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Injunctions of the Qur'an
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Ahadith of the Holy Prophet
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Rights in the Light of Qur'an and Hadith
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Islamic Law and
Figh
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Law in Pakistan
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Divorce in non-Muslim Societies
I
‑ INJUNCTIONS OF THE QUR'AN
Rights
regarding divorce are bestowed upon the woman by the Holy Qur'an in its
following verses:‑
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For those
who take an oath for abstention from their wives, a waiting for four
months is ordained; kf then they return, Allah is Oft‑Forgiving, Most
Merciful. But if their intention is firm for divorce, Allah heareth
and knoweth all things. (2:226‑227)
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Divorced
women shall wait concerning themselves for three monthly periods. Nor
is it lawful for them to hide what Allah hath created in their wombs,
if they have faith in Allah and the last day. And their husbands, have
the better right to take them back in that period, if they wish for
reconciliation. And women shall have rights similar to the rights
against them, according to what is equitable; but men have a degree
(of advantage) over them. And Allah is Exalted in Power, Wise. (2:228)
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A divorce
is only permissible twice: after that, the parties should either hold
together on equitable terms or separate with kindness. It is not
lawful for you, (Men), to take back any of your gifts (from your
wives). Except when both parties fear that they would be unable to
keep the limits ordained by Allah. If ye (judges) do ind‑d fear that
they would be unable to keep the limits ordained by Allah, there is no
blame on either of them if she gives something for her freedom. These
are the limits ordained by Allah; so do not transgress them. If any do
transgress the limits ordained by Allah, such persons wrong
(themselves as well as others). (2:229)
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So if a
husband divorces his wife (irrevocably), he cannot, after that,
remarry her until after she has married another husband and he has
divorced her. In that case there is no blame on either of them if they
reunite, provided they feel that they can keep the limits ordained by
Allah. Such are the limits ordained by Allah, which he makes plain to
those who understand. (2:230)
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When ye
divorce women, and they fulfil the term of their (‘Iddat),
either take them back on equitable terms or set them free on equitable
terms; but do not take them back to injure them or to take undue
advantage; if anyone does that, he wrongs his own soul. Do not treat
Allah's signs as a jest, but, solemnly rehearse Allah's favours on
you, and the fact that he sent down to you the Book and Wisdom, for
your instruction. And fear Allah, and know that Allah is well
acquainted with all things. (2:231)
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When ye
divorce women, and they fulfil the term of their (‘Iddat), do
not prevent them from marrying their (former) husbands, if they
mutually agree on equitable. terms. This instruction is for all
amongst you, who believe in Allah and the Last Day. That is (the
course making for) most virtue and purity amongst you, and Allah
knows, and ye know not. (2:232)
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For
divorced women maintenance (should be provided on a reasonable scale),
this is a duty on the righteous. (2:241)
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If ye
fear a breach between them twain, appoint (two) arbiters, one from his
family, and the other from hers; if they wish for peace, Allah will
cause their reconciliation: For Allah hath full knowledge, and is
acquainted with all things. (4:35)
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And for
those who launch a charge against their spouses, and have (in support)
no evidence but their own, ‑ their solitary evidence (can be received)
if they bear witness four times (with an oath) by Allah that they are
solemnly telling the truth. And the fifth (oath) (should be) that they
solemnly invoke the curse of Allah on themselves if they tell a lie.
But it would avert the punishment from the wife, if she bears witness
four times (with an oath) by Allah, that,(her husband) is telling a
lie; And the fifth (oath) should be that she solemnly invokes the
wrath of Allah on herself if (her accuser) is telling the truth.
(24:6‑9)
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If any
men among you divorce their wives by Zihar (calling them
mothers), they cannot be their mothers: None can be their mothers
except those who gave them birth. And in fact they use words (both)
iniquitous and false: but truly Allah is one that blots out (sins),
and forgives (again and again). But those who divorce their wives by
Zihar, then wish to go back on the words they uttered, ‑ (it is
ordained that such a one) should free a slave before they touch each
other: This are ye admonished to perform: and Allah is well‑acquainted
with (all) that, ye do. And if any has not (the wherewithal), he
should fast for two months consecutively before they touch each other.
But if any is unable to do so, he should feed sixty indigent ones.
