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Divorce Under Islamic Law by Youth Study Circle
Divorce Under Islamic Law by Youth Study Circle
315-349
THE BACKGROUND
Woman is the foundation of the human society as she is
the direct agent of life force and if the foundation is not solid
or not properly maintained the whole building of the human
life is bound to crack and dismember.' It was the Prophet of
Arabia who effected a revolution in the life of women. 2 He
brought drastic changes in the prevailing system of divorce. All
his recorded sayings show that he looked upon the custom of
divorce with extreme disapproval and considered its practice as
calculated to undermine the foundations of the society. He
repeatedly declared that nothing pleased God more than emanci-
pation of slaves and nothing displeased him more than divorce.3
interwoven with the habits of the people and had become sancti-
fied by the practice of ages.4
No doubt the position and status of women has varied from
country to country, community to community and in the same
country from time to time. 5 But Islam has totally changed the
status of women and has given a place of pride to them. Islam
always avoided divorce, but allowed it only in such cases where
peace or happy life or both became impossible for the parties.
Tahir Mahmood 6 has rightly pointed out that the true Islamic
Law in fact stood for what is now known as the break-down
theory. The Quran does not specify any matrimonial offence,
the great Prophet laid down no 'bars' to matrimonial relief. The
law giver of Islam did not want the matter to be taken to the
court at all unless it became unavoidable. Unequivocally declar-
ing divorce to be the "worst of all permitted things", and he
wanted his people to keep away from it. However, where this
worst was to happen unavoidably, he wanted husband or wife
or both of them to act quietly and privately. This is the well-
known tradition of the Holy Prophet:7
....of all the things which have been permissible to men,
Divorce is the most hated by Allah...."
"And fear God" (vat Taqullah) is the Quranic warning
in connection with divorce. The Quran clearly warns husband
not to do any type of injustice to the ladies to be divorced. It,
further lays down: 8
Ibid.
M. Yasin, A Social History of Islamic India (1958), pp. 19-23.
Tahir Mahmood, The Muslim Law of India (1980), p. 95.
Peer Mahomed Ebrahim, Light, Knowledge, Truth: Family Life in
Islam (1973), pp. 99-100.
Ibid. See also Quran-Sura II (Bagara).
MIR MEHRAIUDDIN 317
Supra, n. 11.
S. A. H. Rizvi, The Times of India (August 25, 1983), p. 8.
See generally Maulana Sagir Ahmad Rahmani, Talaq Ki Istamal
Ka Tariqa (1981), pp. 27-29 - (Urdu).
320 COCHIN UNIVERSITY LAW REVIEW
See Mst. ZoIlara Khatoon v. Mohd. Ibrahim, A.T.R. 1981 S.C. 1243.
Ibid.
Quran - Sura IV, (Nisaa), See also A. A. A. Fyzee, supra, n. 10.
Quran - Sura IV (Nisaa), pp. 34-35.
Ibid.
Supra, n. 10 at 168-69.
MIR MEHRAJUDDIN 321
the one cited by Ameer Ali, that the power of the Kazi or Judge
to pronounce a divorce is founded on the express words of the
Prophet:
"If a women be prejudiced by a marriage, let it be broken
off."
Fyzee 2 ' has further analysed the opinions of the classical
jurists and has observed that in the course of centuries, the
Schools of Islamic Law held widely divergent views regarding
the interpretation of the basic text. He further pointed out that
while it has been conceded that it was possible for the wife to
obtain a dissolution, the schools could not agree either as to the
grounds of faskh or as to the procedure to be followed. How-
ever, we submit here that the clear interpetation of the Holy
Quran in this respect is that every effort must be made for
reconciliation, and none of the spouse must be allowed to take
undue advantage of the position of the other. The emphasis is
on "peace" and it is only when peace is not possible, that they
must go for the extreme measure-divorce. Moreover it has been
rightly pointed out by Moulana Yusuf Ali 24 that the Holy Quran
in this respect has laid down an excellent plan for settlement of
family disputes, without too much publicity or mudthrowing or
resort to the chicaneries of the law.
T HE FASKH: I TS G ROUNDS
The following can be pleaded as grounds for seeking
faskh:-
Ibid.
Abdullah Yousuf Ali, The Meaning of the Glorious Quran, Vol.
