Dissolution
of Muslim Marriage:
On the
Judicial Responses to Curb the Arbitrary Exercise of Divorce
Introduction
“With
Allah, the most detestable of all things permitted is divorce”
Prophet
Mohammed (PBUH)
Marriage is the
very foundation of civil society and no part of the laws and institutions of a
country can be more vital importance to its subjects than those which regulate
the manner and conditions of forming and, if necessary, of dissolving, the
marriage contract.[1]
It is sometimes suggested that the greatest defect of the Islamic system
is the absolute power given to the husband to divorce his wife without cause.
The reforms of Mohammed marked a new departure in the history of Eastern
legislation. He restrained the power of divorce possessed by the husband ; he
gave to the women the right of obtaining a separation on reasonable grounds;
and towards the end of his life he went so far as practically to forbid its
exercise by the men without the intervention of arbiters or a judge.[3]
Prophet (PBUH) dislike it most because it prevented conjugal happiness and
interfered with the proper brining up the children.
Classification
of Dissolution of Marriage
2.1 Modes of Divorce
A husband may divorce his wife by repudiating the marriage
without giving any reason. Pronouncement of such words which signify his
intention to disown the wife is sufficient. Generally this done by talaaq. But
he may also divorce by Ila, and Zihar which differ from talaaq only in form,
not in substance. A wife cannot divorce her husband of her own accord. She can
divorce the husband only when the husband has delegated such a right to her or
under an agreement. Under an agreement the wife may divorce her husband either
by Khula or Mubarat. Before 1939, a Muslim wife had no right to seek divorce except
on the ground of false charges of adultery, insanity or impotency of the
husband. But the Dissolution of Muslim Marriages Act 1939 lays down several
other grounds on the basis of which a Muslim wife may get her divorce decree
passed by the order of the court.
There are two categories of divorce under the Muslim law:
1) Extra judicial divorce,
1) Extra judicial divorce,
2) Judicial divorce
The category of extra judicial
divorce can be further subdivided into three types, namely,
• By husband- talaaq, ila, and zihar.
• By wife- talaaq-i-tafweez, lian.
• By mutual agreement- khula and mubarat.
The second category is the right of
the wife to give divorce under the Dissolution of Muslim Marriages Act 1939.
2.2 Divorce Given by the Husband
2.2.1 Definition of talak
Under Muslim law
‘talak’ means ‘freedom’. The right of giving freedom by her husband from
marriage to wife is called ‘talak, According to Heyadaya[4] it
means relinquishment. The right of enforceable by the husband only. [5] Asaf
A. A. Fyzee said, “In law, it
signifies the absolute power which the husband possesses.” A husband who is
sound mind and adult can divorce his wife without showing any cause .Though to
give divorce is so hated and a heinous act but recognized by law. Talak is an
act of repudiation of marriage by the husband in exercise of his power which
has been conferred on him .The term divorce includes all separation originating
from the husband and repudiation for the talak in the limited sense ,namely of
separation effected by use of appropriate word.[6] A
separation occurs when a married couple decides they no longer want to live
together, but decide to live apart for a while.
2.2.2 Talaq Ahsan
Talaq ahsan is
effected when the husband pronounces one divorce during a tuhr in which
cohabitation has no taken place between the parties, and then abstains from
cohabitation during the iddat. The talaq becomes irrevocable at the end of the
period of iddat.[7] But
during that period the husband can take back his wife at any time. When the
woman is not subject to courses the talaq can be pronounced even after
cohabitation. The divorce becomes irrevocable only on the completion of iddat
which is three periods, and when the woman is not subject to periods it is
three months. When the woman is pregnant the iddat comes to an end on the
delivery of the child or three months, whichever is later.
2.2.3 Talaq-i-hasan
Talaq-i-hasan is
effected when the husband repudiates his wife during a thur in which he has not
had carnal connection with her, and then repeats the repudiation during the
next two thurs. The third repudiation or pronouncement makes the divorce final
and irrevocable; Imam Malik does not consider it a talaq-us-sunna.
2.2.4 Talaq-i-biddat
Talaq-i-biddat
is effected by pronouncing talaq thrice during the some thur, or in pronouncing
the formula of talaq once with the condition that it should be considered to
have been said thrice. As when the husband say “I divorce thee thrice.” It is
immediately effective and irrevocable.
Talaq-i-bidaat is the most common and prevalent mode of divorce in Inida
and Pakistan.
It is not prohibited even during the woman’s courses. This form of talaq is not
recognized by Shia law.
2.2.5 Ila
IIa is effected
when the husband swears that he would not have intercourse with his wife for a
period not less than four months. If he does not have intercourse for that
period the marriage is dissolved without legal proceedings. If the husband
returns to the wife within the period specified in the ila, the ila would come
to an end but he would be liable to expiation.
According to ithna Ashari and Sahfei
School, the wife is
entitled to apply to the Court for passing a decree dissolving the marriage. In
Sunni Law, legal proceedings are not required.
In Bibi
Rehana v. Iqtidar-uddin[8]
after the marriage ceremony was over, the parents of the boy pushed him into a
room where his wife was waiting for him. It appears from the facts of the case
that the husband was not interested in the marriage. Immediately after entering
into the room he took a vow in the presence of his wife that he would never
have sexual intercourse with her. Soon after living this statement he came out
of the room and repeated the vow in the presence of his mother and his mother’s
sister. His father then came out of another room and he once more repeated that
vow. The Court refused to accept the version of the husband. The Court said
that the husband has failed to establish that there had been a divorce in the
ila form.