This, that ye may show your faith in Allah and his Apostle. Those are
limits (set by) Allah. For those who reject (Him), there is a grievous
Penalty. (58:2‑4)
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O
Prophet! When ye do divorce women, divorce them at their prescribed
periods, and count (accurately) their prescribed periods: and fear
Allah your Lord: and turn them not out of their houses, nor shall they
(themselves) leave, Except in case they are guilty of some open
lewdness. Those are limits set by Allah: and any who transgresses the
limits of Allah, does verily, wrong his (own) soul: thou knowest not
if perchance Allah will bring about thereafter some new situation.
Thus when they fulfil their term appointed, either take them back on
equitable terms or part with them on equitable terms; and take for
witness two persons from among you, endued with justice, and establish
the evidence (as) before Allah. Such is the admonition given to him
who believes in Allah and the Last Day:and for those who fear Allah,
He (ever) prepares a way out. (65:1‑2)
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II ‑ AHADITH OF THE HOLY PROPHET
Ahadith of
Hadrat Muhammad (peace be upon him) about the rights of woman in respect
of divorce are:
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Ibn Umar
reported that the Apostle of Allah said: The most detestable of lawful
things near Allah is divorce. (Abu Daud)
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Mu'az‑b‑Jabal
reported that the Messenger of Allah said: O Mu'az: God created
nothing on the face of the earth more dear to Him than emancipation
(of slaves) and God created nothing on the face of the earth more
disliking to Him than divorce. (Darqutni)
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Abdullah‑b‑Umar reported that he divorced his wife while she was in
menstruation. Umar mentioned it to the Prophet. The Prophet became
enraged at it and said: Take her back and keep her till she becomes
pure and then menstruates and then becomes pure. If it appears to him
to divorce her afterwards, let him divorce her while she is pure
before he touches her. This is the period of waiting while Allah
enjoins for the divorce of women. (Bukhari, Muslim)
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Mahmud‑b‑Labeed
reported that the Messenger of Allah was informed about a man who gave
three divorces at a time to his wife. Then he got up enraged and said:
Are you playing with the book of Almighty and Glorious Allah while I
am (still) amongst you? So much so that a man got up and said: shall I
not kill him. (Nisai)
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Ayesha
reported: I heard the Messenger of Allah say: There is no divorce and
no emancipation by force. (Abu Daud, Ibn Majah)
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Ayesha
reported that the Messenger of Allah gave us option and so we chose
Allah and His Apostle... (Bukhari, Muslim)
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Ibn Abbas
reported that the wife of Sabet‑b‑Qais came to. the Holy Prophet and
said:O Messenger of Allah! As for him I do not blame him about his
character and piety but I dislike (him as much as I dislike)
infidelity over Islam. The Apostle of Allah asked:Can you not return
his garden? 'Yes', said she. The Prophet said (to Sabet‑b‑Qais):
Accept the garden and give her divorce. (Bukhari)
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Abu
Salina, reported that Salman‑b-Sakhar made his wife in his sight like
the back of his mother till the approach of the month of fasting. When
half of fasting month passed away, he had sexual intercourse with her
in one night: Then he came to the Prophet and told it to him.
Thereupon the messenger of Allah said: Set free a captive. He said :I
have got none. He said: Then fast for two months consecutively. He
replied: I shall not be able. He said: Feed sixty poor men...
(Tirmizi, Abu Daud, Ibn Majah)
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Ibn Umar
reported that the Prophet allowed imprecation between a man and his
wife when the man disowned her child. Thus he made separation between
them both. He handed over the child to the woman... (Bukhari, Muslim)
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III‑ RIGHTS IN THE LIGHT OF QUR'AN AND HADITH
The rights
of the woman in respect of divorce and the law governing the procedure
of divorce is discussed in the light of the verses of the Qur'an and
Ahadith, of the Prophet as under:‑
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The
divorce is the most hated and unpleasant thing in Islam. According to
a well reported Tradition in Abu Daud, the Messenger of Allah said:
"The most detestable of lawful things near Allah is divorce." Despite
that Islam permits divorce as it becomes inevitable in some extreme
situations when it is not possible for the husband and wife to pull on
together. It is allowed normally when all the efforts for
reconciliation have proved abortive and there are no chances left for
them to live together amicably. Even arbiters can be appointed, one
from the family of each spouse, to resolve differences between the
husband and wife. (Al‑Qur'an 4:35)
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The
method of divorce as propounded by the Qur'an and Sunnah is briefly
described in these words: If the husband intends to divorce his wife,
he can do so by making a single pronouncement of divorce within
Tuhr during which he has not had sexual intercourse with her, and
then leave her to observe Iddah. After expiry of Iddah
(three monthly courses) the divorce would attain finality. The other
method is that the husband would pronounce divorce thrice in three
successive Tuhrs and in this case, the divorce would become
irrevocable after the third pronouncement. In case of one or two
divorces, the husband retains the right of Rajuah or reunion within
period of Iddah by resuming sexual intercourse or by verbal
retraction. However, after the expiry of Iddah, divorce becomes
irrevocable and the husband's right of Rajuah stands forfeited. Now
the couple has the right to remarry if they desire to live together.
