Matrimony under the Muslim Law being a civil contract, may like any other contract, be terminated by mutual consent. Each sex has certain rights against the other but for physiological and social reasons there are differences in the position of a man and a woman, as regards their rights during the married state and in respect of divorce. Divorce among the ancient Arabs was easy and frequent occurrence. In fact, this tendency has even persisted to some extent in Islamic Law inspite of the fact that Prophet showed his dislike to it. It was regarded by the Prophet to be the most hateful before the Almighty God of all permitted things; for it prevented conjugal happiness and interfered with the proper bringing up of children.
When the wife or the husband fails to perform her or his duties to each other after marriage, the following matrimonial reliefs are available to them.
- Dissolution of Marriage.
- Repudiation of Marriage.
- Declaratory Suits.
- Stipulation in Agreements, enforceable.
- Restitution of Conjugal Rights.
The Act of 1939 9 Dissolution of Muslim Marriage Act, 1939) in most of its provisions conforms with Islamic Law, therefore, it was rightly held that the Act is complete and is not subject to any principles of Islamic Law. According to Shariat if the husband of a Christian couple embraces Islam it is possible for him to pronounce divorce because he is subject to Islamic Law, the statutory law makes it unlawful. A husband moves an application that he had divorced his wife about two years ago and this fact was strongly contested by wife. Though no evidence is said to have been produced by the husband but he filed a declaration of divorce. It was held that. "such a bard declaration by the maker himself, which was neither contemporaneous with the alleged divorce nor could hardly be deemed to be a proof of the factum of the alleged divorce.
Talaq amongst Mohammedans may be oral or in writing. no evidence is required to prove Talaq as the divorce by the husband is complete just by utterance of words "Talaq, Talaq, Talaq" thrice and the presence of a third person is not necessary. There is no option to the wife to challenge Talaq. If a civil marriage is contracted in England between a Mohammedan of Indian domicile with a Christian whom of British domicile, the marriage cannot be dissolved by mere Talaq because their marriage is not performed according to Mohammedan Law. (Rex v. Hammersmith 1 KB 634)
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