It non-consummation when such consummation was by force
It has been held that a minor wife did not lose her right to repudiate the marriage within a reasonable time after she came to know of her right and not necessarily when she attained puberty. In such cases they have even waived the condition of non-consummation when such consummation was by force or before she attained the age of 15.
2. Right of the wife to dissolve the marriage on ground of failure to maintain:
This right has been interpreted in two ways. One group of decisions, basing itself on the traditional ‘fault theory’, has denied the right to a wife to divorce where her conduct was such as to absolve the husband from his duty to provide maintenance. The other group has tended to uphold the right, irrespective of the wife’s conduct.
These two groups of decision clearly indicate that legislation alone cannot eliminate rigid traditionalism, with its desire to preserve the status quo. Without supporting judicial interpretation, even the policy of the law is negated. The decision of Justice
Krishna Iyer is, therefore, significant as he has focused his observation on the right of the Muslim wife to divorce when her husband has failed to provide her maintenance for two years. He has used his erudition to support the theory of dissolution when the marriage has broken down, irrespective of the relative faults of the parties.
“There is no merit in preserving intact the tie of marriage when the parties are not able to and fail to live within the bonds of Allah, that is to fulfill their mutual marital obligations, and there is no desecration involved in dissolving a marriage which has failed.
The entire emphasis is on making the marital union a reality and when this is not possible…, the Quran enjoins dissolution. This secular and pragmatic approach on Muslim law of divorce happily harmonizes with contemporary concepts in advanced countries.”
We recommend that the right of the wife to divorce, on the failure of the husband to maintain her, irrespective of her conduct which may be the main or contributory cause, should be clearly spelt out.
Muslim Law had always recognized that in some cases the wife may be able to get a divorce. To the unmodified law the Dissolution of Muslim Marriages Act, 1939 has added further grounds. But the power of the husband to pronounce talaq unilaterally remains, and has is no way been curtailed either judicially or through legislation.
As long as this absolute and unlimited right remains, the position of the Muslim wife will remain insecure and her status cannot be raised. We, totally disagree with the view that with Justice Krishna Iyer judgment and her right to obtain divorce by Kind, Muslim women’s rights “are brought into approximation with those of the man.”
While the judgment is undoubtedly a great step forward, it has to be remembered that she still has to wait for two years without maintenance before getting her release. Also, a right to buy her release, as provided in the Koran can hardly be regarded as approximating the unilateral right of the man.
Legislation is the only instrument which can bring the Muslim divorce law into line with not only the needs of society but with the prevailing law in other Muslim countries. Turkey and Cyprus have completely prohibited unilateral divorce, while in Tunisia, Algeria, Iraq and Iran the husband has to apply to a court.
In Pakistan Legislation has restrained the freedom of the husband to divorce his wife. He has to inform the Arbitration Council which will try and bring about reconciliation. The husband’s pronouncement of ‘talaq’ without informing the Arbitration Council has- been declared to be an offence.
We recommend immediate legislation to eliminate the unilateral right of divorce and to introduce parity of rights for both partners regarding grounds for seeking dissolution of a marriage.