HCBA follows Justice Kirmani, seeks rehearing

Publish Date: Oct 11 2012 12:00PM

Srinagar, Nov 9: Day after a retired Judge Justice B A Kirmani of Jammu and Kashmir High Court filed an application for rehearing of Talaaq case titled Muhammad Naseem Bhat alias Irfan Bhat versus Bilquees Akhter, the Jammu and High Court Bar Association submitted an application seeking amends for the judgment delivered in the case.
 The HCBA has filed the application citing certain points as infirmities for the constitutional bench to hear the matter of personal law of parties.  
 “Since High Court is a constitutional creation and constitutional bench cannot hear the matter of Personal Law of parties,” reads the application.
 The application states explicitly that in Shah Bano Case the Supreme Court tried to interfere in Personal Law and the parliament had to rectify the Judgment by way of amendment stating as such the court could not interfere.
 The petition states that the case warrants a hearing as in the judgment different ‘Fikas’ have been interpreted with regard to Talaaq which will greater implications on the society.
 “We filed the application under section 94 of Jammu and Kashmir Constitution as High Court is a court of records and it can review its judgments for errors,” Zaffar A Qurashi , President HCBA told Greater Kashmir.
  A retired Judge of Jammu and Kashmir High Court, Justice( Retd) Bashir Ahmad Kirmani  on Thursday filed an application before the High Court seeking rehearing of Talaaq petition  for elucidation of some points in the judgment.
 The High Court would hear both the petitions on Monday. In a landmark verdict, the High Court of Jammu and Kashmir has recently ruled 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.”

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