2.2.6 Zihar (injurious assimilation)
“If the husband
(who is sane and adult) compares his wife
to his mother or any other female within a prohibited degree, the wife
has a right to refuse herself to him until he has performed penance. In default
of expiation by the penance, the wife has a right to apply for a judicial
divorce (Mulla).
2.3 Divorce
by Mutual Agreement
2.3.1 Khula (divorce at the request of
wife)
Khula or
redemption literally means to lay down. In law it means laying down by a
husband of his right and authority over his wife. In Mst. Balaquis Ikram v.
Najmal Ikram.[9] It was
said that under the Muslim Law the wife is entitled to Khula as of right if she
satisfies the conscience of the Court that it will otherwise mean forcing her
into a hateful union. [10]
Khula has been aptly defined by Their Lordships of the Judicial Committee
in Moonshee-Buzlu-ul-Raheem v. Lateefutoonissa. A divorce by khula is a
divorce with the consent and at the instance of the wife, in which she gives or
agrees to give a consideration to the husband for her release from the marriage
tie. It signifies an arrangement entered into for the purpose of dissolving a
connubial connection in liu of compensation paid by the wife to her husband out
of her property. Khula in fact is thus a right of divorce purchased by the wife
from her husband.
It should be noted that there was no Khula in pre-islamic legislation.
The basis for Khula is an injunction in Quran which reads as under:
“Then if you
fear that hey cannot keep within the limits of Allah. There is no blame on them
for what she gives to become free thereby”.
In connection with the validity of Khula, the case of Jamila the wife of
Thabit-b. Qays-b. Shams form the basis of legislation. This incident, as the
basis of the validity of Khula, has been referred to by most of the
traditionalist Hazrat Imam Bukhari has reported through Hazrat Ibn Abbas that
one day the wife of Thabit b. Qays appeared before the Prophet and Presented
her complaint in the followings words:
‘O’ messenger of Allah nothing can ever unite his (Thabit) head with mine
(Thabit) head with mine (Jameela). When I raised my veil I saw him coming in
the company of a few men. I saw that he was blackest, the shortest and the
worst appearance of them all. By Allah I do not dislike him because of defects
in his faith or morality. I just hate his ugly looks. By God if I did not fear
Allah, I would have spit on his face when he came near me. ‘O’ Messenger of
Allah’ you can see how beautiful I am while Thabit is an ugly man”. I do not
blame him for any depravity in his religious practice or morality, but I fear
that I may be guilty to transgression of injunctions of Islam.
The messenger of Allah heard her complaint and observed:
“Will she return
him the garden which Thabit had given to her.” She replied. “O yes, Messenger
of Allah, I shall give him even more if he demands more. The Messenger of Allah
(PBUH) observed: “No not more, just return him his garden. He (Holy Prphet)
then ordered: “Thabit, take back the garden and divorce her which he did.”
Once a case of husband and a wife was brought before Hazrat Umar. he
admonished the woman and advised her to stay with her husband but she refused.
Thereupon he shut her in a room full of rubbish. She was taken out after three
days and Hazarat Umar asked her how she was. She replied. By Allah, “She had
real comfort in these nights”. Hearing this, Umar ordered her husband to give
her Khula even though it might be in the exchange of her earrings”.
Under the Shia Law the parties can dissolve their marriage by way of
mubarat if it is impossible for them to continue marriage tie.
2.3.2 Mubarat (divorce by mutual
agreement)
Mubarat is also
a form of dissolution of marriage contract. It signifies a mutual discharge
from the marriage claims. In mubarat the aversion is mutual and both the sides
desire separation. Thus it involves an element of mutual consent. In this mode
of divorce, the offer may be either from the side of wife or from the side of
husband. When an offer mubarat is accepted, it becomes an irrevocable divorce
(talaq-ul-bain) and iddat is necessary:
2.4 Divorce
given by Wife
2.4.1 Talaaq-i-tafweez
Talaaq-i-tafweez or delegated divorce is recognized among
both, the Shias and the Sunnis. The Muslim husband is free to delegate his
power of pronouncing divorce to his wife or any other person. He may delegate
the power absolutely or conditionally, temporarily or permanently . A permanent
delegation of power is revocable but a temporary delegation of power is not.
This delegation must be made distinctly in favour of the person to whom the
power is delegated, and the purpose of delegation must be clearly stated. The
power of talaaq may be delegated to his wife and as Faizee observes, “this form
of delegated divorce is perhaps the most potent weapon in the hands of a Muslim
wife to obtain freedom without the intervention of any court and is now
beginning to be fairly common in India”. This form of delegated
divorce is usually stipulated in prenuptial agreements. In Md. Khan v.
Shahmali [11],
under a prenuptial agreement, a husband, who was a Khana Damad, undertook to
pay certain amount of marriage expenses incurred by the father-in-law in the
event of his leaving the house and conferred a power to pronounce divorce on
his wife. The husband left his father-in-law’s house without paying the amount.
The wife exercised the right and divorced herself. It was held that it was a
valid divorce in the exercise of the power delegated to her. Delegation of
power may be made even in the post marriage agreements. Thus where under an
agreement it is stipulated that in the event of the husband failing to pay her
maintenance or taking a second wife, the will have a right of pronouncing
divorce on herself, such an agreement is valid, and such conditions are
reasonable and not against public policy . It should be noted that even in the
event of contingency, whether or not the power is to be exercised, depend upon
the wife she may choose to exercise it or she may not. The happening of the
event of contingency does not result in automatic divorce.
