Indian Kanoon - Search engine for Indian Law

130. But if they separate, Allah will compensate each out of His abundance. Allah is ever All-Embracing, All-Knowing. 13 Status of Muslim Women in India - Law relating to Marriage, Divorce and Maintenance Mat. Appeal Nos. 89/2020, 72/2021 & O.P.(FC).Nos.372/2020, 124/2021 & 133/2021

30. Faskh: Faskh is a form of judicial divorce.

This mode of divorce is effected through the intervention of court or through the authority at the instance of wife.

31. Dr.Justice Kauser Edappagath refers Faskh as follows:

Apart from the divorce which may emanate either from the husband or the wife without the intervention of the court or any authority, Muslim law also provides for the dissolution of marriage to the wife by decree of the court. It is called Faskh.

The word Faskh means annulment or abrogation. It comes from a root which means 'to annul; or 'to rescind'. Hence it refers to the power of a Muslim qazi to annul a marriage on the application of the wife.

V. READING THE DISSOLUTION OF MUSLIM MARRIAGES Act:

41. Shariat Act recognized extra-judicial divorce as well as judicial divorce. The Shariat Act was enacted in an attempt to get rid of customary law that was followed by the Muslims in India. It was observed in the statement and objects and reasons of the Shariat Act that the status of Muslim women under the so called customary law is simple and graceful. The customary law appears to have affected the rights of Muslim women. Therefore, it was felt, introduction of Muslim personal law will automatically bring them to position to which they are naturally entitled. Section 2 of the Shariat Act specifically recognized all modes of extra-judicial divorce except Faskh. Faskh, as we noted earlier, is a mode of divorce with the Mat. Appeal Nos. 89/2020, 72/2021 & O.P.(FC).Nos.372/2020, 124/2021 & 133/2021 intervention of an authority like Qazi. In Section 5 of the Shariat Act a provision was made to dissolve marriage by the District Judge on a petition made by Muslim married women. This would show that the intention of the Shariat Act is to entrust the mode of dissolution of marriage by Faskh through the court. Thus, under the Shariat Act, a Muslim women retained the right of all modes of extra judicial divorce recognized under their personal law Shariat, except Faskh. Then came the Dissolution of Muslim Marriages Act. It appears that inspite of Shariat Act, women belonging to the Hanafi School of Law were not allowed to obtain decree from the court to dissolve their marriage. Dissolution of Muslim Marriages Act, therefore, was enacted to consolidate and clarify the provisions of the Muslim law relating to the suit for dissolution of marriage by married Muslim women. Recitals prelude to the above enactment refers twin reasons for bringing the legislation of the Dissolution of Muslim Marriages Act. One to consolidate and Mat. Appeal Nos. 89/2020, 72/2021 & O.P.(FC).Nos.372/2020, 124/2021 & 133/2021 clarify the law relating to dissolution of marriage by Muslim women; the other is to remove the doubt in regard to the effect of renunciation of Islam by a married Muslim woman. Consequent to the enactment of Dissolution of Muslim Marriages Act, Section 5 of the Shariat Act was repealed. This fortifies the legal position that, what is consolidated in Dissolution of Muslim Marriages Act is the law relating to Faskh alone. The learned counsel Shri Narayanan P. as well as Smt.Shajna M., rightly pointed out that the intention of the Dissolution of Muslim Marriages Act is to extend judicial divorce to all Muslim women irrespective of the schools they follow. The statutory provision never intended to do away with the practice of extra-judicial divorce otherwise available to a Muslim woman. We also note that reference of other modes of extra-judicial divorce as referred in Section 2 of the Shariat Act remain untouched in the Dissolution of Muslim Marriages Act.

Mat. Appeal Nos. 89/2020, 72/2021 & O.P.(FC).Nos.372/2020, 124/2021 & 133/2021

42. Consolidation of law of Faskh in the Dissolution of Muslim Marriages Act enumerates the grounds on which a married muslim woman would be entitled to divorce. These grounds are illustrative in nature and, not exhaustive. The specific grounds are referred in Section 2(i) to 2(viii) of the Act. After illustrating the grounds of divorce under Sections 2(i) to 2(viii), a residuary clause is provided under Section 2(ix) to secure divorce on any ground which is recognized as valid for the dissolution of marriage under Muslim law. This has caused some amount of confusion among scholars, litigant public etc. Therefore, it is necessary to elucidate the difference between 'forms of divorce' and 'grounds of divorce'. The 'forms of divorce' are in the nature of right conferred on Muslim women to annul their marriage. Each of the forms have distinct character and identity. In the form of talaq, khula etc, it proceeds from the unilateral will of the party, and in the matter of Mubaraat and Talaq-e-tafwiz the Mat. Appeal Nos. 89/2020, 72/2021 & O.P.(FC).Nos.372/2020, 124/2021 & 133/2021 bilateral consent of the couple. On the other hand, in Faskh, the parties have no role. It is the authority that decides the fate of the marriage. It is to impress upon the authority to grant a decree of divorce, illustrations of the grounds of divorce have been referred in Section 2 of the Dissolution of Muslim Marriages Act. Thus, all the grounds including residuary grounds under Section 2(ix) are required only for the authority to act upon such matters. Once this distinction is drawn, it is easy to understand, the scope and merit of the Dissolution of Muslim Marriages Act. What was introduced in Dissolution of Muslim Marriages Act is the same provision conferring right on the Muslim women under Section 5 of the Shariat Act in a broader and larger frame encapsulating the Faskh with all its essential elements for the independent authority to decide.