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Reasons of Divorce
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ABSENCE OF HUSBAND
The wife is entitled to obtain a decree for the dissolution of her marriage if the whereabouts of the husband have not been known for a period of four years; but a decree passed on this ground will not 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 authorized agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court must set aside the decree. Otherwise the decree will be passed and the marriage will be dissolved. In a suit under this clause, the paternal uncle or brother of husband must be made a party even if he or they are not legal heirs of the person whose whereabouts are not known.
FAILURE TO MAINTAIN
Failure to provide maintenance
The wife is entitled to obtain a decree for the dissolution of her marriage, if the husband has neglected or has failed to provide her maintenance for a period of two years. Mere non-maintenance for two years is enough irrespective of which party is to be blamed. Default by husband of payment of maintenance—Revision dismissed by High Court by a non-speaking order, held illegal.
Poverty, failing health, no defense
Failure to maintain the wife need not be willful. Even if the failure to provide her maintenance is due to poverty, failing health, loss of work, imprisonment or to any other cause the wife would be entitled to divorce. Mere inability of the husband to maintain his wife is no longer a ground for refusing a divorce. It is absolutely immaterial whether the failure to maintain is due to poverty, failing health, loss of work, imprisonment or any other cause whatsoever unless, wife's conduct has been such as to disentitle her to maintenance under the Muslim Law.
Wife disobedient, unfaithful, no decree
The wife's suit for divorce was dismissed as it was found that she was neither faithful nor obedient to her husband. So also was the wife's suit dismissed, where the wife, who lived separately, was not ready and willing to perform her part of marital duties. Disobedient wife not entitled to maintenance, as maintenance is not an absolute right. Where the wife has not been paid her prompt dower, she is entitled to stay away from her husband, and the husband is bound to maintain her. If he does not maintain her for a period of two years the wife is entitled to divorce. Husband's failure to give maintenance, wife's exercising the right of Talak-e-Towfiz, valid. If the wife deserts her husband, or otherwise willfully fails to perform her marital duties, she has no right to claim maintenance from the husband, and if the husband in that case does not maintain the wife, it cannot be said that there is negligence, or failure to provide maintenance of the wife.
Taking additional wife
Taking an additional wife in violation of the provisions of Muslim Family Laws Ordinance, 1961-Section 6(1) of the said Ordinance provides that during the subsistence of an existing marriage, no man should contract another marriage and no such marriage be registered under the provisions of Muslim Marriages and Divorces (Registration) Act, 1974. But, if a person after observing the aforesaid formalities, marries more then one wife, the question of maintaining them equally would arise. Failure to make equal treatment by husband to wives, amounts to cruelty within the sub-clause (viii) of Section 2 of the Muslim Marriages and Divorces (Registration) Act, 1974, though it is well to note that equal treatment does riot mean a husband's divorcing a disagreeable co-wife.
Nature of duty for maintenance
Nature of duty for maintenance to be ascertained from general provisions of Muslim Law and does not make any difference between the rich and the poor, if the Kabinnama does not show otherwise. Failure to maintain for two years no other ground necessary for dissolution. Husband bound to maintain in all circumstances, irrespective of his illness or poverty. Wife left husband's house for torture. Husband does not maintain her for two years, dissolution decreed. Wife refuses to live with husband without reasonable cause, no maintenance can be decreed. If during the pending of a suit for dissolution on ground of failure to maintain, the husband changes his mind, court may give the husband a chance. Duty of maintenance is not absolute. Wife to prove, husband is obliged to maintain her, if alleged otherwise. Failure to maintain in terms of Kabinnama, wife entitled to divorce on failure. The maintenance for Iddat period extends to three months.
IMPRISONMENT OF HUSBAND
The wife is entitled to obtain a decree for the dissolution of her marriage if the husband has been sentenced to imprisonment for a period of seven years or upwards, but no decree can be passed on this ground until the sentence has become final.
FAILURE TO PERFORM MARITAL OBLIGATIONS, IMPOTENCE AND INSANITY OF HUSBAND
Failure to perform marital obligations
The wife is entitled to obtain a decree for the dissolution of her marriage if the husband has failed to perform without reasonable cause his marital obligations for a period of three years.
