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Published in the 16-31 Aug 2004 print edition of MG; send me the print edition

Court asks for proof of talaq

By P.M. Damodaran

Lucknow: In a significant order, the Lucknow bench of the Allahabad High Court in early August quashed a lower court order rejecting the prayer for maintenance of a Muslim woman after being divorced. The high court also directed the lower court to ascertain whether the separation of the woman from her husband was in accordance with the Shariat law (Islamic Jurisprudence).
The court of ACJM (I) in Sitapur, on April 26, 2002, had dismissed an application for maintenance moved by Sadiqunnisa for herself and her son against her husband Wasi Khan accepting the plea of the latter that he had divorced the former, and the Talaqnama had duly been communicated to her by registered post.

Sadiqunnisa filed a revision petition in the high court challenging the Sitapur court order. Her advocate pleaded before the high court that the impugned order of the lower court was against the Shariat law and the decision of the apex court given in the Shamim Ara case. Sadiqunnisa also pleaded before the court that she was thrown out of her husband’s house after she failed to fulfil the dowry demands of her in-laws.

Justice Quddusi of the high court in his order directed the Sitapur court to record clear-cut findings after according both the parties an opportunity of being heard and adducing evidence in support of their respective averments as to whether the talaq had been effected in accordance with the Shariat law. The court said the talaq as ordained in the Holy Qur’an “must be pronounced in three different sittings, it must be for a reasonable cause and must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife’s family and the other by the husband and if their attempts fail then the talaq might be effected and has to be proved by the husband before the court.”

Most of the prominent Muslim leaders in the state capital have welcomed the high court order as they considered it in the framework of the Shari’at law. The All India Muslim Personal Law Board (AIMPLB) member and a legal expert, Zafaryab Jilani, welcoming the order pointed out that the high court had only directed the Sitapur court to provide an opportunity to both the parties of being heard on their arguments. Mr. Jilani said that the Talaqnama could not be accepted without being proved in the court. Prominent Shia leader Kalbe Jawwad also welcomed the high court order and commented that the Talaqnama needed to be proved. Another Shia leader, Maulana Agha Roohi, remarked that the court had taken the Shar’i and legal position into consideration in the right perspective. He opined that if talaq was unavoidable, there should be provision for maintenance.

There was, however, a dissenting note from Maulana Kalbe Sadiq, vice-chairman of the AIMPLB, when he said that the court had no jurisdiction to give opinion on talaq. He remarked that only Ulama knowing Arabic language fully well had the right to deal with the issue. The high court order had come in the wake of a debate among the Muslim leaders on the triple talaq issue.

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