Power to pronounce Talaaq not absolute: HC
‘Husband Has To Prove Genuine Reason For Divorce’
Srinagar, Oct 29: In a landmark verdict, the High Court of Jammu and Kashmir has deprecated the practice of ‘arbitrary’ divorce while ruling that the “power to pronounce Talaaq (divorce) is not absolute or unqualified.”
The 23-page judgment by Justice Hasnain Massodi goes extensively into details of the Shariah law and Quranic injunctions on the subject to find support for its view that “husband cannot have unrestricted or unqualified power to pronounce the Talaaq.”
The judgment lays special emphasis on going 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.
The judgement reads: “Though Islam visualizes 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.”
It maintains that in Islam divorce by husband -Talaaq- may take three forms: Talaaq-e-Ahsan—single pronouncement of divorce made during a Tuhr (period between menstruations) followed by abstinence from physical relationship for the period of Iddat; Talaaq-e-Hasan—three pronouncements of divorce made during successive Tuhrs, without any physical relationship during any of the three Tuhrs; and, Talaaq-e-Bidhi—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.
The judgment calls the Talaaq-e-Bidhi as most despised and discouraged form, and Talaaq-e-Ahsan as the most approved form of divorce.
Maintaining that “Talaaq-e-Ahsan is only form of divorce that finds approval of Quran,” it says this is the approved form of divorce, as it leaves room for reconciliation. Quoting several verses from the Quran on the subject, the judgment reads: “Quran obviously places certain restrictions on the power of husband to pronounce divorce.”
“There is no scope for disagreement with the legal proposition that as Quran and Sunna refer to Talaaq-e-Ahsan, restrictions placed on use of said device, as laid down in Chapter 65 verse 1 and 2 and elsewhere in Quran and Sunna 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.”
The judgment holds: “... A husband to wriggle-out of his obligations under marriage including one to maintain his wife, claiming to have divorced her has not merely to prove that he has pronounced Talaaq or executed divorce deed to divorce his wife, but 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; 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 is only after the husband pleads and proves all the above ingredients that divorce- Talaaq- would operate and marriage between the parties would stand dissolved so as to enable husband to escape obligations under the marriage contract, including one to maintain his wife,” it rules.
A significant part of the judgment has been devoted to expatiate the equal status of husband and wife. The judgment refers to and explains at least three terms Quran uses at different places to drive home the equal status of partners in a marriage.
It says: “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 judgment further says: “Again 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.”
It adds: “Islam does not prefer or encourage a particular pattern of life for a married couple. It gives them complete freedom to decide on life pattern and assign roles as long as such patterns or roles are not in conflict with fundamental principles of Islam. The husband and wife, at the time the marriage is contracted, must be competent to enter into a contract. The contract is to be based on mutual consent i.e. offer and acceptance. This further reinforces the proposition that a man and women have equal rights, equal role and equal power while contracting marriage.”
Again it reads: “In Islam husband and wife protect each other. Quran calls them garments for each other. The verse is to indicate the level of proximity or intimacy between the spouses. Here again Quran does not make any difference between wife and husband.”
The judgment has been delivered in a case in which the wife had initially come up with an application in the trial court seeking maintenance. However, the husband had resisted the application on the grounds that he had divorced her and was not under any obligation to pay maintenance allowance.
Lastupdate on : Mon, 29 Oct 2012 21:30:00 Makkah time
Lastupdate on : Mon, 29 Oct 2012 18:30:00 GMT
Lastupdate on : Tue, 30 Oct 2012 00:00:00 IST
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