Need for a law on Muslim marriage and divorce
Due process is minimum condition of justice
By Iqbal A. Ansari
1. Marriage in Islam is a solemn pledge before God and society by two consenting parties who enter into a quasi-permanent sacred covenant to live together as husband and wife. Though it is a private act of two persons, its public declaration and associating at least two persons as witnesses is essential requirement for the ceremony to be lawful in the eyes of Shariah. Similarly observance of due process is essential for any act of dissolution of marriage to become lawful and enforceable. Though both husband and wife should have the right to finally decide that the matrimonial bond has become so oppressive to either or both of them that its dissolution is the only way out, any act of irrevocable divorce cannot be taken recourse to without a) giving the other party reasonable notice and opportunity to be heard, so that elements of arbitrariness, whimsicality and misunderstanding are eliminated b) involving relatives/friends/ well-wishers from the two sides to act as arbiters for reconciliation.
2. Basic issue in Muslim divorce is not the number of one or three spaced sittings, but whether the condition of due process has been fulfilled, which is the minimum requirement of termination of any contractual relation being just and legally valid. Conceding the husband’s prerogative to unilateral divorce and given the fact that of the two parties, wife is a weaker one, it is all the more necessary to ensure that the husband has not abused his power in a grossly arbitrary and unjust manner, detrimental to the legitimate interests of not only the wife but of the family as a whole, violating in the process the norms of justice and value direction of Islam for the family.
3. Muslim Ulama of all schools of juristic opinion in India agree on the sinfulness and moral reprehensibility of a husband unilaterally pronouncing instantaneous irrevocable triple talaq, but all of them except Ahl-e-Hadith and Shia ulama, accept the validity and enforceability of such divorce and consider it irrevocable, under their understanding of Shariah. Even if the husband testifies to it that he did so in a fit of extreme anger or in inebriated condition when he was not fully conscious of the implications of his utterance, sections of ulama have conflicting opinions on its irrevocability, leading to ugly situations, including violence, in the community.
3.1 The entire discourse of the upholders of the efficacy of arbitrarily pronounced triple divorce, simply ignores the issue of justice and is based on their desire to uphold the supremacy of their juristic school disregarding the Islamic concern for justice in general and the values of family life in particular. Again though all ulama denounce the arbitrary instant triple divorce as sinful and even suggest punitive measures, but do not consider providing legal safeguard against abuse of power so that checks are applied to prevent sinful defacto position acquiring dejure status. It is this impunity enjoyed by those abusing power of unilateral divorce, which is a source of its widespread abuse.
All this derives from viewing the issue entirely from the angle of the husband’s privileges and not from the angle of the protection of the weaker party.
3.2 In view of the fact that recourse to such instantaneous talaq is not infrequent, the Ulama have lately shown concern over it and have resolved to undertake educational campaign about the desirable mode of divorce according to the Quran. While welcoming their resolve to educate the masses and exhort them not to resort to such talaq-i-bidat, it needs to be noted that they are not prepared to make any adjustment in their juristic position which treats such divorce as legally valid -- in spite of its contravention of the letter and spirit of the Holy Quran, and its evil social consequences to the community. They are not prepared to adopt the principle of takhyuur (eclecticism) which has been permitted by leading jurists to uniformly take the position of treating arbitrary, whimsical instantaneous talaq as single revocable one. Such a stand of ulama is violative of basic Islamic norms of justice to the wife and children and leads to avoidable disruption of the family .
4. The only course that needs to be adopted, therefore, is that of bringing into currency, Nikahnama, stipulating recourse to arbitration to be adopted in the event of marital disharmony and other provisions like talaq-i-tafvid and secondly getting a law enacted derecognizing the barbaric practice of instant divorce without due process.
4.1 The proposed law may provide for effecting divorce in a variety of ways as under:
(1) Divorce by mutual consent during one sitting if the two arbiters, one from each side, bear witness to its being a result of freely entered agreement between the husband and wife, without any arbitrariness or duress or unreasonable condition, and whose implications are fully understood by both parties;
(2) Unilaterally by the husband in one sitting, if the arbiters bear witness to the fact that there is no element of undue haste or anger and that there are no chances of misunderstanding and that the husband has given the undertaking to compensate for any ill-effect including trauma suffered by the divorced wife in addition to liberally paying her rights of maintenance and fair provision including shelter.
(3) Unilaterally by the wife, exercising her right of delegated divorce by the husband under a matrimonial contract, if the arbiters bear witness to the fact that the wife’s decision regarding husband’s cruel or oppressive conduct with her is not whimsical and hasty, or that any other condition of fair treatment has been really violated.
(4) Though making allowance for legal efficacy of such dissolution of marriage by mutual consent or unilaterally by husband or wife in one sitting provided arbiters are fully involved and are satisfied, normally the law on divorce should require a gradual phased procedure, in accordance with the three phases prescribed in the Holy
(5) The envisaged law on Muslim divorce should have clauses providing for talaq-i-tafwidh to the wife and should specify the divorcees right to fair provision including her right to shelter beyond iddat, as laid down by the Supreme Court upholding the Constitutionality of the Muslim Women (Protection of Rights On Divorce) Act 1986.
