|
"Divorce is thus discouraged:
If you hate them i.e. (your wives) it may be that you dislike a thing while Allah has placed abundant good in it."
"And if you fear: breach between the two (i.e. the husband and the wife), then appoint a judge from his people and a judge from her people; if they both desire agreement. Allah will effect harmony between them.
"The principle of divorce spoken of in the Holy Quran and which in fact includes to a greater or less extent all causes, is the decision no longer to live together as husband and wife. In fact, marriage itself is nothing but an agreement to live together as husband and wife and when either of the parties finds him or herself unable to agree to such a life, divorce must follow. It is not, of course, meant that every disagreement between them would lead to divorce; it is only the disagreement to live any more as husband and wife."
"The "Shiqaq" or breach of the marriage agreement may also arise from the conduct of either party; for instance, if either of them misconducts himself or herself, or either of them is consistently cruel to the other, or, as may sometimes happen there is incompatibility of temperament to such an extent that they cannot live together in marital agreement."
"The "Shiqaq" in these cases is more express, but still it will depend upon the parties whether they can pull on or not. Divorce must always follow when one of the parties finds it impossible to continue the marriage agreement and is compelled to break it off. At first sight it may look like giving too much latitude to the parties to allow them to end the marriage contract thus, even if there is no reason except incompatibility of temperament, but this much is certain that if there is such disagreement that the husband and the wife cannot pull together, it is better for themselves, for their offspring and for society in general that they should be separated than that they should be compelled to live together. No home is worth the name wherein instead of peace there is wrangling;
and marriage is meaningless if there is no spark of love left between the husband and the wife. It is an error to suppose that such latitude tends to destroy the stability of marriage, because marriage is entered into as a permanent and sacred relation based on love between a man and a woman, and divorce is only a remedy when marriage fails to fulfil its object."
"Though the Holy Quran speaks of the divorce being pronounced by the husband, yet a limitation is placed upon the exercise of this right."
"It will be seen that in all disputes between the husband and the wife, which it is feared will lead to a breach, two judges are to be appointed from the respective people of the two parties. These judges are required first to try to reconcile the parties to each other, failing which divorce is to be effected. Therefore, though it is the husband who pronounces the divorce, he is as much bound by the decision of the Judges, as is the wife. This shows that the husband cannot repudiate the marriage at will. The case must first be referred to two judges and their decision is binding.
... ... The Holy Prophet is reported to have interfered and disallowed a divorce pronounced by a husband, restoring the marital relations (Bu.68:2). It was no doubt matter of procedure, but it shows that the authority constituted by law has the right to interfere in matters of divorce.:
"Divorce may be given orally, or in writing, but it must take place in the presence of witnesses."
(b)Ameer Alis Treaties on Mahomedan Law inter alia states, as under:
"The Prophet pronounced Talaq to be most detestable thing before the Almighty God of all permitted things."
"If Talaq is given without any reason it is stupidity and ingratitude to God."
"The author of the Multeks (Ibrahim Halebi) is more concise. He says - "The law gives to the man primarily the power of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy, but in the absence of serious reasons, no Musalman can justify a divorce either in the eyes of the religion or the law. If he abandons his wife or put her away from simple caprice, he draws upon himself the divine anger, for "the curse of God", said the Prophet," rests on him who repudiates his wife capriciously."
(c)Abdullah Yusuf Ali, commenting on the subject of "Talaq" has observed:
"Islam tried to maintain the married state as far as possible, especially where children are concerned, but it is against the restriction of the liberty of man and women in such vitally important matters as love and family life. It will check hasty action as far as possible and leave the door to reconciliation open at many stages. Even after divorce a suggestion of reconciliation is made, subject to certain precautions ...
... against thoughtless action. A period of waiting (Iddat) For three monthly courses it prescribed, in order to see if the marriage conditionally dissolved, is likely to result in issue. But this is not necessary where the divorced woman is a virgin. It is definitely declared that women and men shall have similar rights against each other."
"Where divorce for mutual incompatibility is allowed, there is danger that the parties might act hastily, then repent, and again wish to separate. To prevent such capricious action repeatedly, a limit is prescribed. Two divorces (with a reconciliation between) are allowed. After that the parties must unitedly make up their minds, either to dissolve their union permanently, or to live honourable lives together in mutual love and forbearance to hold together on equitable terms, neither party worrying the other nor grumbling nor evading the duties and responsibilities of marriage."
"All the prohibitions and limits prescribed here are in the interest of good and honourable lives for both sides, and in the interests of a clean and honourable social life, without public or private
scandals. ... ..."
"If the man takes back his wife after two divorces, he must do so only on equitable terms, i.e. he must not put pressure on the woman to prejudice her rights in any way, and they must live clean and honourable lives, respecting each others personalities."
