November 1, 2012 3:18:41 pm
The Jammu and Kashmir High Court has held that a Muslim man’s power to divorce his wife is not “unrestricted or unqualified”.
Justice Hasnain Masoodi in his 23-page judgment extensively went into details of the Shariah law and Quranic injunctions to hold that a “husband cannot have unrestricted or unqualified power to pronounce the Talaaq.”
The court delved into the fundamental sources of Shariah law to understand the concept of marriage in Islam,the rights of the parties to the marriage contract and the mode and manner the contract is dissolved.
“Though Islam visualises a situation where a marriage may run into rough weather for reasons beyond control of the parties to the marriage contract,and provides for a mechanism to end or dissolve the relationship in such case,yet the device of divorce is to be used as the last option when the marital relations have irretrievably broken down,” the court said.
It maintained that in Islam divorce or Talaaq by the husband may take three forms including Talaaq-e-Ahsan which is single pronouncement of divorce made during a ‘Tuhr’ (period between menstruations) followed by abstinence from physical relationship for the period of Iddat (waiting period).
The second form is Talaaq-e-Hasan which is three pronouncements of divorce made during successive Tuhrs,without any physical relationship during any of the three Tuhrs.
The third is Talaaq-e-Bidhi which is three pronouncements of divorce made during a single Tuhr either in one sentence or in three sentences or in any other form like in writing,indicating intention of the husband to irrevocably dissolve the marriage.
Justice Masoodi said that Talaaq-e-Bidhi is the most despised and discouraged form and Talaaq-e-Ahsan is the most approved form of divorce.
He said,”Talaaq-e-Ahsan is only form of divorce that finds approval of Quran.”
“This is the approved form of divorce,as it leaves room
for reconciliation,” the judge said quoting several verses from Quran on the subject.
The judgment also stressed upon the equal status of husband and wife and referred to at least three terms used in Quran at different places to drive home point of equal status of partners in a marriage.
“Islam does not give preference to either of the parties to a marriage. The message in Chapter 30 Verse 21 is not gender specific.
“It does not address a Muslim man or Muslim woman. It does not say that Almighty Allah created for a man,woman as his spouse or vice-versa.
“It,on the other hand,addresses both men and women saying that He created spouses and it is a sign of His mercy. This clearly indicates that a man and woman are equal partners in a marriage,” the judge observed.
He noted that Quran uses expression ‘Zawj’ for both husband and wife. “It means either of the pair. Wherever Quran makes mention of ideal partners in a marriage,it refers to them as ‘Zawj’ and not husband or wife. This again makes it clear that husband and wife in Islam are equal partners and have equal status,” he said.
The court also noted that the husband cannot shirk his responsibility to maintain his wife by claiming to have divorced her or by executing a divorce deed.
“(He) has to compulsorily plead and prove that effort was made by the representatives of husband and wife to intervene,settle disputes and disagreements between the parties and that such effort for reasons not attributable to the husband did not bear any fruit….”
He has to also plead that “he had a valid reason and genuine cause to pronounce divorce on his wife; that Talaaq was pronounced in presence of two witnesses endued with justice; and that Talaaq was pronounced during the period of Tuhr (between two menstrual cycles) without indulging in sexual intercourse with the divorcee during said Tuhr,” it said.
While dealing with forms of Talaaq,the court said,”There is no scope for disagreement with the legal proposition that as Quran and Sunnah refer to Talaaq-e- hsan,restrictions placed on use of said device,as laid down in Chapter 65 verse 1 and 2 and elsewhere in Quran and Sunnah have reference to Talaaq-e-Ahsan.
“However,there is no reason to conclude that the said restrictions applicable to the most approved form of divorce,should not be applicable to the most despised and discouraged form of Talaaq i.e. Talaaq-e-Bidhi. On the other hand,restrictions warrant strict enforcement in case of Talaaq-e-Bidhi,” it added.
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