When a husband has repudiated his wife by pronouncing three divorces,
he has no right of revocation, neither the couple can, remarry. In
this situation the parties can remarry only when the woman marries
another husband and the latter dies or divorces her after actual
consummation of marriage Tuhr is period of purity between two monthly
courses and Iddah is the waiting period which a divorcee has to
undergo before she can contract a second marriage.
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The
procedure of Talaq or divorce enunciated by the Qur'an and
Sunnah, as stated above, is spread over a period of almost three
months, during which the husband has a right to revoke the divorce. It
has been done with a view to check hasty or rash or an arbitrary
action on the part of the husband and also to leave the door open for
the parties to patch up during the period. During ‘Iddah the
wife cannot be expelled from the house and she would be entitled to
full maintenance and also to good treatment.
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Those who
pronounce three divorces at a single sitting, they have been condemned
by the Holy Prophet. According to an authentic Tradition, the Prophet
of Islam, when he heard of a man who had given three divorces to his
wife at a time, got up enraged and said: "Are you playing with the
Book of Almighty and Glorious Allah while I am still amongst you?"
Hazrat Umar
reportedly used to whip such persons who gave three divorces at once.
This form of Talaq is called Talaqul Biddat or irregular
divorce and is sinful being against the teachings of the Qur'an and
Hadith. However it dissolves the marriage irrevocably and immediately.
Shafai and Hanafi Law recognize this form of divorce though they
consider it as sinful, but the Shias and Malki do not recognize this
mode of
Talaq.
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Iddah
or Iddat is the period of waiting during which a divorced
woman or a widow is not permitted to remarry. The primary purpose of
this waiting period is two‑fold; firstly the ascertainment of possible
pregnancy and thus of the parentage of the would be baby, secondly the
spouses are given an opportunity to resolve their differences and
reconcile.
Period of Iddah
in case of a divorced woman with whom marriage has been consummated
and who is still in the age of menstruation is three monthly courses
while in case of a divorcee who is past the age of menstruation the
period is three months. In the case of a pregnant woman the Iddah
is up to her delivery. In the case of a widow the waiting period
is 4 months and 10 days.
Ameer Ali defines
Iddah as "an Interval which a woman is bound to observe between
the termination, by death or divorce, of one matrimonial alliance and
the commencement of another." The divorcee continues to enjoy the same
rights in respect of food, clothing and lodging to which she was
entitled during the subsistence of marriage, but without of course
performing her marital obligations, in the period of Iddah. If
the husband wants her to suckle their child, he. is bound to pay her
wages.
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In case
of divorce, the husband is not entitled to take back anything out of
that which he has given her,, however great it may be (A1‑Qur'an 4:20)
If he has not given her dower already, he is obliged to make the
payment of dower immediately at the time of divorce. For the divorced
woman, the husband is required to make some provision as the Qur'an
(2:241) deems it a duty for the righteous.
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Al‑Qur'an
has given the right of obtaining divorce to a wife if she agrees to
pay some ransom or compensation. This is called Khula. If the
husband and wife are not able to keep the limits of Allah and they
agree to dissolve the marriage on the condition that the wife gives
some compensation, it would be quite legal (The Qur'an 2:229). The
jurists are generally of the opinion that such compensation should not
exceed the dower given by the husband to the wife. So .it is a kind of
facility provided to the woman to secure Talaq from her husband
by returning a part of or full amount of the bridal gift or
Mahr.