2.5 Divorces by Judicial Pronouncement
2.5.1 Lian (fales charge of adultery)
Where a husband
charges his wife of adultery and the charge is false, the wife is entitled to
sue for and obtain divorce. She must file a regular suit for dissolution of her
marriage as a mere application to the Court is not the proper procedure. In Zafar
Husain v. Ummat-ur-Rahman[12],
the Allahabad High Court recognized the doctrine of lian. In this case the wife
of the plaintiff alleged that her husband had stated before several persons
that she had illicit intercourse with her brother and imputed fornication to
her. It was argued that the law of lian had no lace in Anglo Mohammedan Law and
must be considered obsolete. This argument was rejected. It was held that Qazi
of the Muslim Law was replaced by the Court. It was held that a Muslim wife is
entitled to bring a suit for divorce against her husband and obtain a decree on
the ground that the latter falsely charged her with adultery. [13]
Mere charge levied by the husband will not automatically dissolve the marriage.
The wife has to apply to the Court for the dissolution of her marriage.
In Jauri Beebee v. Sheikh Moonshee Beparee[14], it was said that the charge of adultery of
the wife made by the husband could not be the ground of divorce by the wife.
It has been argued that in India the doctrine of lian has
become obsolete. But this is not true. In Nurjahan Bibi v. Mohd. Kazim Ali[15], it
was said by Bhattacharya, J. that the doctrine of lian or jaan has not become
obsolete. A Muslim wife can bring a suit for divorce against her husband on the
ground that her husband has charged her with adultery falsely. According to
Muslim Law the wife is entitled to a divorce if the husband makes false charge
of adultery against the wife. [16]
Legislative Reforms in the
Area of Divorce
3.1 Dissolution of Muslim
Marriages Act 1939
Qazi Mohammad Ahmad Kazmi had introduced a bill in the
Legislature regarding the issue on 17th April 1936. It however became law on 17th March 1939
and thus stood the Dissolution of Muslim Marriages Act 1939.
Section 2 of the Act runs there under:
A woman
married under Muslim law shall be entitled to obtain a decree for divorce for
the dissolution of her marriage on any one or more of the following grounds,
namely:-
• That the whereabouts of the
husband have not been known for a period of four years: if the husband is
missing for a period of four years the wife may file a petition for the
dissolution of her marriage. The husband is deemed to be missing if the wife or
any such person, who is expected to have knowledge of the husband, is unable to
locate the husband. Section 3 provides that where a wife files petition for
divorce under this ground, she is required to give the names and addresses of
all such persons who would have been the legal heirs of the husband upon his
death. The court issues notices to all such persons appear before it and to
state if they have any knowledge about the missing husband. If nobody knows
then the court passes a decree to this effect which becomes effective only
after the expiry of six months. If before the expiry, the husband reappears,
the court shall set aside the decree and the marriage is not dissolved.
• That the husband has neglected or
has failed to provide for her maintenance for a period of two years: it is a
legal obligation of every husband to maintain his wife, and if he fails to do
so, the wife may seek divorce on this ground. A husband may not maintain his
wife either because he neglects her or because he has no means to provide her
maintenance. In both the cases the result would be the same. The husband’s
obligation to maintain his wife is subject to wife’s own performance of
matrimonial obligations. Therefore, if the wife lives separately without any
reasonable excuse, she is not entitled to get a judicial divorce on the ground
of husband’s failure to maintain her because her own conduct disentitles her
from maintenance under Muslim law.
• That the husband has been
sentenced to imprisonment for a period of seven years or upwards: the wife’s
right of judicial divorce on this ground begins from the date on which the
sentence becomes final. Therefore, the decree can be passed in her favour only
after the expiry of the date for appeal by the husband or after the appeal by
the husband has been dismissed by the final court.
• That the husband has failed to
perform, without reasonable cause, his marital obligations for a period of
three years: the Act does define ‘marital obligations of the husband’. There
are several marital obligations of the husband under Muslim law. But for the
purpose of this clause husband’s failure to perform only those conjugal
obligations may be taken into account which is not included in any of the
clauses of Section 2 of this Act.
• That the husband was impotent at
the time of the marriage and continues to be so: for getting a decree of
divorce on this ground, the wife has to prove that the husband was impotent at
the time of the marriage and continues to be impotent till the filing of the
suit. Before passing a decree of divorce of divorce on this ground, the court
is bound to give to the husband one year to improve his potency provided he
makes an application for it. If the husband does not give such application, the
court shall pass the decree without delay. In Gul Mohd. Khan v. Hasina the wife
filed a suit for dissolution of marriage on the ground of impotency. The
husband made an application before the court seeking an order for proving his
potency. The court allowed him to prove his potency.
• If the husband has been insane
for a period of two years or is suffering from leprosy or a virulent venereal
disease: the husband’s insanity must be for two or more years immediately
preceding the presentation of the suit. But this act does not specify that the
unsoundness of mind must be curable or incurable. Leprosy may be white or black
or cause the skin to wither away. It may be curable or incurable. Venereal
disease is a disease of the sex organs. The Act provides that this disease must
be of incurable nature. It may be of any duration. Moreover even if this
disease has been infected to the husband by the wife herself, she is entitled
to get divorce on this ground.