1, (1938), p. 191. See also Tahir Mahmood, supra, n. 6.
322 COCHIN UNIVERSITY LAW REVIEW
Ibid.
The Jammu and Kashmir Dissolution of Muslim Marriages Act
1942 (Act No. 10 of 1942).
31. Supra, n. 25 at 710.
32, M. Hidyatullah, Principles of Mahomedan Law (1977), p. 345.
33. Satgung v. Rahmat, A.I.R. 1946 Sind. 48, See also Paras Diwan,
Muslim Law in Modern India (1977), p. 84.
324 COCAIN UNIVERSITY LAW REVIEW
wards him. 42 This view has been adopted by the courts in Bom-
bay, 43 Allahabad, 44 Nagpur, 45 Rajasthan 46 and very recently by
the High Court of Jammu and Kashmir.'"
Justice I. K. Kotwal has rightly pointed out while deliver-
ing the judgment in Mst. Zoona v. Mohd. Yakub Najjar,"
"Any obligation on the part of the husband to maintain
his wife, necessarily postulates a corresponding right in the
wife to claim it. It is more so, because the relations bet-
ween the spouses arising out of a Muslim Marriage are
contractual in nature. Under the Mohammadan Law, the
husband is not obliged to maintain his wife, if she is not
willing to live with him and discharge her marital obliga-
tions without any justification. S. 2(ii) cannot be inter-
preted to envisage an absolute and unfettered right in the
wife to be maintained by her husband under all circum-
stances howsoever faulty her own conduct may be
The Jammu and Kashmir Dissolution of Muslim Marriages
Act has minimised the possibility of controversey over the non-
maintenance of wife, as a ground for faskh. The Act provides:49
(v) Impotency
The wife, under S. 2(v), 62 can sue for the faskh on the
ground of her husband's impotency, if she can prove:
Her husband was impotent at the time of marriage; and
He continues to be impotent even upto the time of filing
the suit.
Muslim marriage is a civil contract, 63 and it is both Ibadat
and Muamlat. 64 Consummation is a must for the completion of
the Muslim marriage. If this very object of marriage is lost the
marriage may fail to fulfil its purpose and some time even
become harmful. Islamic law lays great emphasis on the per-
formance by the husband of the obligation to satisfy the natural
desire of his wife to intimate with him at reasonable intervals
and not to neglect this important obligations.65
No doubt, consummation is one of the essentials of the
Muslim marriage, but procreation of the children is not the sole
object of marriage and spouses may marry simply for compa-
nionship and domestic comforts. For, it is laid down in the
Quran: 66
"And among His signs, Is this, that
He created for you mates from
among yourselves, that ye may
dwell in tranquillity with them.
And He has put love and
mercy between your (hearts)
Verily in that are signs
For those who reflect."
This highlights the importance of the happy companionship
between husband and wife. There is a special kind of love and
tenderness and may from a certain aspect be likened to mercy,
the protecting kindness which the strong should give to the
weak. 67
However, under the Muslim Law a marriage with an im-
potent person is not void but merely voidable. This is also the
position under Hindu Law.68 Impotency may be due to con-
genital constitution, weakness, old age, accident, disease etc. It
can also be due to psychological cause which may have nothing
to do with the husband's physical condition. In the former case
he will be incapable for all women, but in the latter case his
incapacity may be limited to some particular woman or women.
The Sunni jurists have taken a realistic view of the matter and
recognize what may be called relative impotency. They con-
sider that it is possible that a man may not be wholly impotent
and unfit for all women, but may be incapable for intimacy
with certain woman or women only."
In the present study it has been found, that in four cases
the wives satisfied the court that their husbands are impotent
and obtained the decree for faskh. But subsequently two res-
pondents on their re-marriage were in a position to consummate
their marriages. In the third case the respondent was found to
me impotent by the two wives one after the another, but he
was in a position to consummate with the third wife. The res-
pondent in the fourth case was really impotent.
The notion of impotency is some what lenient for the
husband under Shia Law as compared to Sunni Law. The Shia
Law insists on absolute impotency so that a person shall be
considered impotent only when he is absolutely incapable of
sexual intercourse not only with regard to his wife but in res-
pect of all women.'" But Shia Law has taken a more realistic
view. Impotency under it is not confined to mere disability for
pentration as is the case under Sunni Law, but includes any
cause which renders coition impracticable on account of some
cause. In otherwords, a husband shall be considered impotent
when the male organ is of such abnormal size as to render
coition impossible without cervix pain to the wife."