"The termination of a marriage bond is a most serious matter for family and social life. As every lawful device is approved which can equitably bring back those who have lived together, provided only there is mutual love and they can live on honourable terms with each other. If these conditions are fulfilled, it is no right for outsiders to prevent or binder re-union. They may be swayed by property or other considerations."
"An excellent plan for settling family disputes, without too much publicity or mud-throwing, or resort to the chicaneries of the law. The Latin countries recognise this plan in their legal system. It is a
pity that Muslims do not resort to it universally, as they should. The arbiters from each family would know the idiosyncracies of both parties, and would be able, with Gods help, effect a real
reconciliation."
18.Now, let us go to the enunciations on the subject of "Talaq" as made by different High Courts. In ILR 5, Rangoon 18, their Lordships of the Privy Council observed:
"According to that law (the Muslim Law), a husband can effect a divorce whenever he desires."
In the case of Sarabai V/s Rabiabai" [ILR 30 Bombay 537] regarding the cause of divorce mere whim
is sufficient, it was observed that it is good in law though bad in theology.
In ILR 33 Madras 22 a Division Bench of the Madras High Court [Munro and Abdur Rahim, JJ.] held:
"No doubt as arbitrary or unreasonable exercise of the right to dissolve the marriage is strongly condemned in the Quran and in the reported saying of the Prophet (Hadith) and is treated as a spiritual
offence. But the impropriety of the husbands conduct would in no way affect the legal validity of a divorce duly effected by the husband."
In the case of "Ahmad Kasim Molla V/s Khatun Bibi" [ILR 59 Calcutta 833] the Court held:
"From that point there are a number of authorities and I have carefully considered this point as dealt with in the very early authorities to see whether I am in agreement with the more recent decisions of the Courts. I regret that I have to come to the conclusion that as the law stands at present, any Mahomedan may divorce his wife at his mere whim and caprice."
In the case of "Asmat Ullah V/s Khatun-Unnissa"
[AIR 1939 All. 592] it has been held that if an acknowledgment of Talaq is made by a husband, Talaq will be held to take effect at least from the date upon which the acknowledgment is made. In the case of "Wahab Ali V/s Qamro Bi" [AIR 1951 Hyderabad 117] it was held that where the husband stated in his written statement to the application under section 488 that he had already divorced his wife and the Court came to the conclusion that the divorce pleaded was not proved, even then, such a statement in the written statement itself operated as an expression of divorce by the husband from that moment. In the case of Chandbi V/s Balwant Mujawar (supra) it was held (a) that though the husband failed to prove the divorce which he alleged had taken place 30 years ago, he did divorce the wife as from the date on which he filed the written statement viz. 6th April, 1959; (b) even where a divorce is given orally to a wife who has passed the age for periods of menstruation, the condition that oral declaration of divorce, should be made between two periods of Tuhr would not be applicable, because it would be physically impossible to have any such periods between which such a declaration could be made. In the case of Enamul Haque V/s Bibi Taimunnisa [AIR 1967 Pat. 344] it was held that although the factum of divorce was not proved by the husband, the wife was liable to be saddled with the knowledge of divorce from the date of filing of the written statement and, therefore, the divorce would be final when the wife is informed of it.
In the case of Mohammad Ali V/s Fareedunnissa Begum [AIR 1970 AP 298] it was held that on the wifes
demand of maintenance, if husband issues a notice that she had been divorced on the date of marriage itself in spite of wifes denial of divorce, such a notice will operate as a declaration of divorce from its date. In the case of "Saiyid Rashid Ahmad and another V/s Mt. Anisa Khatun and others" [AIR 1932 Privy Council 25" the Appellants case was that on 13th of September, 1905 Ghiyas Uddin pronounced triple Talaq in the presence of witnesses though in the absence of the wife (Anisa Khatun) received Rs.1,000/- of prompt dower for which a registered receipt was produced and there was also a Talaqnama or deed of divorce dated 17th September, 1905 which narrated the divorce and which alleged to have been given to Anisa Khatun. The wife had denied the factum of divorce and, in any event, she challenged its validity and effect. The Courts below had given a concurrent finding that Ghiyas Uddin had pronounced the triple Talaq of divorce and that the date of divorce was genuine. This finding was not disturbed by the Privy Council which further held that (a) in the Biddat form the divorce advanced become irrevocable irrespective of the Iddat; (b) it is not necessary that the wife should be present when the Talaq is pronounced and though her right to alimony may continue until she is informed of the divorce; (c) the pronouncement of the triple Talaq by Ghiyas Uddin constituted an immediately effective divorce and its validity and effectiveness would not be affected by Ghiyas Uddins mental mental intention that it should not be a genuine divorce, as such a view is contrary to all authority. In the case of "A. Yusuf Rawther V/s Sowramma" [AIR 1971 Kerala 261] Krishna Ayer, J. (as His
Posted on 2002-08-28
remarks:3 |