• That she, having been given in
marriage by her father or other guardian before she attained the age of fifteen
years, repudiated the marriage before attaining the age of eighteen years,
provided that the marriage has not been consummated;
• That the husband treats her with cruelty, that is to
say,-
(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment, or
(b) Associates with women of ill-repute or leads an infamous life, or
(c) Attempts to force her to lead an immoral life, or
(d) Disposes of her property or prevents her exercising her legal rights over it, or
(e) Obstructs her in the observance of her religious profession or practice, or
(f) If he has more than one wives, does not treat her equitably in accordance with the injunctions of the Holy Quran.
(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment, or
(b) Associates with women of ill-repute or leads an infamous life, or
(c) Attempts to force her to lead an immoral life, or
(d) Disposes of her property or prevents her exercising her legal rights over it, or
(e) Obstructs her in the observance of her religious profession or practice, or
(f) If he has more than one wives, does not treat her equitably in accordance with the injunctions of the Holy Quran.
3.2 Divorce under Muslim Family Laws
Ordinance, 1961
From a
comparison of forms of talaq it appears that under S. 7 the Ordinance has
enforced in Pakistan
a kind of talaq which is in consonance with talaq-i-ahasn and talaq-i-hasan. In
the case of Talaq-i-ahsan the divorce becomes irrevocable after the period of
iddat, and in case of talaq-i-hasan it becomes irrevocable on pronouncement for
the third time in the third tuhr after the first pronouncement. Thus the least
period after which a talaq becomes irrevocable according to Talaq-us-Sunna,
i.e. approved form of divorce, is approximately 90 days. In this sense there
has been no change in Muslim Law. On the other hand it has been consolidated
and enforced by the Ordinance. The only form affected by the Ordinance is the
Bedai form which becomes effective immediately after it is either uttered
orally or written down on a price of paper of on something else from which it
can be deciphered. Now even a talaq in that form win become effective after the
expiry of 90 days.
As per the provisions of sec-7 of the Muslim Family law Ordinance:
- Any man who wishes to divorce his wife shall as soon as may be after the pronouncement of talaq, in any form whatsoever give the chairman notice in writing of his having done so and shall supply a copy thereof to the wife.
- Whoever contravenes the provision of sub-section (i) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand taka or with both.
- Save as in sub-section (5), a talaq unless revoked earlier, expressly or otherwise shall not be effective until the expiration of ninety days form the day on which notice under sub-section (i) is delivered to the chairman.
- Within thirty days of the receipt of notice under sub-section (i) the chairman shall constitute an arbitration council for the purpose of bringing about a reconciliation between the parties and the arbitration council shall take all steps necessary to bring about such reconciliation.
- If the wife be pregnant at the time of talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy whichever be later ends.
A Muslim man can marry of a Christian Woman; But a Muslim woman cannot do
that. She cannot marry without a Muslim legally. Under the Muslim Family Laws
Ordinance 1961, a man can marry more than one by the permission of the
Arbitrary Council. But a Woman cannot do this. It is not only illegal But also serious
offence.
The same procedure for divorce has also been made applicable to a wife on
whom the right to divorce has been duly delegated and who wishes to exercise
the right as per provisions of the section-8 of the said ordinance. These
sections incorporate the provisions of two forms of talak-us- sunnat viz.
talak Ahsan and talak Hasan.
Delegated
Power of Divorce by the Wife
4.1 Talaq-e-tafweez
The doctrine of ‘tafweez’
or delegation of power is an important topic of the Muslim Law of divorce. A
husband may, either himself, repudiate his wife or delegate this power of
repudiating her to a third party, or even to his wife. Such a delegation of
power is called tafweez. [17] An
agreement made either before or after the marriage providing that the wife
would be at liberty to divorce herself from her husband under certain specified
conditions such as in case the husband marries a second wife or fails to
maintain her for a specified period, is valid, provided first, that the option
is not absolute and unconditional and secondly, that the conditions are
reasonable and not opposed to public policy.
In
Mohd. Khan v. Mst. Shahmali[18]
there was pre nuptial agreement according to which the defendant agreed
to live in the plaintiff’s parental house and if he would leave that house, he
would pay certain specified sum to the plaintiff in default of which the
condition would operate as divorce. It was held that the condition was not
unconscionable and opposed to public policy, violation of such term would
operate as divorce between the husband and wife.
The
wife exercising her power under the agreement must establish that the
conditions entitling her to exercise the power have been fulfilled. In such
cases, the mere happening of the contingency is not sufficient, the wife must clearly
establish first that events entitling her to exercise her option have occurred,
and secondly, that she actually exercised her option.
It
is noteworthy that in case of talaq-e-tafweez, the wife does not divorce her
husband and this she cannot do under Muslim Law but divorce herself on behalf
of the husband under his power delegated to her by him. Under the Muslim Law,
when under the contract the wife is empowered to divorce herself in specific
contingencies which she exercises at the happening to any of them, the divorce
will take effect to the same extent, as if it has been pronounced by the
husband. It does not require any declaration from a Court of law.
The Court held that the power to give divorce which primarily belongs to
the husband may be delegated to his wife either absolutely or conditionally.
Since this is not prohibited by the personal law of the parties therefore it is
quite open to her to divorce herself. The Court further held that the wife in
the instant case was very much a divorced woman when she dissolved her marriage
by virtue of authority delegated to her and executed a divorce deed before the
Muslim Marriage Registrar and Kazi and it cannot be said that the marriage was
still subsisting as no specified contingencies had taken place.
