What happened to the law reform process after independence? 

If we look at the timelines, the Shahbanu legislation came in 1986, almost 50 years after the 1937 Act. Thereafter there was absolutely no attempt by political parties in power nor by religious groups nor by women’s organisation to address the issue of personal law reform. Further ahead, the triple divorce law came in 2019, a good 33 years after the last legislation. In 1937 too Muslim women were demanding their religion based rights and 2020 also the same conditions exist. While the others got their religion based rights legislated, the Muslim community lays in a stupor. Most times it was under the tight hegemonic control of the clerics who in turned controlled the political dispensation, which had no political will to intervene in matters of its own citizens. Are we going to wait for another 50 years for the next set of legislations?