COURT OF
JUDICIAL MAGISTRATE IST CLASS PATTAN KMR.
SPECIAL MOBILE
MAGISTRATE ELECTRICITY, PATTAN.
Present :- Mahmmud Anwar Alnasir
File No.13/M D.O.Inst: 09-09-2008. D.O.Dec: 27.07.2012.
In the case of:
Shazada
Begum W/O Shabir Ahmed Malik R/O Magraypora Pattan.
Versus.
Shabir Ahmed Malik S/O Ghulam Nabi Malik R/O
Magraypora Pattan.
In the
matter:
Application
under Section 488.Cr.P.C.
JUDGEMENT ORDER
“By
a deplorable, though natural, development of the Sunni Law, it is the fourth
and the most disapproved or sinful mode of divorce (that is the ‘bidai’ form)
that seems to be most favoured even by the law itself.” [Mr.
Tayabji's Muhammadan Law ] 115 Ind Cas 546.
L.C.s for the parties present.
1. The instant
application was presented before this court on 09-09-2008, and
after recording preliminary statement of the applicant, interim application was
allowed on 31.12.08. and the non-applicant was summoned by the court.
Non-applicant caused his appearance on, 29.09.2008. and sought time to file
objections.
1.1. The brief facts of the case are that, the
applicant is wedded wife of the non-applicant and the marriage having been
solemnized in accordance with shariat and both the parties reside
within the jurisdiction of this Court. That after sometime of the marriage, the
husband started misbehaving with the, applicant and started maltreating her.
She was subjected to wild abuses and meanest fashion of torture and her life
became miserable and agonising. That despite her requests, the attitude of the
non-applicant did not change, and he started thrashing her. This resulted into
forcing her to leave the matrimonial house and presently she is residing with
her parents and in the meantime applicant has not bothered to maintain her or
take care of her. The non-applicant is a resourceful person and working in
education department, apart from having landed properties, while as applicant
has no source of income to sustain herself. It may not be out of context to
mention that, despite interim-order of Rs.500.p.m. the maintainace, was
challenged initially by means of OWP.No.809/2009, which was disposed off wide
order dated; 11.05.2010. and later challenged by way of 561-A. No.82/2010.
Clubbed with OWP.No. 809/2009., Which was disposed off by virtue of order
dated; 28.09.2011. Prior to this a Revision petition was also filed before ld.1st.
Addl. District Judge Baramulla, which came to be decided by virtue of order
dated: 06.08.2009.
2. The
brief gist of the evidence on record of the witnesses examined during the
course of trial is as follows:-
2.1. Statement
of applicant, who stated in chief that the non-applicant is her husband and
they were married in the year 2005. Than non-applicant developed relations with
another girl, and the non-applicant left any sort of communication with her and
started neglecting her. Than the parents of non-applicant told applicant to go
to her parental house for 10/15 days and they accompanied her. Now she has only
her widow mother, and she has nobody else to fall back. Her widow mother has no
income of her own, and the landed property whatever was has been partitioned
amongst her bretheren who are all residing separately. The applicant incurs an
expenditure of rupees 8-10 thousands per month. Non-applicant is an employee of
education department, and is working as a teacher. The non-applicant’s father
is also an employee of electricity department and works as a lineman. Apart
from this non-applicant owns orchard and irrigated land also. In
cross-examination she stated that, she did not give birth to any child. Both
she and non-applicant reside in same locality. If a man has divorced his wife
he cannot allow her to live with him, she doesnot know that. A woman cannot
reside with a man with whom she has no relation. She doesnot know shariat. She cannot say as to whether a man can
divorce his wife or not? This is wrong to say that prior to this also she had
case against the non-applicant, laer she says , yes. She does not know anything
about “Talaq” nor she has taken ‘Talaq’. She is unable to state
whether there is unilateral talaq? Divorce did not happen, nor
any such document was received by post, nor any such document reached her home.
She had not even heard of talaq from the toungue of
non-applicant, here in the court. In her opinion talaq is that which happens
in front of her and on which she puts her thumb impression. She has come to the law and only law will
decide what exactly ‘Talaq’ is ?
2.2. Statement
of PW1.
Mehraj-ud-din Malik, as recorded on 24.04.2009. , stated that he knows
the non-applicant and applicant is his wife. Nikkah was performed in
between the parties five years ago. Only for two three months the relations
were conducive. Thereafter the father-in law of the applicant told her to go to
her maternal house, till he prevails upon the no-applicant and he comes to
senses. Eversince the applicant is staying in her maternal house. Her burden
has fallen on her widow mother. Non-applicant is a teacher by profession. His
income is rupees 1500.00 pm. and apart from that he is well off from his house.
He must be having landed property about 60 Kanals. And orchard about 40 Kanals
yielding a profit of Rs.15/16 lakhs per year. The father of the non-applicant
is a lineman, as such he has only to look after the applicant. Applicant
requires Rs.5000.00 as monthly maintainence.
In cross
examination he states that, he follows Sharia and both the parties also
follow Sharia. Non-applicants father is alive. Father is the owner of
his property. If the owner wants, the house could be run on his income only.
The family relations remained conducive only for three months and not
thereafter. Thereafter this PW doesnot know what happened! Whether any divorce
has taken place in court or not he does not know! The respectable of the locality know it! This
is true to say that, what is done by self is not proper. Who can pronounce
divorce this PW doesnot know?
2.3. Statement
of PW
2, Ghulam Ahmed Hurrah, as on 31.12.2008. States that he knows that
non-applicant is the husband of the applicant. She was married four years ago. Only
for three months she stayed at her matrimonial house. Than her father-in-law
came alongwith her to her house, and eversince nobody came to lookafter her.
Than she was compelled to approach the court. Non-applicant is a government
teacher. His monthly income must be 5-8 thousand rupees. The non-applicant has
an orchard also, which also supplements their income by 3 lakhs annually. His
father is also a government employee and is earning, 8-10 thousands.
Non-applicant has no liability on his shoulders.
In cross
examination states that, he is maternal uncle of applicant. Parties are ‘sunni’
Muslims and are governed by the religions. Father of non-applicant is alive and
landed property is in his name. This is wrong to state that non-applicant has
divorced applicant. This PW or anybody else donot have any such knowledge! This
PW stays in a different village and the village of the applicant is 3kms away
from her village however often visit their house. He has no knowledge of ‘Talaq’!
This PW has no knowledge about talaq or khulla. Non-applicant is
a teacher for the last four years but he cannot say that, non-applicant is
R.E.T or permanent teacher ? Non-applicant has perhaps three sisters; this PW
had last visited the house of the non-applicant, one year ago. There has been
one decision of the brotherhood as well, which was violated by the
non-applicant. This witness doesnot know as to whether the copy of the said
decision is with the file or not? Father
of applicant is not working as he is ailing. Applicant is living a life of
destitution and she is being maintained by her father at present. Non-applicant
is having affair with some other women her name is ‘Fehmida’, however her
parentage is not known to this witness.
2.4. Statement
of PW.3. Irshad Ahmed Malik, as
recorded on 09.03.09. He knows the parties, and they were married four years
ago. Non-applicant has kept he separate, applicant is the wife of
non-applicant. Only for six months they were together. Than non-applicant sent
her to her maternal house and eversince, never came back to enquire about her.
There is nobody to nurture her, as she is without any support. She has no
source of income nor, non- applicant has given her any maintenance so far.
In cross
examination states that, applicant is her cousin and he visits their house.
This PW is a Sunni Muslim and obeys religions. And obey the religious
commands in daily business as well. It is true that if any Muslim divorces his
wife than husband and wife reside separately and donot stay together. This PW
follows religions and shariat. Muslim has a right to divorce his
wife. When there is Talaq than there is no relation.
Whether Talaq has happened or not this witness doesnot know?
2.5. Statement
of PW.4. Ghulam Mohammed Mir, as recorded on
24.03.09. Applicant is wife of non-applicant Shabir Ahmed Malik whom he knows.
She stayed with non-applicant for one year. Thereafter the attitude of the
non-applicant changed and it was not as it ought to be. For the last three
years she is staying with this witness’s house. Her father expired recently.
She is being looked after by her brothers. Non-applicant never bothered to take
care of her. She does not have any source. Non-applicant is a government
servant, he is a teacher. He has sufficient income and well off from house as
well. His father is a lineman.
In cross
examination states that, he is uncle of applicant and resides in the same
village where, non-applicant resides. This PW is farmer by occupation. When a
man divorces a woman the relation comes to an end. This is true that they never
received Talaq. As a Muslim this
PW cannot say whether a man has unilateral right to divorce or not? This PW cannot say whether non-applicant
has divorced her or not? Non-applicant wants to divorce applicant.
2.6. Statement
of PW.5. Bashir Ahmed Malik as recorded on 09.04.09. In examination in chief he
states that, he knows the parties and non-applicant is the husband of the
applicant. Its fifth year of their marriage. Only after two months of marriage,
non-applicant threw her out of the matrimonial house and deserted her. She
stays at her father’s house. The non-applicant never comes to applicant’s
house. She has no income to sustain herself. Applicant’s father expired and her
brethren are occupied in their own problems. Non-applicant is a teacher by
profession, but this witness could not say how much he earns? He
[non-applicant] has liability of only applicant. Non-applicants father is also
employed.
In
cross-examination the witness stated that; he is brother to applicant.
Non-applicant’s father is alive. The property is in his name and he has two
/four daughters and three sons. This PW is Muslim, but does not strictly
follows, shariat. If the non-applicant claims he has divorced the applicant,
this witness has not received any divorce. Nor Talaq has been pronounced in his
knowledge. This true that a man has right to divorce. Parties have no issue.
This PW is not conversant with shariat, as such he cannot say how Talaq is given,
however there has been no Talaq. People who know shariat can say as to under
what conditions Talaq happens.
2.6. Therefore from the testimonies of the witnesses of the applicant it
could be safely said that the following facts are proved which are enlisted
herein below:
a.
Applicant is the wedded wife of
the non-applicant.
b.
She has no source of income to
sustain herself.
c.
She was deserted by her husband
in the very few months of marriage, i.e. three to four months and ever since,
she is staying in her maternal house.
d.
Her husband has never,
thereafter, cared for her or sent her any maintainace, or any resource for
sustenance.
e.
Applicant’s father has also
expired during the course of trial.
f.
Non-applicant is a government
employee, and a teacher by profession.
g.
Non-applicant’s father is alive,
he is a government employee and all the properties are still in his name, which
include landed properties even.
h.
Non-applicant has no liability of
any kind from his family.
i.
There has been no divorce, nor
has it been communicated to the applicant or any of her relatives. Nor they
have any knowledge of the same.
j.
That people though admit to being
Muslims and governed by ‘shariat’ yet they are not clear as to how, divorce is
conducted in ‘shariat’.
k.
The testimonies also prove that
there have been no efforts of reconciliation as required under law, especially
Koranic law.
3. The statements of testimonies
on behalf of the non-applicant are reproduced herein below:
3.1. Statement of witness of non-applicant, DW.1. Abdul Hamid Lone as recorded on
22.01.11. States in chief that, he knows the parties and two / three years ago
marriage of applicant was solemnized with non-applicant. For two years the
relation was alright than there was trouble. 19th August 2008, Talaq happened. That time it happened in
the Court. Petition writer Mohammed Yusuf scribed the tallaq-nama and was written in front of this witness. Non-applicant
relieved applicant from being his wife. This witness is a witness to the tallaq-nama. The witness admits the
contents of the document annexed with the file, and the same is admitted by him
as such is exhibited as EXPW-1. The non-applicant had sworn at the time of
writing of Talaq- name also. After
the scribing of tallaq-nama, the
applicant and non-applicant did not remain husband and wife. Now also there is
no relation between the parties, eversince, 19th August 2008 and the
relationship has come to an end.
In cross examination the witness
stated that non-applicant is his sister-in-law’s son. In about 20 days he goes
to the house of non-applicant and knows his house. Prior to Talaq, about two
years the marriage took place. This witness was present in that marriage and
relatives as well as neighbors also attended the same. Prior to scribing of Talaq, this witness was not present in
any such mediation nor does he know that any such thing happened. At the time
of writing tallaq-nama, he was
accompanied by, Bashir Ahmed, Ghulam Nabi, Ghulam Ahmed, Abdul Hamid. At
that time applicant’s brother and applicant were present themselves however he
does not know whether the applicant or her brother had signed that tallaq-nama or not? This witness
follows shariat. Does not know how many kinds of Talaq are provided! He doesnot know Talaq is of how many kinds and which mode non-applicant has
adopted. non-applicant had scribed in the tallaq-
nama, “ Bu-
chush ye muklawaan- .”
[in Kashmiri; mening ‘I am finishing this’]. The other witnesses,
Ghulam Ahmed, Abdul Hamid and ghulam Nabi signed the document. It was written
by petition writer, Mohammed Yusuf. This witness knows that the issue of
property etc. was also settled. What is written this witness doesnot know!
There were differences between the parties. This witness has gone many a times
to the house of the non-applicant. When applicant was residing with
non-applicant, what was the internal difference between them this witness
doesnot know? Non-applicant is a teacher and was confirmed some two years back.
His monthly income is approximately Rs.18000.00. non-applicant has sufficient
property in his ancestry. Till Talaq,
applicant’s maintenance is the responsibility of non-applicant.
3.2. Statement of witness of
non-applicant, DW.2.Ghulam Ahmed Tantray;
stated in chief that, he knows the parties and they were husband and wife. Then
Talaq happened and khulla happened. In District Court. It was at a different
place in those days. Petition writer Mohammed Yusuf scribed the khulla-name and this witness was present
on spot. This witness has signed the document and recognizes his signature. The
same has been already exhibited as EXPA-1. He does not know which type of Talaq happened? However Mohammed Yusuf had given him the oath
that ‘you are giving Talaq in your senses’.
In cross-examination he states that,
he is the paternal uncle of non-applicant and stays at a distance of one
kilometer from the house of the non-applicant. He goes to their house 2/3 times
a day, at times even once a month. This witness was present in the marriage of
the parties, but when it was solemnized, he does not remember the date. For one
or two months parties were alright than it deteriorated. This witness does not
know why it strained? He was not party to any decision. 19th August
this witness came in the Court and scribed the tallaq-nama alongwith Bashir Ahmed Lone, Abdul Hamid Lone, Mohammed
Ramzan Tantray. Applicant or her brother was not with them. This witness
does not know how many types of Talaq
are there! Nor does he know that non-applicant had written which type of Talaq? Non-applicant is a government
employee, working as a permanent teacher, however this witness doesnot know his
salary.
3.3 Statement
of non-applicant, Shabir Ahmed Malik [non-applicant]
as his own witness, as recorded on 06.02.2012., states that he knows the
applicant and her name is Shahzada Begum. She belongs to Magraypora. There is
no relation between us. Applicant had Nikkah,
and she was often quarrelsome with this witness as well his folks and owing to
this reason she always preferred to stay at her father’s house. Than this
witness had many a people sent for her but she did not budge. Thereafter he was
forced to give Talaq. Talaq was
written in the Court. Petition writer Mohammed Yusuf wrote it. He admits the
contents of the tallaq-nama, which
was shown to him and also his signatures on it. Maher has been payed earlier and there is no relation between him
and the applicant nor has she given birth to any child. While scribing tallaq-nama, this witness had got three
witnesses also with him. Than this witness has taken wows, three times before
petition writer. He asked me to swear that, “Bu chus Shahzada’s puniyas
nafasas peth harraam karan”--- “
.’[in vernacular Kashmiri; meaning
thereby; that, “I am forbidding
Shahzada on myself”] petition writer Yousaf sahib scribed the
tallaq-nama and this witness signed it. Then the tallaq-nama was sent to the
house of applicant by post (Registered post).
Perhaps she might have refused to receive it. And the receipt of the
envelope from the post office, this witness has seen, it is marked as EXP-S-1.
Receipt was shown to the witness no. RL1150. With the endorsement, addressee,
refused to take the envelope. The receipt is identified by this witness as such
is exhibited as EXP-S-2., and identifies the envelope and the tallaq-nama, annexed with the file and
same is exhibited as EXPA-1. He received summon from the court that there is
some case against him. At the time of writing the Talaq, applicant had not
filed case against him.
In cross-examination stated that, he
is a government teacher. He was recruited as RET on 08.08.2004. And got
regularized in the year 2009. The person who was sent to applicant’s house
included, Abdul Gani Malik and Maternal Uncle of his. The kinsfolk also settled
the matter. What they decided, this witness doesnot know? Nobody from his
side of relatives was present in the said kins meeting. The witness is
B.Sc.Medical and knows little bit of shariat. There are two types of Talaq, Talaq-e-bayin and Talaq-she. And the
requirements of Talaq are, there should be Nikkah between the parties, than man
can divorce any time his wife. This witness doesnot know what is ‘seh-tallaq’ and what is ‘Talaq-e-Bain’? At the time of writing
tallaq-nama, petition writer Mohammed Yusuf, Ghulam Ahmed Tantray, Ghulam Ahmed
Lone, Abdul Hamid Lone and Mohammed Ramzan Tantray were present. On the second
day of writing of tallaq-nama, the petition
writer handed it over to him. This witness does not know who notarized it? He does not remember when he posted it in the
name of applicant. He also does not remember the date when it was returned to
him. It was still enclosed in the
envelope. This witness does not remember as to the tallaq-nama, annexed
with the file was closed in the envelope or open? Nor he remembers that the
tallaq-nama was given closed or open to the lawyer?
On examination by the Court, stated
that, he took all the three wows in front of the three witnesses and not
separately at different times, before them. Whether anybody informed his wife,
the applicant about the contents, this witness does not know? While filing the
case before the court, this witness has expressed that, he has divorced her. This witness has given Talaq to his wife
when she was in court. Both of them were present in the court room, and
lawyer presented the tallaq-nama before the court.
3.4. Statement of DW.3. Mohammed Yusuf, petition writer, Court Pattan as recorded on
06.02.2012. in examination in chief states that, he works as a petition writer
in this court, and non-applicant had got scribed a tallaq-nama from him. And he has written it. The witness has seen
the document which is in his hand and he identifies his signature, and it has
already been exhibited as EXPA-1. It was formulated on 19th August
2008. And same was scribed at the instructions of Shabir Ahmed Malik,
non-applicant. This witness had asked non-applicant as to whether he was so
doing out of his own free will? This witness had read over the contents to the
non-applicant, who repeated the same in his own tongue, “I Shabir Ahmed Malik, out of his own free will hereby render Talaq
to applicant” in Urdu language, “
.”
In cross-examination the witness
stated that, he does not remember the time however, date he remembers. The
marginal witnesses were brought by the non-applicant alogwith him. That by
single irrevocable Talaq, [Talaq-e-Bain] Shabir Ahmed Malik, forbade upon his
person the person of Mst.Shahzada. In the sect followed by his witness there
are two types; ‘Seh-tallaq’ and ‘Talaq-e-Bain’. At the time of Talaq,
the person should be of sound mind, and there should be witnesses. This witness
doesnot know what ‘tuhar’ [menstrual cycle] means. Talaq-e-Bain
is the kind of Talaq, where there
should have been Nikkah between the
parties and the person who intends to Talaq
should be in his senses, and there have to be witnesses. It is not
necessary that the marriage has been consummated or not. In the opinion of this
witness, if Khutba-e-Nikkah has been
solemnized between the parties, ‘Man’ can give Talaq. This DW cannot say when Talaq
becomes irrevocable? This Talaq is
correct as per Shariat and law. As per shariat
any ‘man’ can divorce his ‘wife’. It is the will of the ‘man’ as to when and
how he pronounces the Talaq. The document was given after due
completetion to the non-applicant. The document
is signed by the executant, and the signatures of the witnesses, and then it
was registered in the register of this witness. It was thereafter returned to
the executant. This DW does not know the names of the witnesses. Their names
must be on the tallaq-nama. Usually
this DW keeps two major witnesses, however on this document there are three
witnesses. Whatever the non-applicant had said must have been written, this DW
does not remember it by heart. Only after seeing the document this DW can say
whether it makes a mention of ‘Maher’.
3.5. Statement
of DW.4. Mohammed Subhan Wani, as
recorded on 23.02.2012.; in examination in chief states that; he works in the
department of post as village postman. Magraypora also falls in his
jurisdiction. He is supposed to keep record of service of registry. Receipt
enclosed with the file is correct and is marked already as EXPS-1. There is
another document on the file which is authored by this DW and the same is
marked as EXPS-II. It is in his hand and signatures. He knows the applicant. He had gone to her house alongwith the
envelope, but she refused to receive that registered envelope. Than
this witness returned it to the sender as per the departmental norms. This DW
knows the applicant personally, and when he had gone there to deliver the same,
Shahzada’s sister-in-law and mother refused to receive the same. Shahzada replied to this postman that it
contains Talaq and she doesn’t wants to have it.
In
cross-examination the witness stated that, he is working with the department
for the last 35 years as village postman. Envelope was posted by whom this
witness does not know. This DW doesnot has information as to which envelope
contains what? On 23.08.2008. He had
gone with the post at her residence. This
witness never knew what was inside the envelope? This is also true that
receiver does not know as to what is inside the envelope? This DW did not
deliver an open envelope to the applicant. What was inside the envelope even
applicant never knew it. After her refusal it was returned to the sender.
This witness has written on the envelope, that applicant refused. He did not
saw that envelope today in the court. The receipt which is enclosed with the
file, which this witness can give on demand of the party. This witness is
educated till 10thClass. On
the receipt which is enclosed with the file, the parentage of the applicant is
not written by this witness. Non-applicant had asked this witness that
Judge has called you, or else he has not received any summons from the Court.
This witness has come to the court alongwith non-applicant.
3.6. Statement
of non-applicant’s witness, DW.5.
Mohammed Ramzan Tantray as recorded on 14.02.2012. In examination in chief
states that; he knows the parties and they are husband and wife. They had
solemnized Nikkah. Thereafter there
was misunderstanding and things deteriorated further. Than non-applicant took
wows and gave Talaq to applicant.
This witness knows about this Talaq.
It was delivered in the Court. It was written. After it was written, than non-applicant took oath. That is
what this witness knows; Talaq-e-Bain
was given by non-applicant. Later what happened this witness doesnot know? He
has signed as a witness alongwith Ghulam Ahmed Tantray and Hamid Ahmed Lone.
This witness is unlettered. DW was shown nikkah-nama,
he failed to recognize his thumb impression. This DW admits the contents of the
tallaq-nama, which is already
exhibited as EXPA-I. No relationship exists amongst the parties. Parties are
Muslims, ‘sunni’ Muslims and follow
religion. The relation ceases after Talaq.
In cross
examination he states that; he resides ½ km away from the house of parties. He
visits the house of the non-applicant twice a day. Mother of non-applicant is
this DW’s niece. Who mediated between the parties for relationship this DW
doesnot know? 3- 31/2 years the marriage continued. He has no knowledge about Maher. Who all were witnesses on nikkah-nama, this witness doesnot know.
The trouble started at a very initial stage, however what was the cause, this
DW cannot say? This witness never went to get applicant from her house. No
mediation or decision took place between the parties. On 19th August
2009 this DW came to Court with non-applicant. Than Talaq was written, non-applicant had repeated ‘seh-tallaq-abai’. Three times non-applicant said, ‘seh-tallaq-abai’. This DW admits he is
uneducated as such doesnot know shariat.
He has heard it from moulvi sahib
that, Talaq extinguishes relationship. Does not know what the requirements of
Talaq are. After scribing the tallaq-nama, the petition writer told this
witness to put his thumb impression. In the knowledge of this witness
non-applicant or his father has not done any settlement with the applicant.
4. Now therefore from the evidence on record on behalf of the
non-applicant, the following facts emerge as proven:
a.
That the non-applicant is married
to applicant.
b.
Non-applicant is a government
teacher earning handsomely as he is now permanent employee earning more than
Rs.18000.00.p.m. and has no liability upon him.
c.
That the divorce deed is scribed
by a person who is himself not conversant with the ‘shariat’ or the law of the land, and even the non-applicant himself
does not know the mode prescribed for pronouncing divorce and the procedure as
required for the same in terms of ‘Koranic
law’.
d.
That how the divorce became
effective, and what were the words uttered by the non-applicant, are also in
variance in terms of the varying statements of the petition writer,
non-applicant and the marginal witness as each one had his own version of the
words used.
e.
That there has been an attempt on
behalf of the applicant and her kin to initiate reconciliation, however, the
non-applicant and his family had abstained from the same.
f.
The so called ‘tallaq-nama’ is an afterthought, and
produced later during the trial, making it predated, as the notarization was not done on the same
day by the non-applicant, nor non-applicant had ever been to the notary;
therefore under the circumstances, the
attestation of the execution becomes fraudulent. This could be easily
corroborated by the testimony of the postman as well who refuses to have
written the name of applicant’s father on the EXP-S-II. [Slip issued by
postman].
4. Even if it is assumed that
tallaq-nama is scribed and communicated, as claimed by the non-applicant in
open court, can it be termed as divorce as recognized and acceptable as per
‘shariat’, Koranic injunctions and OR the law of the land? If so, what is the
status of the applicant and what are her rights under the Section 488Cr.P.C.