4.2 Valid and reasonable conditions
The following
conditions were held to be valid and reasonable, and where there was an
agreement that the wife would have the power to divorce herself if they were
not fulfilled, it was held to be binding on the parties:- [19]
a)
The husband should live a respectable life and should
earn and his livelihood. He should maintain his wife and should live in a house
approved by her.
b)
The husband should not beat or ill-treat his wife and
if he oppresses her wrongfully she will be entitled to reside at her father’s
house and realize a maintenance charge from him.
c)
The husband should allow his wife to be taken to her
father house 4 times a year or that if the wife be in need of going to and
coming back from her fathers residence he would send her there and bring her back
at his own expense.
d)
The husband would not contract a second marriage
without the consent of his wife unless she be either barren or perpetually ill.
e)
The husband should pay her dower on demand and that the
husband would not take any remission of dower from the wife except in the
presence of her relations.
4.3 Talaq-i-tafwid and stipulations in a Muslim marriage contract
In order to come within this exception, the contract
must be in writing and registered. Given the possibility that the contract may
be liable to impeachment on the grounds of lack of consideration, it is
obviously advisable that any contract between the spouses executed some time
after the marriage be registered under the Registration Act. Such a course
would have the affect of avoiding altogether or at least greatly simplifying
litigation should the husband attempt to avoid the contract subsequently.
In this case, however, the
Court held that the agreement between the spouses had been executed as a means
of compromising a suit for restitution of conjugal rights and the wife’s
surrender of her defenses in that suit constituted sufficient consideration to
validate the contract. Second wife in the presence of the first. But since such
a contract can neither prevent the husband from marrying another wife nor
render such a subsequent marriage invalid, the High Courts have refused to hold
that the contract was one in restraint of marriage. The importance of such a
contract is in defining the rights of the first wife should the husband break
the agreement and marry again. “Public policy” -- which undoubtedly covers a
broad and vague legal terrain – is probably the most important of these three
concepts in the context of litigation on marriage contracts and contracts
between husband and wife, simply because it continues to live on while the
other two have been more or less securely laid to rest by the case-law
accumulated to date. Courts of the subcontinent are, however, no more anxious
to decide cases on the basis of “public policy” than are the English Courts.12
Repelling a “contrary to public policy” argument in 1929, the Lahore High
Court,
In Muhammad Ali Akbar v. Fatima
Begum[20] quoted Lord Davey’s remarks in Janson v. Driefontein Consolidated
Mines, Ltd[21]
as “Public policy is always an unsafe and treacherous ground for legal
decision.” Four years later the same Court considered an agreement
between a husband and his wife whereby the husband agreed that should he
take a second wife, the first wife would be entitled either to exercise the
delegated power of talaq or to reside separately and receive a
monthly allowance of Rs.75. The Lahore High Court upheld the contract
and observed: An agreement such as… that signed by the husband is
permitted by Mohammedan law and it certainly cannot be said to be
opposed to public policy. I am unable to see anything “monstrous” or mad
in the deed which, in
my opinion, was a reasonable one for a husband to
execute in favour of a wife who looks for treatment such as emancipated Indian
women naturally consider they have a right to insist upon. (Mst. Sadiqa
Begum v. Ata Ullah)[22]
In the result, and in
spite of the sophistry of legal argument not infrequently advanced on behalf of
litigants, the basic criterion for ascertaining the legal validity of contracts
of the nature under discussion is “reasonableness,” and the Courts of the
subcontinent have demonstrated a marked reluctance to hold Muslim marriage
contracts or contracts between Muslim husband and wife “unreasonable.”
4.4 Revocability
A delegation of authority to pronounce talaq,
as mentioned previously, is not revocable. The question here is of the power of
the husband to revoke the talaq pronounced by the recipient of that
authority. It is probably not without significance that the examples found in the
Hanafi texts of delegations of authority to pronounce talaq made at the
time of marriage (i.e., in the actual exchange of consents) and in pre- and
post-nuptial contracts generally appear to involve the use of an” ambiguous”
expression, which (as translated) refers to placing the business of the wife in
her hands. The significance of this is that the talaq renounced under
such authority is irrevocable. Interestingly, Maliki texts explicitly declare
that talaq-i-tafwid, pronounced by a wife empowered so to act by her
marriage contract andwhose marriage has been consummated, results in an
irrevocable talaq.
4.5 Ambiguous and express delegations
As might be expected, the Hanafi texts discuss a
variety of ways in which the delegation of authority to pronounce talaq
may be made and the effects of the different formulations. As a
general proposition, if the words of delegation do not employ the word “talaq”
(or one of its grammatical variations), the pronouncement by the wife
(or other recipient of the delegation) results in an irrevocable talaq,
if talaq were what the husband intended in using the words he
did. On the other hand, if the word “talaq” (or one of its
grammatical variations) were used in making the delegation, the talaq
pronounced under the delegated authority is revocable (by the husband)
-- unless the husband in making the delegation had authorized the
pronouncement of a talaq bain (irrevocable) or a triple talaq,
and the pronouncement were made in these terms. (The person empowered by
the delegation may make a pronouncement of lesser impact than allowed by
the terms of the delegation, but may not exceed the authority delegated.
There are also in the
Hanafi texts, illustrations of four distinct situations in which a delegation
of the right to pronounce talaq may be made.
