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]
Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be avoided. Initially no marriage is contracted to be dissolved but in unfortunate circumstances the matrimonial contract is broken. One of the ways of such dissolution is by way of divorce . Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law. However in whatever manner the divorce is effected it has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of marriage. The Prophet declared that among the things which have been permitted by law, divorce is the worst. Divorce being an evil, it must be avoided as far as possible. But in some occasions this evil becomes a necessity, because when it is impossible for the parties to the marriage to carry on their union with mutual affection and love then it is better to allow them to get separated than compel them to live together in an atmosphere of hatred and disaffection. The basis of divorce in Islamic law is the inability of the spouses to live together rather than any specific cause (or guilt of a party) on account of which the parties cannot live together.[2]
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,
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]