Part 1 - DIVORCE THROUGH FORMAL COURT - BMMA's draft law

DAY 23

Part 1 – DIVORCE THROUGH FORMAL COURT

Through a series of 3 articles, I will discuss BMMA’s proposed law of divorce. In this part I will discuss the process that should be followed if a Muslim woman or man applies in the formal court for divorce 

What are the different forms of divorce recognized by BMMA’s law? 

      The Act recognizes 3 forms of separation between husband and wife:

• Demand for divorce by wife [Khula/faskh]
• Demand for divorce by husband [Talaak]
• Divorce by mutual consent [Mubarah]

What are the general rules that need to be followed if the divorce happens through court? 

• In the event mentioned Khula/Faskh, Talaak, Mubarah the party demanding divorce will follow the Talaak-e-Ahsan method of divorce
• No rights of the wife are forfeited in the event of Khula, Mubarah or Talaak
• The wife has the right to refuse to stay under the same roof during iddat if she fears physical, mental and emotional harm
• The demand of khula by wife is not dependent on the consent of the husband. The Arbitrators shall have the power to terminate the marriage in the absence of consent of the husband in case of khula [faskh-e-nikaah].
• The procedure of Talaak-e-Ahsan also signify restitution of conjugal rights.

What are the grounds for decree for dissolution of marriage by wife?

These grounds for divorce are the same as mentioned in the Dissolution of Muslim Marriage Act with some amendments and they are: 

• Whereabouts of the husband have not been known for a period of two years;
• Husband has neglected and/or failed to provide for maintenance for a period of two years;
• Husband has failed to perform his marital obligations for a period of two years
• Husband has been sentenced to imprisonment for a period of two years or upwards;
• Husband was impotent at the time of the marriage and continues to be so;
• Husband has been of unsound mind for a period of two years or has been suffering from leprosy or a virulent venereal disease;
• If she was given in marriage by her father or other guardian before she attained the age of fifteen years, she can file for divorce whether the marriage was consummated or not. 
• Husband has, after the solemnization of marriage, treated her with cruelty; that is to say:

1. Habitually assaults her or makes life miserable by cruelty of conduct even if such conduct does not  amount to physical ill-treatment, or
2. Associates with persons of evil repute or leads an infamous life, or
3. Attempts to force her to lead an immoral life, or
4. Disposes of her property or prevents exercising of legal rights over it, or
5. Obstructs in the observance of religious profession or practice, or

• Husband has maintained, after solemnization of marriage, sexual relations with persons other than his own wife;
• That due to irretrievable breakdown of marriage, life together has become impossible or intolerable;

What are the grounds for decree of dissolution of marriage by husband?

A man married under Muslim law shall be entitled to obtain a decree for the dissolution of his marriage from the court on any one or more of the following grounds, namely that the:

• Whereabouts of the wife have not been known for a period of two years;
• Wife has been sentenced to imprisonment for a period of two years or upwards;
• Wife has been incurably of unsound mind for a period of two years or has been suffering from leprosy or a virulent venereal disease;
• Wife has, after the solemnization of marriage, treated him with cruelty;
• Wife has maintained, after solemnization of marriage, sexual relations with persons other than her own husband;
• That due to irretrievable breakdown of marriage, life together has become impossible or intolerable;

What is the procedure to be followed before granting decree of divorce?

Upon receiving the application for decree of dissolution of marriage from either of the party to marriage on any of the grounds mentioned above, the court shall:

• Appoint three Arbitrators - one Arbitrator each from the family of both parties as nominated by the parties themselves and one member from a welfare organization registered as per the provisions of this Act for the purpose of attempting reconciliation between the parties within 30 days of the date of application, provided that at least one Arbitrator should be a woman;
• Direct the parties to attend and fully participate in the reconciliation proceedings to be commenced by Arbitrators within two weeks of their appointment;
• Direct the Arbitrators to conduct their duties in a fair, just and impartial manner;
• Direct the Arbitrators to submit their report to the court within a period of 3 months from the commencement of reconciliation proceedings indicating the conclusion of the reconciliation process and the reasons for reaching that conclusion;
• After receiving the report of the Arbitrators, send a copy each to both the parties;
• Direct both parties to submit objections, if any, to the report within a period of 30 days from the date of receiving the report;
• If the parties have reached an agreement and differences are resolved, dismiss the suit or if the parties fail to reach an agreement, continue the procedure for the suit for decree of dissolution of marriage.

What about maintenance issue during this period?

While the process is on, the court must pass interim orders regarding maintenance of the wife and children, custody and education of children, inheritance, matrimonial home and any other issue at hand. 

Do all other laws related to family issues applicable?

A Muslim woman is also a citizen of this country and hence any other law related to marriage and divorce are applicable to her. They are:

(a) Muslim Women (Protection of Rights on Divorce) Act, 1986.

(b) Protection of Women from Domestic Violence Act, 2005.

(c) S.125 of the Code of Criminal Procedure, 1973.

(d) Any other law for the time being in force, applicable to her.

The court must ensure that before the final decree of divorce is passed, all other matters related to maintenance of wife and children, custody of children, share in matrimonial property, division of matrimonial gifts etc, are resolved.