5. Brief
arguments at bar by both sides:
5.1. It
has been argued on behalf of the L.C. for applicant that, the applicant, right
from the outset has been victimized, by the non-applicant who did not even
bother to look at her condition. If at all he was having an affair with someone
else, as stated by the applicant, he ought not to have spoiled the life of an
innocent girl. It was only 3/4 months of marital life, when the non-applicant
started maltreating her. Rather than being a responsible husband who fulfills
the needs of his wife, the non-applicant became obstinate and threw her out of
his hose after torturing her. The applicant has been subjected to a worst kind
of domestic violence and mental torture. She was constrained to leave the
matrimonial house. Now that her father has also expired, she has nobody to fall
back except for her destitute mother who herself is dependent upon somebody.
The non-applicant is not bothered even about the society and did not respond to
the biradari, nor was ready to comply
with their decision. Now after the trial once it has been proved that the whole
divorce deed being a sham, and a fabricated document, the Court must take a
strict note of things. It is height of things that a document has been
notarized, without the presence of the executants. The witnesses also could not
prove as to what was written in EXPA-I, as every witness had a different
version of the words employed to divorce. Moreso the requirement as required in
the Hon’ble apex Court Judgment in Shamim Ara’s Case,(AIR 2002) SC.p.3551. and
also as per 2006(I) SLJ. p.145.
Therefore
it has been vehemently argued by the L.C. for the applicant that, she be given
maintainace commensurate to the status being enjoyed by her husband. She incurs
an expenditure of rupees 5-8 thousands per month, and now that the upper limit
in 488Cr.P.C. has been done away with, taking into consideration, the value of
Market she is granted maintenance from the date of institution of this suit.
5.2. On
the other hand it has been argued that, ‘Talaq’
is a Muslim man’s basic religious right and it cannot be denied to him under
any pretext. Since the non-applicant had already divorced the applicant much
before her application for maintainace, as such she has no case much less a
case against the answering non-applicant. As the relationship between the two
has been extinguished by ‘triple Talaq-e-Bain’.
Since the non-applicants follow the Sunni school of thought in Muslim law, and
the Sunni law recognizes this mode of Talaq as valid one, especially when it is
prior to the proceedings under Section.488. Since there does not exist any kind
of relationship between the parties, therefore the non-applicant cannot be
saddled with the maintenance of strangers. The requirements of Talaq as
prescribed under the Shariat Act has been complied with therefore nothing
remains to be adjudicated any further, as such has prayed for the dismissal of
the application with cost.
6. I have
heard the parties alongwith their counsels, and arguments adduced at bar, the
materials placed before me, including the documents, pleadings, testimonies of
witnesses from both the sides and the law relevant to the issue on the point
involved. It becomes my bounden duty to clarify certain concepts of Holy Quran,
shariat, ahadees, Sunna, bidda etc. and to explain them it also becomes
imperative to have a broader perspective view of the concepts involving Talaq
or divorce. To begin with:
a.
The Hon’ble Supreme Court in the Landmark Judgment of Hon’ble
Supreme Court in Shamim Ara’s case, as reported in AIR, (2003). S.C. p.3551.placing reliance upon the text of Holy “Quran” and
citing, the references from ‘Surat-an-Nissa’ have reiterated what has been
already expounded in the Islamic law, i.e. purely in terms of Koranic law and
no Muslim can deny the Koranic injunctions as commanded upon him by the
Almighty Allah, through his messenger, Prophet Mohammed (
Sallillah-o-alihi-wasallam).
7. The text of ‘Surat-an-Nissa’ is given here below
for ready references:
Surat
An-Nisā' (The Women) - سورة النساء
الرحمن الرحيم بسم الله
O mankind, fear your Lord, who created you from one soul and created
from it its mate and dispersed from both of them many men and women. And fear
Allah , through whom you ask one another, and the wombs. Indeed Allah is ever,
over you, an Observer.
And if you fear that you will not deal justly with the orphan girls,
then marry those that please you of [other] women, two or three or four. But if
you fear that you will not be just, then [marry only] one or those your right
hand possesses. That is more suitable that you may not incline [to injustice].
And give the
women [upon marriage] their [bridal] gifts graciously. But if they give up
willingly to you anything of it, then take it in satisfaction and ease.
And do not give the weak-minded your property, which Allah has made a
means of sustenance for you, but provide for them with it and clothe them and
speak to them words of appropriate kindness.
For men is a share of what the parents and close relatives leave, and
for women is a share of what the parents and close relatives leave, be it
little or much - an obligatory share.
But if you
want to replace one wife with another and you have given one of them a great
amount [in gifts], do not take [back] from it anything. Would you take it in
injustice and manifest sin?
Sahih International
And how could you take it while you have gone in unto each other and
they have taken from you a solemn covenant?
Men are in
charge of women by [right of] what Allah has given one over the other and what
they spend [for maintenance] from their wealth. So righteous women are devoutly
obedient, guarding in [the husband's] absence what Allah would have them guard.
But those [wives] from whom you fear arrogance - [first] advise them; [then if
they persist], forsake them in bed; and [finally], strike them. But if they
obey you [once more], seek no means against them. Indeed, Allah is ever Exalted
and Grand.
And if you fear dissension between the
two, send an arbitrator from his people and an arbitrator from her people. If
they both desire reconciliation, Allah will cause it between them. Indeed,
Allah is ever Knowing and Acquainted [with all things].
8. Further the Holy
Quran goes on to explain:
Verse. 34. Men are the protectors and maintainers of
women, because Allah has made one of them to excel the other, and because they
spend (to support them) from their means. Therefore the righteous women
are devoutly obedient (to Allah and to their husbands), and guard in the
husband's absence what Allah orders them to guard (e.g. their chastity,
their husband's property, etc.). As to those women on whose part you see
ill-conduct, admonish them (first), (next), refuse to share their beds, (and
last) beat them (lightly, if it is useful), but if they return to obedience,
seek not against them means (of annoyance). Surely, Allah is Ever Most High, Most Great.
35. If you fear a breach between them twain
(the man and his wife), appoint (two) arbitrators, one from his family and the
other from heir’s; if they both wish for peace, Allah will cause their
reconciliation. Indeed Allah is
Ever All-Knower, Well-Acquainted with all things.
36. Worship Allah and join none with Him in
worship, and do good to parents, kinsfolk, orphans, Al-Masakin (the poor), the neighbour who is near
of kin, the neighbour who is a stranger, the companion by your side, the
wayfarer (you meet), and those (slaves) whom your right hands
possess. Verily, Allah does not
like such as are proud and boastful;
113. Had not the Grace of Allah and His Mercy been upon you (O Muhammad (SAW),
a party of them would certainly have made a decision to mislead you, but (in
fact) they mislead none except their own selves, and no harm can they do to you
in the least. Allah has sent down to you the Book (The Qur'an), and Al-Hikmah (Islamic laws, knowledge of
legal and illegal things i.e. the Prophet's Sunnah - legal ways), and taught you
that which you knew not. And Ever Great is the Grace of Allah unto you (O Muhammad (SAW)).
127. They ask your legal instruction concerning
women, say: Allah instructs you about them, and about what is recited unto you
in the Book concerning the orphan girls whom you give not the prescribed
portions (as regards Maher and inheritance) and yet whom
you desire to marry, and (concerning) the children who are weak and oppressed,
and that you stand firm for justice to orphans. And whatever good you do, Allah is Ever All-Aware of it.
128. And if a woman fears cruelty or desertion
on her husband's part, there is no sin on them both if they make terms of peace
between themselves; and making peace is better. And human inner-selves are
swayed by greed. But if you do well and keep away from evil, verily, Allah
is ever Well-Acquainted with what you do.
129. You will never be able to do perfect
justice between wives even if it is your ardent desire, so do not incline too
much to one of them (by giving her more of your time and provision) so as to
leave the other hanging (i.e. neither divorced nor married). And if
you do justice, and do all that is right and fear Allah by keeping away from
all that is wrong, then Allah is
Ever Oft-Forgiving, Most Merciful.
130. But if they separate (by divorce), Allah will provide abundance for every
one of them from His Bounty. And Allah
is Ever All-Sufficient for His creatures' need, All-Wise.
9. The other source for elucidating and interpreting the
commands of ‘Holy Quran’ is the Hadith. What actually ‘Hadith’ means could be
gathered as below:
a. Hadith:
1.
A ḥadīth (Arabic: حديث, ) (plural: hadith, hadiths, or aḥādīth) is a saying or an act
or tacit approval or disapproval ascribed either validly or invalidly to the Islamic
prophet Muhammad
(SAW).
[ Islahi, Amin Ahsan (1989 (tr:2009)) (in Urdu). Mabadi
Tadabbur-i-Hadith (translated as: Fundamentals of Hadith Interpretation). Lahore: Al-Mawrid. Retrieved 2 June 2011.]
2. Hadith are regarded by traditional Islamic schools
of jurisprudence as important tools for
understanding the Quran and in matters of jurisprudence. [^ Islahi, Amin Ahsan (1989 (tr:2009)) (in Urdu). Mabadi
Tadabbur-i-Hadith (translated as: Fundamentals of Hadith Interpretation). Lahore: Al-Mawrid. Retrieved 2 June 2011.]
b.
Hadith were evaluated and gathered
into large collections during the 8th and 9th centuries. These works are
referred to in matters of Islamic law and history to this day. The
two largest denominations of Islam, Shiʻa and Sunni, have
different sets of hadith collections.
c. In Islamic terminology, the term hadith refers to reports of statements or
actions of Muhammad, or of his tacit approval or criticism of something said or
done in his presence. [Lisan al-Arab, by Ibn
Manthour, vol. 2, pg. 350; Dar al-Hadith edition.]
d. Classical hadith
specialist Ibn Hajar al-Asqalani says that the intended meaning of hadith in religious tradition is something
attributed to Muhammad (SAW) but that is not found in the Quran.[ al-Kuliyat by Abu
al-Baqa’ al-Kafawi, pg. 370; Mu'assasah l-Risalah. This last phrase is quoted
by al-Qasimi in Qawaid al-Tahdith, pg. 61; Dar al-Nafais.]
e.
Traditions of the life of
Muhammad (SAW) and the early history of Islam were passed down mostly orally
for more than a hundred years after Muhammad's(SAW) death in AD 632. Muslim
historians say that Caliph Uthman ibn Affan (the third khalifa
(caliph) of the Rashidun Empire, or
third successor of Muhammad (SAW), who had formerly been Muhammad's(SAW)
secretary), is generally believed to urge Muslims to record the hadith just as
Muhammad(SAW) suggested to some of his followers to write down his words and
actions. [Tirmidhi, “‘Ilm,” 12. , Collected in the
Musnad of Ahmad (10\15-6\ 6510 and also nos. 6930, 7017 and 1720), Sunan Abu
Dawud (Mukhtasar Sunan Abi Dawud (5\246\3499) and elsewhere.]
1. Ṣaḥīḥ al-Bukhārī (Arabic: صحيح البخاري),
is one of the Al-Kutub Al-Sittah (six major hadiths) of sunni Islam. These prophetic
traditions, or hadith, were collected by the Persian Muslim scholar Muhammad ibn Ismail al-Bukhari, after being transmitted orally for generations.
Sunni Muslims view this as one of the three most trusted collections of hadith
along with Sahih
Muslim and al-Muwatta. In some circles, it is considered the most authenticbook after the Qur'an. The Canonization of Al-Bukhari and Muslim: The
Formation and Function of the Sunni Hadith Canon by Jonathan Brown, BRILL, 2007,and also. Muqaddimah Ibn al-Salah, pg. 160-9 Dar al-Ma’aarif
edition
10. The refrences to
various ‘hadith’ in the scholarly works of the great scholar, and equally
revered amongst ‘sunni’ muslims even today, Muhammad ibn Ismail al-Bukhari in
his book ‘Kitab-ul-Talaaq’ Book 68. Mentions the following :
11. Divorce - كتاب الطلاق This is book 68 of
Sahih al-Bukhari,.
The Arabic text and reference numbering in this book has been checked to correspond with standard publications to the best of our ability. The numbering below corresponds with Shaykh Muhammad Fuad `Abd al-Baqi's (rahimahullah) numbering scheme. Numbering scheme details
(1)
بَابُ قَوْلُ اللَّهِ تَعَالَى: {يَا أَيُّهَا
النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ
وَأَحْصُوا الْعِدَّةَ}
{أَحْصَيْنَاهُ} حَفِظْنَاهُ وَعَدَدْنَاهُ،
وَطَلاَقُ السُّنَّةِ أَنْ يُطَلِّقَهَا طَاهِرًا مِنْ غَيْرِ جِمَاعٍ، وَيُشْهِدُ
شَاهِدَيْنِ.
that he had divorced his wife while she was menstruating during the
lifetime of Allah's Apostle . `Umar bin Al-Khattab asked Allah's Apostle about
that. Allah's Apostle said, "Order him (your son) to take her back and keep
her till she is clean and then to wait till she gets her next period and
becomes clean again, whereupon, if he wishes to keep her, he can do so, and if
he wishes to divorce her he can divorce her before having sexual intercourse
with her; and that is the prescribed period which Allah has fixed for the women
meant to be divorced."
حَدَّثَنَا إِسْمَاعِيلُ بْنُ عَبْدِ اللَّهِ، قَالَ
حَدَّثَنِي مَالِكٌ، عَنْ نَافِعٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ ـ رضى الله
عنهما ـ أَنَّهُ طَلَّقَ امْرَأَتَهُ وَهْىَ حَائِضٌ عَلَى عَهْدِ رَسُولِ اللَّهِ
صلى الله عليه وسلم فَسَأَلَ عُمَرُ بْنُ الْخَطَّابِ رَسُولَ اللَّهِ صلى الله
عليه وسلم عَنْ ذَلِكَ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم "
مُرْهُ فَلْيُرَاجِعْهَا، ثُمَّ لِيُمْسِكْهَا حَتَّى تَطْهُرَ ثُمَّ تَحِيضَ،
ثُمَّ تَطْهُرَ، ثُمَّ إِنْ شَاءَ أَمْسَكَ بَعْدُ وَإِنْ شَاءَ طَلَّقَ قَبْلَ
أَنْ يَمَسَّ، فَتِلْكَ الْعِدَّةُ الَّتِي أَمَرَ اللَّهُ أَنْ تُطَلَّقَ لَهَا
النِّسَاءُ ".
|
Reference
|
: Sahih al-Bukhari
5251
|
|
In-book reference
|
: Book 68, Hadith 1
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith
178
|
Chapter: Divorce during the menses is counted as one legal divorce.
(2)
باب إِذَا طُلِّقَتِ الْحَائِضُ يُعْتَدُّ بِذَلِكَ الطَّلاَق
Ibn `Umar said: "I divorced my wife while she was menstruating.
`Umar mentioned that to the Prophet . The Prophet said, (to my father),
"Let your son take her back." I asked (Ibn `Umar), "Is such a
divorce counted (i.e. as one legal divorce)?" Ibn `Umar said, "Of
course." Narrated Yunus bin Jubair: Ibn `Umar said, "The Prophet said
to `Umar, 'Order him (Ibn `Umar) to take her back.' " I asked, "Is
such a divorce counted (as one legal divorce)?" Ibn `Umar said, "What
do you think if someone becomes helpless and foolish?"
حَدَّثَنَا سُلَيْمَانُ بْنُ حَرْبٍ، حَدَّثَنَا شُعْبَةُ، عَنْ أَنَسِ
بْنِ سِيرِينَ، قَالَ سَمِعْتُ ابْنَ عُمَرَ، قَالَ طَلَّقَ ابْنُ عُمَرَ
امْرَأَتَهُ وَهْىَ حَائِضٌ، فَذَكَرَ عُمَرُ لِلنَّبِيِّ صلى الله عليه وسلم
فَقَالَ " لِيُرَاجِعْهَا ". قُلْتُ تُحْتَسَبُ قَالَ "
فَمَهْ ". وَعَنْ قَتَادَةَ عَنْ يُونُسَ بْنِ جُبَيْرٍ عَنِ ابْنِ
عُمَرَ قَالَ " مُرْهُ فَلْيُرَاجِعْهَا ". قُلْتُ تُحْتَسَبُ
قَالَ أَرَأَيْتَ إِنْ عَجَزَ وَاسْتَحْمَقَ.
|
Reference
|
: Sahih al-Bukhari 5252
|
|
In-book reference
|
: Book 68, Hadith 2
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 179
|
(Divorcing my wife during her menses) was counted as one legal divorce.
وَقَالَ أَبُو مَعْمَرٍ حَدَّثَنَا عَبْدُ الْوَارِثِ، حَدَّثَنَا
أَيُّوبُ، عَنْ سَعِيدِ بْنِ جُبَيْرٍ، عَنِ ابْنِ عُمَرَ، قَالَ حُسِبَتْ عَلَىَّ
بِتَطْلِيقَةٍ.
|
Reference
|
: Sahih al-Bukhari 5253
|
|
In-book reference
|
: Book 68, Hadith 3
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 180
|
Chapter: Should a man tell his wife face to face that she is divorced
(3)
باب مَنْ طَلَّقَ وَهَلْ يُوَاجِهُ الرَّجُلُ امْرَأَتَهُ بِالطَّلاَقِ
I asked Az-Zuhri,
"Which of the wives of the Prophet sought refuge with Allah from
him?" He said "I was told by 'Ursa that `Aisha said, 'When the
daughter of Al-Jaun was brought to Allah's Apostle (as his bride) and he went
near her, she said, "I seek refuge with Allah from you." He said,
"You have sought refuge with The Great; return to your family."
حَدَّثَنَا
الْحُمَيْدِيُّ، حَدَّثَنَا الْوَلِيدُ، حَدَّثَنَا الأَوْزَاعِيُّ، قَالَ
سَأَلْتُ الزُّهْرِيَّ أَىُّ أَزْوَاجِ النَّبِيِّ صلى الله عليه وسلم
اسْتَعَاذَتْ مِنْهُ قَالَ أَخْبَرَنِي عُرْوَةُ عَنْ عَائِشَةَ ـ رضى الله عنها ـ
أَنَّ ابْنَةَ الْجَوْنِ لَمَّا أُدْخِلَتْ عَلَى رَسُولِ اللَّهِ صلى الله عليه
وسلم وَدَنَا مِنْهَا قَالَتْ أَعُوذُ بِاللَّهِ مِنْكَ. فَقَالَ لَهَا " لَقَدْ عُذْتِ بِعَظِيمٍ، الْحَقِي بِأَهْلِكِ
". قَالَ أَبُو عَبْدِ اللَّهِ رَوَاهُ حَجَّاجُ بْنُ أَبِي
مَنِيعٍ عَنْ جَدِّهِ عَنِ الزُّهْرِيِّ أَنَّ عُرْوَةَ أَخْبَرَهُ أَنَّ
عَائِشَةَ قَالَتْ.
|
Reference
|
: Sahih al-Bukhari 5254
|
|
In-book reference
|
: Book 68, Hadith 4
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 181
|
We went out with
the Prophet to a garden called Ash-Shaut till we reached two walls between
which we sat down. The Prophet said, "Sit here," and went in (the
garden). The Jauniyya (a lady from Bani Jaun) had been brought and lodged in a
house in a date-palm garden in the home of Umaima bint An- Nu`man bin Sharahil,
and her wet nurse was with her. When the Prophet entered upon her, he said to
her, "Give me yourself (in marriage) as a gift." She said, "Can
a princess give herself in marriage to an ordinary man?" The Prophet
raised his hand to pat her so that she might become tranquil. She said, "I
seek refuge with Allah from you." He said, "You have sought refuge
with One Who gives refuge. Then the Prophet came out to us and said, "O
Abu Usaid! Give her two white linen dresses to wear and let her go back to her
family."
حَدَّثَنَا أَبُو نُعَيْمٍ، حَدَّثَنَا عَبْدُ الرَّحْمَنِ بْنُ غَسِيلٍ،
عَنْ حَمْزَةَ بْنِ أَبِي أُسَيْدٍ، عَنْ أَبِي أُسَيْدٍ ـ رضى الله عنه ـ قَالَ
خَرَجْنَا مَعَ النَّبِيِّ صلى الله عليه وسلم حَتَّى انْطَلَقْنَا إِلَى حَائِطٍ
يُقَالُ لَهُ الشَّوْطُ، حَتَّى انْتَهَيْنَا إِلَى حَائِطَيْنِ فَجَلَسْنَا
بَيْنَهُمَا فَقَالَ النَّبِيُّ صلى الله عليه وسلم " اجْلِسُوا هَا هُنَا
". وَدَخَلَ وَقَدْ أُتِيَ بِالْجَوْنِيَّةِ، فَأُنْزِلَتْ فِي بَيْتٍ
فِي نَخْلٍ فِي بَيْتٍ أُمَيْمَةُ بِنْتُ النُّعْمَانِ بْنِ شَرَاحِيلَ وَمَعَهَا
دَايَتُهَا حَاضِنَةٌ لَهَا، فَلَمَّا دَخَلَ عَلَيْهَا النَّبِيُّ صلى الله عليه
وسلم قَالَ " هَبِي نَفْسَكِ لِي ". قَالَتْ وَهَلْ تَهَبُ
الْمَلِكَةُ نَفْسَهَا لِلسُّوقَةِ. قَالَ فَأَهْوَى بِيَدِهِ يَضَعُ يَدَهُ
عَلَيْهَا لِتَسْكُنَ فَقَالَتْ أَعُوذُ بِاللَّهِ مِنْكَ. فَقَالَ "
قَدْ عُذْتِ بِمَعَاذٍ ". ثُمَّ خَرَجَ عَلَيْنَا، فَقَالَ " يَا
أَبَا أُسَيْدٍ اكْسُهَا رَازِقِيَّتَيْنِ وَأَلْحِقْهَا بِأَهْلِهَا".
|
Reference
|
: Sahih al-Bukhari 5255
|
|
In-book reference
|
: Book 68, Hadith 5
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 182
|
The Prophet married
Umaima bint Sharahil, and when she was brought to him, he stretched his hand
towards her. It seemed that she disliked that, whereupon the Prophet ordered
Abu Usaid to prepare her and to provide her with two white linen dresses.
وَقَالَ الْحُسَيْنُ بْنُ الْوَلِيدِ النَّيْسَابُورِيُّ عَنْ عَبْدِ
الرَّحْمَنِ، عَنْ عَبَّاسِ بْنِ سَهْلٍ، عَنْ أَبِيهِ، وَأَبِي، أُسَيْدٍ قَالاَ
تَزَوَّجَ النَّبِيُّ صلى الله عليه وسلم أُمَيْمَةَ بِنْتَ شَرَاحِيلَ، فَلَمَّا
أُدْخِلَتْ عَلَيْهِ بَسَطَ يَدَهُ إِلَيْهَا فَكَأَنَّهَا كَرِهَتْ ذَلِكَ
فَأَمَرَ أَبَا أُسَيْدٍ أَنْ يُجَهِّزَهَا وَيَكْسُوَهَا ثَوْبَيْنِ
رَازِقِيَّيْنِ.
|
Reference
|
: Sahih al-Bukhari 5256
|
|
In-book reference
|
: Book 68, Hadith 6
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 182
|
similarly as above
(182).
حَدَّثَنَا عَبْدُ اللَّهِ بْنُ مُحَمَّدٍ، حَدَّثَنَا إِبْرَاهِيمُ بْنُ أَبِي
الْوَزِيرِ، حَدَّثَنَا عَبْدُ الرَّحْمَنِ، عَنْ حَمْزَةَ، عَنْ أَبِيهِ، وَعَنْ
عَبَّاسِ بْنِ سَهْلِ بْنِ سَعْدٍ، عَنْ أَبِيهِ، بِهَذَا.
|
Reference
|
: Sahih al-Bukhari 5257
|
|
In-book reference
|
: Book 68, Hadith 7
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 183
|
I asked Ibn
`Umar,"(What is said regarding) a man divorces his wife during her
period?" He said, "Do you know Ibn `Umar? Ibn `Umar divorced his wife
while she was menstruating. `Umar then went to the Prophet and mentioned that
to him. The Prophet ordered him to take her back and when she became clean, he
could divorce her if he wanted." I asked (Ibn `Umar), "Was that
divorce counted as one legal divorce?" He said, "If one becomes
helpless and foolish (will he be excused? Of course not). "
حَدَّثَنَا حَجَّاجُ بْنُ مِنْهَالٍ، حَدَّثَنَا هَمَّامُ بْنُ يَحْيَى،
عَنْ قَتَادَةَ، عَنْ أَبِي غَلاَّبٍ، يُونُسَ بْنِ جُبَيْرٍ قَالَ قُلْتُ لاِبْنِ
عُمَرَ رَجُلٌ طَلَّقَ امْرَأَتَهُ وَهْىَ حَائِضٌ. فَقَالَ تَعْرِفُ ابْنَ
عُمَرَ إِنَّ ابْنَ عُمَرَ طَلَّقَ امْرَأَتَهُ وَهْىَ حَائِضٌ فَأَتَى عُمَرُ
النَّبِيَّ صلى الله عليه وسلم فَذَكَرَ ذَلِكَ لَهُ فَأَمَرَهُ أَنْ يُرَاجِعَهَا
فَإِذَا طَهُرَتْ فَأَرَادَ أَنْ يُطَلِّقَهَا فَلْيُطَلِّقْهَا، قُلْتُ فَهَلْ عَدَّ
ذَلِكَ طَلاَقًا قَالَ أَرَأَيْتَ إِنْ عَجَزَ وَاسْتَحْمَقَ.
|
Reference
|
: Sahih al-Bukhari 5258
|
|
In-book reference
|
: Book 68, Hadith 8
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 184
|
Chapter: To divorce
one's wife thrice (at a time)
(4)
باب مَنْ أَجَازَ طَلاَقَ الثَّلاَثِ
لِقَوْلِ اللَّهِ تَعَالَى: {الطَّلاَقُ مَرَّتَانِ فَإِمْسَاكٌ
بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ}. وَقَالَ ابْنُ الزُّبَيْرِ فِي مَرِيضٍ
طَلَّقَ لاَ أَرَى أَنْ تَرِثَ مَبْتُوتَتُهُ. وَقَالَ الشَّعْبِيُّ تَرِثُهُ.
