DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939
An Act to consolidate and clarify
the provisions of Muslim Law relating to
suits for dissolution of marriage by women married
under Muslim Law and to remove doubts as to the effect of the renunciation of Islam by a married woman on her marriage tie.
Whereas it is expedient to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under Muslim Law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage; it is hereby enacted as follows:
1. Short title and extent.
(1) This Act may be called the Dissolution of Muslim Marriages Act, 1939.
(2) It extends to all the provinces and the Capital of the Federation.
2. Grounds for decree for dissolution of marriage.
A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:
(i) That the whereabouts of the husband have not been known for a period of 1[one] years;
(ii) That the husband has neglected or has filed to provide for her maintenance for a period of two years;
(ii-A) That the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961;
(iii) That the husband has been sentenced to imprisonment for a period of 2[three] years or upwards;
(iv) That the husband has failed to perform, without reasonable cause, his marital obligations for a period of 3[one] years;
(v) That the husband was impotent at the time of the marriage and continues to be so;
(vi) That the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
(vii) That she, having been given in marriage by her father or other guardian before she attained the age of sixteen years, repudiated the marriage before attaining the age of eighteen years:
Provided that the marriage has not been consummated;
(viii) That the husband treats her with cruelty, that is to say,
(a) 4[..] assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
(b) Associates with women of evil repute of leads an infamous life, or
(c) Attempts to force her to lead an immoral life, or
(d) Disposes of her property or prevents her
exercising her legal rights over it, or
(e) Obstructs her in the observance of her religious
profession or practice, or
(f) If he has more wives than one, does not treat her
equitably in accordance with the injunctions of the Quran,
5[“(ix) That the husband is temperamentally incompatible and the wife is unable to live with him. on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law,
(x) That husband and wife have been separated from each other for over a year and reconciliation efforts have failed.” ] Provided that:
(a) No decree passed on ground (i) shall 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 authorised agent within that period and satisfies the Court he is prepared to perform his conjugal duties the Court shall set aside the said decree; and
(b) Before passing a decree on ground (v) the Court shall, on application by the husband, 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 satisfied the Court within such period, no decree shall be passed on the said ground.
Legal Amendments
1. Substituted by Senate Bill No. IV of 1999
2. Substituted ibid
3. Substituted ibid
4. Deleted ibid
5. Inserted by Senate Bill No. IV of 1999
Proviso (a) and (b) deleted By Senate Bill No. IV of 1999 {deleted Proviso reads as under :
Provided that:
(a) No decree passed on ground (i) shall 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 authorised agent within that period and satisfies the Court he is prepared to perform his conjugal duties the Court shall set aside the said decree; and
(b) Before passing a decree on ground (v) the Court shall, on application by the husband, 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 satisfied the Court within such period, no decree shall be passed on the said ground. }
Court Decisions
Dissolution of marriage on allegation of adultery—If husband had charged his wife with adultery, wife would be entitled to claim judicial divorce without any prejudice to her right to bring defamatory suit for unjust infraction—Husband was required to substantiate his accusation of adultery against wife by producing four witnesses, but if no evidence, except himself was available, he could take an oath or liar—If wife declined and also took oath, Court must separate them as the sexual union had become unlawful and under such circumstances, decree of divorce could not be avoided by husband by his retraction of ‘charge as no chance of retraction would be allowed to husband—Retraction would amount to acknowledgment by husband and he could be punished for that.
P L D 2000 Lah.359 1996 MLD 1057; AIR 1955 Bom. 160 ref.
Dissolution of marriage on option of puberty—Wife was entitled to dissolution of her marriage by exercising option of puberty if she could prove that marriage had taken place before she attained age of sixteen years; that marriage had not been consummated and that she had repudiated marriage before attaining age of eighteen years—Decree of Court was not necessary to invalidate marriage which had been dissolved by wife in exercise of her option of puberty. 2000 M L D 1886
1995 MLD 1439; PLD 1981 Lah. 68; 1991 CLC Note 226 at p. 1994 CLC 1046 and 1998 MLD 1873 ref.
Dissolution of marriage on right of option of puberty– Trial Court and Shariat Court had concurrently decreed suit for dissolution of marriage filed by wife on basis of exercise of right of option of puberty and petitioner husband had filed leave to appeal against said concurrent decree—Lady under provisions of S.2(vii) of Dissolution of Muslim Marriages Act, 1939 had a right to exercise option of puberty before attaining age of 18 years—Leave to appeal could not be granted merely because a legal question was involved in the case—Unless public-at-large was interested in a question of law, leave to appeal could not be granted in cases of dissolution of marriage.
