Dissolution of Muslim Marriages Act, 1939

"To what length this concern for the conservation of their forces can lead the Hindus and the Musalmans cannot be better illustrated than by the debates on the Dissolution of Muslim Marriage Act VIII of 1939 in the Central Assembly. Before 1939, the law was that apostasy of a male or a female married under the Muslim law ipso facto dissolved the marriage, with the result that if a married Muslim woman changed her religion, she was free to marry a person professing her new religion. This was the rule of law enforced by the courts, throughout India at any rate, for the last 60 years."

"Be that as it may, the legal arguments had nothing to do with the real motive underlying the change. The real motive was to put a stop to the illicit conversion of women to alien faiths, followed by immediate and hurried marriages with someone professing the faith she happened to have joined, with a view to locking her in the new community and preventing her from going back to the community to which she originally belonged. The conversion of Muslim woman to Hinduism and of Hindu woman to Islam, looked at from a social and political point of view, cannot but be fraught with tremendous consequences. It means a disturbance in the numerical balance between the two communities. As the disturbance was being brought about by the abduction of women, it could not be overlooked. For woman is at once the seed-bed of, and the hothouse for, nationalism in a degree that man can never be./12/ These conversions of women and their subsequent marriages were there-fore regarded, and rightly, as a series of depredations practised by Hindus against Muslims and by Muslims against Hindus, with a view to bringing about a change in their relative numerical strength. This abominable practice of woman-lifting had become as common as cattle-lifting, and with its obvious danger to communal balance, efforts had to be made to stop it. ... Thus what underlies the change in law is the desire to keep the numerical balance and it is for this purpose that the rights of women were sacrificed."

""Apostasy was considered by Islam, as by any other religion, as a great crime, almost amounting to a crime against the State. It is not novel for the religion of Islam to have that provision. If we look up the older Acts of any nation, we will find that similar provision also exists in other Codes as well. For the male a severer punishment was awarded, that of death, and for females, only the punishment of imprisonment was awarded. This main provision was that because it was a sin, it was a crime, it was to be punished, and the woman was to be deprived of her status as wife. It was not only this status that she lost, but she lost all her status in society; she was deprived of her properly and civil rights as well. But we find that as early as 1850 an Act was passed here, called the Caste Disabilities Removal Act of 1850, Act XXI of 1850. . . ."

"For a very long lime the courts in British India have held without reservation and qualification that under all circumstances apostasy automatically and immediately puts an end to the married slate without any judicial proceedings, any decree of court, or any other ceremony. That has been the position which was taken up by the Courts. Now, there are three distinct views of Hanafi jurists on the point. One view which is attributed to the Bokhara jurists... The Bokhara jurists say that marriage is dissolved by apostasy. In fact, I should be more accurate in saying—I have got authority for that—that it is, according to the Bokhara view, not dissolved but suspended. The marriage is suspended but the wife is then kept in custody or confinement till she repents and embraces Islam again, and then she is induced to marry the husband, whose marriage was only suspended and not put an end to or cancelled. The second view is that on apostasy a married Muslim woman ceases to be the wife of her husband but becomes his bond-woman. One view, which is a sort of corollary to this view, is that she is not necessarily the bond-woman of her ex-husband but she becomes the bond-woman of the entire Muslim community and anybody can employ her as a bond-woman. The third view, that of the Ulema of Samarkand and Balkh, is that the marriage lie is not affected by such apostasy and that the woman still continues to be the wife of the husband. These are the three views."