Analysis

Kashmir High Court Ruling on Talaq

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Frankly Speaking - 4
A recent ruling of the High Court of Jammu & Kashmir on the Islamic procedure for extra-judicial divorce by Muslim men has raised many eyebrows in and outside the state. As usual, it is being described as ‘un-Islamic’ and hence an unwarranted tampering with the Muslim religious law.

The ruling given in the case of Mohammad Naseem Bhat vs. Bilquees Akhtar by Justice Hasnain Masoodi relates to the deserted Muslim wife’s claim for maintenance against her husband. The parties were married in August 2002 and had a baby girl. The marriage failed and Bilquees started living separate with her daughter. In January 2006, she filed a claim of maintenance for herself and the daughter, alleging that her husband had mistreated her and turned her out of the matrimonial home mainly for the reason that she had given birth to a female child. The husband took the plea that he had divorced her more than a month earlier and hence she was no more entitled to get any maintenance from him. The lower court accepted the man’s divorce plea and, rejecting her claim for maintenance for herself, directed him to pay a monthly amount of maintenance only for the daughter. On her appeal, the first appellate court set aside the lower court’s decision describing it as “perverse, illegal and passed in a mechanical manner” and directed it to fix a proper maintenance allowance for her. The man then went in appeal to the High Court with a plea that the lower court’s decision be upheld, alleging the first appellate court’s action as an “abuse of the court process.”

In his eloquent judgment, Justice Masoodi stated that under the Kashmir Shariat Act 2007, Muslims are to be governed by the Shariat law. He added that the primary sources of that law are the Qur'an and Sunnah. Raising a question “whether a husband has an absolute and unqualified power to pronounce divorce on his wife and wriggle out of his obligations under the marriage contract?,” he asserted that “to find out the answer to the question, and manner in which marriage may be dissolved or the marriage contract can come to an end, we have to go to the fundamental sources of Shariat law. Referring to various Qur'anic verses and Prophet’s traditions, he made an admirable attempt to bring out the significance and sanctity of marriage in Islam and explain the proper manner for dissolving it as laid down in the Qur'an. Referring to the so-called “forms” of talaq as mentioned in the books on Muslim law, he described the talaq-ul-bid’at as “a medicine that was conceived to cure the menace of multiple divorces at one time which turned out to be more lethal than the disease it was to cure.”    

In the light of his exposition the true Islamic law of marriage and divorce, the judge concluded that “a husband to wriggle out of his obligations under marriage including one to maintain his wife, claiming to have divorced her, has merely to prove that he has pronounced talaq or executed a divorce deed but has to compulsorily plead and prove” that he has complied with the conditions and procedure laid down for talaq in the Qur'an and Sunnah, viz., “(i) that effort was made by the representatives of husband and wife to intervene and settle the dispute and disagreement between the parties and that such attempts for reasons not attributable to the husband did not bear any fruit, (ii) that he had a valid reason and genuine cause to pronounce divorce on his wife, (iii) that talaq was pronounced in the presence of two witnesses endued  with justice, and (iv) that talaq was pronounced during the period of tuhr.” As the man had failed to give evidence of all this, the learned judge dismissed his appeal and directed the lower court to hear the case again and, pending the final decision, award interim maintenance to the wife.

I would not like to make any comment on the merits or demerits of Justice Masoodi’s observations, but must clarify that all he has said in the judgment has not been said by an Indian court for the first time. Besides some High Court decisions saying more or less the same thing, in several rulings given since 2002 the Supreme Court of India has ruled that a husband’s statement in response to his wife’s maintenance claim that he has divorced her cannot be accepted on the face of it and that he has to satisfy the court that he did comply with the conditions and procedure for divorce laid down in authentic Islamic texts.

The Kashmir verdict is in accord with the law settled by the apex court of the country and could not, under the system of judicial precedents under Indian law, have gone against it. Anybody who wants to dispute the Kashmir ruling has to question the legality of the earlier Supreme Court decisions. But were they really wrong? Read what an eminent scholar of the subcontinent the late Maulana Umar Ahmad Usmani has to say in his celebrated work, the Fiqhul-Qur’an (vol I, Karachi, 1981):

“As Nikah is not just a symbolic expression the mere utterance of which can create marital relationship but a procedure which must be fully followed to bring a marriage into existence, exactly the same way Talaq is not just a word the mere utterance of which will terminate the marriage but a procedure which must be meticulously followed. Only if all the prescribed steps of this procedure have been duly taken, will the marriage be dissolved. This procedure has not been laid down by us but by God of Muhammad the Prophet.”    

(This column will now appear once in a month)

This article appeared in The Milli Gazette print issue of 16-31 December 2012 on page no. 11

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