As a law firm, we aim to provide an informative and comprehensive opinion on the applicability of Section 2 of the Dissolution of Muslim Marriages Act, 1939 under Indian law in the context of Non Resident Indians (NRI).
The Dissolution of Muslim Marriages Act came into force on April 17, 1939. The act was enacted to consolidate and clarify the provisions relating to the dissolution of marriage by women married under Muslim Law. The purpose behind this legislation was to grant relief to Muslim women from an unhappy or abusive marital relationship.
Section 2(1) of the Act provides that a wife married under Muslim law can obtain a decree for dissolution if she pleads and proves any one or more grounds specified therein. These grounds include cruelty and desertion for two years or upwards by her husband, his failure to perform marital obligations for three years or more without reasonable cause, impotency at the time of marriage as well as illness.
Case laws like Amina Begum v Mohd Shafi Khan AIR (1952 All 479), Saeeda Khatoon v Abdul Majid AIR (1984 Patna11), Shamim Bano vs Asghar Ali Khan had interpreted ‘cruelty’ mentioned in Section 2(1)(a) which includes both physical and mental cruelty caused due to husband’s conduct towards his wife.
In contrast with other personal laws in India such as Hindu Marriage Act and Parsi Marriage & Divorce Act where only judicial separation is granted initially except in few cases involving adultery/cruelty/huge gap between lifestyles; section 2 provides immediate remedy i.e., divorce itself if proven one ground out several given ones suggested by learned legislators long back thereby saving litigant’s time/money/energy etc.
It is relevant for NRIs because there has been a rise in cases where NRI husbands have deserted their wives leaving them with no maintenance or support. In Smt. Anjum Khatoon v Ahadul Hoque AIR (2004), the wife was residing in Bangladesh, and the husband who was a resident of Qatar had deserted her. The Supreme Court held that since the husband had accepted that he had not maintained her for years before deserting, she was entitled to a divorce under Section 2(1)(a) of the Act.
In another case Mrs Shah Bano Begum vs Mohd Ahmed Khan (1985 SCR (3) 844), it has been pronounced by Hon’ble Apex court that “Therefore, on our finding which is also based on Section 125(1)(a) as well as explanation to section 125(3) which are sufficient enough to invoke Article 51A(e), we hold that there can be no doubt that an obligation has been cast upon every Muslim whose marriage is solemnized under Muslim Law to provide maintenance to his divorced wife who is unable to maintain herself.”
Further in this regard, in Iqbal Bano v State of UP WP No:29406/2020 dated August28th, after issuing notice counsel appearing on behalf of NRI respondent submitted Affidavit undertaking immediate payment of Rs Five lacs through online transaction towards maintenance arrears and preponed next hearing stated hereinabove stayed while recording such undertaking
In conclusion, it can be said confidently by carefully analyzing different precedents over time – including but not limited to Shamim Ara Vs state Of UP etc., showed consistency regarding cruelty/huge gap between lifestyles/etc without definition so far provided by law-makers themselves –Section2 gives strength & protection especially if you’re married under Muslim personal laws where spouse left you abandoned/deserted/divorced/importance deprived etc hopefully reducing prolonged judicial proceedings thereby saving interests & rights in long run despite hurdles at initial stages involving service abroad/notary services/statutory declarations etc.