The Dissolution of Muslim Marriages Act, 1939

What it does

The Act gives a Muslim wife a statutory route to a decree of dissolution. Section 2 lists the grounds, and a woman married under Muslim law may obtain a decree on any one of them. They include:

• that the whereabouts of the husband have not been known for four years;
• that he has neglected or failed to provide maintenance for two years;
• that he has been sentenced to imprisonment for seven years or upwards;
• that he has failed to perform his marital obligations for three years;
• that he was impotent at the time of the marriage and continues to be so;
• that he has been insane for two years, or is suffering from leprosy or a virulent venereal disease;
• that she was given in marriage by her father or other guardian before she was fifteen, repudiated the marriage before eighteen, and the marriage has not been consummated;
• that he treats her with cruelty, as the Act defines it; and
• any other ground recognised as valid for the dissolution of marriages under Muslim law.

Other provisions say that the conversion of a Muslim wife to another faith does not by itself dissolve her marriage, and that a decree does not affect any right to dower she has.

Who it binds

A woman married under Muslim law and her husband. It is a personal law enactment. The Act does not deal with the husband's own ways of ending a marriage, or with dissolution by mutual agreement, which fall outside it. It does not extend to a marriage solemnised under the Special Marriage Act, 1954.

What has changed, and when

The statutory grounds of 1939 have stayed largely as enacted. The law around them has moved. The Muslim Women (Protection of Rights on Divorce) Act, 1986 deals with the rights of a divorced Muslim woman, and the Supreme Court in 2017 held the practice of instantaneous triple talaq invalid in Shayara Bano v. Union of India. Parliament then made it an offence by the Muslim Women (Protection of Rights on Marriage) Act, 2019. Those developments concern the husband's pronouncement of divorce. This Act remains the wife's statutory ground-based remedy.

What turns on it in practice

The practice area on this site for matrimonial and family matters advises on divorce, maintenance and custody across the personal laws, and the firm's note on matrimonial and child custody in India names the Act among them. The usual questions are of proof and of forum. A petition under the Act is heard by a court with jurisdiction over matrimonial matters, ordinarily the Family Court, and the petitioner has to bring evidence of the ground relied on, such as the period of absence or the failure to maintain. The periods in section 2 are counted in full years, and a petition filed before the period has run is premature.

The Act sits beside the other remedies a wife has. A claim for maintenance, a claim to dower, and the custody of children are separate proceedings under other laws, and the welfare of the child governs custody whatever the personal law. A petition under this Act should be read together with those claims.