Offence u/s 494 if committed by wife.

The question posed in this criminal appeal is whether a Muslim wife can repudiate the marriage with her husband de hors the provisions of the Dissolution of Muslim Marriages Act (VIII of 1939), hereinafter referred to as the Act. My reply is in the negative. According to me, under no circumstances can a Muslim marriage be dissolved at the instance of the wife, except in accordance with the provisions of the Act.

2. Now the facts: The appellant filed a private complaint before the District Magistrate, Kozhikode, against six persons; the first accused his wife, the 2nd accused her second husband whom she married during the subsistance of her marriage with the appellant, accused 3 and 4 her parents, the 5th accused an abetter and the 6th accused her uncle. The marriage between the appellant and the first respondent took place in 1950 and a child was born of that marriage. After the birth of the child, the wife was taken away from the appellant by her parents and was not sent back. All his efforts to get back his wife failed and therefore the appellant filed O.S. No. 321 of 1959 before the Munsiff’s Court, Calicut, for restitution of conjugal rights. The first respondent, the wife, filed O.S. No. 424 of 1959 before the same Court for recovery of mahar amount and the value of ornamens from the appellant. As an afterthought when the two earlier suits had become ripe for trial, another suit was filed by her as O.S. No. 828 of 1962 for dissolution of her marriage with the appellant on the ground of non-payment of maintenance and cruelty. The suit for restitution of conjugal rights was decreed subject to the condition that the appellant paid in Court the mahar within 30 days. The mahar suit was also decreed. The suit for dissolution of marriage filed by the wife was however dismissed on 27th August, 1963.

3. The first respondent thereafter adopted an ingenious device to avoid the decree of Court by taking the advice of D.W. 1, who is said to be well-versed in Islamic theology and on the strength of that advice unilaterally divorced her husband, apparently by means of ‘Faskh’, without the husband’s presence or his consent. Thereafter, she entered into another marriage with the 2nd respondent. The appellant therefore brought this complaint before the District Magistrate’s Court stating that the first respondent has committed an offence under section 494, Indian Penal Code and the other accused abetted the crime.

4. The learned District Magistrate held that the first accused could divorce her husband by ‘Faskh’. He also held that even if divorce by ‘Faskh’ is not valid in law, she cannot be deemed to have committed an offence as she was protected by the advice given by D.W. 1. All the accused were acquitted. It is against this acquittal that the present appeal is filed.

5. Before considering the case on its merits, it would be useful to examine the law on the point. The grounds on which a Muslim wife can seek divorce are now codified in the Act mentioned above. A little legislative history of the Act is apposite. The majority of Muslims in India are Hanafis. According to the strict Hanafi law. Muslim women had no right to get divorce from their husbands. The law was so rigid that Muslim wives suffered untold hardships on account of the absence of a right to obtain divorce. In his book entitled “The question of protection of Muslim Personal Law” in Urdu by Shri Mahamood Thahir, Associate Research Professor at the Indian Law Institute, New Delhi, at page 30, the following passage appears:

“The Dissolution of Muslim Marriages Act is an important enactment for Indian Muslims. Its short history is this: The Indian Courts did not recognise any right in Muslim women to obtain divorce from their husbands, according to Hanafi jurisprudence, whatever be the difficulties these ladies had to undergo. Another aspect of the Hanafi jurisprudence was that if a Muslim wife became apostate by conversion into another faith, her marriage with her husban