(6) As there is greater unanimity among the ulama on the requirement of fulfilment of the two minimum conditions of affordability and equality of status and treatment to be accorded to the two wives in the event of a person taking a second wife, the law may include provisions on regulating polygamy, including making it conditional on consent of the first wife, besides the two required minimum conditions.
(7) The law should require registration of marriage and certification of divorce by competent authority.
(8) The appeal should lie in the duly constituted Sharai. Panchyats comprising Muslim judicial officers and scholars or common Family Courts, provided there are Muslim judicial officers well-versed in the Islamic law and religion.
In the Name of Allah, the Beneficent, the Merciful
DEED OF MATRIMONIAL AGREEMENT
Whereas marriage under Islamic Shariah is a solemn covenant based on mutual love and regard between husband and wife entered into by free choice of each for living together in tranquility of a common home, promoting the material and spiritual welfare of the family;
Whereas this covenant for living together is normally sought to be permanent, Islamic Shariah makes provision for its annulment and dissolution under certain circumstances, with justice and fairness to both parties;
We ... son of ...
and ....daughter of...while entering into this solemn covenant beg All Merciful Allah to bless our marriage with His grace and make it a source of fulfilment of our goals of life till death.
However, realizing the possibility of dissolution of this bond of marriage, and making allowance for the fact that the solemn pledge to live together, also involves social and economic rights and responsibilities of the husband and wife,
We sign this agreement so that norms of equity, fairness and justice are observed in all circumstances and situations :
1. Husband and wife are both Muslims and are both sincerely willing to abide by the directions of the Holy Quran on family affairs.
2. I, ... , daughter of... promise to be faithful and obedient to my husband in matters that are just and fair. I promise to stand by him through prosperity and adversity alike.
3. I, son of... promise to treat my wife with love and kindness and fulfil my obligation to provide a decent standard of living to the family as best I can.
4. I, son of... agree on paying an amount of Rupees... as Meher (dower) to my wife, which will be paid according to a method agreed upon by my wife and her parents/well
5. I, son of... and... further undertake the following as a solemn pledge before Allah:
5.1 That in the event of any recurring dispute and acrimony which is likely to cause serious disruption of matrimonial harmony leading to breakdown of marriage, I, would give my wife and her close relatives/well wishers sufficient opportunity for restoration of good relations.
5.2 In case the situation does not improve within a reasonable stipulated time, and if parting company appears to be the only way out, I pledge to abide by the injunctions of the Holy Quran regarding divorce, i.e., through the mediation of arbiters, one each from the two sides.
Depending on the nature of dispute and the circumstances, the arbiters in consultation with the couple and their families will take a decision as to whether recourse to divorce is to be taken at one sitting or should be spread over a period, so that opportunity for reconciliation is provided twice with intervals, divorce becoming effective after the third interval.
In case the arbiters agree and my wife also freely gives her consent, divorce can be effected in one sitting.
5.3 In the event of divorce becoming effective by such mutual consent and mediation of arbiters, at one sitting or after two intervals, the rights of the divorced former wife as to fair provision for maintenance beyond iddat and custody and upbringing of children and her share in the matrimonial property will be decided by the same mechanism of arbiters in a just and fair manner according to my capacity and needs of the divorcee and the best interest of children.
5.4 Any part of the Mehar remaining to be paid to my divorced wife shall be paid forthwith, due adjustment being made for the purchasing power of the rupee at the time of payment.
5.5 My divorced wife will keep with herself all the gifts received by her from any side and any person at the time of marriage or afterwards.
6. I, .., further give the following solemn undertaking:
That I shall not ever unilaterally pronounce triple divorce at one sitting; and if I do so, I declare that it will not be enforceable as a final irrevocable divorce; it will be treated as a single revocable divorce, disregarding my utterance of triple divorce.
I further pledge that in the event of my unilaterally pronouncing triple divorce, I should make amends for having violated the spirit of Shariah and the solemn covenant of marriage, for which the nature and mode of punishment will be decided by the arbiters.
7. I, .., further give the undertaking that I delegate to my wife a similar right to get divorce effected by the same process of due notice and mediation and conciliation, in case my wife feels that she has been subjected to cruel treatment over a long period, making her life miserable beyond endurance.
For such separation, the wife shall not be forced to forego any of her economic rights that are stipulated herein.
8. I give further undertaking that I shall not take another wife, during the subsistence of our present marriage.
8.1 In case I get married to another wife, in violation of this undertaking, my first wife,., will have a right to get divorce effected as provided for under clause 7 of this agreement.
8.2 I further undertake to pay the penalty which will be decided by the arbiters, for having violated the pledge against second marriage.
8.3 However, if my first wife is willing to keep the marriage bond intact in spite of my having taken a second wife, I pledge to accord equality of status and treatment to both of my wives.
WE HEREBY SOLEMNLY PLEDGE TO FAITHFULLY ABIDE BY ALL THE TERMS OF THIS AGREEMENT, TO WHICH THE FOLLOWING ARE WITNESSES.
MAY ALLAH HELP US TO KEEP OUR WORD.
|| Wife’s signature:
|| Daughter of
|Signature witness 1
|| Signature witness 2
|| Son of
|Signature of Qazi:
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