وَقَالَ ابْنُ شُبْرُمَةَ. تَزَوَّجُ إِذَا انْقَضَتِ الْعِدَّةُ قَالَ نَعَمْ،
قَالَ أَرَأَيْتَ إِنْ مَاتَ الزَّوْجُ الآخَرُ فَرَجَعَ عَنْ ذَلِكَ.
Uwaimir Al-`Ajlani
came to `Asim bin Adi Al-Ansari and asked, "O `Asim! Tell me, if a man
sees his wife with another man, should he kill him, whereupon you would kill
him in Qisas, or what should he do? O `Asim! Please ask Allah's Apostle about
that." `Asim asked Allah's Apostle about that. Allah's Apostle disliked
that question and considered it disgraceful. What `Asim heard from Allah's
Apostle was hard on him. When he returned to his family, 'Uwaimir came to him
and said "O `Asim! What did Allah's Apostle say to you?" `Asim said,
"You never bring me any good. Allah's Apostle disliked to hear the problem
which I asked him about." 'Uwaimir said, "By Allah, I will not leave
the matter till I ask him about it." So 'Uwaimir proceeded till he came to
Allah's Apostle who was in the midst of the people and said, "O Allah's
Apostle! If a man finds with his wife another man, should he kill him,
whereupon you would kill him (in Qisas): or otherwise, what should he do?"
Allah's Apostle said, "Allah has revealed something concerning the
question of you and your wife. Go and bring her here." So they both
carried out the judgment of Lain,
while I was present among the people (as a witness). When both of them had
finished, 'Uwaimir said, "O Allah's
Apostle! If I should now keep my wife with me, then I have told a lie".
Then he pronounced his decision to divorce her thrice before Allah's Apostle
ordered him to do so. (Ibn Shihab said, "That was the
tradition for all those who are involved in a case of Lian."
حَدَّثَنَا
عَبْدُ اللَّهِ بْنُ يُوسُفَ، أَخْبَرَنَا مَالِكٌ، عَنِ ابْنِ شِهَابٍ، أَنَّ
سَهْلَ بْنَ سَعْدٍ السَّاعِدِيَّ، أَخْبَرَهُ أَنَّ عُوَيْمِرًا الْعَجْلاَنِيَّ جَاءَ إِلَى عَاصِمِ بْنِ عَدِيٍّ الأَنْصَارِيِّ،
فَقَالَ لَهُ يَا عَاصِمُ أَرَأَيْتَ رَجُلاً وَجَدَ مَعَ امْرَأَتِهِ رَجُلاً،
أَيَقْتُلُهُ فَتَقْتُلُونَهُ، أَمْ كَيْفَ يَفْعَلُ سَلْ لِي يَا عَاصِمُ عَنْ
ذَلِكَ رَسُولَ اللَّهِ صلى الله عليه وسلم فَسَأَلَ عَاصِمٌ عَنْ ذَلِكَ رَسُولَ
اللَّهِ صلى الله عليه وسلم فَكَرِهَ رَسُولُ اللَّهِ صلى الله عليه وسلم الْمَسَائِلَ
وَعَابَهَا حَتَّى كَبُرَ عَلَى عَاصِمٍ مَا سَمِعَ مِنْ رَسُولِ اللَّهِ صلى الله
عليه وسلم فَلَمَّا رَجَعَ عَاصِمٌ إِلَى أَهْلِهِ جَاءَ عُوَيْمِرٌ فَقَالَ يَا
عَاصِمُ مَاذَا قَالَ لَكَ رَسُولُ اللَّهِ صلى الله عليه وسلم فَقَالَ عَاصِمٌ
لَمْ تَأْتِنِي بِخَيْرٍ، قَدْ كَرِهَ رَسُولُ اللَّهِ صلى الله عليه وسلم
الْمَسْأَلَةَ الَّتِي سَأَلْتُهُ عَنْهَا. قَالَ عُوَيْمِرٌ وَاللَّهِ لاَ
أَنْتَهِي حَتَّى أَسْأَلَهُ عَنْهَا فَأَقْبَلَ عُوَيْمِرٌ حَتَّى أَتَى رَسُولَ
اللَّهِ صلى الله عليه وسلم وَسَطَ النَّاسِ فَقَالَ يَا رَسُولَ اللَّهِ
أَرَأَيْتَ رَجُلاً وَجَدَ مَعَ امْرَأَتِهِ رَجُلاً، أَيَقْتُلُهُ
فَتَقْتُلُونَهُ، أَمْ كَيْفَ يَفْعَلُ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه
وسلم " قَدْ أَنْزَلَ اللَّهُ فِيكَ وَفِي صَاحِبَتِكَ
فَاذْهَبْ فَأْتِ بِهَا ". قَالَ
سَهْلٌ فَتَلاَعَنَا وَأَنَا مَعَ النَّاسِ عِنْدَ رَسُولِ اللَّهِ صلى الله عليه
وسلم فَلَمَّا فَرَغَا قَالَ عُوَيْمِرٌ كَذَبْتُ عَلَيْهَا يَا رَسُولَ اللَّهِ، إِنْ أَمْسَكْتُهَا، فَطَلَّقَهَا ثَلاَثًا قَبْلَ
أَنْ يَأْمُرَهُ رَسُولُ اللَّهِ صلى الله عليه وسلم. قَالَ ابْنُ شِهَابٍ
فَكَانَتْ تِلْكَ سُنَّةُ الْمُتَلاَعِنَيْنِ.
|
Reference
|
: Sahih al-Bukhari 5259
|
|
In-book reference
|
: Book 68, Hadith 9
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 185
|
(5)
باب مَنْ خَيَّرَ نِسَاءَهُ
وَقَوْلِ اللَّهِ تَعَالَى: {قُلْ لأَزْوَاجِكَ إِنْ كُنْتُنَّ تُرِدْنَ
الْحَيَاةَ الدُّنْيَا وَزِينَتَهَا فَتَعَالَيْنَ أُمَتِّعْكُنَّ
وَأُسَرِّحْكُنَّ سَرَاحًا جَمِيلاً}.
Allah's Apostle
gave us the option (to remain with him or to be divorced) and we selected Allah
and His Apostle . So, giving us that option was not regarded as divorce.
حَدَّثَنَا عُمَرُ بْنُ حَفْصٍ، حَدَّثَنَا أَبِي، حَدَّثَنَا الأَعْمَشُ،
حَدَّثَنَا مُسْلِمٌ، عَنْ مَسْرُوقٍ، عَنْ عَائِشَةَ ـ رضى الله عنها ـ قَالَتْ
خَيَّرَنَا رَسُولُ اللَّهِ صلى الله عليه وسلم فَاخْتَرْنَا اللَّهَ وَرَسُولَهُ،
فَلَمْ يَعُدَّ ذَلِكَ عَلَيْنَا شَيْئًا.
|
Reference
|
: Sahih al-Bukhari 5262
|
|
In-book reference
|
: Book 68, Hadith 12
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 188
|
I asked `Aisha about the option: She said, "The Prophet gave us the
option. Do you think that option was considered as a divorce?" I said,
"It matters little to me if I give my wife the option once or a hundred
times after she has chosen me."
حَدَّثَنَا مُسَدَّدٌ، حَدَّثَنَا يَحْيَى، عَنْ إِسْمَاعِيلَ، حَدَّثَنَا
عَامِرٌ، عَنْ مَسْرُوقٍ، قَالَ سَأَلْتُ عَائِشَةَ عَنِ الْخِيَرَةِ،، فَقَالَتْ
خَيَّرَنَا النَّبِيُّ صلى الله عليه وسلم أَفَكَانَ طَلاَقًا قَالَ مَسْرُوقٌ لاَ
أُبَالِي أَخَيَّرْتُهَا وَاحِدَةً أَوْ مِائَةً بَعْدَ أَنْ تَخْتَارَنِي.
|
Reference
|
: Sahih al-Bukhari 5263
|
|
In-book reference
|
: Book 68, Hadith 13
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 189
|
Chapter: If a man says (to his wife): "I have parted with
you," or "I have released you"
(6)
بَابُ إِذَا قَالَ فَارَقْتُكِ أَوْ سَرَّحْتُكِ
أَوِ الْخَلِيَّةُ أَوِ الْبَرِيَّةُ أَوْ مَا عُنِيَ بِهِ الطَّلاَقُ،
فَهُوَ عَلَى نِيَّتِهِ، وَقَوْلُ اللَّهِ عَزَّ وَجَلَّ: {وَسَرِّحُوهُنَّ
سَرَاحًا جَمِيلاً} وَقَالَ: {وَأُسَرِّحْكُنَّ سَرَاحًا جَمِيلاً} وَقَالَ:
{فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ} وَقَالَ: {أَوْ
فَارِقُوهُنَّ بِمَعْرُوفٍ}. وَقَالَتْ عَائِشَةُ قَدْ عَلِمَ النَّبِيُّ صَلَّى
اللَّهُ عَلَيْهِ وَسَلَّمَ أَنَّ أَبَوَيَّ لَمْ يَكُونَا يَأْمُرَانِي
بِفِرَاقِهِ.
Chapter: "O
Prophet! Why do you forbid that which Allah has allowed to you...?
(8)
that
he heard Ibn `Abbas saying, "If a man makes his wife unlawful for him, it
does not mean that she is divorced." He added, "Indeed in the Apostle
of Allah , you have a good example to follow."
حَدَّثَنِي الْحَسَنُ بْنُ صَبَّاحٍ، سَمِعَ الرَّبِيعَ
بْنَ نَافِعٍ، حَدَّثَنَا مُعَاوِيَةُ، عَنْ يَحْيَى بْنِ أَبِي كَثِيرٍ، عَنْ
يَعْلَى بْنِ حَكِيمٍ، عَنْ سَعِيدِ بْنِ جُبَيْرٍ، أَنَّهُ أَخْبَرَهُ أَنَّهُ،
سَمِعَ ابْنَ عَبَّاسٍ، يَقُولُ إِذَا حَرَّمَ امْرَأَتَهُ لَيْسَ بِشَىْءٍ.
وَقَالَ {لَقَدْ كَانَ لَكُمْ فِي
رَسُولِ اللَّهِ أُسْوَةٌ حَسَنَةٌ}
|
Reference
|
: Sahih al-Bukhari 5266
|
|
In-book reference
|
: Book 68, Hadith 16
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 191
|
Chapter: There is no divorce before marriage
(9)
بَابُ لاَ طَلاَقَ قَبْلَ النِّكَاحِ
وَقَوْلُ اللَّهِ تَعَالَى: {يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا
نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ
تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا
فَمَتِّعُوهُنَّ وَسَرِّحُوهُنَّ سَرَاحًا جَمِيلاً}. وَقَالَ ابْنُ عَبَّاسٍ
جَعَلَ اللَّهُ الطَّلاَقَ بَعْدَ النِّكَاحِ وَيُرْوَى فِي ذَلِكَ عَنْ عَلِيٍّ
وَسَعِيدِ بْنِ الْمُسَيَّبِ وَعُرْوَةَ بْنِ الزُّبَيْرِ وَأَبِي بَكْرِ بْنِ عَبْدِ
الرَّحْمَنِ وَعُبَيْدِ اللَّهِ بْنِ عَبْدِ اللَّهِ بْنِ عُتْبَةَ وَأَبَانَ بْنِ
عُثْمَانَ وَعَلِيِّ بْنِ حُسَيْنٍ وَشُرَيْحٍ وَسَعِيدِ بْنِ جُبَيْرٍ
وَالْقَاسِمِ وَسَالِمٍ وَطَاوُسٍ وَالْحَسَنِ وَعِكْرِمَةَ وَعَطَاءٍ وَعَامِرِ
بْنِ سَعْدٍ وَجَابِرِ بْنِ زَيْدٍ وَنَافِعِ بْنِ جُبَيْرٍ وَمُحَمَّدِ بْنِ
كَعْبٍ وَسُلَيْمَانَ بْنِ يَسَارٍ وَمُجَاهِدٍ وَالْقَاسِمِ بْنِ عَبْدِ
الرَّحْمَنِ وَعَمْرِو بْنِ هَرِمٍ وَالشَّعْبِيِّ أَنَّهَا لاَ تَطْلُقُ.
Chapter: If, under compulsion somebody says about his wife, "She is
my sister."
(10)
بَابُ إِذَا قَالَ لاِمْرَأَتِهِ وَهْوَ مُكْرَهٌ هَذِهِ أُخْتِي. فَلاَ
شَيْءَ عَلَيْهِ
قَالَ النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ: «قَالَ إِبْرَاهِيمُ
لِسَارَةَ هَذِهِ أُخْتِي وَذَلِكَ فِي ذَاتِ اللَّهِ عَزَّ وَجَلَّ».
12. after going through the
law as available in Holy Quran and the narrations from the life of Prophet
(SAW), one more concept which needs to be discussed is the concept of ‘Bidda’
or ‘Biddat’:
1.
“In early Islamic history, ‘bid'ah’ referred primarily heterodox doctrines (as evidenced below).
However, in Islamic law, when used without qualification, bid'ah denotes
anything newly invented matter that is without precedent and is in opposition
to the Qur'an and Sunna.” al-Masri,
Jamaluddin ibn al-Manzur. Lisan al-‘Arab.
pp. 8:6.
2.
“Introducing and acting upon
a bid‘ah in religious matters is a sin and considered one of the enormities in Islam that is obligatory to immediately desist and repent
from.” al-Dhahabi, Muhammad ibn
Ahmad. Kitab al-Kaba'ir.
a. Muhammad ibn al Uthaymeen ,[ ^ Al Muttaqoon -> Question And Answers On Bid’ah (Innovation)] a prominent modern-day scholar, wrote: "And there is
no such thing in Islaam as bid’ah hasanah (good innovation).”
b. [H]ow can there be any such thing as bid’ah hasanah (“good
innovation”) when the Prophet (peace and blessings of Allaah be upon him) said:
“Every bid’ah is a going astray and every going astray is in Hell-fire”.
c. —Muhammad ibn Salih al-Munajjid, Islam-QA: "There
is no such thing as bid'ah hasana in Islam"^ http://islamqa.com/en/ref/205
13. According to Shia Islam the definition of bid'ah is anything that is introduced to Islam
as either being fard, mustahabb, makruh or haram that contradicts the Qur'an or hadith. Any new good practice
introduced that does not contradict the Qur'an or hadith is permissible.
- As a
general rule in Shi'a jurisprudence, anything is permissible except
whatever is prohibited through divine revelation (i.e. the Qur'an or
hadith). Answering-Ansar.org ::
Bidah (Innovation)
14.
Coming to the anglo-mohammedan, Muslim Law, which has been of late codified in
secular democracies, recognizes the concept of divorce as follows:
1. Divorce According to Muslim
Law: Khulla/Mubarat and Talaq:
According to the traditional Muslim
law, divorce can be obtained directly in two ways without the intervention of
the civil court. They are: (a) Khulla /Mubarat and (b) Talaq.
(A) Khulla or Kohl and Mubarat:
Husband and wife can obtain divorce by
mutual consent either by ‘Khulla’ or by ‘Mubarat’. Difference between Khulla
and Mubarat is simple: In Khulla divorce is initiated at the instance of the
wife. In Mubarat, since both the parties’ desire separation, the initiative may
come either from the wife or from the husband.
(B) Talaq:
Talaq represents one of the ways
according to which a Muslim husband can give divorce to his wife as per the
Muslim law without intervention of the court. In Talaq, the husband has the
right to dismiss his wife by repeating the dismissal formula thrice. The Talaq
may be affected either orally by making some pronouncements or in writing by
presenting ‘tallaq-nama’. Talaq may be given in any one of the following three
ways:
(i) Talaq-e-Ahsan:
This involves a single pronouncement
of talaq followed by a period of conjugal abstinence till the completion of
‘iddat’.
(ii) Talaq-e-Hasan:
This consists of three pronouncements
of ‘Talaq’ made during three – successive menstrual periods and no sexual
contact has taken place between the spouses during these months.
(iii) Talaq-ul-Bidat:
Here, Talaq, pronouncement takes place
in any one of the following ways. (a) in a single sentence, for example,” I
divorce thee thrice” or in three separate sentences: “I divorce thee, I
divorce thee, I divorce thee” (b) in a single but clear pronouncement such as,
“I divorce thee irrevocably”.
In the first two types cited above,
there is a chance for re-establishing the martial ties but not in the third
form.
14. Talaq is available only to Men and not to Women. The
Dissolution of Muslim Marriages Act, therefore, is the remedy available only to
Women, although enactment does not spell out so. However, from the grounds of
divorce, given in the enactment, it will be crystal clear that the enactment is
especially crafted out and drafted only for Women, the Muslim Women.
(a) Failure to provide maintenance;
this ground of
seeking divorce, by Muslim Women, is unique inasmuch under no other legal
system of Law; non-providing maintenance is the ground for divorce. At the
highest, Women - including Muslim Women can seek Maintenance under Section 125
of Code of Criminal Procedure. There is no specific ground for divorce
enumerated in the divorce statutes. It is only the Dissolution of Muslim
Marriage Act which provides for divorce for non-providing maintenance to his
wife.
Thus Muslim Women have two remedies, (1)
seeking maintenance under Section 125 of Code of Criminal Procedure and (2)
seeking divorce under the Act. It is for her to choose here remedies. But it
must clearly be noted that there is no specific bar created for Muslim Woman to
give up her one of her two remedies and she is free to avail of both the
remedies.
(c) Any other ground under Shariat; The Act
proceeds to lay down a residuary provision so that the wife may not lose the
benefit of any other ground which may have been lost sight of by the
legislature. This would cover up Lian, Ila, Zihar, Khulla and Mubarat. The
Courts have held that incompatibility of temperaments, dislike or ill-will is
not sufficient grounds for obtaining divorce by the wife.
Sunni
Law
While under Shia Law presence of
witnesses is mandatory. Sunni law does not require presence of witnesses. So
long as repudiation comes to the knowledge of wife, it is considered sufficient
and valid in law. For effecting Talaq, Sunnis allow the use of infinite number
of formula - some obvious in their meaning others conveying the intention only.
Under Hanafi Law, when the word Talaq or any of its customary synonyms is used,
the Talaq is effective even if a man has no intention. A Talaq pronounced in
absence of wife is also valid. But so long as it does not come to her
knowledge, she is entitled to maintenance.
2. Divorce as Recognised by Shariat Act,
1937:
The Shariat Act, 1937 provides for
three forms of divorce. They are mentioned below apart from the types of
‘Talaq’ given herein above in the preceding paras.
3. Provisions for Divorce as per the
Dissolution of Muslim Marriage Act, 1939:
The Dissolution of Muslim Marriage
Act, 1939 passed during the British period entitled a Muslim woman to seek the
dissolution of her marriage on the following grounds:
(i) whereabouts of husband not known for 4 years.
(ii) failure of husband to provide for her maintenance
for 2 years.
(iii) imprisonment of husband for 7 years or more.
(iv) impotency of husband since the time of marriage.
(v) Failure of husband to fulfil martial obligations
for 3 years.
(vi) insanity of husband for a period 2 years and
husband’s incurable diseases like leprosy, venereal diseases, etc.
(vii) husband’s physical and mental cruelty.
(viii) marriage being thrusted upon her before she
attained I8 years, [but in this, the wife has to seek divorce before she
completes 18th year].
(ix) any other valid ground which the Muslim law
permits.
There are four conditions essential to pronounce a
valid Talaq.
i. Husband should have attained the age of majority.
ii. Husband should be sane or of sound mind.
iii. Husband should act of his free will.
iv. There must be distinct intention to dissolve the
marriage tie.
v. A boy who is minor and a person who is insane
cannot give divorce even through their respective guardians. In case of an
insane person the Judge can make a decree to dissolve the tie.
15. Divorce when effective
a.
In Talaq-ul-Bida or Bain Talaq, the divorce takes effect forthwith,
immediately. Whereas in case of Talaq-us-Sunna or Rajai Talaq, divorce takes
effect after stipulated time and does not take effect immediately inasmuch as
there is a waiting time for it to take effect.
b. The apex Court in one
another latest case was called upon to consider the case under Section 125 of
Cr. P.C. for maintenance by wife. The Husband in his Written Statement before
the Family Court vaguely made certain generalized accusation against his wife.
It was stated that wife was sharp, shrewd, and mischievous and had brought
disgrace to the family.
c. Therefore, he had given
Talaq but no particulars of alleged Talaq were given. Except examining him,
husband did not lead evidence in proof of Talaq. In an affidavit in some other
case before the civil court, the husband had made such a statement but the said
affidavit was not found on the record of the Family Court. However, the Family
Court accepted the contention of the husband that he had given Talaq to his
wife the apex Court head that merely taking a plea in the Written Statements
that he had given Talaq to his wife would not have the effect of Talaq. Talaq to be effective, it is necessary to
have 'pronounced' in the manner lay down under the Personal Law. 'Pronounced'
means to 'proclaim' or to 'utter formally.' The plea in the Written Statement
or some affidavit filed in some civil Court does not amount to pronouncing the
Talaq.
d. The Ahsan form of Talaq
is effective on the expiration of third period of Iddat. The Hasan form of
Talaq is effective on third pronouncement.
e. Talaq-ul-Bidat, is
effective from the moment the Talaq is pronounced or the execution of the
Writing, or the "Talaq - Nama" or the Bill of Divorcement. The Full Bench of the Bombay High Court has
held that the Bill of Divorcement by itself cannot dissolve - marriage because
it is necessary that the divorce should have been given for sufficient cause.
It must have been evidenced before the witnesses who are Muslims and if it is
before non-Muslims then it is invalid in law.
f. The full bench also
held that the wife is not deemed to have been divorced (at least) from the date
of Written Statement in which husband takes the plea that he had already given
Talaq to his wife on earlier date to the filing of the Written Statement. The
ruling of the full bench thus indicates that if husband has already given Talaq
on earlier date, he must prove the factum of that divorce by leading evidence
before the Court. The full bench thus is not in favour of Court taking it to be
granted that Husband must have given divorce, if not from the earlier date at
least from the date of his statement in the Written Statement.
16. The root of
this controversy dates back to the Judgement of Full Bench, of Patna High
Court, which sanctioned the triple Talaq in one time as valid, the detailed
text of which is reproduced herein below:
17. Patna
High Court. Fazlur Rahman vs. Musammat Ayesha and Ors. on 18 January, 1929; Equivalent
citations: 115 Ind Cas 546
Author: F
Ali
Bench: Courtney-Terrell, J
Prasad, F Ali.
a. The appellant made three
declarations of Talaq one after another; or, in other words, he pronounced a
triple divorce on one and the same occasion. This form of Talaq has been in
vague among the Hanafi Muhammadans for a very long time and is technically
known as Talaq ul-bidat, an expression which literally means an innovated form
of divorce, but which has been generally translated in the text books on Muhammadan
Law as "a heretical sinful or irregular form of divorce." It may be
mentioned that broadly speaking two kinds of Talaq are in vogue among the
Hanafi sect of Muhammadans, (1) Talaq us-sunnat and (2) Talaq ul bidet. The two
expressions have been explained by Mr. Ameer Ali as follows:
b. The Talaq us sunnat is the
divorce which is effected in accordance with the rules laid down in the
traditions (the sunnat) handed down from the Prophet or his principal
disciples. It is, in fact, the mode or procedure which seems to have been
approved of by him at the beginning of his ministry, and is, consequently,
regarded as the regular or pro per and orthodox form of divorce. The Talaq ul
bidat, as its name signifies, is the heretical or irregular mode of divorce,
which was introduced in the second century of the Muhammadan era. It was then
that the Ommey yade monarchs finding the checks imposed by the Prophet on the
facility of repudiation interfered with the indulgence of their caprice
endeavoured to find an escape from the strictness of the law and found in the
pliability of the Jurists a loophole to effect their purpose.
c. In the Talaq us-sunnat
pronounced in the ahsan form, the husband is required to submit to the
following conditions, viz.: (a), he must pronounce the formula of divorce once,
in a single sentence; (b) he must do so when the woman is in a state of purity
(tahr), and there is no bar to connubial intercourse, nor has there been any
during that state; and (c) he must abstain from the exercise of conjugal rights,
after pronouncing the formula, for the space of three tahrs.... In the Hasan form,
the husband is required to pronounce the formula three times during three
successive tahrs, namely, three periods of purity of the wife. When the last
formula is pronounced, the Talaq or divorce becomes irrevocable.
d. A divorce in the ahsan or
hasan form, or, in other words, a divorce in the form and under the conditions
sanctioned by the sunnat or the holy traditions is the only effective form of
divorce under the Muhammadan Law, and that we should hold that a talak
(divorce) pronounced in the bidai or heretical form is not at all binding or
valid under the Muhammadan Law.