4.5.1 Casual delegations
Most of the examples in the texts are of what might
be termed “contemporaneous” or “casual” (as opposed to “contractual”)
delegations. The delegation is made in the course of a conversation between
the spouses or in a discussion at which they and others are present
(e.g., possibly a discussion concerning the couple’s marital problems
and involving relatives of the spouses). In the “contemporaneous”
delegation, the authority delegated (although irrevocable like any other
delegation) will expire very quickly if not acted upon immediately,
unless the words used in making the delegation indicate otherwise. The
delegation may be so worded as to convey authority that will endure for
days, months, or permanently. It may also be so worded as to confer
authority exercisable only should a particular set of circumstances
arise.
4.5.2 Post-nuptial contracts
A second situation involves a post-nuptial agreement
in which the husband’s undertaking is sanctioned by a delegation of the
right to pronounce talaq which the wife may exercise should the husband
default on his promise. Such post-nuptial agreements may be executed
some time after the marriage. Equally, they may be made immediately
after the exchange of consents and as part of the marriage rites
themselves. There is no reason (from the perspective of Muslim law) why
a blanket delegation may not be made in a post-nuptial agreement or by
means of a unilateral post-nuptial grant. [23]
4.5.3 Delegation as part of marriage consents
The third situation involves a delegation made at the
time of the marriage and incorporated in the actual exchange of
consents. E.g.: When the proposal comes from the woman… and she says, “I
have given myself in marriage to thee… on condition that the authority
(in the matter of divorce) is in my hands, so that I may divorce myself
whenever I choose,” and the man then says, “I have accepted,” then… the
marriage is valid and… the authority (in the matter of divorce) will be
in her hands. Note that the terms used in this example confer upon the
wife a permanent and completely unrestricted right to pronounce talaq at
her pleasure.
Judicial Pronouncements for Divorce
5.1 Court’s
approach for maintaining Divorce
In
Syed Ziauddin v. Parvez Sultana [24],
Parvez Sultana was a science graduate and she wanted to take admission in a
college for medical studies. She needed money for her studies. Syed Ziaudddin
promised to give her money provided she married him. She did. Later she filed
for divorce for non-fulfillment of promise on the part of the husband. The
court granted her divorce on the ground of cruelty. Thus we see the court’s
attitude of attributing a wider meaning to the expression cruelty. In Zubaida
Begum v. Sardar Shah ,[25] a
case from Lahore High Court, the husband sold the ornaments of the wife with
her consent. It was submitted that the husband’s conduct does not amount to
cruelty.
In Aboobacker v. Mamu koya [26],
the husband used to compel his wife to put on a sari and see pictures in cinema.
The wife refused to do so because according to her beliefs this was against the
Islamic way of life. She sought divorce on the ground of mental cruelty. The
Kerela High Court held that the conduct of the husband cannot be regarded as
cruelty because mere departure from the standards of suffocating orthodoxy does
not constitute un-Islamic behaviour.
In
Itwari v. Asghari [27],
the Allahabad High Court observed that Indian Law does not recognize various
types of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on, and that
the test of cruelty is based on universal and humanitarian standards; that is
to say, conduct of the husband which would cause such bodily or mental pain as
to endanger the wife’s safety or health.
Divorce on the basis of irretrievable breakdown of marriage
has come into existence in Muslim Law through the judicial interpretation of
certain provisions of Muslim law. In 1945 in Umar Bibi v. Md. Din [28],
it was argued that the wife hated her husband so much that she could not
possibly live with him and there was total incompatibility of temperaments. On
these grounds the court refused to grant a decree of divorce. But twenty five
years later in Neorbibi v. Pir Bux , again an attempt was made to grant
divorce on the ground of irretrievable breakdown of marriage. This time the
court granted the divorce. Thus in Muslim law of modern India, there
are two breakdown grounds for divorce: (a) non-payment of maintenance by the husband even if the failure has
resulted due to the conduct of the wife, (b) where there is total
irreconcilability between the spouses.
5.2 Judicial
movements against arbitrary use of divorce
The
Supreme Court of India through a judgement dated 1 October 2002 in Shamim
Ara vs State of U.P [29].,
has laid the issue to rest by stating that talaq must be for a reasonable
cause, and that it must be proved. A summary of the principles laid down by the
judiciary with regard to husband's right to unilateral arbitrary divorce are as
follows:
·
Plea taken in a reply to the maintenance claim
filed by the wife does not constitute divorce;
·
A mere statement in writing or in oral
disposition before the court regarding the talaq having been effected in the
past is not sufficient to prove the fact of divorce;
·
An oral talaq, to be effective, has to be
pronounced;
·
It is mandatory to have a pre-divorce conference
to arrive at a settlement. This mediation should be in the presence of two
mediators, one chosen by the wife & the other by the husband;
·
If wife disputes the fact of talaq before a
court of law, all the stages of conveying the reasons for divorce, appointment
of arbitrators, conciliation proceedings for reconciliation between the parties
by the arbitrators and failure of such proceedings are required to be proved;
·
A Muslim husband cannot divorce his wife at his
whims and caprice; and
·
The husband must also prove that there was a
valid ground for divorcing the wife.