There is a well
reported Tradition in Bukhari that the Apostle of Allah permitted the
wife of Sabet‑b‑Qais to get divorce from her‑ husband by surrendering
a garden which had been given to her in
Mahr.
So the Islamic
law stipulates that whenever a marriage is dissolved at the instance
of the wife and there is no fault of the husband regarding his
performance of marital obligations, the wife is the contract breaking
party and must, therefore, return the part or full of dower which she
has received from the husband.
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There was
an evil custom in the "Days of Ignorance", according to which a man
would swear that he would not go to his wife for carnal connection. By
this means he would put away his wife for indefinite period. He would
keep her in suspense by neither divorcing her nor resuming
cohabitation. This practice was resorted to as many times as a husband
wished and thus, the life of the wife became miserable. This custom is
known *as Ila. The Qur'an abolished this custom by warning such
persons to take decision within four months about their course of
action. They should either resume their conjugal relations and take
back their wives or decide about divorce (Al‑Qur'an 2:226). In case
the husband does not decide, the woman can take case to a Qazi who
would order the husband to reunite with his wife or divorce her.
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There was
yet another evil practice which was abolished by the Qur'an. The man
would say to his wife:" Thou are to me as back of my mother." and thus
separate her indefinitely. It was called Zihar. It was held to
imply a divorce and freed the husband from any responsibility for
maintenance of wife and children and other conjugal duties, but the
wife was not allowed to leave the husband's home or to contract
another marriage. So this custom was not only degrading to a woman but
also fatal to the lives of the wife and children. Al‑Qur'an abolished
this custom by saying: "Such of you as put away your wives (by saying
they are as their mothers)‑They are not their mothers; none are their
mothers except those who gave them birth‑they indeed utter an ill word
and lie ...(58:2). So such person is ordered to set free a slave or to
fast for two consecutive months or to feed sixty needy persons if he
is unable to fast. After undergoing this penalty he is entitled to
touch his wife. If the husband does not .perform this prescribed
penance, the wife has a right to apply to court for judicial divorce.
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If the
husband charges his wife of adultery and has got no witnesses, the
couple has to undergo what is called Lian. The procedure of
Lian has been prescribed by the Qur'an in the verses from 6 to 9
of chapter 24. The Prophet of Islam used to separate such spouses who
had performed Lian. It has been held by the jurists that if the
charges are false, the wife is entitled to sue for and obtain divorce
from a court of law.
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The
Qur'an says: "Thus when they fulfil their term appointed, either take
them back on equitable terms or part with them on equitable terms; and
take for witness two persons from among you, endued with justice, and
establish the evidence (as) before Allah..." (65:2).
From this, some jurists have made the presence of two
witnesses compulsory for divorce, while the others consider it
optional. Sunni Law makes the presence of two witnesses essential at
the time of marriage but not at the time of divorce. On the other
hand, the Shiah doctors hold that the presence of two witnesses is
necessary at the time of divorce but not at the time of
Nikah.
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IV ‑ ISLAMIC LAW AND FIQH
Some
features of the Islamic Law developed by the jurists on the subject of
divorce and woman's right in respect thereof are:
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1. Talaq
means "dismission" or "rejection". Under Islamic Law it is a release
from the marriage tie. It is the dissolution of marriage between the
husband and wife immediately or eventually. Any Muslim of sound mind,
who is adult, may divorce his wife whenever he desires without
assigning any reason.
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2. The
jurists have classified divorce into three kinds :Ahsan, Hasan and
Bidd'at.
Ahsan
means `best'. This form of divorce is also called the most proper or
most laudable. Divorce is said to be in this form when a husband
repudiates his wife by making one pronouncement of divorce in the
period of purity in which he had no sexual intercourse with her, and
the woman is left to observe her Iddah or waiting period.
Hasan
means good. This form of divorce is also called the laudable or
proper. Divorce would be in this form if the husband divorces his wife
in three pronouncements in three different
Tuhrs.
Bidd'at:
It is an irregular form of divorce where a husband repudiates his wife
by three divorces at once.
In the
case of Ahsan form, the divorce becomes complete and irrevocable after
Iddah, in Hasan form it attains finality after third
pronouncement and in Bidd'at form it becomes irrevocable
immediately.
