Background of Dissolution of Marriage act 1939 by British India.

Qazi Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the issue on 17th April 1936. It however became law on 17th March 1939 after passing The Muslim Personal Law 1937 and the Dissolution of Muslim Marriages Act 1939 passed by British India. The act received assent of the Governor-General on 17 March 1939.

Islam perhaps the first religion in the world which has expressly recognized the termination of marriage by way of Khula and divorce , which is right of the woman and man. In England divorce was introduced only 100 years back. In India among Hindus, it was allowed only by Hindu marriage act, 1955. Before the passing of the act divorce was not recognized by Hindu Law. Divorce among the ancient Arabs was easy and of frequent occurrence.

Dissolution of Muslim Marriage Act, 1939 is sole act in the history of Sub continent, which is drive from the Hanafi School of Islamic thought. It is based on the Maliki School of Islamic jurisprudence. The two main purposes of this act were to grant women more right which were not there in the Hanafi School of Islamic jurisprudence and to stop women from committing apostasy to get out of their marriage. However, when this act is critically evaluated it is found that, This act may provide more right to women of subcontinent if applied according to real intention of Maliki school of islamic jurisprudence. In this article an evaluation of the act is made just to clarify that there were more women rights hidden there but this law was not implemented in its real sense and also the basic purpose seems to be stop women from committing apostasy instead of giving more rights regarding dissolution of marriage.

Prior to this Act, Muslim women in India faced significant challenges in dissolving their marriages, as traditional Islamic law did not provide them with adequate legal remedies. Under classical Islamic law, while men had the right to unilaterally divorce their wives (talaq), women had limited options to dissolve a marriage. They could seek a divorce through mutual consent ( Khula ) or by approaching a qazi (judge) under specific grounds, but these processes were often cumbersome and inaccessible. In colonial India, Muslim personal law was largely uncodified, and women faced difficulties in obtaining divorces due to the lack of clear legal provisions and societal barriers.

Challenges Faced by Muslim Women before 1939.

Under classical Islamic law, men had the unilateral right to divorce their wives (talaq), while women had limited options. Women could seek divorce through mutual consent (khula) or by approaching a qazi (judge) under specific grounds, but these processes were often restrictive and inaccessible.

In colonial India, Muslim personal law was largely uncodified, and women faced significant barriers in obtaining divorces due to the lack of clear legal provisions and societal norms. Courts in British India often struggled to adjudicate cases involving Muslim women seeking divorce, leading to inconsistent judgments and the judge asked to obtain the fatwa for Islamic scholar. thus the court further highlighting the need for statutory reforms.

In 1913, a Muslim husband applied a petition for the restitution of conjugal rights in a colonial court in British India , but his in-laws refused to let his wife join him again. His in-laws claimed that that woman had become an apostate and thus according to Islamic law interpreted by the Hanafi school of thought ,That husband was no longer the claimant's wife. The judge asked the claimant to obtain a fatwa,(legal suggestion from certified Islamic scholar) to clarify the position of Islamic law on the status of his marriage. Therefore, the claimant approached Maulana Ashraf Ali Thanavi for a fatwa, who ruled that due to apostasy the marriage was annulled (Maulana Ashraf Ali Thanavi, (1996).book namely Al-Heela al-Najiza li'l-Hilat Al-'Ajiza ( page 1996). Lahore: Al faisal publisher

The religious political party of India, Jamiat-Ulema-e-Hind, were too much shocked by these conversions. They started demanding reforms in the Islamic law about dissolution.

The early 20th century saw the emergence of social reform movements advocating for women's rights, including within the Muslim community. Organizations like All India Muslim Women's Conference played a pivotal role in highlighting the plight of Muslim women trapped in unhappy or abusive marriages.

Prominent Muslim reformers and scholars, such as Maulana Ashraf Ali Thanavi, contributed to the discourse on women's rights in Islam. They emphasized the need to reinterpret Islamic law to address contemporary issues faced by women.

The British colonial government, while generally reluctant to interfere in religious matters, recognized the need for legal reforms to address the grievances of Muslim women.

Why Women Choose Apostasy for Separation before 1939?

The Islamic law has given the right of talaq (divorce) to men. Women have the right of khula and faskh to untie relation with their husbands. Khula is when wife has a dislike for her husband and ask him to be released her in exchange of some, or all parts of her Mehar. The real problem starts when wife wants separation and husband does not agree . Majority of Muslim scholars are of the opinion that the consent or approval of the husband is necessary in case of khula. It cannot be granted by the court on the request of wife if husband does not agree. It is also a fact that all the four Sunni schools of Islamic jurisprudence do not allow khula without the consent of husband. So in the early part of twentieth century, the women started renouncing Islam because they were not having the right of khula, both Hanafi jurists and courts were having the same opinion that the khula can only happen if husband agrees.

The word faskh means annulment or abrogation. In faksh, power lies with the Muslim judges to annul a marriage on the application of the wife. Majority of Muslims in the Subcontinent are follower of the Hanafi School of thought, which in this regard is considered to be quite strict (Fyzee, A. A. A. (1999). Outlines of Muhammadan law. Delhi: Oxford University Press)). Hanafi jurists admit that only the wife of an impotent husband can apply for faskh (dissolution of marriage). In the matter of faskh, Maliki School of Islamic jurisprudence is considered to be more liberal for women. It requires ruling by the court in the following instance.

• Illness or any defect in male.

• Impotency of male.

• Cruelty or immoral treatment by husband.

• Missing of husband.

• Imprisonment of husband.

• Non-performing Maintenance.

So from the above discussion it is clear that in Hanafi law, women do not have the right of khula without the consent of husbands.