If the wife sues for faskh on the ground of impotency of
her husband, she has to establish that respondent was impotent
at the time of marriage and that he has since then been impot-
ent upto the time of filing the suit. 72 Dr. Qureshi," has rightly
pointed out that the Muslim Law of impotency is based on
Ibid.
Farb al Hasan Ja, Shara-Islam (1377). pp. 190-91.
Ibid.
Tahir Mahmood, supra, n. 6 at 102.
Marriage and Matrimonial Remedies: A Uniform Civil Code for
India (1978), p. 201.
MIR MEHRAJUDDIN 333
Ibid.
A. A. A. Fyzee, supra. n. 10 at 174.
Supra. n. 33, S. 2(v)c.
334 COCHIN UNIVERSITY LAW REVIEW
respect, Mysore High Court 77 has held, that the wife shall not
be compelled to submit herself to the husband.
It may be unfair to ask the wife to surrender her body
in order to establish the potency or impotency of the husband 78
In this age of Science and Technology, there is no harm if help
is sought for from the medical experts to establish the impo-
tency.
Abdul Azim v. Fahimunisa, A.I.R. 1969 Mys. 226; also see Tahir
Mahmood, supra, n. 6 at 103.
Supra, n. 73.
Supra, n. 50, S. 2(vi).
K. N. Ahmad, supra, n. 25 at 353-360.
81. [194911 All E.R. 339.
MIR MEHRAJUDDIN 335
other party has no cause for the faskh. Under the Shafi School,
the spouse have right to the faskh, when the other spouse is
insane or has some similar disease whether before or after the
marriage. Consummation of the marriage shall not affect the
right in any way. This rule is subject to the condition that the
party should be unaware of the condition of the other spouse
who suffered from the disease before marriage. Under Hanbali
School, a spouse is entitled to the faskh when the other spouse
suffers from insanity or other similar serious disease irrespec-
tive of the fact whether the disease was already present before
the marriage or had appeared subsequently and irrespective of
the fact whether marriage had or had not been consummated.82
Under Shia Law a marriage shall be liable to be dissolved when
one of the spouses suffers from insanity. It is immaterial
whether the spouse was afflicted with the disease before or after
the marriage and whether before or after its consummation."
The Dissolution of Muslim Marriage Act has provided a
sort of uniformity in respect of the insanity as a ground for
faskh. What is required under the Act is that the insanity must
be for two or more than two years.
It is submitted that insanity under the Act must be
given the same meaning which it carries under S. 84 of the
Indian Penal Code.
The wife can, under the Act, also seek faskh, if the hus-
band is suffering from leprosy. There is no time limit in this
respect. Leprosy is infectious as well as contagious and a per-
son can become infected with it either by infection through
the breath of the victim or by contact. The affected part of the
body becomes senseless and it becomes necessary for the other
spouse to keep apart from the sufferer and so he or she is
deprived of the satisfaction of the married life.84
Under the Maliki School, the wife shall have the right
to the faskh irrespective of the fact as to whether the disease
Supra, n. 25 at 360-363.
Ibid.
Ibid.
336 COCHIN UNIVERSITY LAW REVIEW
Ibid.
Supra, n. 50, S. 2( vi).
Supra, n. 73 at 219.
Supra. n. 30. S. 2( vi).
MIR MEHRAIUDDIN 337
(viii) Cruelty
100. Ibid.
340 COCHIN UNIVERSITY LAW REVIEW
Lastly, the Act 10' provides that the court can pass a decree
of faskh on any other ground which is recognised as valid for
the dissolution of marriages under the Muslim Law. This clause
is meant to cover such cases which do not fall within any of
the eight grounds provided under the Act. The courts in India
under this clause are at liberty to pass a decree of faskh on any
ground, which they deem to be valid for the purpose.
Khusro, I 02
has recently pointed out that the courts are
Ibid.
Supra, n. 50. S. 2(ix).
Supra, n. 6.
342 COCHIN UNIVERSITY LAW REVIEW
Caliphs. Tahir Mahmood 106 has rightly pointed out that the
rules of divorce under Islamic Law are basically and primarily
dissausive in their nature, the main purpose being to dissaude
the husband from exercising his power without careful and cool
consideration. The rules for effecting divorce under Islamic Law
are as follows: 107
Two arbiters - one from the husband's family and another
from wife's family must be appointed and every effort
must be made for their reconciliation.