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Islam
gives the right to woman to demand divorce. A woman can get release
from her husband by the following means:.
(a)
Talaq‑i‑Tafweez. If a husband has delegated the power of divorce
to his wife, she can exercise the delegated power and can pronounce
divorce.
(b)
Khula or Redemption. If she agrees to pay some consideration or
compensation to her husband for her release from the marriage tie, the
divorce would be known as Khula.
(c)
Mubarat or
Mutual
Release. If the husband and wife by mutual consent agree to dissolve
marriage conditionally or unconditionally, the woman would be
released.
(d)
Lian or Imprecation. If the husband falsely accuses her of
adultery, the wife has right to sue him and obtain divorce.
(e)
Ila or Vow. Where a husband swears that he will not have sexual
intercourse with his wife for a period of four months or more. or for
an unspecified period, and within the period of four months he neither
resumes cohabitation nor divorces her, the wife can take the case to
the court which would force the husband to resume his relations or
divorce her. In case the husband does not agree, the court would order
for the dissolution of marriage.
(f)
Zihar: "If the husband (who is sane and adult) compares his wife
with 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 penance, the wife has a right to
apply for a judicial divorce." (Mulla).
(g)
Judicial divorce: A Muslim woman can also obtain Judicial divorce from
her husband under the Dissolution of Muslim Marriages Act, 1939, on
the grounds mentioned in that Act.
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No doubt
any adult Muslim of sound mind can divorce his wife whenever he
desires without assigning any reasons, however some restrictions have
been put on the arbitrary, capricious and rash exercise of this power
by the husband. Procedure of divorce, according to the Ahsan
and Hasan form of divorce is spread over a period of three
months during which the wife would live in her husband's home and
would be entitled to maintenance and good .treatment. During this
period the door for reconciliation and patch up remains open. Besides
that, the fixation of a fantastic amount of dower can form a good
check on the husband's power of divorce. Moreover the Islamic Law
gives the custody of the children to the mother and the father has to
provide maintenance for the children. So the husband knows that in
case of divorce he would be deprived of his children in addition to
providing maintenance for them.
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V ‑ LAW IN PAKISTAN
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1. The
Muslim Family Laws Ordinance, 1961 prescribes the procedure for
Talaq in its section 7 which reads:
(1). Any
man who wishes to divorce his wife shall, as soon as may be, after the
pronouncement of talaq in any form whatsoever; give the
Chairman notice in writing of his having done so, and shall supply a
copy thereof to the wife.
(2).
Whoever contravenes the provisions of subsection (1) shall be
punishable with simple imprisonment for a term which may extend to one
year or with fine which may extend to five thousand rupees or with
both.
(3). Save
as provided in subsection (5), a talaq unless revoked earlier,
expressly or otherwise, shall not be effective until the expiration of
ninety days from the day on which notice under subsection (1) is
delivered to the Chairman.
(4).
Within thirty days of the receipt of notice under subsection (1), the
Chairman shall constitute an Arbitration Council for the purpose of
bringing about a reconciliation between the parties and the
Arbitration Council shall take all steps necessary to bring about such
reconciliation.
(5). If
the wife be pregnant at the time talaq is pronounced, talaq
shall not be effective until the period mentioned in subsection
(3) or the pregnancy, whichever be later, ends.
(6).
Nothing shall debar a wife whose marriage has been terminated by
talaq effective under this section from re‑marrying the same
husband without an intervening marriage with a third person, unless
such termination is for the third time so effective.
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For
dissolution of marriage otherwise than by Talaq, section 8 of
the Muslim Family Laws Ordinance, 1961 provides:
Where the
right to divorce has been duly delegated in the wife and she wishes to
exercise that right, or where any of the parties to a marriage wishes
to dissolve the marriage otherwise than by talaq the provisions
of section 7 shall, mutatis mutandis and so far as applicable,
apply.
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The
Dissolution of Muslim Marriages Act, 1939 provides the facility of
obtaining dissolution of marriage by decree of a court. This is called
judicial divorce. Grounds on the basis of which dissolution of
marriage can be sought, have been mentioned in Section 2 of this Act.