1999 C L C 1356 PLD 1995 FSC 1 ref.
Sole statement of wife Allegations of non-payment of maintenance allowance or cruel behaviour and bad character of husband—Proof—Sole statement of wife was not sufficient to prove her case on such allegations. 2000 Y L R 956
Grounds for Dissolution :– Competency of appeal-No appeal, held, would lie from decree by a Family Court for dissolution of marriage except in case of dissolution of marriage where husband treats his wife with cruelty or disposes of her property or prevents her from observance of religious profession or practice – No appeal would be competent whether decree was ex parte or otherwise in all other cases. P L D 1987 Lah.11 1979 C L C 364; P L D 1978 Lah. 85 and 1983 S C M R 569 ref.
Entitlement of husband to consideration–Husband failing to assert in written statement conferment of benefits on wife in result of marriage–Effect-Held, despite absence of such assertion Family Court declaring that her dower, maintenance, articles and other benefits arising out of wedlock would stand relinquished by her–In absence of any assertions or claim for payment of any benefits, husband would not be entitled even to benefits of relinquishment by wife of her dower, maintenance, articles and other benefits. 1987 C L C 1640
Expression “without lawful authority and of no legal effect”– Interpretation–Dissolution of marriage on ground of cruelty–Jurisdiction of Family Court–Family Court, a Special Tribunal working under special Law–High Court, in exercise of its writ jurisdiction, does not sit as Court of appeal or Court of revision–Jurisdiction of High Court to interfere on point of fact is limited–Order of Family Court neither without lawful authority nor without jurisdiction–Mere fact that decision was erroneous or incorrect would not call for interference by High Court in exercise of its writ jurisdiction.–1987 C L C 163 P L D 1974 SC 139 and P L D 1973 S C 236 rel.
Void Nikah Where Marriage contracted between Muslim woman and non-Muslim Ahle Kitab, according to Hanafia Doctrine, would be unlawful ab initio void from very date of contract, creating no right between parties–Order of Family Court dissolving such marriage, held, could not be struck down merely on jurisdictional defect–Contention of petitioner that marriage was not performed under Shariat Law could not be dissolved under Act VIII of 1939 read with Act XXXV of 1964, was repelled in circumstances. 1987 C L C 410 P L D 1967 SC 580 rel.
Dissolution of marriage on ground of cruelty–Plea of Khula’ taken as an alternate remedy–Findings of Trial Court that cruelty of conduct was proved against petitioner–Framing of issue in respect of Khula’ in such case was not necessary–Allegation of cruelty made by wife having been supported by her brother in his deposition, case was not one of no evidence–Fact that an Appellate Court might have taken a different view of evidence led by wife, held, was not sufficient to entertain petition in extraordinary constitutional jurisdiction–Petition found to be unsustainable was dismissed in limine. 1987 M L D 253
Constitutional jurisdiction–Questions of fact–Assessment of evidence being function of Family Court in family cases, High Court in exercise of constitutional jurisdiction, held, could not enter into realm of facts. 1987 M L D 2992
When Parties married under Christian Law subsequently embracing Islam—Wife filing suit dissolution of marriage–Jurisdiction of Family Court-Family Court established under Act, XXXV of 1964, held, had jurisdiction to decide suit for dissolution of marriage even marriage between spouses originally was performed in accordance with Christian Law and subsequently spouses had embraced Islam–Family Court had to decide such suit in accordance with personal law of parties at time of filing of such suit–Spouses at time of filing suit admittedly being Muslims, finding of Courts below that since parties were not married in accordance with Muslim Personal Law, their marriage could not be dissolved under provision of Act V111 01939 were declared by High Court to be without jurisdiction and of no legal effect–Case was consequently remanded to Family Court to be dealt with according to personal law i.e. Muslim Personal Law of parties. 1986 C L C 2322
P L D 1967 S C 334; 1981 C L C 195 and P L D 1979 SC 864 ref.