5.3 Case references on post Divorce Maintenance
In the case of Safura khatun v. Osman Gani
Mollah[30] the wife-plaintiff has instituted her suit for
maintenance for the period of Iddat claiming Rs.105/-.Her case in short is as
follows,
During the Iddat period she was not maintained by the defendant, that is
the plaintiff in the other suit, and as such, she has been compelled to bring
the suit. The defendant of the defendant is that were was no valid divorce by
the plaintiff in the money suit and as such, she is not entitled to get any
decree for maintenance for the period of Iddat. Both the court below have
decreed the suit of the husband-plaintiff and dismissed the suit of the wife
plaintiff. Hence the present appeals at the instance of the wife. Mr. Syed
Amjad Hussain, the learned Advocate for the Appellant, contends that in view of
the fact that the husband left the wife without her previous consent and in
view of the fact that the husband did not maintained the wife for two years,
she was under the kabinnama entitled the exercise the right of tawfiz talak. It
has been found by both the courts below that the husband did not sent money
regularly to the wife but only Rs.46/- was sent in all through out the two
years and, in the opinion of both the court below that was sufficient
compliance with the previous of the kabinnama. I am sorry I cannot agree with
the finding. Rs.46/- for two years cannot he by any imagination Sufficient to
meet the maintenance expenses and such as, it cannot be said that there was a
sufficient compliance of the term of the kabinnama.
The decision
of this Suit was given by; J. Hasan, in March 5 of 1957 : That was Appeal no.
392/1952 is allowed and the judgments and decree of the both Courts below are
set aside., and her suit for Rs.45/- is decreed.
In the Shah Banu Case[31] the
interveners on behalf of the husband in Shah Bano could not refute the
words of the Quran, all they could do was to contend that Yusuf Ali’s
translation of mataa as “maintenance” was incorrect and to point out
that other translations employed the word “provision.” This the Supreme Court
termed “a distinction without a difference” -- as indeed it was on the facts of
the case before it: whether mataa was rendered “maintenance” or
“provision,” there was no pretence that the husband in Shah Bano had
provided anything at all by way of mataa to his divorced wife. In the
Lok Sabha debates after the judgment, Ibrahim Sulaiman Sait (speaking in
support of overruling the Shah Bano decision by statute), while
apparently conceding that a divorced Muslim woman was entitled to mataa,
argued that mataa “is a single or one time transaction. It does not mean
payment of maintenance continuously at all.” This concession supports the
argument that the word “provision” in section 3(1)(a) of the Muslim Women Act
incorporates mataa as a right of the divorced Muslim woman distinct from
and in addition to mahr and maintenance for the period of iddah.
Thus, even assuming (without conceding) that the “maintenance” referred to in
section 3(1)(a) is confined to maintenance for the period of iddah,
there still remains the question of “provision.” This “provision” (mataa)
is neither defined by the Act nor subjected to a statutory maximum. The
determination of what constitutes, on the facts of any given case, “a
reasonable and fair provision” rests completely in the discretion of the
magistrate. Section 3(3) of the Act instructs the magistrate to determine what
would constitute “reasonable and fair provision and maintenance” with reference
to the needs of the divorced woman, the means of the husband, and the standard
of life the woman enjoyed during the marriage. There is no reason why
“reasonable and fair provision” could not take the form of the regular payment
of alimony to the divorced woman.
But the Decision of Shah
Banu case was reversed by Hefzur Rahman v. Shamsun Nahar Bagum and Others[32] where
it says that a Muslim divorced woman is entitled to have maintenance till the
period of iddat and no further.
Conclusion
It is argued
that Islam has given unfettered power to the husband to give divorce to his
wife without any cause. But experience shows that greater suffering is
endangered by the husband’s withholding divorce than by his irresponsible
exercise of this right. Under such conditions the power to release herself is
the surest safeguard for the wife. No system of law can produce material
happiness, but humane laws may at least alleviate sufferings. And when marital
life is wrecked, the home utterly broken up by misunderstanding, jealousy,
cruelty, infidelity, what greater boon can a spouse have to secure his/her
liberty.[33]
Divorce of course, a social evil in itself, but it is a necessary evil. It is
better to wreck the unity of the family than to wreck the future happiness of
the parties by binding them to a companionship that has become odious. That’s
why Quran permits divorce partly because to enable men to get rid of an odious
union.
It has shown in the dissertation that the judiciary has taken efforts to
curb the practice of arbitrary, unilateral pronouncement of divorce by Muslim
husbands, and affirmed the right of the woman to challenge such a divorce. There
is no doubt that Muslim women have recourse to the courts to challenge
arbitrary unilateral talaq, and hence arbitrary talaq becomes a non-issue if
recourse to law is taken. However, many women are unable to take recourse to
law due to lack of awareness, poverty, illiteracy, financial implications of
litigation and community opposition against such a move. How can the judgements
impact women's lives, when women themselves, and the communities they live in,
believe that they have been legally divorced? The challenge then is to educate
women living in communities about the legal position and enable their access to
law, as well as to promote community awareness and acceptance of the law as
stated through judgments.[34]
REFERENCES
Books
- Aqil Ahmed. Text book of Mohamadan Law. 21st ed. (Allahbad: Central Law Agency, 2004).
- Md. Altaf Hossain. Islamic Jurisprudence and Muslim Ain Sohaika.( In Bangali), (Dhaka: City Law Book, 2003).
- Shaukat Mahmood, Principles and Digest of Muslim Law, 6th ed. (Lahore: Legal Research Centre, 2002).
- Asaf A. A. Fyzee, Outlines of Muhammadan Law, 4th ed. (Oxford: Oxford University Press, 1993).
