The law of maintenance under British India There is no provision in the Hanafi Code of Muslim law enabling married women to obtain a decree from the courts dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her or certain other circumstances. The absence of such a provision has entitled unspeakable misery to innumerable Muslim women in British India. The Hanafi jurists, however, have clearly laid down that in cases in which the application of Hanafi law causes hardship, it is permissible to apply the provisions of the Maliki, Shafi or Hanbali law. This device to select and combine various elements of different schools of law is known as takhayyur or an electic choice between parallel rules of the various schools of Islamic law. This selective process of overcoming divergences was hardly followed. Even though the courts in British India were given powers before 1939 to apply the law of one of the schools of Muslim law in case in which the parties were followers of different schools, on grounds of justice, equity and good conscience, the courts were reluctant to apply the more liberal rules of Maliki law to parties following other schools. This led to the passing of the Dissolution of Muslim Marriages Act of 1939. Acting on this principle on 17th March 1939 the Dissolution of Muslim Marriages Act, 1939 (Act no VIII of 1939) came into being. The new Act was an attempt to reinstate liberal Muslim provisions which were not contrary to Muslim Law. Under section 2(ii) of the Act, a wife is entitled to the dissolution of her marriage when her husband has failed to provide for her maintenance for a period of two years. The entitlement of the wife to maintenance depends on the principles of Muslim law, in particular, if the wife is nashuza (disobedient) or refractory, under Muslim law she is not entitled to maintenance and so her marriage cannot be dissolved on the ground of the husband’s failure to provide maintenance for a period of two years. Further on, it has been held by the courts that a wife who refuses to return to her husband without sufficient cause is not entitled to maintenance. The rulings of the courts are mutually contradictory as they are based on the “fault” theory and contrarily the modern “breakdown” theory. The view that judicial dissolution or faskh can be granted irrespective of the wife’s faulty conduct has been criticized by some scholars as it is not in consonance with the principle of Nushuza under Islamic law. As we saw under the Hanafi law inability to maintain was not by itself considered as a ground for divorce, whereas under the Act failure to maintain, even on account of poverty, ill-health or imprisonment is a good ground for the dissolution of the marriage.
Posted on: Sat, 06 Dec 2014 11:00:29 +0000
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