Impotence of husband
The wife is entitled to obtain a decree for the dissolution of her marriage, if the husband was impotent at the time of the marriage and continues to be so; but before passing a decree on this ground the court is bound, on application by the husband, to 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 satisfies the court within such period no decree can be passed, on the ground of his impotence.
Insanity, leprosy etc
The wife may obtain a decree for the dissolution of her marriage if the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease.
WIFE'S OPTION OF PUBERTY
Option of Puberty
According to Section 2 (vii) of the Dissolution of Muslim Marriage Act, 1939 (Act VIII of 1939), it is the right of 'Khairul Baloog' of a minor wife given in marriage by her guardians to repudiate the marriage upon attaining majority, that is, the age of nineteen years, if the marriage had not been consummated and can be exercised without any order of the court. The mere fact that plaintiff refused to get herself examined by a doctor does not prove consummation and co-habitation before 15 years by itself does not end puberty. Awareness of marriage is also essential. Since the Shariat law has not fixed the age of attaining majority, it is, by consensus, 15 years, but fight over the puberty, according to Muslim Law, is immaterial. The right is triable by the Civil Courts. Mere filing of a suit or even denial by the wife, is exercising the right and dissolution decreed. Consummation by force does not end the right of option.
Repudiation need not be formal
Repudiation need not be formal. Anything done by minor during minority would not destroy her right of option of puberty. Even the court's order is not necessary to exercise the right. Right continues until voluntary confirmation of marriage and the minor attains majority and comes to know about her marriage. Right can be exercised before attaining 18 years. Marriage during minority of the wife with another man, operates as repudiation. A girl cannot repudiate marriage before attaining majority, if marriage was not fraudulently or negligently contracted by her father or paternal grandfather. If marriage was contracted by father or guardian before 15 years, she can exercise the right after attaining majority. Court can examine whether marriage is repudiates. Repudiation has to be established like any other fact. Muslim Law does not prescribe any limitation for a judicial decree on ground of option of puberty. As a marriage by minor herself during minority is void, so repudiation of a marriage by minor before attaining 18 years, is also illegal.
CRUELTY OF HUSBAND
Cruelty of husband
The wife is entitled to a decree for the dissolution of her marriage under Section 2 (viii) of the Dissolution of Muslim Marriages Act, 1939, if the husband treats her with cruelty, that is to say:
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habitually assaults her or makes her life miserable by cruelty or conduct even if such conduct does not amount to physical ill-treatment, or
associates with women of evil repute or leads an infamous life, or
attempts to force her to lead an immoral life, or
disposes of her property or prevents her from exercising her legal rights over it, or,
obstructs her in the observance t of her religious profession or practice, or
if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.
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Which acts amount to cruelty: mental or physical: place of suing etc
Cruelty is a valid ground to refuse restitution of conjugal rights-compelling wife in a well-to-do family to do domestic works, is cruelty. Habitual use of insulting and abusive language or constant charge of wife's involvement with another person is cruelty.
Place of suing
In earlier cases where husband was leading infamous life with women of ill repute, the place of suing would be decided as per the provisions of Section 20 of the C.P.C to be at the place of leading such life, but, as per the present Family Courts Ordinance of 1985, the place of suing should be according to the provisions laid down in the Section 6 (1).
Disposing of wife's property
Disposal by husband of the wife's property dose not necessarily mean misappropriation by husband, though merely husband's pressing needs do not make the sale legitimate. Husband's object not to deprive wife of her property proved, Section not attracted (19). Where husband's cruelty is found to be the result of wife's own conduct, it is not a good ground of divorce, nor wife's misconduct is a good ground for behaving cruelly with her. A suit by a Muslim wife for dissolution of her marriage on ground of incompatibility of temperaments, aversion or dislike does not lie. Actual a cruelty not proved, but from circumstances, married life of wife proved intolerable, dissolution granted. Husband continuously treats wife with gross brutality presumption is that the husband intends to drive away wife.