Considerable difference of age between spouses–Compromise proceedings failed between parties–Wife was not prepared at any cost to live with husband–Court did not flout any provisions of relevant law and question of Khula’ was appreciated in accordance with guiding principles given by superior Courts–Findings not suffering from any non-reading/misreading of evidence–Findings of Family Court that spouses could not live within prescribed limits of Allah holding wife entitled to right of Khula’ based on sound reasons-High Court refused to interfere in constitutional jurisdiction with decree and judgment of Family Court in circumstances. 1986 M L D 656 P L J 1983 Pesh. 558 (sic) ref.
3. Notice to be served on heirs of the husband when the husband’s whereabouts are not known. In a suit to which clause (i) of section 2 applies:
(a) The names and addresses of the persons who would have been heirs of the husband under Muslim Law if he had died on the date of the filing of the plaint shall be stated in the plaint.
(b) Notice of the suit shall be served on such persons, and
(c) Such persons shall have the right to be heard in the suit:
Provided that paternal-uncle and brother of the husband, if any, shall be cited as party even if he or they are not heirs.
4. Effect of conversion to another faith.
The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage:
Provided that after such renunciation, or conversion, the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in section 2;
Provided further that the provisions of this section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.
Court Decisions
Retrospectivity.Words “to remove doubts about the effect of the renunciation of Islam by a married Muslim woman on her marriage tie” appearing in preamble. Do not give rise to inference of retrospectively of statute Preamble, on other hand, relevant to construction of statute only when language ambiguous and not clear. P L D 1981 S. C. 56 1957 A C 436 ref.
Effect of conversion to other faith. .Section 4.Held, neither declaratory nor retrospective. There is nothing in the language of section 4, Dissolution of Muslim Marriages Act, 1939 to suggest that it is declaratory. On the contrary, as pointed out by Monroe, J., in Mst. Rashid v. Tufail Muhammad “the use of the future tense, the words “the renunciation..shall not by itself operate to dissolve her marriage” are inconsistent with the construction sought to be placed on the section. Similarly, the proviso also indicates that the section was intended to be prospective and not retrospective. Thirdly, of the consequences of accepting of respondent counsel submission were shocking to one’s sense of justice. The reason for this observation is obvious. Under the law before the Dissolution of Muslim Marriages Act came into force, as a Muslim wife’s apostasy automatically dissolved her marriage, she was entitled to marry again according to the personal law of her new faith. Therefore, if the section is given retrospective effect, it would mean that marriages which were valid when contracted suddenly became invalid on 17.3.1939, the day the said Act came into force. Similarly, it would mean that children born of wedlock, which had been lawful according to the law of centuries, suddenly became illegitimate on 17.3.39. No Legislature would have enacted a law entailing such consequences without using language which ,manifested beyond doubt its intention to cause such havoc. But, there is nothing whatever in the section to indicate that it was intended to be retrospective or to annul marriages which had been valid when contracted.
Conversion of faith. Remarriage. Appellant Z a Muslim converting to Christianity. Appellant’s marriage with her husband, held, dissolved automatically and appellant free to marry again. Appellant later re-embracing Islam and marrying one R. Appellant producing evidence establishing such marriage. Marriage not required to be proved beyond all reasonable doubt and a mere preponderance of probability sufficient. R deceased having acknowledged appellant as his wife in civil litigation and oral evidence as well as circumstances of case also supporting appellant’s claim, appellant, held, wife of deceased R and her children born out of wedlock with deceased. P L D 1981 S.C.56
5. Right to dower not be affected. Nothing contained in this Act shall affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage
6. 1[Repeal of section 5 of Act, XXVI of 1937]
Legal Amendments
1. Rep. by the Repealing and Amending Act, 1942 (XXV of 1942), section 2 and First Sch.