18. The author of
Hedaya says in Chap. I of his book which relates to divorce: "Divorce is of three kinds;--first,
the ahsan (most laudable);--second, the hasan or laudable (which are the
distinctions of the talaqus sunnat) and third, the bidat or irregular...
taluq-ul bidat or irregular divorce, is where a husband repudiates his wife by
three divorces at once,--(i.e., included in one sentence), or, where he repeats
the sentence separately, thrice within one tahr, and if a husband give three
divorces in either of those ways the three hold good, but yet the divorcee is
an offender against the law...."(Hamilton's Hedaya, 2nd Edition, passes
72-73. It is further mentioned in Hedaya that Shafai has said that all
these three descriptions of divorce (viz., ahsan, hasan, and bidat) are equally
unexceptionable and legal. In Fatawah Alamgiri also Talaq is said to be of two
kinds, (1) Talaq sunna and (2) talaq-bidat and the validity of either form is
fully recognized (Vol. 2, page 52 See also Raddul-Muhtar Vol. 2 pages 492 93
and 582-85, (Tahtevi, Vol. 2 page 175). The same is the view put forward in the
modern treatises on Muhammadan Law. (See Baillie's Digest of Muhammadan Law
pages 205-07; Ameer Ali's Muhammadan Law, 5th Edition, page 136; Tayabji's
Principle of Muhammadan Law, 2nd Edition pages 215-19, Abdur Rahim's Institutes
of Mussalman Law, page 141).
19. In the case of Furzund
Hossein v. Janu Bibee 4 C. 588 the question arose whether the mere
pronouncing of Talaq three times by the husband without its being addressed to
any person was sufficient to constitute a valid divorce according to Muhammadan
Law and although the learned Judges decided that the words being not
specifically addressed to the wife, no valid divorce had been ejected yet, at
the same time, they observed that if the formula of divorce prescribed in
Muhammadan Law books has been really pronounced by the plaintiff, the view of
the Muhammadan Law taken by the Court of Appeal (that a complete divorce had
been effected) is probably right."
10. In the case
of In re Abdul Ali Isamilji (2) the learned Judges held as follows:
Talaq-ul bidat or irregular divorce which is effected by
three repudiations at the same time, appears from the authorities to be sinful,
but valid, and it was recognized as valid by this Court In re Kasim Pirbhai 8 B.H.C.R. 95 Cr.
11. In Sarabai v. Rabiabai 30 B. 537 : 8 Bom. L.R. 35 (at page
544 Page No. 33 M--[Ed.]) Bachelor, J., who decided that case observed as follows:
There can be no doubt that a Talaq ul-bidat or irregular divorce is
good in law though bad in theology.
12. In Asha Bibi v. Kadir
Ibrahim 3 Ind. Cas. 730: 33 M. 22: 6 M.L.T. 295: 20 M.L.J. 1 (at page 26 Page
No. 30 B--[Ed.]) the husband was found to have used the following
expressions in the presence of his wife's father in pronouncing the Talaq:
13. "This is the Talaq
to your daughter; this is the Talaq to your daughter; this is the Talaq to your
daughter. Talaq once, Talaq twice, Talaq thrice, etc, etc." and it was
held by Abdur Rahim and Munro, JJ., that the words of repudiation, though not
addressed directly to the wife, constituted a valid divorce according to the
Hanafi Law.
14. In the case of Ameeruddin v.
Khatoon Bibi 39 Ind. Cas. 513 : 39 A. 371 : 15. A.L.J. 272 which was decided by Rafique and Piggot, JJ., the
learned Judges had to deal with the very arguments which have been advanced before
us in this case and they disposed of them as follows:
20. We do not think that
the contention should prevail. It is true that the sunna or the traditions
sanction only two modes of divorce, i, e., ahsan and hasan but ever since the
second century of the Muhammadan era the bidai or sinful or irregular form
introduced by the Jurists, which is admittedly inconsistent with the
traditions, has been also recognized as a valid mode of repudiation. Mr. Ameer Ali on whose book great stress is laid nowhere
says that divorce pronounced in the ‘bidai’ form is invalid and should not be
given effect to. Such
a divorce has been upheld in Courts in this country. We would refer to the case
of In re Abdul Ali Ismailji 7 B. 180....
21. We should follow and enforce Muhammadan Law as it is and not as
it has been improved upon and added to by the Jurists at the instance of the
Ommeyyade monarchs. The learned Judges further
quoted the following passage from Mr. Tayabji's Muhammadan Law to show that the
bidai form of divorce is not only valid but is also the form of divorce which
is most favoured in this country:
22. By a deplorable,
though natural, development of the Sunni Law, it is the fourth and the most
disapproved or sinful mode of divorce (that is the bidai form) that seems to be
most favoured even by the law itself. For, the requirements of the other mode being seldom attended to,
it is generally assumed (on the principle that the intention of the parties
must as far as possible be given effect to) that the fourth mode was intended
to be employed, with the result not only that the formalities for the divorce
are done away with, but even its effects are aggravated for, inasmuch as the
pronouncement is presumed to be in this mode, it is presumed to be irrevocable.
It is indeed possible that the Sunni Jurists wished to inflict on a husband,
who disregarded the requirements of Section 136 (that is, divorce according to
the traditions) the penalty of rendering the divorce irrevocable, and there are
indications that they considered it always a favour to the wife to relieve her
of the husband.
23. Thus it will be seen that Talaq-ul-bidat
has been in vogue at least since the second century of the Muhammadan era and
all the Muhammadan Jurists of the Hanafi School are unanimous that a divorce
pronounced in this form is valid and binding. This view has also been upheld in
a number of reported judicial decisions of the various High Courts of this
country.
24. Courts in administering the Muhammadan
Law are more or less the same as the functions of a qazi under the Muhammadan
rule, and it is contended by him that if we find that this form of divorce is
not sanctioned by the laws of Koran, it is our duty to declare that the divorce
pronounced in the bidai form is not valid.
25. Thus it will be
seen that the term "Muhammadan Law" has been substituted in that
enactment for the "laws of the Koran" and the term "Hindu
Law" for the "Laws of the Shastras." The change is not without
significance because the term "Muhammadan Law" is certainly a wider
term than the "Laws of the Koran" Nevertheless, the argument advanced
in this case by Mr. Nooruddin would have been entitled to consideration if he
could satisfy us that a divorce of the type said to have been pronounced in the
present case has been expressly prohibited by the Koran. This is, however, not
the case. The verses of the Koran which are pertinent to the question under
enquiry are to be found in the second Surat of the Koran and have been
translated as follows by Maulvi Muhammad Ali:
a. Verse 229. Divorce may be (pronounced) twice; then keep (them) in good
fellowship or let (them) go with kindness: and it is not lawful for you to take
any part of what you have given them, unless both fear that they cannot keep
within the limits of Allah; then if you fear that they cannot keep within the
limits of Allah, there is no blame on them for what she gives up to become free
thereby. These are the limits of Allah, so do not exceed them.... Verse 230. So
if he divorces her she shall not be lawful to him afterwards until she marries
another husband, etc. etc.
26. Now, all the
commentators are agreed that the words "a third time" should be read
after the words "divorces her" in versa 230, and the verse means that
if the wife has been divorced thrice the divorce is irrevocable and the wife
cannot lawfully return to the husband. This is so, because under verse 229
after the divorce is pronounced twice there is an option with the husband to
keep or abandon his wife, and in order to complete the divorce he must
pronounce it a third time. This is obvious from the use of the words "then in the aforesaid verse".
After the divorce is completed by three pronouncements contemplated by verse
229, it becomes irrevocable under verse 230. The Shias and the Malikis have
interpreted the three divorces referred to in these verses to mean divorces
pronounced on three different occasions. There is, however, one school of
commentators which has taken the view that the language used in the Koran is
wide enough to include cases in which the divorce has been pronounced thrice on
the same occasion. Thus although it may be said that, of the two views the one
is not so broad and not so well supported by reason as the other, yet when
there is a consensus of opinion among a large and influential section of
theologians who hold that the words of the Koran are capable of the
interpretation which sanctions the bidai form of divorce and when we find that
the bidai form of divorce has been in vogue among the Hanafi Muhammadans for so
many centuries, it is not for us to lay down that the interpretation which does
not favour the bidai form must necessarily be preferred to the interpretation
which favours it. Nor do I think we shall be justified in introducing a sudden
and drastic change in what has been for generations the accepted law of the
Hanafi Muhammadans. I must, therefore, hold that Talaq ul bidat is a valid and
binding form of divorce according to the law of the Hanafi and as such is
binding upon the parties in this case.
27. The question of the
invalidity of Talaq-ul bidat. It was urged by the learned Vakil that this form
of Talaq was not sanctioned by the holy traditions and he referred us to the
following passage in Mr. Ameer Ali's Muhammadan Law, Vol. 2, at page 533:
28. It is reported that when once news was brought to him (the
Prophet) that one of his disciples had divorced his wife, pronouncing the three
talaqs at one and the same time, the Prophet stood up in anger on his carpet
and declared that the man was making a plaything of the words of God, and made
him take back his wife. … … it was the son of the second Caliph Umar who was concerned in
the incident referred to by Mr. Ameer Ali. The full facts of this incident,
however, have been given by the author of Hedaya in the following passage under
the heading "divorce pronounced during menstruation."
29. "It is recorded that the son of Umar having divorced his
wife during her courses the Prophet desired Umar to command his son to take her
back again. This shows that the divorce during the courses is valid, but that
reversal in this case has been laudable.
30. It will, therefore,
appear that at least in the opinion of a number of learned theologians the
divorce in the case referred to by Mr. Ameer Ali was reversed on the ground
that it had been pronounced when the wife was in a state of impurity.
31. In the Talaq-ul bidat, the husband may
pronounce the three formulae at one time, whether the wife is in a state of tuhr or not.
32. The same view has been put forward in Hedaya in the following
passage:
a. If a man repudiates his wife during her
courses, it is valid; because, although divorce within the terms of the courses
be disapproved, yet it is lawful, nevertheless, as the disapproval is not on
account of anything essential, but merely because a divorce given during the
courses occasions a protraction of the iddat. This kind of disapproval, or
interdict, is termed nihee leghirehee and does not forbid legality, whence a
divorce given during the courses is valid; yet it is laudable that the husband
reversed it, as it is recorded that the son of Umar having divorced his wife
during her courses, the Prophet desired Umar to command his son to take her
back again; which tradition shows that divorce during the courses is valid but
that reversal is in this case laudable (Hamilton in Hidaya, Vol. I, Book 4,
Chap. I. page. 74).
Courtney-Terrell,
C.J.
29.--I agree.
Jwala Prasad, J.
30.--I agree.
33.
Though the outcome of the instant case quoted herein was altogether, different
from the present Judicial view of the Hon’ble Apex Court and rightly so, as the
British Courts in India had a different role to play, the British Indian
courts' judgements and the British judges patronized the orthodox rigidity that
'Islam is inimical to change'. This attitude of the judges left the Muslim
personal law more or less untouched, and as a consequence women's rights to
divorce have been adversely affected. Now the Courts in Independent India are duty bound to uphold the
Fundamental Rights as available to its citizens, guaranteed under the
Constitution of India. This includes ‘Right to religious practices’ , and the
arguments done way back in, 1929.A.D. have found their appreciation in the
Landmark Judgement of Hon’ble Supreme
Court in Shamim Ara’s case, as reported in AIR, (2003). S.C. p. 3551 .
34.. Talaq-ul-Bain, or triple Talaq, was and is
the most detested form of Talaq, and the punishment provided by the second
Caliph of Islamic Empire, was death penality. http://www.timesofindia.com/151100/15edit4.htm
|
[ DURING the reign of the second Khalifa of
Islam, Hazrat Umar, legend has it that there was a sudden spurt of talaqs in
Arabia. Men were divorcing their wives without assigning any rhyme or reason.
Angered by the inhuman manner in which people were interpreting the Koran,
the Khalifa ordered that any man found giving his wife Talaq should have his
head severed.]
35.On Friday prayers Umar addressed
the people as follow:
a.Brethren, it has come to my notice
that the people are afraid of me..... they say that he (Umar) has become the Caliph now,
God knows how hard he will be. Whoever has said this is not wrong in his
assessment...... know ye brethren that you will feel a change in me.[42] For those who practise tyranny
and deprive others of their rights, I will be harsh and stern, but for those
who follow the law, I will be most soft and tender.
b.Umar's addresses
greatly moved the people. Next time he addressed the people as:
“I will be harsh and stern against
the aggressor, ] but I will be a pillar of
strength for the weak.
I will not calm down until I will put
one cheek of a tyrant on the ground and the other under my feet, and for the
poor and weak, I will put my cheek on the ground.”
There could be no
better definition of the democracy and justice, then the historic words of
Umar, over which he laid foundation of his rule:
“By God, he that is weakest among you
shall be in my eye the strongest, until I have vindicated for him his
rights; he that is strongest I will treat as the weakest, until he complies
with the law.”
36. The
clear instruction in the Koran is as follows: At-talaaqu marrataan:
fa-imsaakum-bima`-ruufin `aw tasriihum-bi-ihsaan. Wa la yahillu lakum
`an-ta`khuzuu mimmaa`aatay-tumuuhunna shay-`an `illaaa. Surah Al Baqr,
226. This means that talaq must be pronounced twice (in two months) and then
(a woman) must either be retained in honour or released in kindness. Further
it says, it is not lawful for you that you take from women anything which you
have given them.
a. The commandment is clear. Talaq has to be pronounced
twice with an intervening period in which to rethink, reconsider and
reconcile. For this, the important instruction is to take time, and, once
again, take more time, during which period there should be interlocutors from
both sides to try to mediate the conflict. After the second Talaq, there is
still an intervening period, during which the husband has to think about the
two choices available to him; either reconciles with his wife in an honorable
way, or pronounces the third (irrevocable) Talaq with kindness and allows her
to go. At the end of the third interval, he must exercise this choice. But
then follows the absolute command. If he decides to let her go, he must do so
`without taking from the woman anything you have given her'. The spirit of the
Koran vis-a-vis the process of divorce and the divorced woman, as reflected
in this command to the man, is imbued with sensitivity towards gender.
B.The same command is repeated in Section 241 of
the same Surah as a reminder to Muslims that in matters of Talaq (as in other
matters) women must be treated with utmost kindness.
c. Wa
lil-mutallaqati mataa-um bil maruf. Haqqan `alal muttaqiin. (And remember for women who have been
divorced, they should treated with ihsaan and suluk (kindness and grace). For
all pious men this is the duty). The Koran is replete with passages for proper
and egalitarian treatment of women. Muslims are commanded never to create
impediments if a divorced woman wishes to contract another marriage. If a
Muslim wants to exchange one wife for another he is commanded not to take
anything from her, even if he has given her a quintaar, meaning, pile of gold
(Surah Nisa, Section 20). In the same Surah, Muslims are commanded to give
the wife's mehr with good grace at the time of marriage itself, unless she
decides to defer it of her own free will.
37. Talaq
is permissible in the Koran only on condition that there is a complete
breakdown of marriage. Parting
of ways must be graceful, and utmost care is taken to inflict no suffering on
the woman. The common practice of
impulsively uttering Talaq thrice in a go, or writing Talaq thrice on a
postcard, or hiring a quiz to affix his signature on a scrap of paper, is
totally anti-Islamic. No cleric, regardless from which school of Fiqah, can
ever condone this form of Talaq.
38. Just as the man is permitted Talaq, so also
is the woman permitted to take khulla. In this matter as in all others, women
and men have equal rights in Islam. In Surah Al Baqr (Section 228), there are
five words which according to Maulana Abul Kalam Azad's explication of the
Koran, altered the status of women for all time to come. The words are: Wa la hunna mislullazi alayhinna bil ma`ruuf.
This means that (in matters of husn-e-suluk `beauteous treatment') women have
the same rights over men as men have over women. In Section 229 of the same
Ayat, a woman is permitted to end a tortuous married life by taking khula
although she has to go through the Qazi, unlike the man who does not have to
fulfill this condition.
39. This condition was stipulated, once again, to
protect the woman because of the possibility of a patriarchal backlash.
Maulana Azad, in his explication, states that if the woman for good reasons
takes khulla, and if she forfeits
part of her mehr of her own free
will, it is permissible. The implication here is startling in view of the
common practice. Most women are brainwashed to believe that for a virtuous
wife, it is incumbent to forfeit her mehr altogether. This they do without
understanding their rights; and when the husband pronounces Talaq, he can
throw her out minus the mandatory mehr, however small. But the clear
instruction in Islam is that even if a wife takes divorce, she is entitled to
mehr; she may of her own free will give up part of it as bargain for her
freedom. As commonly practised, however, it is essential for the woman to
forsake her mehr if she takes khulla.
40. The fact of the matter is that we Muslims
selectively practice whatever suits our need. We indulge in triple Talaq, in
polygamy, in dodging mehr and maintenance. We ascribe our actions to our
religious sanctions and continuously harp on our religious code. But we
blatantly violate the injunctions of Islam. We pronounce triple Talaq without
following the commands pertaining to it. We marry again and again without
adhering to the commands pertaining to second and subsequent marriage. We
still do not give share to the women in property, in succession, despite Holy
Quran, providing for the same. Thanks to the way we practice it, Islam is
looked upon by the world as the most anti-gender religion. For this
perception, it is we Muslims who are to be blamed. It is time we applied the
corrective to our own selves and stop using religion as an excuse for our
misdemeanors.
|
41.
Cultural perceptions of women in pre-Islamic days have influenced the
interpretation of the Quran. The 'women question' had been interpreted through
male perspectives and desires. The modernists have also argued that fundamental
principles of social justice, freedom and equality were buried under the
growing power of patriarchal class relations.
42. The common prejudices and patriarchal
attitudes among men towards women affect women's social standing as well as
their legal rights. Despite the
Quranic flexibility to accommodate
innumerable cultural situations, the
orthodox jurists preferred a single interpretation based on the cultural
context of that time. They believed that Islam is inimical to change. The orthodox jurists
failed to differentiate between the revealed, immutable and historically
conditioned laws that were the product of the early Jurists' fallible human
reasoning and the assimilation of cultural practices.
43. In 1943,
the Jammat-e-Islami chief, Maulana Abul
Ala Maududi, opined: “Due to want of knowledge, Muslims have been generally
given to understand that a Talaq can be pronounced only through the
triple-divorce formula, although it is an innovation and a sin leading to many
legal complications. If people knew that triple divorce is superfluous and even
a single Talaq would dissolve the marriage, of course, leaving room for
revocation during the next three months and remarriage thereafter, innumerable
families could have been saved from disruption.”
44. The law in force in India is not Islamic
law but Anglo-Muhammadan law, which the courts followed during the Raj. In
1905, one English judge of the Bombay High Court, Justice Batchelor, was honest to admit that “there can be no doubt that
Talaq-ul-bidat (or irregular divorce) is good in law, though bad in theology”.
The Privy Council ruled in 1894 that it would rely on “the ancient doctors of
the law” and not on the original sources, the Koran and the hadith. The Supreme
Court of Pakistan rejected this approach. [The Big Idea: Reform,
reform, reform..A.G. Noorani. ]So did Justice Baharul Islam in two
judgments he delivered in the Guwahati High Court. He became judge of the Supreme Court. In a judgment delivered
on September 18, 2002, Justice R.C. Lahoti of the Supreme
Court (now Chief Justice of India) approved both. He said, “Quoting in the judgment several
Holy Koranic verses and from commentaries thereon by well-recognised scholars
of great eminence, the learned Judge, Baharul Islam, expressed disapproval of
the statement that ‘the whimsical and capricious divorce by the husband is good
in law, though bad in theology’, and observed that such a statement is based on
the concept that women were chattel belonging to men, which the Holy Koran does
not brook. The correct law of Talaq as ordained by the Holy Koran is that Talaq
must be for a reasonable cause and be preceded by attempts at reconciliation
between the husband and the wife by two arbiters — one from the wife’s family
and the other from the husband’s; if the attempts fail, Talaq may be effected.”
[ibid.]
45. PTI Oct 28, 2007, 11.11am IST. NEW DELHI: Suggesting a rethink on the
triple Talaq way of terminating Muslim marriages, the Delhi High Court
has ruled that a couple's divorce is invalid if the husband pronounces Talaq
in anger or fails to communicate it to his wife, leaving no scope for
reconciliation.
"It (triple Talaq ) is an innovation
which may have served a purpose at a particular point of time in history but,
if it is rooted out such a move would not be contrary to any basic tenets of
Islam or the Quran or any ruling of the Prophet Muhammad," said Justice B D
Ahmed.
Justifying
his suggestion on rooting out triple Talaq system, Justice Ahmed said
the "harsh abruptness" of triple Talaq has brought about
extreme misery to women and even the men who are left with no chance to undo
the wrong or any scope to bring about reconciliation.
46. Shibu Thomas, TNN Jan 21, 2007, 01.00am
IST. MUMBAI: Talaq,
Talaq, Talaq. These
three words are not enough for a Muslim husband to divorce his wife, the Bombay
High Court has ruled. In a crucial judgment that will almost certainly rekindle
the triple Talaq controversy,
Justice B H Marlapalle held that the Talaq between Dilshad Begum and Ahmadkhan Hanifkhan
Pathan was not legal and valid as the husband had not gone through the
preconditions of arbitration and reconciliation prescribed by Muslim law.
"The reasons for divorce,
appointment of arbiters, the arbiters resorting to conciliation proceedings and
the failure of such proceedings or a situation where it was impossible for the
marriage to continue, have not been proved in this case," said the judge,
reiterating the landmark judgment by a full bench of the High Court in similar
circumstances in 2001. A full HC bench had then held: "Mere pronouncement
of Talaq by the
husband or merely declaring his intentions or his acts of having pronounced the Talaq is not
sufficient and does not meet the requirements of law."
Under
Muslim law, a man can divorce his wife at his will by Talaq (release
from marriage) or Ila (by taking a vow of abstinence) or Zihar (by
declaring his wife to be his mother). A woman can divorce her husband only by
his expressed consent (tafweez). She can also purchase her divorce from her
husband. Marriage can also be dissolved by a judicial decree under the
Dissolution of Muslim Marriage Act.
47. PTI Oct 6, 2002, 10.25am IST.NEW DELHI:
Pronouncing a major judgment relating to divorce among Muslims, the Supreme
Court has ruled that a mere plea of Talaq taken in an unsubstantiated written
statement submitted before a court could not be accepted as a proof of Talaq.
Disagreeing with the established
practice narrated by experts of Muslim Law, Mulla and Dr Tahir Mahmood, a Bench
comprising Justice R C Lahoti and Justice P V Reddi said "the Talaq to be
effective has to be pronounced."
"A plea of previous
divorce taken in the written statement cannot at all be treated as
pronouncement of Talaq by the husband on wife on the date of filing of the
written statement in the court followed by delivery of a copy thereof to the
wife," said Justice Lahoti, writing for the Bench.
One Shamim Ara was married to
Abrar Ahmed in 1968. In 1979, she filed an application before a Family Court
seeking maintenance from her husband under Section 125 of Criminal Procedure
Code on the ground that he had deserted her.
The husband in 1990 filed a
written statement making an averment that he had divorced her in 1987 and thus,
she was not entitled to any maintenance. The Family Court in its judgement in
1993 rejected the wife's plea for maintenance on the ground that she had
already been divorced.
On her appeal, the High Court
held that the communication of Talaq stood completed in 1990 with the filing of
the written statement by the husband.
The Supreme Court said the
correct law of Talaq as ordained by the Holy Quran was that it must be for a
reasonable cause and be preceded by attempts at reconciliation between the
husband and the wife by two arbiters - one from the wife's family and the other
from the husband's; if the attempts failed, Talaq could be effected.
Stating that the husband had
adduced no evidence of the Talaq except for the bald written statement filed in
the court, Justice Lahoti said "There are no reasons substantiated in
justification of Talaq and no plea of proof that any effort at reconciliation
preceded the Talaq".
