By judicial divorce we mean a divorce by the order of a court of law. Islam provides for the dissolution of a marriage by a Kazi or Judge. On the application of a wife if the marriage was found to be harmful or undesirable for her, the Kazi could dissolve the marriage. The power of a Kazi or Judge to pronounce a divorce is founded on the express words of Prophet Mohammed:
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‘If a woman be prejudiced by a marriage, let it be broken off.’
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However, despite the Quranic injunction and the traditions of the Prophet, the Anglo-Indian courts have not recognised Muslim wife’s right of judicial divorce on grounds other than Lian and impotency of the husband.
Before 1939, a Muslim wife could seek her divorce by a judicial decree only on the ground of (1) false charge of adultery by the husband against her (Lian), or (2) impotency of the husband, and on no other grounds. On the other hand, the husband need not go to the court at all as all the forms of divorce (Talaq, Ilia, Zihar, Khula or Mubarat) depend solely upon his will.
Therefore, under pure Muslim law, a Hanafi wife could hardly get any relief against her unwilling husband on any other ground except the above mentioned two grounds. But under the Shafie and Maliki laws a wife was entitled to get a decree from the court for dissolution of her marriage on the grounds of husband’s failure to maintain her, desertion, cruelty, etc.
Therefore, there were conflicting provisions in the various schools of Muslim law in respect of divorce by a wife through judicial intervention. It was felt by the right thinking person’s of the Muslim society and also by the Government that great injustice was being done to a Muslim wife in the matter of matrimonial relief.
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Accordingly, the Dissolution of Muslim Marriages Act, 1939 was enacted by the Central Legislature and it came into force on the 17th March, 1939. Under this Act, a wife married under Muslim law, may seek divorce by a judicial decree on any of the grounds enumerated therein. The Act is applicable to all the wives married under Muslim law irrespective of their schools or sub-schools.