The Muslim law-givers have used the term faskh for annulment of marriage. When a marriage is dissolved by a decree of court, they use the term Jurqat literally meaning separation, which in modern law is equivalent to dissolution of marriage. When a marriage is annulled for a cause imputable to the wife, then it is called faskh. It is interesting to note that in Muslim law there is nothing like a declaratory decree in a case where the marriage is batil (void).
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ADVERTISEMENTS:
The term faskh, though literally translated as annulment of marriage, is not equivalent to the term “annulment of marriage”, as it is used in the modern matrimonial law; in fact, in Muslim law there has never been anything like a voidable marriage. In Muslim law, there have been a very few cases in which an action in a court was deemed necessary in respect of a marriage.
It may be taken to be well established proposition that declaratory suits can be filed in respect of a right or status arising out of Muslim marriage. Such suits can be filed under S. 34, Specific Relief Act, 1963. A declaratory suit may be filed in respect of the following:
(i) That the marriage of the plaintiff with the defendant is null and void. (It has been seen in Chapter IV of this work that the concept of void marriage is recognized under Muslim law. Just as when a marriage of a Hindu, Christian or Parsi is void, no legal action, either a petition under the matrimonial law or declaratory suit under the Specific Relief Act, is necessary, and any party can take a stand on the invalidity of the marriage, similarly no legal action need be taken regarding a void Muslim marriage. But if any of the parties to the marriage, or an interested third person, desires a judicial declaration of the fact of nullity of marriage, he or she may file a declaratory suit);
(ii) That the defendant who is claiming himself or herself to be the husband or wife of the plaintiff, is, in fact, not his or her husband or wife. (This is known as jactitation);
ADVERTISEMENTS:
(iii) That the plaintiff is lawfully wedded husband or wife of the defendant;
(iv) That the plaintiff in the exercise of his right of repudiation of marriage, or in the exercise of the option of puberty, has repudiated the marriage with the defendant;
(v) That the plaintiff has terminated his or her irregular marriage with the defendant; or
(vi) That the plaintiff’s marriage with the defendant has been validly dissolved.
Suit for breach of promise to marry:
ADVERTISEMENTS:
Under Muslim law, unless the contract of marriage is completed, no rights and obligations arise there under and, therefore, unlike Hindu law or English law, no suit for damages for the breach of promise lies.
However, a suit for the return of ornaments, clothes, cash, etc. lies in case a sagai or mangni (engagement, or khitba as it is known in Arabic) is broken. A Muslim husband can claim damages against a person who prevents or persuades his wife to live away from him. An action for enticement of the wife also lies.