According to Mulla the statement
by husband in pleadings filed in answer to petition for maintenance by wife
that he had already divorced the petitioner (wife) long ago operates as
divorce. Dr Tahir Mahmood supported Mullah in his book The Muslim Law of
India .
The apex Court Bench said
"We do not agree with the view propounded in the decided cases referred to
by Mullah and Dr Tahir Mahmood in their respective commentaries."
"We are very clear in our
mind that a mere plea taken in the written statement of a divorce having been
pronounced sometime in the past cannot by itself be treated as effectuating
Talaq on the date of delivery of the copy of the written statement to the
wife," Justice Lahoti said.
Allowing the appeal of Shamim
Ara, the Supreme Court said that "neither the marriage between the parties
stands dissolved on December 5, 1990 nor does the liability of the husband to
pay maintenance come to an end on that day. The husband shall continue to
remain liable for payment of maintenance until the obligation comes to an end
in accordance with law."
48. PTI Oct 5, 2005, 09.23pm IST. KOCHI: The
Kerala High Court on Wednesday ruled that mere pronouncement of 'Talaq' three
times, even in the presence of one's wife, was not sufficient to affect a
divorce under the Muslim law.
There should be an attempt at
mediation by two mediators on both the sides and only if it ended in failure
was the husband entitled to pronounce 'Talaq' to divorce his wife, a bench
comprising Justice R Bhaskaran and Justice K P Balachandran said.
The judgement was delivered in
a case wherein one Ummer Farooq of Malappuram challenged the direction of a
family court to pay maintenance to his estranged wife.
The petitioner claimed that
there was a valid ground for divorce and that he was not liable to pay
maintenance. However, the court did not approve of the argument.
49. 'Triple
Talaq misread'
a. Shahina
Mulk, TNN Mar 8, 2010, 06.08am IST. The practice of triple Talaq in one
sitting, which is largely considered antithetical to the spirit of the Quran,
is said to be responsible for the plight of many Indian Muslim women. Those
with in-depth knowledge of the holy book are, therefore, gradually rising to
guard their rights.
b. Fatima Khan, a retired professor, said,
'Islam cannot be blamed for entailing a law that brings miseries to the weaker
sex... Rather, it was the first religion in the world to empower women and give
them equal legal status...Sadly, the Muslim society is still under the
influence of feudal ethos.' She added that for a divorce to be considered final,
the word Talaq must be delivered at three sessions, each separated by a month.
c. Sajada Siddiqui, who works as a
professor in UAE, remarked, 'The Quran is replete with passages for proper and
egalitarian treatment of women. The common practice of impulsively uttering
Talaq thrice at a go is totally anti-Islamic. Muslim nations like Syria, Lebanon and even Pakistan do not
term this pronouncement legal unless the matter is brought to the notice of
court or arbitration council.'
d. Stating that the All-India Muslim
Personal Law Board (AIMPLB) had failed in firmly banning the practice, Sania, a
student, said, 'The Deobandi Ulema, who dominate the board, are groomed in a
tradition of extreme patriarchy, expecting reform from them is a mirage. Muslim
women should themselves step ahead and fight the injustice meted out to them.'
e. Kashish Ahmad (name changed) ' who has
been fighting a long-drawn legal battle in the family court ever since her
husband sent her a telegram with the word Talaq mentioned thrice ' lamented,
'Politicians don't want to jeopardize the Muslim vote bank for the sake of
social justice to the weaker sex and that too in minority. The Indian
politicians with hunger for power have a fatal fascination for unscrupulous
compromises. Secularism and gender parity have perished on the cross of Islamic
obscurantism.' Kashish hoped the government would step in to protect the rights
of Muslim women and not succumb to fundamentalists' pseudo-cry of 'religion in
danger'.
f. Seeking a uniform law, homemaker
Mumtaz Zaidi said, 'Though courts have often declared triple Talaq as
unacceptable, Muslim women are forced to wait for years to get
justice...Divorce should only be permissible if it fulfils all the
prerequisites mentioned in the Quran.' She added, 'Muslim
women have been fettered by inane customs and traditions not sanctioned by
Islam. If they receive proper education, become conscious of their rights and
duties, they can easily break their chains.'
50. Quranic
Justice. Tahir
Mahmood, Feb 1, 2007, 12.00am IST. In January, the Bombay high court ruled that triple
Talaq was not good enough for divorce. Giving judgment in Dilshad Begum's case,
Justice B H Marlapalle observed, "The reasons for divorce, appointment of
arbiters, the arbiters resorting to reconciliation proceedings or a situation
where it was impossible for the marriage to continue have not been proved in
this case".
1. According to him the
pronouncement of Talaq by the husband or merely declaring his intentions or his
acts of having pronounced the Talaq was not sufficient and did not meet the
requirements of law.
3. In the latter case, answering
the claim of a deserted wife to payment of maintenance by her husband a plea
was made that he had divorced her much earlier.
4. The court rejected the
husband's statement. It said, "The particulars of the alleged Talaq are
not pleaded nor the circumstances under which and the persons, if any, in whose
presence Talaq was pronounced have been stated... There are no reasons
substantiated in justification of Talaq and no plea or proof that any effort at
reconciliation preceded the Talaq".
5. In the presence of this clear
verdict of the apex court, the high court's decision in Dilshad Begum's case
could not have been different.
6. None of these judicial verdicts are repugnant
to true Muslim law. The Qur'an regards marriage as a 'misaq-e-ghalid' between
the parties whose sanctity must be respected by all possible means.
7. Only in cases of exceptional hardship does
the holy book of Islam allow dissolution of a marriage, clearly laying down for
that undesirable act a step by step procedure which includes attempting a
reconciliation by arbiters representing the parties: "Should a breach
between the spouses be feared appoint one arbiter each from amongst his and her
people; if they see any chances of reconciliation God will give it due
effect".
8. If a talaq is pronounced otherwise, it will
theologically be improper and repugnant to Islamic law. The courts are fully
aware of these salient features of Islamic matrimonial law restated in several
books written in modern languages and incorporated into the family-law statutes
adopted across the contemporary Muslim world.
9. Therefore, if contesting a maintenance-claim
des-perately filed by a deserted wife the husband claims to have Declaring
dissolution of marriage to be 'abghad-ul-mubahat indallah' (of all legally
permissible things most detes-table in the sight of God), the Prophet had
warned his people to keep away from it.
10. True Muslim law, in fact, stood for what is
now known as the breakdown theory of divorce - if a marriage has irretrievably
broken down Muslim law would allow its dissolution, at the instance of either
party or by mutual consent of both parties.
11.
An out-of-court divorce is available in such a case to both the man and wife,
though provisions do exist also for a judicial divorce.
12.
The facility of out-of-court divorce is aimed at protecting privacy of intimate
relationships and is furnished in the hope that the aggrieved spouse would
behave in a God-fearing and responsible manner.
13.
A court of justice in our times cannot be expected to be instrumental to the
abuse and exploitation of what under the law of Islam is a per-missible but
highly discouraged course of action.
14.
The All India Muslim Personal Law Board (AIMPLB), after years of hard labour,
has prepared a new monograph on personal law in Urdu. Titled
Majmu'a-e-Qawanin-e-Islam, on the board's request it was translated into
English as Compendium of Islamic Laws. The board published both the original
Urdu text and its English translation in 2001.
15. The verdict of AIMPLB in respect of divorce
is: "The Shariat regards divorce as a permissible but undesirable act...
Uncontrolled use of divorce without regard to the restrictions imposed by the
Shariat is a gunah. To divorce the wife without reason only to harm her and in
violation of the procedure prescribed by the Shariat is haram".
16. How, then, can the
judiciary in 21st century India be expected to legalise a reprehensible conduct
which in the eyes of Islam is not simply an ordinary gunah (sin) but is
admittedly haram (absolutely prohibited)?
The matter merits serious consideration by the Muslim
ulama and contemporary votaries of Shariat laws.
51. Therefore keeping in view the facts and circumstances of the
case and the set of facts as proved during the course of trial, and applying
the holy Koranic Law, readwith the law of the land, as both of them are in
perfect harmony rather than any contradiction, in the words of hon’ble apex
court, "neither the marriage between
the parties stands dissolved on August 19th, 2008. nor does the liability of
the husband to pay maintenance comes to an end on that day. The husband shall
continue to remain liable for payment of maintenance until the obligation comes
to an end in accordance with law." As such finally maintenance to the tune
of rupees 5000.00 per month is awarded w.e.f. the date of application. Arrears
if any shall be paid in equal monthly instalments apart from the maintainace
amount, till they are liquidated.
52. Apart
from this costs are also awarded to the tune of rupees 20,000. To the applicant
as she has been un-necessarily vexed and tormented in the instant litigation
and following the words of Hazrat-e-Umar, “By God, he that is weakest among you
shall be in my eye the strongest, until I have vindicated for him his
rights; he that is strongest I will treat as the weakest, until he complies
with the law.” {Hazrat
Umar Second Caliph of Islam.}Wherein this Court has come to the conclusion that
a mischief has been played upon the applicant.
Case file is disposed off in these
terms, but before parting with the file it is imperative upon this Court to
take judicial note of certain things, as such, petition writer, Mohammed Yusuf
is directed to submit his register of deeds from the records and also notice be
issued to notary public, Habibullah Bhat, district Court Baramulla, to appear
before this Court and show cause as to why action as warranted under law be not
initiated against him. Office to call for original registers of both Habibullah
Bhat notary and Petition Writer Mohammed Yusuf from the district record room
for the year 2008.
Announced:
28th Sept;2012.
( M.A.Alnasir)
Special Mobile
Magistrate Electricity,Pattan.
COURT OF
JUDICIAL MAGISTRATE IST CLASS PATTAN KMR.
SPECIAL MOBILE
MAGISTRATE ELECTRICITY, PATTAN.
Present :- Mahmmud Anwar Alnasir
File No.13/M D.O.Inst: 09-09-2008. D.O.Dec: 27.07.2012.
In the case of:
Shazada
Begum W/O Shabir Ahmed Malik R/O Magraypora Pattan.
Versus.
Shabir Ahmed Malik S/O Ghulam Nabi Malik R/O
Magraypora Pattan.
In the
matter:
Application
under Section 488.Cr.P.C.
JUDGEMENT ORDER
“By
a deplorable, though natural, development of the Sunni Law, it is the fourth
and the most disapproved or sinful mode of divorce (that is the ‘bidai’ form)
that seems to be most favoured even by the law itself.” [Mr.
Tayabji's Muhammadan Law ] 115 Ind Cas 546.
L.C.s for the parties present.
1. The instant
application was presented before this court on 09-09-2008, and
after recording preliminary statement of the applicant, interim application was
allowed on 31.12.08. and the non-applicant was summoned by the court.
Non-applicant caused his appearance on, 29.09.2008. and sought time to file
objections.
1.1. The brief facts of the case are that, the
applicant is wedded wife of the non-applicant and the marriage having been
solemnized in accordance with shariat and both the parties reside
within the jurisdiction of this Court. That after sometime of the marriage, the
husband started misbehaving with the, applicant and started maltreating her.
She was subjected to wild abuses and meanest fashion of torture and her life
became miserable and agonising. That despite her requests, the attitude of the
non-applicant did not change, and he started thrashing her. This resulted into
forcing her to leave the matrimonial house and presently she is residing with
her parents and in the meantime applicant has not bothered to maintain her or
take care of her. The non-applicant is a resourceful person and working in
education department, apart from having landed properties, while as applicant
has no source of income to sustain herself. It may not be out of context to
mention that, despite interim-order of Rs.500.p.m. the maintainace, was
challenged initially by means of OWP.No.809/2009, which was disposed off wide
order dated; 11.05.2010. and later challenged by way of 561-A. No.82/2010.
Clubbed with OWP.No. 809/2009., Which was disposed off by virtue of order
dated; 28.09.2011. Prior to this a Revision petition was also filed before ld.1st.
Addl. District Judge Baramulla, which came to be decided by virtue of order
dated: 06.08.2009.
2. The
brief gist of the evidence on record of the witnesses examined during the
course of trial is as follows:-
2.1. Statement
of applicant, who stated in chief that the non-applicant is her husband and
they were married in the year 2005. Than non-applicant developed relations with
another girl, and the non-applicant left any sort of communication with her and
started neglecting her. Than the parents of non-applicant told applicant to go
to her parental house for 10/15 days and they accompanied her. Now she has only
her widow mother, and she has nobody else to fall back. Her widow mother has no
income of her own, and the landed property whatever was has been partitioned
amongst her bretheren who are all residing separately. The applicant incurs an
expenditure of rupees 8-10 thousands per month. Non-applicant is an employee of
education department, and is working as a teacher. The non-applicant’s father
is also an employee of electricity department and works as a lineman. Apart
from this non-applicant owns orchard and irrigated land also. In
cross-examination she stated that, she did not give birth to any child. Both
she and non-applicant reside in same locality. If a man has divorced his wife
he cannot allow her to live with him, she doesnot know that. A woman cannot
reside with a man with whom she has no relation. She doesnot know shariat. She cannot say as to whether a man can
divorce his wife or not? This is wrong to say that prior to this also she had
case against the non-applicant, laer she says , yes. She does not know anything
about “Talaq” nor she has taken ‘Talaq’. She is unable to state
whether there is unilateral talaq? Divorce did not happen, nor
any such document was received by post, nor any such document reached her home.
She had not even heard of talaq from the toungue of
non-applicant, here in the court. In her opinion talaq is that which happens
in front of her and on which she puts her thumb impression. She has come to the law and only law will
decide what exactly ‘Talaq’ is ?
2.2. Statement
of PW1.
Mehraj-ud-din Malik, as recorded on 24.04.2009. , stated that he knows
the non-applicant and applicant is his wife. Nikkah was performed in
between the parties five years ago. Only for two three months the relations
were conducive. Thereafter the father-in law of the applicant told her to go to
her maternal house, till he prevails upon the no-applicant and he comes to
senses. Eversince the applicant is staying in her maternal house. Her burden
has fallen on her widow mother. Non-applicant is a teacher by profession. His
income is rupees 1500.00 pm. and apart from that he is well off from his house.
He must be having landed property about 60 Kanals. And orchard about 40 Kanals
yielding a profit of Rs.15/16 lakhs per year. The father of the non-applicant
is a lineman, as such he has only to look after the applicant. Applicant
requires Rs.5000.00 as monthly maintainence.
In cross
examination he states that, he follows Sharia and both the parties also
follow Sharia. Non-applicants father is alive. Father is the owner of
his property. If the owner wants, the house could be run on his income only.
The family relations remained conducive only for three months and not
thereafter. Thereafter this PW doesnot know what happened! Whether any divorce
has taken place in court or not he does not know! The respectable of the locality know it! This
is true to say that, what is done by self is not proper. Who can pronounce
divorce this PW doesnot know?
2.3. Statement
of PW
2, Ghulam Ahmed Hurrah, as on 31.12.2008. States that he knows that
non-applicant is the husband of the applicant. She was married four years ago. Only
for three months she stayed at her matrimonial house. Than her father-in-law
came alongwith her to her house, and eversince nobody came to lookafter her.
Than she was compelled to approach the court. Non-applicant is a government
teacher. His monthly income must be 5-8 thousand rupees. The non-applicant has
an orchard also, which also supplements their income by 3 lakhs annually. His
father is also a government employee and is earning, 8-10 thousands.
Non-applicant has no liability on his shoulders.
In cross
examination states that, he is maternal uncle of applicant. Parties are ‘sunni’
Muslims and are governed by the religions. Father of non-applicant is alive and
landed property is in his name. This is wrong to state that non-applicant has
divorced applicant. This PW or anybody else donot have any such knowledge! This
PW stays in a different village and the village of the applicant is 3kms away
from her village however often visit their house. He has no knowledge of ‘Talaq’!
This PW has no knowledge about talaq or khulla. Non-applicant is
a teacher for the last four years but he cannot say that, non-applicant is
R.E.T or permanent teacher ? Non-applicant has perhaps three sisters; this PW
had last visited the house of the non-applicant, one year ago. There has been
one decision of the brotherhood as well, which was violated by the
non-applicant. This witness doesnot know as to whether the copy of the said
decision is with the file or not? Father
of applicant is not working as he is ailing. Applicant is living a life of
destitution and she is being maintained by her father at present. Non-applicant
is having affair with some other women her name is ‘Fehmida’, however her
parentage is not known to this witness.
2.4. Statement
of PW.3. Irshad Ahmed Malik, as
recorded on 09.03.09. He knows the parties, and they were married four years
ago. Non-applicant has kept he separate, applicant is the wife of
non-applicant. Only for six months they were together. Than non-applicant sent
her to her maternal house and eversince, never came back to enquire about her.
There is nobody to nurture her, as she is without any support. She has no
source of income nor, non- applicant has given her any maintenance so far.
In cross
examination states that, applicant is her cousin and he visits their house.
This PW is a Sunni Muslim and obeys religions. And obey the religious
commands in daily business as well. It is true that if any Muslim divorces his
wife than husband and wife reside separately and donot stay together. This PW
follows religions and shariat. Muslim has a right to divorce his
wife. When there is Talaq than there is no relation.
Whether Talaq has happened or not this witness doesnot know?
2.5. Statement
of PW.4. Ghulam Mohammed Mir, as recorded on
24.03.09. Applicant is wife of non-applicant Shabir Ahmed Malik whom he knows.
She stayed with non-applicant for one year. Thereafter the attitude of the
non-applicant changed and it was not as it ought to be. For the last three
years she is staying with this witness’s house. Her father expired recently.
She is being looked after by her brothers. Non-applicant never bothered to take
care of her. She does not have any source. Non-applicant is a government
servant, he is a teacher. He has sufficient income and well off from house as
well. His father is a lineman.
In cross
examination states that, he is uncle of applicant and resides in the same
village where, non-applicant resides. This PW is farmer by occupation. When a
man divorces a woman the relation comes to an end. This is true that they never
received Talaq. As a Muslim this
PW cannot say whether a man has unilateral right to divorce or not? This PW cannot say whether non-applicant
has divorced her or not? Non-applicant wants to divorce applicant.
2.6. Statement
of PW.5. Bashir Ahmed Malik as recorded on 09.04.09. In examination in chief he
states that, he knows the parties and non-applicant is the husband of the
applicant. Its fifth year of their marriage. Only after two months of marriage,
non-applicant threw her out of the matrimonial house and deserted her. She
stays at her father’s house. The non-applicant never comes to applicant’s
house. She has no income to sustain herself. Applicant’s father expired and her
brethren are occupied in their own problems. Non-applicant is a teacher by
profession, but this witness could not say how much he earns? He
[non-applicant] has liability of only applicant. Non-applicants father is also
employed.
In
cross-examination the witness stated that; he is brother to applicant.
Non-applicant’s father is alive. The property is in his name and he has two
/four daughters and three sons. This PW is Muslim, but does not strictly
follows, shariat. If the non-applicant claims he has divorced the applicant,
this witness has not received any divorce. Nor Talaq has been pronounced in his
knowledge. This true that a man has right to divorce. Parties have no issue.
This PW is not conversant with shariat, as such he cannot say how Talaq is given,
however there has been no Talaq. People who know shariat can say as to under
what conditions Talaq happens.
2.6. Therefore from the testimonies of the witnesses of the applicant it
could be safely said that the following facts are proved which are enlisted
herein below:
a.
Applicant is the wedded wife of
the non-applicant.
b.
She has no source of income to
sustain herself.
c.
She was deserted by her husband
in the very few months of marriage, i.e. three to four months and ever since,
she is staying in her maternal house.
d.
Her husband has never,
thereafter, cared for her or sent her any maintainace, or any resource for
sustenance.
e.
Applicant’s father has also
expired during the course of trial.
f.
Non-applicant is a government
employee, and a teacher by profession.
g.
Non-applicant’s father is alive,
he is a government employee and all the properties are still in his name, which
include landed properties even.
h.
Non-applicant has no liability of
any kind from his family.
i.
There has been no divorce, nor
has it been communicated to the applicant or any of her relatives. Nor they
have any knowledge of the same.
j.
That people though admit to being
Muslims and governed by ‘shariat’ yet they are not clear as to how, divorce is
conducted in ‘shariat’.
k.
The testimonies also prove that
there have been no efforts of reconciliation as required under law, especially
Koranic law.
3. The statements of testimonies
on behalf of the non-applicant are reproduced herein below:
3.1. Statement of witness of non-applicant, DW.1. Abdul Hamid Lone as recorded on
22.01.11. States in chief that, he knows the parties and two / three years ago
marriage of applicant was solemnized with non-applicant. For two years the
relation was alright than there was trouble. 19th August 2008, Talaq happened. That time it happened in
the Court. Petition writer Mohammed Yusuf scribed the tallaq-nama and was written in front of this witness. Non-applicant
relieved applicant from being his wife. This witness is a witness to the tallaq-nama. The witness admits the
contents of the document annexed with the file, and the same is admitted by him
as such is exhibited as EXPW-1. The non-applicant had sworn at the time of
writing of Talaq- name also. After
the scribing of tallaq-nama, the
applicant and non-applicant did not remain husband and wife. Now also there is
no relation between the parties, eversince, 19th August 2008 and the
relationship has come to an end.
In cross examination the witness
stated that non-applicant is his sister-in-law’s son. In about 20 days he goes
to the house of non-applicant and knows his house. Prior to Talaq, about two
years the marriage took place. This witness was present in that marriage and
relatives as well as neighbors also attended the same. Prior to scribing of Talaq, this witness was not present in
any such mediation nor does he know that any such thing happened. At the time
of writing tallaq-nama, he was
accompanied by, Bashir Ahmed, Ghulam Nabi, Ghulam Ahmed, Abdul Hamid. At
that time applicant’s brother and applicant were present themselves however he
does not know whether the applicant or her brother had signed that tallaq-nama or not? This witness
follows shariat. Does not know how many kinds of Talaq are provided! He doesnot know Talaq is of how many kinds and which mode non-applicant has
adopted. non-applicant had scribed in the tallaq-
nama, “ Bu-
chush ye muklawaan- .”
[in Kashmiri; mening ‘I am finishing this’]. The other witnesses,
Ghulam Ahmed, Abdul Hamid and ghulam Nabi signed the document. It was written
by petition writer, Mohammed Yusuf. This witness knows that the issue of
property etc. was also settled. What is written this witness doesnot know!
There were differences between the parties. This witness has gone many a times
to the house of the non-applicant. When applicant was residing with
non-applicant, what was the internal difference between them this witness
doesnot know? Non-applicant is a teacher and was confirmed some two years back.
His monthly income is approximately Rs.18000.00. non-applicant has sufficient
property in his ancestry. Till Talaq,
applicant’s maintenance is the responsibility of non-applicant.
3.2. Statement of witness of
non-applicant, DW.2.Ghulam Ahmed Tantray;
stated in chief that, he knows the parties and they were husband and wife. Then
Talaq happened and khulla happened. In District Court. It was at a different
place in those days. Petition writer Mohammed Yusuf scribed the khulla-name and this witness was present
on spot. This witness has signed the document and recognizes his signature. The
same has been already exhibited as EXPA-1. He does not know which type of Talaq happened? However Mohammed Yusuf had given him the oath
that ‘you are giving Talaq in your senses’.
In cross-examination he states that,
he is the paternal uncle of non-applicant and stays at a distance of one
kilometer from the house of the non-applicant. He goes to their house 2/3 times
a day, at times even once a month. This witness was present in the marriage of
the parties, but when it was solemnized, he does not remember the date. For one
or two months parties were alright than it deteriorated. This witness does not
know why it strained? He was not party to any decision. 19th August
this witness came in the Court and scribed the tallaq-nama alongwith Bashir Ahmed Lone, Abdul Hamid Lone, Mohammed
Ramzan Tantray. Applicant or her brother was not with them. This witness
does not know how many types of Talaq
are there! Nor does he know that non-applicant had written which type of Talaq? Non-applicant is a government
employee, working as a permanent teacher, however this witness doesnot know his
salary.
3.3 Statement
of non-applicant, Shabir Ahmed Malik [non-applicant]
as his own witness, as recorded on 06.02.2012., states that he knows the
applicant and her name is Shahzada Begum. She belongs to Magraypora. There is
no relation between us. Applicant had Nikkah,
and she was often quarrelsome with this witness as well his folks and owing to
this reason she always preferred to stay at her father’s house. Than this
witness had many a people sent for her but she did not budge. Thereafter he was
forced to give Talaq. Talaq was
written in the Court. Petition writer Mohammed Yusuf wrote it. He admits the
contents of the tallaq-nama, which
was shown to him and also his signatures on it. Maher has been payed earlier and there is no relation between him
and the applicant nor has she given birth to any child. While scribing tallaq-nama, this witness had got three
witnesses also with him. Than this witness has taken wows, three times before
petition writer. He asked me to swear that, “Bu chus Shahzada’s puniyas
nafasas peth harraam karan”--- “
.’[in vernacular Kashmiri; meaning
thereby; that, “I am forbidding
Shahzada on myself”] petition writer Yousaf sahib scribed the
tallaq-nama and this witness signed it. Then the tallaq-nama was sent to the
house of applicant by post (Registered post).
