Judicial Pronouncements for Divorce
5.1 Court’s approach for maintaining Divorce
In Syed Ziauddin v. Parvez Sultana , 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 , 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 , 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 , 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 , 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 ., 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
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 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 where it says that a Muslim divorced woman is entitled to have maintenance till the period of iddat and no further.
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. 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.
- Aqil Ahmed.Text book of Mohamadan Law. 21st (Allahbad: Central Law Agency, 2004).
- Altaf Hossain. Islamic Jurisprudence and Muslim Ain Sohaika.( In Bangali), (Dhaka: City Law Book, 2003).
- Shaukat Mahmood, Principles and Digest of Muslim Law, 6th (Lahore: Legal Research Centre, 2002).
- Asaf A. A. Fyzee, Outlines of Muhammadan Law, 4th (Oxford: Oxford University Press, 1993).
- Muslim Family Law Ordinance, 1961.
- Dissolution of Muslim Marriage Act, 1939.
- Bibi Rehana v. Iqtidar-uddin, (1943), ALL, 295.
- Mst. Balaquis Ikram v. Najmal Ikram, 2(1959), WP, 321.
- Md. Khan v. Shahmali,AIR (1977), Cal, 90.
- Zafar Husain v. Ummat-ur-Rahman,AIR (1999), All, 182.
- Jauri Beebee v. Sheikh Moonshee Beparee, 3 (1865), WR, 93.
- Nurjahan Bibi v. Mohd. Kazim Ali, AIR(1977), Cal, 90.
- Mohd. Khan v. Mst. Shahmali, AIR(1972), J.&K., 8.
- Muhammad Ali Akbar v. Fatima Begum,AIR(1929), 660.
- Mst. Sadiqa Begum v. Ata Ullah,AIR (1933), 885.
- Janson v. Driefontein Consolidated Mines, Ltd,(1902) Appeal Cases 484.
- Syed Ziauddin v. Parvez Sultana, (1943) 210 IC 587.
- Zubaida Begum v. Sardar Shah, (1971) KLT 663.
- Aboobacker v. Mamu koya,AIR (1960), All, 684.
- Itwari v. Asghari, AIR(1945), Lah, 51.
- Umar Bibi v. Md. Din, AI.R (1971), Ker, 261.
- Safura khatun v. Osman Gani Mollah, 9 (1957), DLR, 455.
- Shah Banu Case, AIR(1985), SC, 945.
- Hefzur Rahman v. Shamsun Nahar Bagum and Others, 59(1999), DLR, AD, 172.
- Shamim Ara vs State of U.P, 7(2002), SCC, 527.
 Asaf A. A. Fyzee, ibid, p.146.
 Md. Altaf Hossain. Islamic Jurisprudence and Muslim Ain sohaika. (Dhaka: City Law Book, 2003), pp.164-65.
 Aqil Ahmed. Text book of Mohamadan Law. 21st ed. (Allahbad: Central Law Agency, 2004), p.164.
[http://www.legalaid.qld.gov.au/Legal+Information/Relationships+and+children/Relationships/Separation+-+what+it+means.htm ,last visited 13 October 2009].
 Shaukat Mahmood, Principles and Digest of Muslim Law, 6th ed. (Lahore: Legal Research Centre, 2002), pp.66-67.
 (1943), ALL, 295.
 2(1959), WP, 321.
 Aqil Ahmed. Mohamadan Law, 21st ed. (Allahbad: Central Law Agency, 2004), pp.184-86.
 AIR (1977), Cal, 90.
 AIR (1999), All, 182.
 Ibid, pp.187-88.
 3 (1865), WR, 93.
 AIR(1977), Cal, 90.
 Aqil Ahmed, ibid, p.188.
 Aqil Ahmed, ibid, pp.182-84.
 AIR(1972), J.&K., 8.
 Shaukat Mahmood, ibid, pp.68-9.
 AIR(1929), 660.
 (1902) Appeal Cases 484.
 AIR (1933), 885.
 [http://www.wluml.org/english/pubs/pdf/misc/talaq-i-tawfid-eng.pdf last visited 13 October 2009].
 (1943) 210 IC 587.
 (1971) KLT 663.
 AIR (1960), All, 684.
 AIR(1945), Lah, 51.
 AI.R (1971), Ker, 261.
 7(2002), SCC, 518.
 9 (1957), DLR, 455.
 AIR(1985), SC, 945.
 59(1999), DLR, AD, 172.
 Asaf A. A. Fyzee, ibid, p.147.