Statutes
- Muslim Family Law Ordinance, 1961.
- Dissolution of Muslim Marriage Act, 1939.
Cases
1.
Bibi Rehana v. Iqtidar-uddin, (1943), ALL, 295.
2.
Mst. Balaquis Ikram v. Najmal Ikram, 2(1959), WP, 321.
3.
Md. Khan v. Shahmali, AIR (1977), Cal, 90.
4.
Zafar Husain v. Ummat-ur-Rahman, AIR (1999), All, 182.
5.
Jauri Beebee v. Sheikh Moonshee Beparee, 3 (1865), WR, 93.
6.
Nurjahan Bibi v. Mohd. Kazim Ali, AIR(1977), Cal,
90.
7.
Mohd. Khan v. Mst. Shahmali, AIR(1972), J.&K., 8.
8.
Muhammad
Ali Akbar v. Fatima Begum, AIR(1929), 660.
9.
Mst. Sadiqa Begum v. Ata Ullah, AIR (1933), 885.
10. Janson v.
Driefontein
Consolidated Mines, Ltd,(1902) Appeal Cases 484.
11. Syed Ziauddin v. Parvez Sultana, (1943) 210
IC 587.
12. Zubaida Begum v. Sardar Shah, [1] (1971) KLT
663.
13. Aboobacker v. Mamu koya, AIR (1960), All, 684.
14. Itwari v. Asghari, AIR(1945), Lah, 51.
15. Umar Bibi v. Md. Din, AI.R (1971), Ker, 261.
16. Safura khatun v. Osman Gani Mollah, 9 (1957), DLR, 455.
17. Shah Banu
Case, AIR(1985), SC,
945.
18. Hefzur Rahman v. Shamsun Nahar Bagum
and Others, 59(1999),
DLR, AD, 172.
19. Shamim Ara vs State of U.P, 7(2002), SCC, 527.
Web Pages
1.[ttp://www.google.com.bd/#hl=bn&q=Triple+talaq%2C+women%27s+rights+and+Indian+judicial+responses&meta=&aq=&oq=Triple+talaq%2C+women%27s+rights+and+Indian+judicial+responses&fp=ed0bd4d3e01e7a66,
last visited on 30 December
2009].
2.[http://www.legalaid.qld.gov.au/Legal+Information/Relationships+and+children/Relationships/Separation+-+what+it+means.htm
,last visited 13 October
2009].
3. [http://www.wluml.org/english/pubs/pdf/misc/talaq-i-tawfid-eng.pdf last visited 13 October 2009].
4. [http://www.lawyersclubindia.com/articles/-Divorce-by-wife-IN-MUSLIM-LAW/1632/
last visited on 21 December
2009].
[1]
Asaf A. A. Fyzee, Outlines of Muhammadan Law, 4th ed.
(Oxford: Oxford University Press, 1993), p.147.
[2][http://www.google.com.bd/#hl=bn&q=Triple+talaq%2C+women%27s+rights+and+Indian+judicial+responses&meta=&aq=&oq=Triple+talaq%2C+women%27s+rights+and+Indian+judicial+responses&fp=ed0bd4d3e01e7a66,
last visited on 30 December
2009].
[3]
Asaf A. A. Fyzee, ibid, p.146.
[4]
Md. Altaf Hossain. Islamic Jurisprudence and Muslim Ain sohaika. (Dhaka:
City Law Book, 2003), pp.164-65.
[5] Aqil Ahmed. Text book of Mohamadan Law. 21st ed. (Allahbad: Central
Law Agency, 2004), p.164.
[6][http://www.legalaid.qld.gov.au/Legal+Information/Relationships+and+children/Relationships/Separation+-+what+it+means.htm
,last visited 13 October 2009].
[7]
Shaukat Mahmood, Principles and Digest of Muslim Law, 6th ed.
(Lahore: Legal
Research Centre, 2002), pp.66-67.
[8]
(1943), ALL, 295.
[9]
2(1959), WP, 321.
[10] Aqil Ahmed. Mohamadan Law, 21st ed. (Allahbad: Central Law Agency, 2004), pp.184-86.
[11]
AIR (1977), Cal,
90.
[12]
AIR (1999), All, 182.
[13]
Ibid, pp.187-88.
[14]
3 (1865), WR, 93.
[15]
AIR(1977), Cal,
90.
[16]
Aqil Ahmed, ibid, p.188.
[17]
Aqil Ahmed, ibid, pp.182-84.
[18]
AIR(1972), J.&K., 8.
[19] Shaukat
Mahmood, ibid, pp.68-9.
[20]
AIR(1929), 660.
[21]
(1902) Appeal Cases 484.
[22]
AIR (1933), 885.
[23] [http://www.wluml.org/english/pubs/pdf/misc/talaq-i-tawfid-eng.pdf last visited 13 October 2009].
[24]
(1943) 210 IC 587.
[25]
(1971) KLT 663.
[26]
AIR (1960), All, 684.
[27]
AIR(1945), Lah, 51.
[28]
AI.R (1971), Ker, 261.
[29]
7(2002), SCC, 518.
[30]
9 (1957),
DLR, 455.
[31]
AIR(1985), SC, 945.
[32]
59(1999), DLR, AD, 172.
[33]
Asaf A. A. Fyzee, ibid, p.147.
[34] [ http://www.lawyersclubindia.com/articles/-Divorce-by-wife-IN-MUSLIM-LAW/1632/,
last visited on 21 December
2009].
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