Perhaps she might have refused to receive it. And the receipt of the
envelope from the post office, this witness has seen, it is marked as EXP-S-1.
Receipt was shown to the witness no. RL1150. With the endorsement, addressee,
refused to take the envelope. The receipt is identified by this witness as such
is exhibited as EXP-S-2., and identifies the envelope and the tallaq-nama, annexed with the file and
same is exhibited as EXPA-1. He received summon from the court that there is
some case against him. At the time of writing the Talaq, applicant had not
filed case against him.
In cross-examination stated that, he
is a government teacher. He was recruited as RET on 08.08.2004. And got
regularized in the year 2009. The person who was sent to applicant’s house
included, Abdul Gani Malik and Maternal Uncle of his. The kinsfolk also settled
the matter. What they decided, this witness doesnot know? Nobody from his
side of relatives was present in the said kins meeting. The witness is
B.Sc.Medical and knows little bit of shariat. There are two types of Talaq, Talaq-e-bayin and Talaq-she. And the
requirements of Talaq are, there should be Nikkah between the parties, than man
can divorce any time his wife. This witness doesnot know what is ‘seh-tallaq’ and what is ‘Talaq-e-Bain’? At the time of writing
tallaq-nama, petition writer Mohammed Yusuf, Ghulam Ahmed Tantray, Ghulam Ahmed
Lone, Abdul Hamid Lone and Mohammed Ramzan Tantray were present. On the second
day of writing of tallaq-nama, the petition
writer handed it over to him. This witness does not know who notarized it? He does not remember when he posted it in the
name of applicant. He also does not remember the date when it was returned to
him. It was still enclosed in the
envelope. This witness does not remember as to the tallaq-nama, annexed
with the file was closed in the envelope or open? Nor he remembers that the
tallaq-nama was given closed or open to the lawyer?
On examination by the Court, stated
that, he took all the three wows in front of the three witnesses and not
separately at different times, before them. Whether anybody informed his wife,
the applicant about the contents, this witness does not know? While filing the
case before the court, this witness has expressed that, he has divorced her. This witness has given Talaq to his wife
when she was in court. Both of them were present in the court room, and
lawyer presented the tallaq-nama before the court.
3.4. Statement of DW.3. Mohammed Yusuf, petition writer, Court Pattan as recorded on
06.02.2012. in examination in chief states that, he works as a petition writer
in this court, and non-applicant had got scribed a tallaq-nama from him. And he has written it. The witness has seen
the document which is in his hand and he identifies his signature, and it has
already been exhibited as EXPA-1. It was formulated on 19th August
2008. And same was scribed at the instructions of Shabir Ahmed Malik,
non-applicant. This witness had asked non-applicant as to whether he was so
doing out of his own free will? This witness had read over the contents to the
non-applicant, who repeated the same in his own tongue, “I Shabir Ahmed Malik, out of his own free will hereby render Talaq
to applicant” in Urdu language, “
.”
In cross-examination the witness
stated that, he does not remember the time however, date he remembers. The
marginal witnesses were brought by the non-applicant alogwith him. That by
single irrevocable Talaq, [Talaq-e-Bain] Shabir Ahmed Malik, forbade upon his
person the person of Mst.Shahzada. In the sect followed by his witness there
are two types; ‘Seh-tallaq’ and ‘Talaq-e-Bain’. At the time of Talaq,
the person should be of sound mind, and there should be witnesses. This witness
doesnot know what ‘tuhar’ [menstrual cycle] means. Talaq-e-Bain
is the kind of Talaq, where there
should have been Nikkah between the
parties and the person who intends to Talaq
should be in his senses, and there have to be witnesses. It is not
necessary that the marriage has been consummated or not. In the opinion of this
witness, if Khutba-e-Nikkah has been
solemnized between the parties, ‘Man’ can give Talaq. This DW cannot say when Talaq
becomes irrevocable? This Talaq is
correct as per Shariat and law. As per shariat
any ‘man’ can divorce his ‘wife’. It is the will of the ‘man’ as to when and
how he pronounces the Talaq. The document was given after due
completetion to the non-applicant. The document
is signed by the executant, and the signatures of the witnesses, and then it
was registered in the register of this witness. It was thereafter returned to
the executant. This DW does not know the names of the witnesses. Their names
must be on the tallaq-nama. Usually
this DW keeps two major witnesses, however on this document there are three
witnesses. Whatever the non-applicant had said must have been written, this DW
does not remember it by heart. Only after seeing the document this DW can say
whether it makes a mention of ‘Maher’.
3.5. Statement
of DW.4. Mohammed Subhan Wani, as
recorded on 23.02.2012.; in examination in chief states that; he works in the
department of post as village postman. Magraypora also falls in his
jurisdiction. He is supposed to keep record of service of registry. Receipt
enclosed with the file is correct and is marked already as EXPS-1. There is
another document on the file which is authored by this DW and the same is
marked as EXPS-II. It is in his hand and signatures. He knows the applicant. He had gone to her house alongwith the
envelope, but she refused to receive that registered envelope. Than
this witness returned it to the sender as per the departmental norms. This DW
knows the applicant personally, and when he had gone there to deliver the same,
Shahzada’s sister-in-law and mother refused to receive the same. Shahzada replied to this postman that it
contains Talaq and she doesn’t wants to have it.
In
cross-examination the witness stated that, he is working with the department
for the last 35 years as village postman. Envelope was posted by whom this
witness does not know. This DW doesnot has information as to which envelope
contains what? On 23.08.2008. He had
gone with the post at her residence. This
witness never knew what was inside the envelope? This is also true that
receiver does not know as to what is inside the envelope? This DW did not
deliver an open envelope to the applicant. What was inside the envelope even
applicant never knew it. After her refusal it was returned to the sender.
This witness has written on the envelope, that applicant refused. He did not
saw that envelope today in the court. The receipt which is enclosed with the
file, which this witness can give on demand of the party. This witness is
educated till 10thClass. On
the receipt which is enclosed with the file, the parentage of the applicant is
not written by this witness. Non-applicant had asked this witness that
Judge has called you, or else he has not received any summons from the Court.
This witness has come to the court alongwith non-applicant.
3.6. Statement
of non-applicant’s witness, DW.5.
Mohammed Ramzan Tantray as recorded on 14.02.2012. In examination in chief
states that; he knows the parties and they are husband and wife. They had
solemnized Nikkah. Thereafter there
was misunderstanding and things deteriorated further. Than non-applicant took
wows and gave Talaq to applicant.
This witness knows about this Talaq.
It was delivered in the Court. It was written. After it was written, than non-applicant took oath. That is
what this witness knows; Talaq-e-Bain
was given by non-applicant. Later what happened this witness doesnot know? He
has signed as a witness alongwith Ghulam Ahmed Tantray and Hamid Ahmed Lone.
This witness is unlettered. DW was shown nikkah-nama,
he failed to recognize his thumb impression. This DW admits the contents of the
tallaq-nama, which is already
exhibited as EXPA-I. No relationship exists amongst the parties. Parties are
Muslims, ‘sunni’ Muslims and follow
religion. The relation ceases after Talaq.
In cross
examination he states that; he resides ½ km away from the house of parties. He
visits the house of the non-applicant twice a day. Mother of non-applicant is
this DW’s niece. Who mediated between the parties for relationship this DW
doesnot know? 3- 31/2 years the marriage continued. He has no knowledge about Maher. Who all were witnesses on nikkah-nama, this witness doesnot know.
The trouble started at a very initial stage, however what was the cause, this
DW cannot say? This witness never went to get applicant from her house. No
mediation or decision took place between the parties. On 19th August
2009 this DW came to Court with non-applicant. Than Talaq was written, non-applicant had repeated ‘seh-tallaq-abai’. Three times non-applicant said, ‘seh-tallaq-abai’. This DW admits he is
uneducated as such doesnot know shariat.
He has heard it from moulvi sahib
that, Talaq extinguishes relationship. Does not know what the requirements of
Talaq are. After scribing the tallaq-nama, the petition writer told this
witness to put his thumb impression. In the knowledge of this witness
non-applicant or his father has not done any settlement with the applicant.
4. Now therefore from the evidence on record on behalf of the
non-applicant, the following facts emerge as proven:
a.
That the non-applicant is married
to applicant.
b.
Non-applicant is a government
teacher earning handsomely as he is now permanent employee earning more than
Rs.18000.00.p.m. and has no liability upon him.
c.
That the divorce deed is scribed
by a person who is himself not conversant with the ‘shariat’ or the law of the land, and even the non-applicant himself
does not know the mode prescribed for pronouncing divorce and the procedure as
required for the same in terms of ‘Koranic
law’.
d.
That how the divorce became
effective, and what were the words uttered by the non-applicant, are also in
variance in terms of the varying statements of the petition writer,
non-applicant and the marginal witness as each one had his own version of the
words used.
e.
That there has been an attempt on
behalf of the applicant and her kin to initiate reconciliation, however, the
non-applicant and his family had abstained from the same.
f.
The so called ‘tallaq-nama’ is an afterthought, and
produced later during the trial, making it predated, as the notarization was not done on the same
day by the non-applicant, nor non-applicant had ever been to the notary;
therefore under the circumstances, the
attestation of the execution becomes fraudulent. This could be easily
corroborated by the testimony of the postman as well who refuses to have
written the name of applicant’s father on the EXP-S-II. [Slip issued by
postman].
4. Even if it is assumed that
tallaq-nama is scribed and communicated, as claimed by the non-applicant in
open court, can it be termed as divorce as recognized and acceptable as per
‘shariat’, Koranic injunctions and OR the law of the land? If so, what is the
status of the applicant and what are her rights under the Section 488Cr.P.C.
5. Brief
arguments at bar by both sides:
5.1. It
has been argued on behalf of the L.C. for applicant that, the applicant, right
from the outset has been victimized, by the non-applicant who did not even
bother to look at her condition. If at all he was having an affair with someone
else, as stated by the applicant, he ought not to have spoiled the life of an
innocent girl. It was only 3/4 months of marital life, when the non-applicant
started maltreating her. Rather than being a responsible husband who fulfills
the needs of his wife, the non-applicant became obstinate and threw her out of
his hose after torturing her. The applicant has been subjected to a worst kind
of domestic violence and mental torture. She was constrained to leave the
matrimonial house. Now that her father has also expired, she has nobody to fall
back except for her destitute mother who herself is dependent upon somebody.
The non-applicant is not bothered even about the society and did not respond to
the biradari, nor was ready to comply
with their decision. Now after the trial once it has been proved that the whole
divorce deed being a sham, and a fabricated document, the Court must take a
strict note of things. It is height of things that a document has been
notarized, without the presence of the executants. The witnesses also could not
prove as to what was written in EXPA-I, as every witness had a different
version of the words employed to divorce. Moreso the requirement as required in
the Hon’ble apex Court Judgment in Shamim Ara’s Case,(AIR 2002) SC.p.3551. and
also as per 2006(I) SLJ. p.145.
Therefore
it has been vehemently argued by the L.C. for the applicant that, she be given
maintainace commensurate to the status being enjoyed by her husband. She incurs
an expenditure of rupees 5-8 thousands per month, and now that the upper limit
in 488Cr.P.C. has been done away with, taking into consideration, the value of
Market she is granted maintenance from the date of institution of this suit.
5.2. On
the other hand it has been argued that, ‘Talaq’
is a Muslim man’s basic religious right and it cannot be denied to him under
any pretext. Since the non-applicant had already divorced the applicant much
before her application for maintainace, as such she has no case much less a
case against the answering non-applicant. As the relationship between the two
has been extinguished by ‘triple Talaq-e-Bain’.
Since the non-applicants follow the Sunni school of thought in Muslim law, and
the Sunni law recognizes this mode of Talaq as valid one, especially when it is
prior to the proceedings under Section.488. Since there does not exist any kind
of relationship between the parties, therefore the non-applicant cannot be
saddled with the maintenance of strangers. The requirements of Talaq as
prescribed under the Shariat Act has been complied with therefore nothing
remains to be adjudicated any further, as such has prayed for the dismissal of
the application with cost.
6. I have
heard the parties alongwith their counsels, and arguments adduced at bar, the
materials placed before me, including the documents, pleadings, testimonies of
witnesses from both the sides and the law relevant to the issue on the point
involved. It becomes my bounden duty to clarify certain concepts of Holy Quran,
shariat, ahadees, Sunna, bidda etc. and to explain them it also becomes
imperative to have a broader perspective view of the concepts involving Talaq
or divorce. To begin with:
a.
The Hon’ble Supreme Court in the Landmark Judgment of Hon’ble
Supreme Court in Shamim Ara’s case, as reported in AIR, (2003). S.C. p.3551.placing reliance upon the text of Holy “Quran” and
citing, the references from ‘Surat-an-Nissa’ have reiterated what has been
already expounded in the Islamic law, i.e. purely in terms of Koranic law and
no Muslim can deny the Koranic injunctions as commanded upon him by the
Almighty Allah, through his messenger, Prophet Mohammed (
Sallillah-o-alihi-wasallam).
7. The text of ‘Surat-an-Nissa’ is given here below
for ready references:
Surat
An-Nisā' (The Women) - سورة النساء
الرحمن الرحيم بسم الله
O mankind, fear your Lord, who created you from one soul and created
from it its mate and dispersed from both of them many men and women. And fear
Allah , through whom you ask one another, and the wombs. Indeed Allah is ever,
over you, an Observer.
And if you fear that you will not deal justly with the orphan girls,
then marry those that please you of [other] women, two or three or four. But if
you fear that you will not be just, then [marry only] one or those your right
hand possesses. That is more suitable that you may not incline [to injustice].
And give the
women [upon marriage] their [bridal] gifts graciously. But if they give up
willingly to you anything of it, then take it in satisfaction and ease.
And do not give the weak-minded your property, which Allah has made a
means of sustenance for you, but provide for them with it and clothe them and
speak to them words of appropriate kindness.
For men is a share of what the parents and close relatives leave, and
for women is a share of what the parents and close relatives leave, be it
little or much - an obligatory share.
But if you
want to replace one wife with another and you have given one of them a great
amount [in gifts], do not take [back] from it anything. Would you take it in
injustice and manifest sin?
Sahih International
And how could you take it while you have gone in unto each other and
they have taken from you a solemn covenant?
Men are in
charge of women by [right of] what Allah has given one over the other and what
they spend [for maintenance] from their wealth. So righteous women are devoutly
obedient, guarding in [the husband's] absence what Allah would have them guard.
But those [wives] from whom you fear arrogance - [first] advise them; [then if
they persist], forsake them in bed; and [finally], strike them. But if they
obey you [once more], seek no means against them. Indeed, Allah is ever Exalted
and Grand.
And if you fear dissension between the
two, send an arbitrator from his people and an arbitrator from her people. If
they both desire reconciliation, Allah will cause it between them. Indeed,
Allah is ever Knowing and Acquainted [with all things].
8. Further the Holy
Quran goes on to explain:
Verse. 34. Men are the protectors and maintainers of
women, because Allah has made one of them to excel the other, and because they
spend (to support them) from their means. Therefore the righteous women
are devoutly obedient (to Allah and to their husbands), and guard in the
husband's absence what Allah orders them to guard (e.g. their chastity,
their husband's property, etc.). As to those women on whose part you see
ill-conduct, admonish them (first), (next), refuse to share their beds, (and
last) beat them (lightly, if it is useful), but if they return to obedience,
seek not against them means (of annoyance). Surely, Allah is Ever Most High, Most Great.
35. If you fear a breach between them twain
(the man and his wife), appoint (two) arbitrators, one from his family and the
other from heir’s; if they both wish for peace, Allah will cause their
reconciliation. Indeed Allah is
Ever All-Knower, Well-Acquainted with all things.
36. Worship Allah and join none with Him in
worship, and do good to parents, kinsfolk, orphans, Al-Masakin (the poor), the neighbour who is near
of kin, the neighbour who is a stranger, the companion by your side, the
wayfarer (you meet), and those (slaves) whom your right hands
possess. Verily, Allah does not
like such as are proud and boastful;
113. Had not the Grace of Allah and His Mercy been upon you (O Muhammad (SAW),
a party of them would certainly have made a decision to mislead you, but (in
fact) they mislead none except their own selves, and no harm can they do to you
in the least. Allah has sent down to you the Book (The Qur'an), and Al-Hikmah (Islamic laws, knowledge of
legal and illegal things i.e. the Prophet's Sunnah - legal ways), and taught you
that which you knew not. And Ever Great is the Grace of Allah unto you (O Muhammad (SAW)).
127. They ask your legal instruction concerning
women, say: Allah instructs you about them, and about what is recited unto you
in the Book concerning the orphan girls whom you give not the prescribed
portions (as regards Maher and inheritance) and yet whom
you desire to marry, and (concerning) the children who are weak and oppressed,
and that you stand firm for justice to orphans. And whatever good you do, Allah is Ever All-Aware of it.
128. And if a woman fears cruelty or desertion
on her husband's part, there is no sin on them both if they make terms of peace
between themselves; and making peace is better. And human inner-selves are
swayed by greed. But if you do well and keep away from evil, verily, Allah
is ever Well-Acquainted with what you do.
129. You will never be able to do perfect
justice between wives even if it is your ardent desire, so do not incline too
much to one of them (by giving her more of your time and provision) so as to
leave the other hanging (i.e. neither divorced nor married). And if
you do justice, and do all that is right and fear Allah by keeping away from
all that is wrong, then Allah is
Ever Oft-Forgiving, Most Merciful.
130. But if they separate (by divorce), Allah will provide abundance for every
one of them from His Bounty. And Allah
is Ever All-Sufficient for His creatures' need, All-Wise.
9. The other source for elucidating and interpreting the
commands of ‘Holy Quran’ is the Hadith. What actually ‘Hadith’ means could be
gathered as below:
a. Hadith:
1.
A ḥadīth (Arabic: حديث, ) (plural: hadith, hadiths, or aḥādīth) is a saying or an act
or tacit approval or disapproval ascribed either validly or invalidly to the Islamic
prophet Muhammad
(SAW).
[ Islahi, Amin Ahsan (1989 (tr:2009)) (in Urdu). Mabadi
Tadabbur-i-Hadith (translated as: Fundamentals of Hadith Interpretation). Lahore: Al-Mawrid. Retrieved 2 June 2011.]
2. Hadith are regarded by traditional Islamic schools
of jurisprudence as important tools for
understanding the Quran and in matters of jurisprudence. [^ Islahi, Amin Ahsan (1989 (tr:2009)) (in Urdu). Mabadi
Tadabbur-i-Hadith (translated as: Fundamentals of Hadith Interpretation). Lahore: Al-Mawrid. Retrieved 2 June 2011.]
b.
Hadith were evaluated and gathered
into large collections during the 8th and 9th centuries. These works are
referred to in matters of Islamic law and history to this day. The
two largest denominations of Islam, Shiʻa and Sunni, have
different sets of hadith collections.
c. In Islamic terminology, the term hadith refers to reports of statements or
actions of Muhammad, or of his tacit approval or criticism of something said or
done in his presence. [Lisan al-Arab, by Ibn
Manthour, vol. 2, pg. 350; Dar al-Hadith edition.]
d. Classical hadith
specialist Ibn Hajar al-Asqalani says that the intended meaning of hadith in religious tradition is something
attributed to Muhammad (SAW) but that is not found in the Quran.[ al-Kuliyat by Abu
al-Baqa’ al-Kafawi, pg. 370; Mu'assasah l-Risalah. This last phrase is quoted
by al-Qasimi in Qawaid al-Tahdith, pg. 61; Dar al-Nafais.]
e.
Traditions of the life of
Muhammad (SAW) and the early history of Islam were passed down mostly orally
for more than a hundred years after Muhammad's(SAW) death in AD 632. Muslim
historians say that Caliph Uthman ibn Affan (the third khalifa
(caliph) of the Rashidun Empire, or
third successor of Muhammad (SAW), who had formerly been Muhammad's(SAW)
secretary), is generally believed to urge Muslims to record the hadith just as
Muhammad(SAW) suggested to some of his followers to write down his words and
actions. [Tirmidhi, “‘Ilm,” 12. , Collected in the
Musnad of Ahmad (10\15-6\ 6510 and also nos. 6930, 7017 and 1720), Sunan Abu
Dawud (Mukhtasar Sunan Abi Dawud (5\246\3499) and elsewhere.]
1. Ṣaḥīḥ al-Bukhārī (Arabic: صحيح البخاري),
is one of the Al-Kutub Al-Sittah (six major hadiths) of sunni Islam. These prophetic
traditions, or hadith, were collected by the Persian Muslim scholar Muhammad ibn Ismail al-Bukhari, after being transmitted orally for generations.
Sunni Muslims view this as one of the three most trusted collections of hadith
along with Sahih
Muslim and al-Muwatta. In some circles, it is considered the most authenticbook after the Qur'an. The Canonization of Al-Bukhari and Muslim: The
Formation and Function of the Sunni Hadith Canon by Jonathan Brown, BRILL, 2007,and also. Muqaddimah Ibn al-Salah, pg. 160-9 Dar al-Ma’aarif
edition
10. The refrences to
various ‘hadith’ in the scholarly works of the great scholar, and equally
revered amongst ‘sunni’ muslims even today, Muhammad ibn Ismail al-Bukhari in
his book ‘Kitab-ul-Talaaq’ Book 68. Mentions the following :
11. Divorce - كتاب الطلاق This is book 68 of
Sahih al-Bukhari,.
The Arabic text and reference numbering in this book has been checked to correspond with standard publications to the best of our ability. The numbering below corresponds with Shaykh Muhammad Fuad `Abd al-Baqi's (rahimahullah) numbering scheme. Numbering scheme details
(1)
بَابُ قَوْلُ اللَّهِ تَعَالَى: {يَا أَيُّهَا
النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ
وَأَحْصُوا الْعِدَّةَ}
{أَحْصَيْنَاهُ} حَفِظْنَاهُ وَعَدَدْنَاهُ،
وَطَلاَقُ السُّنَّةِ أَنْ يُطَلِّقَهَا طَاهِرًا مِنْ غَيْرِ جِمَاعٍ، وَيُشْهِدُ
شَاهِدَيْنِ.
that he had divorced his wife while she was menstruating during the
lifetime of Allah's Apostle . `Umar bin Al-Khattab asked Allah's Apostle about
that. Allah's Apostle said, "Order him (your son) to take her back and keep
her till she is clean and then to wait till she gets her next period and
becomes clean again, whereupon, if he wishes to keep her, he can do so, and if
he wishes to divorce her he can divorce her before having sexual intercourse
with her; and that is the prescribed period which Allah has fixed for the women
meant to be divorced."
حَدَّثَنَا إِسْمَاعِيلُ بْنُ عَبْدِ اللَّهِ، قَالَ
حَدَّثَنِي مَالِكٌ، عَنْ نَافِعٍ، عَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ ـ رضى الله
عنهما ـ أَنَّهُ طَلَّقَ امْرَأَتَهُ وَهْىَ حَائِضٌ عَلَى عَهْدِ رَسُولِ اللَّهِ
صلى الله عليه وسلم فَسَأَلَ عُمَرُ بْنُ الْخَطَّابِ رَسُولَ اللَّهِ صلى الله
عليه وسلم عَنْ ذَلِكَ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم "
مُرْهُ فَلْيُرَاجِعْهَا، ثُمَّ لِيُمْسِكْهَا حَتَّى تَطْهُرَ ثُمَّ تَحِيضَ،
ثُمَّ تَطْهُرَ، ثُمَّ إِنْ شَاءَ أَمْسَكَ بَعْدُ وَإِنْ شَاءَ طَلَّقَ قَبْلَ
أَنْ يَمَسَّ، فَتِلْكَ الْعِدَّةُ الَّتِي أَمَرَ اللَّهُ أَنْ تُطَلَّقَ لَهَا
النِّسَاءُ ".
|
Reference
|
: Sahih al-Bukhari
5251
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|
In-book reference
|
: Book 68, Hadith 1
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USC-MSA web (English) reference
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: Vol. 7, Book 63, Hadith
178
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Chapter: Divorce during the menses is counted as one legal divorce.
(2)
باب إِذَا طُلِّقَتِ الْحَائِضُ يُعْتَدُّ بِذَلِكَ الطَّلاَق
Ibn `Umar said: "I divorced my wife while she was menstruating.
`Umar mentioned that to the Prophet . The Prophet said, (to my father),
"Let your son take her back." I asked (Ibn `Umar), "Is such a
divorce counted (i.e. as one legal divorce)?" Ibn `Umar said, "Of
course." Narrated Yunus bin Jubair: Ibn `Umar said, "The Prophet said
to `Umar, 'Order him (Ibn `Umar) to take her back.' " I asked, "Is
such a divorce counted (as one legal divorce)?" Ibn `Umar said, "What
do you think if someone becomes helpless and foolish?"