Similarly in case of faskh (dissolution of marriage) only the wife of an impotent husband could apply for faskh (dissolution of marriage). So if an Indian Muslim woman wanted to get rid of her cruel husband, she was not having any option. The Hanafi School never recognizes the dissolution of marriage on the basis of non-maintenance, cruelty, imprisonment of the husband, missing husband, or on the basis of any defect in the husband. The most miserable condition was in the case of missing husband. According to the Hanafi School of Islamic jurisprudence,

Example :,the wife of the missing husband cannot get separation until the people of the same age of her husband are living alive. So, according to Ahnaf, the period is approximately eighty to one twenty years. Therefore in practical, she can never contract a second marriage. So these things forced the Muslim women of India to renounce Islam just to get rid of their cruel husbands. The Hanafi law regarding dissolution of marriage was greatly blamed for these conversions.

Legal Reform about dissolution of marriage and Maulana Ashraf Ali Thanavi`s old and new fatwa.

Before discussing this fatwa, it will be better to know about the three opinions of Hanafī School of Islamic jurisprudence about the apostasy of a woman.

The first opinion of Hanafi jurist (Zahirul Rivaia) says that after the renunciation of Islam by the wife, the marriage bond is finished, but she will be forced to return to Islam and remarry her first husband, and until she does not accept Islam, she will be kept in prison (Rahman, 1965).

The second opinion of Hānāfi jurist from Samarqand and Bukhara that says that in the matter of renunciation of Islam by the wife, the marriage bond will remain valid, there will be no breach in the marriage bond and the renunciation of women will never make any effect on the marriage bond (Rahman, 1965).

The third opinion of another Hānāfi juristis says that the renounced women will be treated like a slave and her husband will remain her custodian. It is evident that Ashraf Ali Thanavi gave his fatwā according to the first opinion of the Hānāfī School of Islāmic jurisprudence, according to which the marriage is dissolved after the renunciation of Islam by the wife. The first opinion also includes that a woman will be forced to remarry her first husband. But for courts, it was enough that Ashraf Ali Thanavi annulled the marriage. In addition forcing a woman to again accept Islam and to remarry her first husband was not possible in British India (Hussain,

Maulana Thanavi realized the alarming situation and took the initiative to find a solution. He was strongly supported by Maulana Muhammad Shafi and Maulana Abdul Kareem Gumtoulve. He wrote a large number of letters to the scholars of Maliki School of Islamic jurisprudence. Maulana Sayyed Hussain Ahmad Madni also helped Maulana Ashraf Ali Thanavi in this purpose. After several years of extensive consultation with muftis (religious scholars) in India and abroad, Maulana Ashraf Ali Thanavi published a fatwa entitled “Al-Heela al-Najiza li'l-Hilat Al-'Ajiz”. Eleven great Muftis of Dar-al-Uloom Deoband helped Maulana Ashraf Ali Thanavi and also verified the fatwa. Similarly four Muftis from Darul Aloom Saharanpur also verified the new fatwa. Maulana Zakria (the leading scholar of Tableeghy Jamat) is also included in this list .

In the new fatwa, Maulana Ashraf Ali Thanavi further ruled that apostasy does not annul a Muslim marriage; therefore a wife may obtain a judicial divorce based on Maliki School of Islamic jurisprudence. He advised the wives that if they wanted to get rid of their husbands then first of all they should ask for khula from them. If the husbands do not agree, then the women can apply for dissolution of marriage on the basis of Maliki school of thought. Need was felt to amend the law through the legislation. The Jamiat-Ulema-e-Hind, one of the political parties of Ulema of India, strongly supported the revised fatwa of Maulana Ashraf Ali Thanavi. Qazi Muhammad Ahmad Kazmi member of central legislative British india , a number of lawyers and members of the Indian Parliament from Meerut, presented a bill in the parliament for this reform.

• While presenting the bill in the Assembly, he said The reason for proceeding with the bill is the great trouble in which I find women in India today. Their condition is really heartrending, and to stay any longer without the provisions of the bill and allow the males to continue to exercise their rights and to deprive women of their rights given to them by religion would not be justifiable– the rights of women should not be jeopardized simply because they are not represented in this house. I know, sir that the demand from educated Muslim women is becoming more and more insistent, that their rights be conceded to them according to Islamic law. I think a Muslim woman must be given full liberty, full right to exercise her choice in matrimonial matters (Legislative Assembly debate, 1939).

After long debates and several rounds of discussion, the bill was finally passed with the title of “Dissolution of Muslim Marriage Act, 1939”. The section 4 of the Act provided that the apostasy of a Muslim wife did not annul the marriage contract. The Act allowed all grounds admitted in Maliki School of Islamic jurisprudence for , which are mention in The Dissolution of Muslim Marriage Act, 1939 provided the Muslim women a chance to get decree of dissolution from the court, without renunciation of Islam. The Act also provided that the women can take decree from the court for dissolving marriage on the following grounds:

• Desertion by husband for four years,

• Failure to maintain for two years

• Husband contracting a polygamous marriage in contravention of established legal procedures,

• Husband's imprisonment for seven years,

• Husband's failure to perform marital obligations for three years,

• Husband's continued impotence from the time of the marriage

• Husband's insanity for two years or his serious illness

• Wife's exercise of her option of puberty if she was contracted into marriage by any guardian before the age of 16 and repudiates the marriage before the age of 18 (as long as the marriage was not consummated),

• Husband's cruelty (including physical or other mistreatment, unequal treatment of co-wives),

• Any other ground recognised as valid for the dissolution of marriage under Muslim law