It reads:
A woman
married under Muslim law shall be entitled to obtain a decree for the
dissolution of her marriage on any one or more of the following grounds,
namely:‑
(i)
that the whereabouts of the husband have not been known for a period
of four years;
(ii)
that the husband has neglected or has failed to provide for her
maintenance for a period of two years;
(iia)
that the husband has taken an additional wife in contravention of the
provisions of the Muslim Family Laws Ordinance, 1961;
(iii)
that the husband has been sentenced to imprisonment for a period of
seven years or upwards;
(iv)
that the husband has failed to perform, without reasonable cause, his
marital obligations for a period of three years;
(v)
that the husband was impotent at the time of the marriage end
continues to be so: Provided that the marriage has hot been
consummated;
(vi)
that the husband has been insane for a period of two years or is
suffering from leprosy or a virulent venereal disease;
(vii)
that she, having been given in marriage by her father or other
guardian before she attained the age of sixteen years repudiated the
marriage before attaining the age of eighteen years:Provided that the
marriage has not been consummated;
(viii)
that the husband treats her with cruelty, that is to say,
(a)
habitually assaults her or makes her life miserable by cruelty of
conduct even if such conduct does not amount to physical
ill‑treatment, or
(b)
associates with women of evil repute or leads an infamous life, or
(c)
attempts to force her to lead an immoral life, or
(d)
disposes of her property or prevents her exercising her legal rights
over it, or
(e)
obstructs her in the observance of her religious profession or
practice, or
(f) if
he has more wives than one, does not treat her equitably in
accordance with the injunctions of the Quran;
(ix) on
any other ground which is recognised as valid for the dissolution of
marriages under Muslim Law:
Provided
that‑
(a) no
decree shall be passed on ground (iii) until the sentence has
become final;
(b) a
decree passed on ground (i) shall not take effect for a period of six
months from the date of such decree, and if the husband appears either
in person or. through an authorised agent within that period and
satisfies the Court that he is prepared to perform his conjugal
duties, the Court shall set aside the said decree;. and
(c) before passing a decree on ground (v) the Court shall, on
application by the husband, make an order requiring the husband to
satisfy the Court within a period of one ,year from the date of such
order that he has ceased to be impotent, and if the husband so
satisfies the Court within such period, no decree shall be passed on
the said ground.
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VI ‑ DIVORCE IN NON‑MUSLIM SOCIETIES
Divorce is
an abominable and unfortunate practice, but sometimes it becomes
necessary and unavoidable. It is the legal dissolution of marriage and
is recognised in almost all societies except in Hinduism which considers
marriage as a sacrament and makes no provisionfor its dissolution.
Divorce is regarded as a necessary corollary to the law of marriage, but
the right of divorce among all the nations of antiquity, with few
exceptions, was exclusively reserved for the man. The ancient Jewish Law
provided that the man could divorce his wife whenever he so desired.
There were hardly any checks over his arbitrary and capricious use of
this power. The woman had no right to demand divorce from her husband
for any reason however strong it may be.
Under
Athenian Law, the husband could dismiss his wife for any cause. The wife
had no liberty to leave her husband. She could only present her case
before the archon on grounds of cruelty or degenerate behaviour.
The Romans
also gave powers to the men of propertied class to divorce their wives
at any time. The method was very, simple. The husband simply presented
his wife with a letter declaring their mutual freedom.
But the wife had no right to sue for a divorce.
The Canon
law of the Christian church provided that a separation could be granted
by the church upon proof of sufficiently serious grounds like adultery,
extreme cruelty, or withdrawal from the church by one of the partners.
However, Protestant Reformation led by Martin Luther challenged this
situation. Repudiation of the sacramental nature of marriage opened the
way for divorce and the legal responsibility of granting divorce was
transferred from the church to the state. But the Roman Catholic Church
still steadfastly maintains the concept of indissoluble marriage.
Among the
Pre‑Islamic Arabs the power of divorce possessed by the husband was
unrestricted and unlimited. They knew no rule of humanity in treating
their wives.
It is
against this background that the law of divorce promulgated by Islam in
the early 7th Century conferring substantial rights on the wives appears
to be a great blessing and mercy for humanity particularly for the fair
sex.
However, in the modern world, almost many nations have liberalized their
divorce laws conferring many equitable and humanitarian rights on the
women.
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