حَدَّثَنَا سُلَيْمَانُ بْنُ حَرْبٍ، حَدَّثَنَا شُعْبَةُ، عَنْ أَنَسِ
بْنِ سِيرِينَ، قَالَ سَمِعْتُ ابْنَ عُمَرَ، قَالَ طَلَّقَ ابْنُ عُمَرَ
امْرَأَتَهُ وَهْىَ حَائِضٌ، فَذَكَرَ عُمَرُ لِلنَّبِيِّ صلى الله عليه وسلم
فَقَالَ " لِيُرَاجِعْهَا ". قُلْتُ تُحْتَسَبُ قَالَ "
فَمَهْ ". وَعَنْ قَتَادَةَ عَنْ يُونُسَ بْنِ جُبَيْرٍ عَنِ ابْنِ
عُمَرَ قَالَ " مُرْهُ فَلْيُرَاجِعْهَا ". قُلْتُ تُحْتَسَبُ
قَالَ أَرَأَيْتَ إِنْ عَجَزَ وَاسْتَحْمَقَ.
|
Reference
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: Sahih al-Bukhari 5252
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In-book reference
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: Book 68, Hadith 2
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USC-MSA web (English) reference
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: Vol. 7, Book 63, Hadith 179
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(Divorcing my wife during her menses) was counted as one legal divorce.
وَقَالَ أَبُو مَعْمَرٍ حَدَّثَنَا عَبْدُ الْوَارِثِ، حَدَّثَنَا
أَيُّوبُ، عَنْ سَعِيدِ بْنِ جُبَيْرٍ، عَنِ ابْنِ عُمَرَ، قَالَ حُسِبَتْ عَلَىَّ
بِتَطْلِيقَةٍ.
|
Reference
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: Sahih al-Bukhari 5253
|
|
In-book reference
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: Book 68, Hadith 3
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USC-MSA web (English) reference
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: Vol. 7, Book 63, Hadith 180
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Chapter: Should a man tell his wife face to face that she is divorced
(3)
باب مَنْ طَلَّقَ وَهَلْ يُوَاجِهُ الرَّجُلُ امْرَأَتَهُ بِالطَّلاَقِ
I asked Az-Zuhri,
"Which of the wives of the Prophet sought refuge with Allah from
him?" He said "I was told by 'Ursa that `Aisha said, 'When the
daughter of Al-Jaun was brought to Allah's Apostle (as his bride) and he went
near her, she said, "I seek refuge with Allah from you." He said,
"You have sought refuge with The Great; return to your family."
حَدَّثَنَا
الْحُمَيْدِيُّ، حَدَّثَنَا الْوَلِيدُ، حَدَّثَنَا الأَوْزَاعِيُّ، قَالَ
سَأَلْتُ الزُّهْرِيَّ أَىُّ أَزْوَاجِ النَّبِيِّ صلى الله عليه وسلم
اسْتَعَاذَتْ مِنْهُ قَالَ أَخْبَرَنِي عُرْوَةُ عَنْ عَائِشَةَ ـ رضى الله عنها ـ
أَنَّ ابْنَةَ الْجَوْنِ لَمَّا أُدْخِلَتْ عَلَى رَسُولِ اللَّهِ صلى الله عليه
وسلم وَدَنَا مِنْهَا قَالَتْ أَعُوذُ بِاللَّهِ مِنْكَ. فَقَالَ لَهَا " لَقَدْ عُذْتِ بِعَظِيمٍ، الْحَقِي بِأَهْلِكِ
". قَالَ أَبُو عَبْدِ اللَّهِ رَوَاهُ حَجَّاجُ بْنُ أَبِي
مَنِيعٍ عَنْ جَدِّهِ عَنِ الزُّهْرِيِّ أَنَّ عُرْوَةَ أَخْبَرَهُ أَنَّ
عَائِشَةَ قَالَتْ.
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Reference
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: Sahih al-Bukhari 5254
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In-book reference
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: Book 68, Hadith 4
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USC-MSA web (English) reference
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: Vol. 7, Book 63, Hadith 181
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We went out with
the Prophet to a garden called Ash-Shaut till we reached two walls between
which we sat down. The Prophet said, "Sit here," and went in (the
garden). The Jauniyya (a lady from Bani Jaun) had been brought and lodged in a
house in a date-palm garden in the home of Umaima bint An- Nu`man bin Sharahil,
and her wet nurse was with her. When the Prophet entered upon her, he said to
her, "Give me yourself (in marriage) as a gift." She said, "Can
a princess give herself in marriage to an ordinary man?" The Prophet
raised his hand to pat her so that she might become tranquil. She said, "I
seek refuge with Allah from you." He said, "You have sought refuge
with One Who gives refuge. Then the Prophet came out to us and said, "O
Abu Usaid! Give her two white linen dresses to wear and let her go back to her
family."
حَدَّثَنَا أَبُو نُعَيْمٍ، حَدَّثَنَا عَبْدُ الرَّحْمَنِ بْنُ غَسِيلٍ،
عَنْ حَمْزَةَ بْنِ أَبِي أُسَيْدٍ، عَنْ أَبِي أُسَيْدٍ ـ رضى الله عنه ـ قَالَ
خَرَجْنَا مَعَ النَّبِيِّ صلى الله عليه وسلم حَتَّى انْطَلَقْنَا إِلَى حَائِطٍ
يُقَالُ لَهُ الشَّوْطُ، حَتَّى انْتَهَيْنَا إِلَى حَائِطَيْنِ فَجَلَسْنَا
بَيْنَهُمَا فَقَالَ النَّبِيُّ صلى الله عليه وسلم " اجْلِسُوا هَا هُنَا
". وَدَخَلَ وَقَدْ أُتِيَ بِالْجَوْنِيَّةِ، فَأُنْزِلَتْ فِي بَيْتٍ
فِي نَخْلٍ فِي بَيْتٍ أُمَيْمَةُ بِنْتُ النُّعْمَانِ بْنِ شَرَاحِيلَ وَمَعَهَا
دَايَتُهَا حَاضِنَةٌ لَهَا، فَلَمَّا دَخَلَ عَلَيْهَا النَّبِيُّ صلى الله عليه
وسلم قَالَ " هَبِي نَفْسَكِ لِي ". قَالَتْ وَهَلْ تَهَبُ
الْمَلِكَةُ نَفْسَهَا لِلسُّوقَةِ. قَالَ فَأَهْوَى بِيَدِهِ يَضَعُ يَدَهُ
عَلَيْهَا لِتَسْكُنَ فَقَالَتْ أَعُوذُ بِاللَّهِ مِنْكَ. فَقَالَ "
قَدْ عُذْتِ بِمَعَاذٍ ". ثُمَّ خَرَجَ عَلَيْنَا، فَقَالَ " يَا
أَبَا أُسَيْدٍ اكْسُهَا رَازِقِيَّتَيْنِ وَأَلْحِقْهَا بِأَهْلِهَا".
|
Reference
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: Sahih al-Bukhari 5255
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In-book reference
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: Book 68, Hadith 5
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|
USC-MSA web (English) reference
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: Vol. 7, Book 63, Hadith 182
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The Prophet married
Umaima bint Sharahil, and when she was brought to him, he stretched his hand
towards her. It seemed that she disliked that, whereupon the Prophet ordered
Abu Usaid to prepare her and to provide her with two white linen dresses.
وَقَالَ الْحُسَيْنُ بْنُ الْوَلِيدِ النَّيْسَابُورِيُّ عَنْ عَبْدِ
الرَّحْمَنِ، عَنْ عَبَّاسِ بْنِ سَهْلٍ، عَنْ أَبِيهِ، وَأَبِي، أُسَيْدٍ قَالاَ
تَزَوَّجَ النَّبِيُّ صلى الله عليه وسلم أُمَيْمَةَ بِنْتَ شَرَاحِيلَ، فَلَمَّا
أُدْخِلَتْ عَلَيْهِ بَسَطَ يَدَهُ إِلَيْهَا فَكَأَنَّهَا كَرِهَتْ ذَلِكَ
فَأَمَرَ أَبَا أُسَيْدٍ أَنْ يُجَهِّزَهَا وَيَكْسُوَهَا ثَوْبَيْنِ
رَازِقِيَّيْنِ.
|
Reference
|
: Sahih al-Bukhari 5256
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In-book reference
|
: Book 68, Hadith 6
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|
USC-MSA web (English) reference
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: Vol. 7, Book 63, Hadith 182
|
similarly as above
(182).
حَدَّثَنَا عَبْدُ اللَّهِ بْنُ مُحَمَّدٍ، حَدَّثَنَا إِبْرَاهِيمُ بْنُ أَبِي
الْوَزِيرِ، حَدَّثَنَا عَبْدُ الرَّحْمَنِ، عَنْ حَمْزَةَ، عَنْ أَبِيهِ، وَعَنْ
عَبَّاسِ بْنِ سَهْلِ بْنِ سَعْدٍ، عَنْ أَبِيهِ، بِهَذَا.
|
Reference
|
: Sahih al-Bukhari 5257
|
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In-book reference
|
: Book 68, Hadith 7
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|
USC-MSA web (English) reference
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: Vol. 7, Book 63, Hadith 183
|
I asked Ibn
`Umar,"(What is said regarding) a man divorces his wife during her
period?" He said, "Do you know Ibn `Umar? Ibn `Umar divorced his wife
while she was menstruating. `Umar then went to the Prophet and mentioned that
to him. The Prophet ordered him to take her back and when she became clean, he
could divorce her if he wanted." I asked (Ibn `Umar), "Was that
divorce counted as one legal divorce?" He said, "If one becomes
helpless and foolish (will he be excused? Of course not). "
حَدَّثَنَا حَجَّاجُ بْنُ مِنْهَالٍ، حَدَّثَنَا هَمَّامُ بْنُ يَحْيَى،
عَنْ قَتَادَةَ، عَنْ أَبِي غَلاَّبٍ، يُونُسَ بْنِ جُبَيْرٍ قَالَ قُلْتُ لاِبْنِ
عُمَرَ رَجُلٌ طَلَّقَ امْرَأَتَهُ وَهْىَ حَائِضٌ. فَقَالَ تَعْرِفُ ابْنَ
عُمَرَ إِنَّ ابْنَ عُمَرَ طَلَّقَ امْرَأَتَهُ وَهْىَ حَائِضٌ فَأَتَى عُمَرُ
النَّبِيَّ صلى الله عليه وسلم فَذَكَرَ ذَلِكَ لَهُ فَأَمَرَهُ أَنْ يُرَاجِعَهَا
فَإِذَا طَهُرَتْ فَأَرَادَ أَنْ يُطَلِّقَهَا فَلْيُطَلِّقْهَا، قُلْتُ فَهَلْ عَدَّ
ذَلِكَ طَلاَقًا قَالَ أَرَأَيْتَ إِنْ عَجَزَ وَاسْتَحْمَقَ.
|
Reference
|
: Sahih al-Bukhari 5258
|
|
In-book reference
|
: Book 68, Hadith 8
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|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 184
|
Chapter: To divorce
one's wife thrice (at a time)
(4)
باب مَنْ أَجَازَ طَلاَقَ الثَّلاَثِ
لِقَوْلِ اللَّهِ تَعَالَى: {الطَّلاَقُ مَرَّتَانِ فَإِمْسَاكٌ
بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ}. وَقَالَ ابْنُ الزُّبَيْرِ فِي مَرِيضٍ
طَلَّقَ لاَ أَرَى أَنْ تَرِثَ مَبْتُوتَتُهُ. وَقَالَ الشَّعْبِيُّ تَرِثُهُ.
وَقَالَ ابْنُ شُبْرُمَةَ. تَزَوَّجُ إِذَا انْقَضَتِ الْعِدَّةُ قَالَ نَعَمْ،
قَالَ أَرَأَيْتَ إِنْ مَاتَ الزَّوْجُ الآخَرُ فَرَجَعَ عَنْ ذَلِكَ.
Uwaimir Al-`Ajlani
came to `Asim bin Adi Al-Ansari and asked, "O `Asim! Tell me, if a man
sees his wife with another man, should he kill him, whereupon you would kill
him in Qisas, or what should he do? O `Asim! Please ask Allah's Apostle about
that." `Asim asked Allah's Apostle about that. Allah's Apostle disliked
that question and considered it disgraceful. What `Asim heard from Allah's
Apostle was hard on him. When he returned to his family, 'Uwaimir came to him
and said "O `Asim! What did Allah's Apostle say to you?" `Asim said,
"You never bring me any good. Allah's Apostle disliked to hear the problem
which I asked him about." 'Uwaimir said, "By Allah, I will not leave
the matter till I ask him about it." So 'Uwaimir proceeded till he came to
Allah's Apostle who was in the midst of the people and said, "O Allah's
Apostle! If a man finds with his wife another man, should he kill him,
whereupon you would kill him (in Qisas): or otherwise, what should he do?"
Allah's Apostle said, "Allah has revealed something concerning the
question of you and your wife. Go and bring her here." So they both
carried out the judgment of Lain,
while I was present among the people (as a witness). When both of them had
finished, 'Uwaimir said, "O Allah's
Apostle! If I should now keep my wife with me, then I have told a lie".
Then he pronounced his decision to divorce her thrice before Allah's Apostle
ordered him to do so. (Ibn Shihab said, "That was the
tradition for all those who are involved in a case of Lian."
حَدَّثَنَا
عَبْدُ اللَّهِ بْنُ يُوسُفَ، أَخْبَرَنَا مَالِكٌ، عَنِ ابْنِ شِهَابٍ، أَنَّ
سَهْلَ بْنَ سَعْدٍ السَّاعِدِيَّ، أَخْبَرَهُ أَنَّ عُوَيْمِرًا الْعَجْلاَنِيَّ جَاءَ إِلَى عَاصِمِ بْنِ عَدِيٍّ الأَنْصَارِيِّ،
فَقَالَ لَهُ يَا عَاصِمُ أَرَأَيْتَ رَجُلاً وَجَدَ مَعَ امْرَأَتِهِ رَجُلاً،
أَيَقْتُلُهُ فَتَقْتُلُونَهُ، أَمْ كَيْفَ يَفْعَلُ سَلْ لِي يَا عَاصِمُ عَنْ
ذَلِكَ رَسُولَ اللَّهِ صلى الله عليه وسلم فَسَأَلَ عَاصِمٌ عَنْ ذَلِكَ رَسُولَ
اللَّهِ صلى الله عليه وسلم فَكَرِهَ رَسُولُ اللَّهِ صلى الله عليه وسلم الْمَسَائِلَ
وَعَابَهَا حَتَّى كَبُرَ عَلَى عَاصِمٍ مَا سَمِعَ مِنْ رَسُولِ اللَّهِ صلى الله
عليه وسلم فَلَمَّا رَجَعَ عَاصِمٌ إِلَى أَهْلِهِ جَاءَ عُوَيْمِرٌ فَقَالَ يَا
عَاصِمُ مَاذَا قَالَ لَكَ رَسُولُ اللَّهِ صلى الله عليه وسلم فَقَالَ عَاصِمٌ
لَمْ تَأْتِنِي بِخَيْرٍ، قَدْ كَرِهَ رَسُولُ اللَّهِ صلى الله عليه وسلم
الْمَسْأَلَةَ الَّتِي سَأَلْتُهُ عَنْهَا. قَالَ عُوَيْمِرٌ وَاللَّهِ لاَ
أَنْتَهِي حَتَّى أَسْأَلَهُ عَنْهَا فَأَقْبَلَ عُوَيْمِرٌ حَتَّى أَتَى رَسُولَ
اللَّهِ صلى الله عليه وسلم وَسَطَ النَّاسِ فَقَالَ يَا رَسُولَ اللَّهِ
أَرَأَيْتَ رَجُلاً وَجَدَ مَعَ امْرَأَتِهِ رَجُلاً، أَيَقْتُلُهُ
فَتَقْتُلُونَهُ، أَمْ كَيْفَ يَفْعَلُ فَقَالَ رَسُولُ اللَّهِ صلى الله عليه
وسلم " قَدْ أَنْزَلَ اللَّهُ فِيكَ وَفِي صَاحِبَتِكَ
فَاذْهَبْ فَأْتِ بِهَا ". قَالَ
سَهْلٌ فَتَلاَعَنَا وَأَنَا مَعَ النَّاسِ عِنْدَ رَسُولِ اللَّهِ صلى الله عليه
وسلم فَلَمَّا فَرَغَا قَالَ عُوَيْمِرٌ كَذَبْتُ عَلَيْهَا يَا رَسُولَ اللَّهِ، إِنْ أَمْسَكْتُهَا، فَطَلَّقَهَا ثَلاَثًا قَبْلَ
أَنْ يَأْمُرَهُ رَسُولُ اللَّهِ صلى الله عليه وسلم. قَالَ ابْنُ شِهَابٍ
فَكَانَتْ تِلْكَ سُنَّةُ الْمُتَلاَعِنَيْنِ.
|
Reference
|
: Sahih al-Bukhari 5259
|
|
In-book reference
|
: Book 68, Hadith 9
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 185
|
(5)
باب مَنْ خَيَّرَ نِسَاءَهُ
وَقَوْلِ اللَّهِ تَعَالَى: {قُلْ لأَزْوَاجِكَ إِنْ كُنْتُنَّ تُرِدْنَ
الْحَيَاةَ الدُّنْيَا وَزِينَتَهَا فَتَعَالَيْنَ أُمَتِّعْكُنَّ
وَأُسَرِّحْكُنَّ سَرَاحًا جَمِيلاً}.
Allah's Apostle
gave us the option (to remain with him or to be divorced) and we selected Allah
and His Apostle . So, giving us that option was not regarded as divorce.
حَدَّثَنَا عُمَرُ بْنُ حَفْصٍ، حَدَّثَنَا أَبِي، حَدَّثَنَا الأَعْمَشُ،
حَدَّثَنَا مُسْلِمٌ، عَنْ مَسْرُوقٍ، عَنْ عَائِشَةَ ـ رضى الله عنها ـ قَالَتْ
خَيَّرَنَا رَسُولُ اللَّهِ صلى الله عليه وسلم فَاخْتَرْنَا اللَّهَ وَرَسُولَهُ،
فَلَمْ يَعُدَّ ذَلِكَ عَلَيْنَا شَيْئًا.
|
Reference
|
: Sahih al-Bukhari 5262
|
|
In-book reference
|
: Book 68, Hadith 12
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 188
|
I asked `Aisha about the option: She said, "The Prophet gave us the
option. Do you think that option was considered as a divorce?" I said,
"It matters little to me if I give my wife the option once or a hundred
times after she has chosen me."
حَدَّثَنَا مُسَدَّدٌ، حَدَّثَنَا يَحْيَى، عَنْ إِسْمَاعِيلَ، حَدَّثَنَا
عَامِرٌ، عَنْ مَسْرُوقٍ، قَالَ سَأَلْتُ عَائِشَةَ عَنِ الْخِيَرَةِ،، فَقَالَتْ
خَيَّرَنَا النَّبِيُّ صلى الله عليه وسلم أَفَكَانَ طَلاَقًا قَالَ مَسْرُوقٌ لاَ
أُبَالِي أَخَيَّرْتُهَا وَاحِدَةً أَوْ مِائَةً بَعْدَ أَنْ تَخْتَارَنِي.
|
Reference
|
: Sahih al-Bukhari 5263
|
|
In-book reference
|
: Book 68, Hadith 13
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 189
|
Chapter: If a man says (to his wife): "I have parted with
you," or "I have released you"
(6)
بَابُ إِذَا قَالَ فَارَقْتُكِ أَوْ سَرَّحْتُكِ
أَوِ الْخَلِيَّةُ أَوِ الْبَرِيَّةُ أَوْ مَا عُنِيَ بِهِ الطَّلاَقُ،
فَهُوَ عَلَى نِيَّتِهِ، وَقَوْلُ اللَّهِ عَزَّ وَجَلَّ: {وَسَرِّحُوهُنَّ
سَرَاحًا جَمِيلاً} وَقَالَ: {وَأُسَرِّحْكُنَّ سَرَاحًا جَمِيلاً} وَقَالَ:
{فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ} وَقَالَ: {أَوْ
فَارِقُوهُنَّ بِمَعْرُوفٍ}. وَقَالَتْ عَائِشَةُ قَدْ عَلِمَ النَّبِيُّ صَلَّى
اللَّهُ عَلَيْهِ وَسَلَّمَ أَنَّ أَبَوَيَّ لَمْ يَكُونَا يَأْمُرَانِي
بِفِرَاقِهِ.
Chapter: "O
Prophet! Why do you forbid that which Allah has allowed to you...?
(8)
that
he heard Ibn `Abbas saying, "If a man makes his wife unlawful for him, it
does not mean that she is divorced." He added, "Indeed in the Apostle
of Allah , you have a good example to follow."
حَدَّثَنِي الْحَسَنُ بْنُ صَبَّاحٍ، سَمِعَ الرَّبِيعَ
بْنَ نَافِعٍ، حَدَّثَنَا مُعَاوِيَةُ، عَنْ يَحْيَى بْنِ أَبِي كَثِيرٍ، عَنْ
يَعْلَى بْنِ حَكِيمٍ، عَنْ سَعِيدِ بْنِ جُبَيْرٍ، أَنَّهُ أَخْبَرَهُ أَنَّهُ،
سَمِعَ ابْنَ عَبَّاسٍ، يَقُولُ إِذَا حَرَّمَ امْرَأَتَهُ لَيْسَ بِشَىْءٍ.
وَقَالَ {لَقَدْ كَانَ لَكُمْ فِي
رَسُولِ اللَّهِ أُسْوَةٌ حَسَنَةٌ}
|
Reference
|
: Sahih al-Bukhari 5266
|
|
In-book reference
|
: Book 68, Hadith 16
|
|
USC-MSA web (English) reference
|
: Vol. 7, Book 63, Hadith 191
|
Chapter: There is no divorce before marriage
(9)
بَابُ لاَ طَلاَقَ قَبْلَ النِّكَاحِ
وَقَوْلُ اللَّهِ تَعَالَى: {يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا
نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ
تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا
فَمَتِّعُوهُنَّ وَسَرِّحُوهُنَّ سَرَاحًا جَمِيلاً}. وَقَالَ ابْنُ عَبَّاسٍ
جَعَلَ اللَّهُ الطَّلاَقَ بَعْدَ النِّكَاحِ وَيُرْوَى فِي ذَلِكَ عَنْ عَلِيٍّ
وَسَعِيدِ بْنِ الْمُسَيَّبِ وَعُرْوَةَ بْنِ الزُّبَيْرِ وَأَبِي بَكْرِ بْنِ عَبْدِ
الرَّحْمَنِ وَعُبَيْدِ اللَّهِ بْنِ عَبْدِ اللَّهِ بْنِ عُتْبَةَ وَأَبَانَ بْنِ
عُثْمَانَ وَعَلِيِّ بْنِ حُسَيْنٍ وَشُرَيْحٍ وَسَعِيدِ بْنِ جُبَيْرٍ
وَالْقَاسِمِ وَسَالِمٍ وَطَاوُسٍ وَالْحَسَنِ وَعِكْرِمَةَ وَعَطَاءٍ وَعَامِرِ
بْنِ سَعْدٍ وَجَابِرِ بْنِ زَيْدٍ وَنَافِعِ بْنِ جُبَيْرٍ وَمُحَمَّدِ بْنِ
كَعْبٍ وَسُلَيْمَانَ بْنِ يَسَارٍ وَمُجَاهِدٍ وَالْقَاسِمِ بْنِ عَبْدِ
الرَّحْمَنِ وَعَمْرِو بْنِ هَرِمٍ وَالشَّعْبِيِّ أَنَّهَا لاَ تَطْلُقُ.
Chapter: If, under compulsion somebody says about his wife, "She is
my sister."
(10)
بَابُ إِذَا قَالَ لاِمْرَأَتِهِ وَهْوَ مُكْرَهٌ هَذِهِ أُخْتِي. فَلاَ
شَيْءَ عَلَيْهِ
قَالَ النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ: «قَالَ إِبْرَاهِيمُ
لِسَارَةَ هَذِهِ أُخْتِي وَذَلِكَ فِي ذَاتِ اللَّهِ عَزَّ وَجَلَّ».
12. after going through the
law as available in Holy Quran and the narrations from the life of Prophet
(SAW), one more concept which needs to be discussed is the concept of ‘Bidda’
or ‘Biddat’:
1.
“In early Islamic history, ‘bid'ah’ referred primarily heterodox doctrines (as evidenced below).
However, in Islamic law, when used without qualification, bid'ah denotes
anything newly invented matter that is without precedent and is in opposition
to the Qur'an and Sunna.” al-Masri,
Jamaluddin ibn al-Manzur. Lisan al-‘Arab.
pp. 8:6.
2.