The husband who is going to divorce his wife must bear in
his mind, that after the divorce is complete, he cannot
ordinarily go for re-marriage with his divorced wife.
The husband should not divorce his wife, while she is in
her menstrual period.
The husband who has made up his mind to divorce his
wife and the chance for reconciliation is wanting, should
pronounce talaq when his wife is free from menstruation.
Then he should wait for second menstrual period and make
another pronouncement when his wife is free from third
menstrual period. After the third pronouncement only the
divorce is complete.
The husband has to pay the un-paid dower to his wife at
the time of divorce.
The divorcee is entitled to her maintenance till her re-
marriage; and
The divorcee is entitled to all the ornaments and gifts
which she received at the time of marriage or before mar-
riage either frorm the husband's family or from her own
family.
These rules are provided to ensure that the marriage under
Muslim Law must be dissolved only in exceptional cases.
Id. at p. 114.
Id., p. 114 et. seq.
MIR MEHRAIUDDIN 343
Table No. 1
" T ALA Q AL- S UNNA" AND " T ALAQ -UL- B IDDAT"
Table No. 2
AREAWISE DIVORCE CASES IN JAMMU AND KASHMIR
No. Area 1975 1976 1977 1978 1979 1980 1981 1982 Total
The above figures show that the divorce rate both among
Muslims as well as Hindus in the State of Jammu and Kashmir
is on the increase as we proceed from the year 1975 to 1982.
Out of the 22 High Court cases, seven cases are under the
Dissolution of Muslim Marriage Act and one is under the Hindu
Marriage Act. In Leh there was no case of divorce. It is per-
tinent to note here that in Leh district, there is Karen Tehsil
which is mostly populated by Shia Muslims. There the Shia
Muslims, whenever it is inevitable for them, resort to Talaqal-
Sunno only. The cases under the dissolution of Muslim Mar-
riage Act in different districts were as are shown against them.
Pulwama - 18, Anantnag - 75 and Baramullah - 39. In Badgam
and Kupwara all the cases were that of Muslims whereas in
Rajouri and Kathua all the cases were that of Hindus under
the Hindu Marriage Act.
MIR MEHRAJUDDIN 345
Ibid.
Ibid.
Ordinance No. VIII of 1961 (March 2, 1961). It came into force
in Pakistan on July 15, 1961.
348 COCHIN UNIVERSITY LAW REVIEW
C ONCLUSION
It is submitted that in India, the Muslim Personal Law must
be modified on the same pattern as it has been modified in
other Muslim countries. All such modifications are within the
frame-work of the Quran. The tremendous increase in the
divorce rate particularly in the State of Jammu and Kashmir
with increasing inclination towards Talaq-ul-Biddat makes us
to suggest that the Jammu and Kashmir Dissolution of Muslim
Marriage Act must be remodelled in order to meet the present
demands of society. The modifications made in Indonesia and
Pakistan may be taken into consideration in this respect. Fur-
their, it is submitted that the registration of the marriages along
with the quantum of the dowry, details of the ornaments and
other gifts given to the bride by both the families must be made
obligatory. Scope of the extra-judicial divorce which is often
being exercised in an arbitrary manner must be narrowed down
and Talaq-ul-Biddat must be abolished. The divorce, in what-
117.Id., S. 7(4).
/d., S. 7(3).
/d., S. 7(2).
S. Hanifa, "The Law of Marriage and Divorce in Indonesia",
Islamic and Comparative Law Quarterly, Vol. III, No. 1 (March
1983), 25-26.
349
soever form it may be, must be allowed only through the Court
of Law and it must be made effective only after a period of
90 days from the day on which petition has been submitted
by either of the party in the Court.
Religious leaders have a solemn duty to start an educative
process to clear up thick clouds of distortion regarding the
Islamic Law of divorce. 121 The changes suggested above are not
in contravention of the Quran or tradition, but are purely in
confirmity with the spirit underlying the law of divorce. More-
over, proposals suggested for amending Jammu and Kashmir
Dissolution of Muslim Marriages Act, have, by and large, been
already adopted in various Muslim countries.