Mental and other cruelty
Incompatibility of temperament leading to ill treatment towards wife amounts to cruelty, dissolution decreed. Circumstantial evidence of cruelty is good enough. Habitual cruelty proved, dissolution must be decreed. Habitual cruelty may even be proved by a letter. Husband disagrees with wife on each and every matter, amounts to cruelty. Husband denies companionship with wife for a long time, held cruelty. Wife subjected to unnatural co-habitation, held cruelty. Continuous ill treatment and beating of wife husband, is cruelty. Failure to make equal treatment by husband to wives, held cruelty. Equal treatment does not mean husband's divorcing a disagreeable co-wife. Willful neglect also amounts to cruelty.
Cruelty as Res- Judicata
In a suit for restitution of conjugal rights, wife's plea of cruelly was previously rejected by the court, it will operate as Res- Judicata in a subsequent suit. Wife's allegations against husband leading infamous life with women of loose morals actually not proved, wife not entitled to decree for dissolution. Onus of proving grounds of divorce is on the plaintiff and is a question of fact. Expert decree against wife discouraged-spouses living separately to avoid marital obligation means not living as husband and wife.
OTHER GROUNDS 0F DIVORCE
Judicial divorce on other grounds
According to old authorities the wife was not entitled to a judicial divorce on any other ground such as the conjugal infidelity of the husband or his inability to maintain her. Incompatibility of temperament is not a ground for divorce. Section 5 of the Shariat Act empowers the District Judge to give a divorce on the wife's petition, Section 8 of the Muslim Family Laws Ordinance. 1961, recognizes wife's absolute right to divorce also otherwise than by Talak. Section 2 does not cover all grounds on which a Muslim marriage can be dissolved.
Inequality and the doctrine of Kefat
Where social inequality disparity of age or where wife was an educated woman of mature a entering into a marriage with a boy of fifteen years of age, the doctrine Kefat or inequality of age cannot be invoked to cancel the marriage. A marriage can be dissolved on any other ground valid under Muslim Law. Desertion by husband falls into any other ground. Husband goes to military service, no desertion, no dissolution decreed. Anti-nuptial or after marriage agreement for Talak on certain contingencies, good ground of dissolution. Contract that wife will divorce husband in case he takes a second wife without her consent, husband takes second wife, dissolution decreed (46).
Li'an or false charge of adultery against wife and divorce suit
The wife is entitled to sue for a divorce on the ground that her husband has falsely charged her with adultery. She must file a regular suit for dissolution of her marriage as a mere application to the Court is not the proper procedure. If the charge is proved to be false, she is entitled to a decree, but not if it is proved to be true. No such suit will lie if the marriage was irregular. Where the wife sues for dissolution on the ground of Li'an the marriage cannot be dissolved, if the husband bona fide retracts the charge of adultery.
Retraction of the charge of adultery and the effect thereof upon divorce suits
Mere retraction by husband does not defeat the wife's right for dissolution. Li'an retracted by husband, husband exposes himself to punishment for bringing false charges of adultery against wife. Retraction should be sincere and not with object to defeat the suit of wife. Adultery- Husband's mere hearsay evidence without proof of specific instance, not enough to constitute the charge of adultery. Divorce suit on the charge of adultery cannot be defeated by retraction of charge. Charges of adultery true, suit not maintainable. Retraction must be both in the written statement and in the deposition of the husband. Retraction must not be conditional. Retraction in the written statement may defeat the suit, though submitted after a long delay. Retraction must be bona fide and not a cloak to defeat the suit.
Wife's costs in proceedings for divorce
The rule of English law which makes the husband in divorce proceedings liable prima facie for the wife's costs except when she is possessed of sufficient separate property, does not apply to divorce proceedings between Mohammedans, wife entitled to get cost of litigation. Pending of appeal- decree for dissolution of marriage wife contracting marriage subsequent to decree with full knowledge of pending appeal by husband-subsequent marriage cannot affect the appeal on merit-decree reversed by the High Court, though wife got two issues by the subsequent marriage.
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