“Introducing and acting upon
a bid‘ah in religious matters is a sin and considered one of the enormities in Islam that is obligatory to immediately desist and repent
from.” al-Dhahabi, Muhammad ibn
Ahmad. Kitab al-Kaba'ir.
a. Muhammad ibn al Uthaymeen ,[ ^ Al Muttaqoon -> Question And Answers On Bid’ah (Innovation)] a prominent modern-day scholar, wrote: "And there is
no such thing in Islaam as bid’ah hasanah (good innovation).”
b. [H]ow can there be any such thing as bid’ah hasanah (“good
innovation”) when the Prophet (peace and blessings of Allaah be upon him) said:
“Every bid’ah is a going astray and every going astray is in Hell-fire”.
c. —Muhammad ibn Salih al-Munajjid, Islam-QA: "There
is no such thing as bid'ah hasana in Islam"^ http://islamqa.com/en/ref/205
13. According to Shia Islam the definition of bid'ah is anything that is introduced to Islam
as either being fard, mustahabb, makruh or haram that contradicts the Qur'an or hadith. Any new good practice
introduced that does not contradict the Qur'an or hadith is permissible.
- As a
general rule in Shi'a jurisprudence, anything is permissible except
whatever is prohibited through divine revelation (i.e. the Qur'an or
hadith). Answering-Ansar.org ::
Bidah (Innovation)
14.
Coming to the anglo-mohammedan, Muslim Law, which has been of late codified in
secular democracies, recognizes the concept of divorce as follows:
1. Divorce According to Muslim
Law: Khulla/Mubarat and Talaq:
According to the traditional Muslim
law, divorce can be obtained directly in two ways without the intervention of
the civil court. They are: (a) Khulla /Mubarat and (b) Talaq.
(A) Khulla or Kohl and Mubarat:
Husband and wife can obtain divorce by
mutual consent either by ‘Khulla’ or by ‘Mubarat’. Difference between Khulla
and Mubarat is simple: In Khulla divorce is initiated at the instance of the
wife. In Mubarat, since both the parties’ desire separation, the initiative may
come either from the wife or from the husband.
(B) Talaq:
Talaq represents one of the ways
according to which a Muslim husband can give divorce to his wife as per the
Muslim law without intervention of the court. In Talaq, the husband has the
right to dismiss his wife by repeating the dismissal formula thrice. The Talaq
may be affected either orally by making some pronouncements or in writing by
presenting ‘tallaq-nama’. Talaq may be given in any one of the following three
ways:
(i) Talaq-e-Ahsan:
This involves a single pronouncement
of talaq followed by a period of conjugal abstinence till the completion of
‘iddat’.
(ii) Talaq-e-Hasan:
This consists of three pronouncements
of ‘Talaq’ made during three – successive menstrual periods and no sexual
contact has taken place between the spouses during these months.
(iii) Talaq-ul-Bidat:
Here, Talaq, pronouncement takes place
in any one of the following ways. (a) in a single sentence, for example,” I
divorce thee thrice” or in three separate sentences: “I divorce thee, I
divorce thee, I divorce thee” (b) in a single but clear pronouncement such as,
“I divorce thee irrevocably”.
In the first two types cited above,
there is a chance for re-establishing the martial ties but not in the third
form.
14. Talaq is available only to Men and not to Women. The
Dissolution of Muslim Marriages Act, therefore, is the remedy available only to
Women, although enactment does not spell out so. However, from the grounds of
divorce, given in the enactment, it will be crystal clear that the enactment is
especially crafted out and drafted only for Women, the Muslim Women.
(a) Failure to provide maintenance;
this ground of
seeking divorce, by Muslim Women, is unique inasmuch under no other legal
system of Law; non-providing maintenance is the ground for divorce. At the
highest, Women - including Muslim Women can seek Maintenance under Section 125
of Code of Criminal Procedure. There is no specific ground for divorce
enumerated in the divorce statutes. It is only the Dissolution of Muslim
Marriage Act which provides for divorce for non-providing maintenance to his
wife.
Thus Muslim Women have two remedies, (1)
seeking maintenance under Section 125 of Code of Criminal Procedure and (2)
seeking divorce under the Act. It is for her to choose here remedies. But it
must clearly be noted that there is no specific bar created for Muslim Woman to
give up her one of her two remedies and she is free to avail of both the
remedies.
(c) Any other ground under Shariat; The Act
proceeds to lay down a residuary provision so that the wife may not lose the
benefit of any other ground which may have been lost sight of by the
legislature. This would cover up Lian, Ila, Zihar, Khulla and Mubarat. The
Courts have held that incompatibility of temperaments, dislike or ill-will is
not sufficient grounds for obtaining divorce by the wife.
Sunni
Law
While under Shia Law presence of
witnesses is mandatory. Sunni law does not require presence of witnesses. So
long as repudiation comes to the knowledge of wife, it is considered sufficient
and valid in law. For effecting Talaq, Sunnis allow the use of infinite number
of formula - some obvious in their meaning others conveying the intention only.
Under Hanafi Law, when the word Talaq or any of its customary synonyms is used,
the Talaq is effective even if a man has no intention. A Talaq pronounced in
absence of wife is also valid. But so long as it does not come to her
knowledge, she is entitled to maintenance.
2. Divorce as Recognised by Shariat Act,
1937:
The Shariat Act, 1937 provides for
three forms of divorce. They are mentioned below apart from the types of
‘Talaq’ given herein above in the preceding paras.
3. Provisions for Divorce as per the
Dissolution of Muslim Marriage Act, 1939:
The Dissolution of Muslim Marriage
Act, 1939 passed during the British period entitled a Muslim woman to seek the
dissolution of her marriage on the following grounds:
(i) whereabouts of husband not known for 4 years.
(ii) failure of husband to provide for her maintenance
for 2 years.
(iii) imprisonment of husband for 7 years or more.
(iv) impotency of husband since the time of marriage.
(v) Failure of husband to fulfil martial obligations
for 3 years.
(vi) insanity of husband for a period 2 years and
husband’s incurable diseases like leprosy, venereal diseases, etc.
(vii) husband’s physical and mental cruelty.
(viii) marriage being thrusted upon her before she
attained I8 years, [but in this, the wife has to seek divorce before she
completes 18th year].
(ix) any other valid ground which the Muslim law
permits.
There are four conditions essential to pronounce a
valid Talaq.
i. Husband should have attained the age of majority.
ii. Husband should be sane or of sound mind.
iii. Husband should act of his free will.
iv. There must be distinct intention to dissolve the
marriage tie.
v. A boy who is minor and a person who is insane
cannot give divorce even through their respective guardians. In case of an
insane person the Judge can make a decree to dissolve the tie.
15. Divorce when effective
a.
In Talaq-ul-Bida or Bain Talaq, the divorce takes effect forthwith,
immediately. Whereas in case of Talaq-us-Sunna or Rajai Talaq, divorce takes
effect after stipulated time and does not take effect immediately inasmuch as
there is a waiting time for it to take effect.
b. The apex Court in one
another latest case was called upon to consider the case under Section 125 of
Cr. P.C. for maintenance by wife. The Husband in his Written Statement before
the Family Court vaguely made certain generalized accusation against his wife.
It was stated that wife was sharp, shrewd, and mischievous and had brought
disgrace to the family.
c. Therefore, he had given
Talaq but no particulars of alleged Talaq were given. Except examining him,
husband did not lead evidence in proof of Talaq. In an affidavit in some other
case before the civil court, the husband had made such a statement but the said
affidavit was not found on the record of the Family Court. However, the Family
Court accepted the contention of the husband that he had given Talaq to his
wife the apex Court head that merely taking a plea in the Written Statements
that he had given Talaq to his wife would not have the effect of Talaq. Talaq to be effective, it is necessary to
have 'pronounced' in the manner lay down under the Personal Law. 'Pronounced'
means to 'proclaim' or to 'utter formally.' The plea in the Written Statement
or some affidavit filed in some civil Court does not amount to pronouncing the
Talaq.
d. The Ahsan form of Talaq
is effective on the expiration of third period of Iddat. The Hasan form of
Talaq is effective on third pronouncement.
e. Talaq-ul-Bidat, is
effective from the moment the Talaq is pronounced or the execution of the
Writing, or the "Talaq - Nama" or the Bill of Divorcement. The Full Bench of the Bombay High Court has
held that the Bill of Divorcement by itself cannot dissolve - marriage because
it is necessary that the divorce should have been given for sufficient cause.
It must have been evidenced before the witnesses who are Muslims and if it is
before non-Muslims then it is invalid in law.
f. The full bench also
held that the wife is not deemed to have been divorced (at least) from the date
of Written Statement in which husband takes the plea that he had already given
Talaq to his wife on earlier date to the filing of the Written Statement. The
ruling of the full bench thus indicates that if husband has already given Talaq
on earlier date, he must prove the factum of that divorce by leading evidence
before the Court. The full bench thus is not in favour of Court taking it to be
granted that Husband must have given divorce, if not from the earlier date at
least from the date of his statement in the Written Statement.
16. The root of
this controversy dates back to the Judgement of Full Bench, of Patna High
Court, which sanctioned the triple Talaq in one time as valid, the detailed
text of which is reproduced herein below:
17. Patna
High Court. Fazlur Rahman vs. Musammat Ayesha and Ors. on 18 January, 1929; Equivalent
citations: 115 Ind Cas 546
Author: F
Ali
Bench: Courtney-Terrell, J
Prasad, F Ali.
a. The appellant made three
declarations of Talaq one after another; or, in other words, he pronounced a
triple divorce on one and the same occasion. This form of Talaq has been in
vague among the Hanafi Muhammadans for a very long time and is technically
known as Talaq ul-bidat, an expression which literally means an innovated form
of divorce, but which has been generally translated in the text books on Muhammadan
Law as "a heretical sinful or irregular form of divorce." It may be
mentioned that broadly speaking two kinds of Talaq are in vogue among the
Hanafi sect of Muhammadans, (1) Talaq us-sunnat and (2) Talaq ul bidet. The two
expressions have been explained by Mr. Ameer Ali as follows:
b. The Talaq us sunnat is the
divorce which is effected in accordance with the rules laid down in the
traditions (the sunnat) handed down from the Prophet or his principal
disciples. It is, in fact, the mode or procedure which seems to have been
approved of by him at the beginning of his ministry, and is, consequently,
regarded as the regular or pro per and orthodox form of divorce. The Talaq ul
bidat, as its name signifies, is the heretical or irregular mode of divorce,
which was introduced in the second century of the Muhammadan era. It was then
that the Ommey yade monarchs finding the checks imposed by the Prophet on the
facility of repudiation interfered with the indulgence of their caprice
endeavoured to find an escape from the strictness of the law and found in the
pliability of the Jurists a loophole to effect their purpose.
c. In the Talaq us-sunnat
pronounced in the ahsan form, the husband is required to submit to the
following conditions, viz.: (a), he must pronounce the formula of divorce once,
in a single sentence; (b) he must do so when the woman is in a state of purity
(tahr), and there is no bar to connubial intercourse, nor has there been any
during that state; and (c) he must abstain from the exercise of conjugal rights,
after pronouncing the formula, for the space of three tahrs.... In the Hasan form,
the husband is required to pronounce the formula three times during three
successive tahrs, namely, three periods of purity of the wife. When the last
formula is pronounced, the Talaq or divorce becomes irrevocable.
d. A divorce in the ahsan or
hasan form, or, in other words, a divorce in the form and under the conditions
sanctioned by the sunnat or the holy traditions is the only effective form of
divorce under the Muhammadan Law, and that we should hold that a talak
(divorce) pronounced in the bidai or heretical form is not at all binding or
valid under the Muhammadan Law.
18. The author of
Hedaya says in Chap. I of his book which relates to divorce: "Divorce is of three kinds;--first,
the ahsan (most laudable);--second, the hasan or laudable (which are the
distinctions of the talaqus sunnat) and third, the bidat or irregular...
taluq-ul bidat or irregular divorce, is where a husband repudiates his wife by
three divorces at once,--(i.e., included in one sentence), or, where he repeats
the sentence separately, thrice within one tahr, and if a husband give three
divorces in either of those ways the three hold good, but yet the divorcee is
an offender against the law...."(Hamilton's Hedaya, 2nd Edition, passes
72-73. It is further mentioned in Hedaya that Shafai has said that all
these three descriptions of divorce (viz., ahsan, hasan, and bidat) are equally
unexceptionable and legal. In Fatawah Alamgiri also Talaq is said to be of two
kinds, (1) Talaq sunna and (2) talaq-bidat and the validity of either form is
fully recognized (Vol. 2, page 52 See also Raddul-Muhtar Vol. 2 pages 492 93
and 582-85, (Tahtevi, Vol. 2 page 175). The same is the view put forward in the
modern treatises on Muhammadan Law. (See Baillie's Digest of Muhammadan Law
pages 205-07; Ameer Ali's Muhammadan Law, 5th Edition, page 136; Tayabji's
Principle of Muhammadan Law, 2nd Edition pages 215-19, Abdur Rahim's Institutes
of Mussalman Law, page 141).
19. In the case of Furzund
Hossein v. Janu Bibee 4 C. 588 the question arose whether the mere
pronouncing of Talaq three times by the husband without its being addressed to
any person was sufficient to constitute a valid divorce according to Muhammadan
Law and although the learned Judges decided that the words being not
specifically addressed to the wife, no valid divorce had been ejected yet, at
the same time, they observed that if the formula of divorce prescribed in
Muhammadan Law books has been really pronounced by the plaintiff, the view of
the Muhammadan Law taken by the Court of Appeal (that a complete divorce had
been effected) is probably right."
10. In the case
of In re Abdul Ali Isamilji (2) the learned Judges held as follows:
Talaq-ul bidat or irregular divorce which is effected by
three repudiations at the same time, appears from the authorities to be sinful,
but valid, and it was recognized as valid by this Court In re Kasim Pirbhai 8 B.H.C.R. 95 Cr.
11. In Sarabai v. Rabiabai 30 B. 537 : 8 Bom. L.R. 35 (at page
544 Page No. 33 M--[Ed.]) Bachelor, J., who decided that case observed as follows:
There can be no doubt that a Talaq ul-bidat or irregular divorce is
good in law though bad in theology.
12. In Asha Bibi v. Kadir
Ibrahim 3 Ind. Cas. 730: 33 M. 22: 6 M.L.T. 295: 20 M.L.J. 1 (at page 26 Page
No. 30 B--[Ed.]) the husband was found to have used the following
expressions in the presence of his wife's father in pronouncing the Talaq:
13. "This is the Talaq
to your daughter; this is the Talaq to your daughter; this is the Talaq to your
daughter. Talaq once, Talaq twice, Talaq thrice, etc, etc." and it was
held by Abdur Rahim and Munro, JJ., that the words of repudiation, though not
addressed directly to the wife, constituted a valid divorce according to the
Hanafi Law.
14. In the case of Ameeruddin v.
Khatoon Bibi 39 Ind. Cas. 513 : 39 A. 371 : 15. A.L.J. 272 which was decided by Rafique and Piggot, JJ., the
learned Judges had to deal with the very arguments which have been advanced before
us in this case and they disposed of them as follows:
20. We do not think that
the contention should prevail. It is true that the sunna or the traditions
sanction only two modes of divorce, i, e., ahsan and hasan but ever since the
second century of the Muhammadan era the bidai or sinful or irregular form
introduced by the Jurists, which is admittedly inconsistent with the
traditions, has been also recognized as a valid mode of repudiation. Mr. Ameer Ali on whose book great stress is laid nowhere
says that divorce pronounced in the ‘bidai’ form is invalid and should not be
given effect to. Such
a divorce has been upheld in Courts in this country. We would refer to the case
of In re Abdul Ali Ismailji 7 B. 180....
21. We should follow and enforce Muhammadan Law as it is and not as
it has been improved upon and added to by the Jurists at the instance of the
Ommeyyade monarchs. The learned Judges further
quoted the following passage from Mr. Tayabji's Muhammadan Law to show that the
bidai form of divorce is not only valid but is also the form of divorce which
is most favoured in this country:
22. By a deplorable,
though natural, development of the Sunni Law, it is the fourth and the most
disapproved or sinful mode of divorce (that is the bidai form) that seems to be
most favoured even by the law itself. For, the requirements of the other mode being seldom attended to,
it is generally assumed (on the principle that the intention of the parties
must as far as possible be given effect to) that the fourth mode was intended
to be employed, with the result not only that the formalities for the divorce
are done away with, but even its effects are aggravated for, inasmuch as the
pronouncement is presumed to be in this mode, it is presumed to be irrevocable.
It is indeed possible that the Sunni Jurists wished to inflict on a husband,
who disregarded the requirements of Section 136 (that is, divorce according to
the traditions) the penalty of rendering the divorce irrevocable, and there are
indications that they considered it always a favour to the wife to relieve her
of the husband.
23. Thus it will be seen that Talaq-ul-bidat
has been in vogue at least since the second century of the Muhammadan era and
all the Muhammadan Jurists of the Hanafi School are unanimous that a divorce
pronounced in this form is valid and binding. This view has also been upheld in
a number of reported judicial decisions of the various High Courts of this
country.
24. Courts in administering the Muhammadan
Law are more or less the same as the functions of a qazi under the Muhammadan
rule, and it is contended by him that if we find that this form of divorce is
not sanctioned by the laws of Koran, it is our duty to declare that the divorce
pronounced in the bidai form is not valid.
25. Thus it will be
seen that the term "Muhammadan Law" has been substituted in that
enactment for the "laws of the Koran" and the term "Hindu
Law" for the "Laws of the Shastras." The change is not without
significance because the term "Muhammadan Law" is certainly a wider
term than the "Laws of the Koran" Nevertheless, the argument advanced
in this case by Mr. Nooruddin would have been entitled to consideration if he
could satisfy us that a divorce of the type said to have been pronounced in the
present case has been expressly prohibited by the Koran. This is, however, not
the case. The verses of the Koran which are pertinent to the question under
enquiry are to be found in the second Surat of the Koran and have been
translated as follows by Maulvi Muhammad Ali:
a. Verse 229. Divorce may be (pronounced) twice; then keep (them) in good
fellowship or let (them) go with kindness: and it is not lawful for you to take
any part of what you have given them, unless both fear that they cannot keep
within the limits of Allah; then if you fear that they cannot keep within the
limits of Allah, there is no blame on them for what she gives up to become free
thereby. These are the limits of Allah, so do not exceed them.... Verse 230. So
if he divorces her she shall not be lawful to him afterwards until she marries
another husband, etc. etc.
26. Now, all the
commentators are agreed that the words "a third time" should be read
after the words "divorces her" in versa 230, and the verse means that
if the wife has been divorced thrice the divorce is irrevocable and the wife
cannot lawfully return to the husband. This is so, because under verse 229
after the divorce is pronounced twice there is an option with the husband to
keep or abandon his wife, and in order to complete the divorce he must
pronounce it a third time. This is obvious from the use of the words "then in the aforesaid verse".
After the divorce is completed by three pronouncements contemplated by verse
229, it becomes irrevocable under verse 230. The Shias and the Malikis have
interpreted the three divorces referred to in these verses to mean divorces
pronounced on three different occasions. There is, however, one school of
commentators which has taken the view that the language used in the Koran is
wide enough to include cases in which the divorce has been pronounced thrice on
the same occasion. Thus although it may be said that, of the two views the one
is not so broad and not so well supported by reason as the other, yet when
there is a consensus of opinion among a large and influential section of
theologians who hold that the words of the Koran are capable of the
interpretation which sanctions the bidai form of divorce and when we find that
the bidai form of divorce has been in vogue among the Hanafi Muhammadans for so
many centuries, it is not for us to lay down that the interpretation which does
not favour the bidai form must necessarily be preferred to the interpretation
which favours it. Nor do I think we shall be justified in introducing a sudden
and drastic change in what has been for generations the accepted law of the
Hanafi Muhammadans. I must, therefore, hold that Talaq ul bidat is a valid and
binding form of divorce according to the law of the Hanafi and as such is
binding upon the parties in this case.
27. The question of the
invalidity of Talaq-ul bidat. It was urged by the learned Vakil that this form
of Talaq was not sanctioned by the holy traditions and he referred us to the
following passage in Mr. Ameer Ali's Muhammadan Law, Vol. 2, at page 533:
28. It is reported that when once news was brought to him (the
Prophet) that one of his disciples had divorced his wife, pronouncing the three
talaqs at one and the same time, the Prophet stood up in anger on his carpet
and declared that the man was making a plaything of the words of God, and made
him take back his wife. … … it was the son of the second Caliph Umar who was concerned in
the incident referred to by Mr. Ameer Ali. The full facts of this incident,
however, have been given by the author of Hedaya in the following passage under
the heading "divorce pronounced during menstruation."
29. "It is recorded that the son of Umar having divorced his
wife during her courses the Prophet desired Umar to command his son to take her
back again. This shows that the divorce during the courses is valid, but that
reversal in this case has been laudable.
30. It will, therefore,
appear that at least in the opinion of a number of learned theologians the
divorce in the case referred to by Mr. Ameer Ali was reversed on the ground
that it had been pronounced when the wife was in a state of impurity.
31. In the Talaq-ul bidat, the husband may
pronounce the three formulae at one time, whether the wife is in a state of tuhr or not.
32. The same view has been put forward in Hedaya in the following
passage:
a. If a man repudiates his wife during her
courses, it is valid; because, although divorce within the terms of the courses
be disapproved, yet it is lawful, nevertheless, as the disapproval is not on
account of anything essential, but merely because a divorce given during the
courses occasions a protraction of the iddat. This kind of disapproval, or
interdict, is termed nihee leghirehee and does not forbid legality, whence a
divorce given during the courses is valid; yet it is laudable that the husband
reversed it, as it is recorded that the son of Umar having divorced his wife
during her courses, the Prophet desired Umar to command his son to take her
back again; which tradition shows that divorce during the courses is valid but
that reversal is in this case laudable (Hamilton in Hidaya, Vol. I, Book 4,
Chap. I. page. 74).
Courtney-Terrell,
C.J.
29.--I agree.
Jwala Prasad, J.
30.--I agree.
33.
Though the outcome of the instant case quoted herein was altogether, different
from the present Judicial view of the Hon’ble Apex Court and rightly so, as the
British Courts in India had a different role to play, the British Indian
courts' judgements and the British judges patronized the orthodox rigidity that
'Islam is inimical to change'. This attitude of the judges left the Muslim
personal law more or less untouched, and as a consequence women's rights to
divorce have been adversely affected. Now the Courts in Independent India are duty bound to uphold the
Fundamental Rights as available to its citizens, guaranteed under the
Constitution of India. This includes ‘Right to religious practices’ , and the
arguments done way back in, 1929.A.D. have found their appreciation in the
Landmark Judgement of Hon’ble Supreme
Court in Shamim Ara’s case, as reported in AIR, (2003). S.C. p. 3551 .
34.. Talaq-ul-Bain, or triple Talaq, was and is
the most detested form of Talaq, and the punishment provided by the second
Caliph of Islamic Empire, was death penality. http://www.timesofindia.com/151100/15edit4.htm
|
[ DURING the reign of the second Khalifa of
Islam, Hazrat Umar, legend has it that there was a sudden spurt of talaqs in
Arabia. Men were divorcing their wives without assigning any rhyme or reason.
Angered by the inhuman manner in which people were interpreting the Koran,
the Khalifa ordered that any man found giving his wife Talaq should have his
head severed.]
35.On Friday prayers Umar addressed
the people as follow:
a.Brethren, it has come to my notice
that the people are afraid of me..... they say that he (Umar) has become the Caliph now,
God knows how hard he will be. Whoever has said this is not wrong in his
assessment...... know ye brethren that you will feel a change in me.[42] For those who practise tyranny
and deprive others of their rights, I will be harsh and stern, but for those
who follow the law, I will be most soft and tender.
b.Umar's addresses
greatly moved the people. Next time he addressed the people as:
“I will be harsh and stern against
the aggressor, ] but I will be a pillar of
strength for the weak.
I will not calm down until I will put
one cheek of a tyrant on the ground and the other under my feet, and for the
poor and weak, I will put my cheek on the ground.”
There could be no
better definition of the democracy and justice, then the historic words of
Umar, over which he laid foundation of his rule:
“By God, he that is weakest among you
shall be in my eye the strongest, until I have vindicated for him his
rights; he that is strongest I will treat as the weakest, until he complies
with the law.”
36. The
clear instruction in the Koran is as follows: At-talaaqu marrataan:
fa-imsaakum-bima`-ruufin `aw tasriihum-bi-ihsaan. Wa la yahillu lakum
`an-ta`khuzuu mimmaa`aatay-tumuuhunna shay-`an `illaaa. Surah Al Baqr,
226. This means that talaq must be pronounced twice (in two months) and then
(a woman) must either be retained in honour or released in kindness. Further
it says, it is not lawful for you that you take from women anything which you
have given them.
a. The commandment is clear. Talaq has to be pronounced
twice with an intervening period in which to rethink, reconsider and
reconcile. For this, the important instruction is to take time, and, once
again, take more time, during which period there should be interlocutors from
both sides to try to mediate the conflict. After the second Talaq, there is
still an intervening period, during which the husband has to think about the
two choices available to him; either reconciles with his wife in an honorable
way, or pronounces the third (irrevocable) Talaq with kindness and allows her
to go. At the end of the third interval, he must exercise this choice. But
then follows the absolute command. If he decides to let her go, he must do so
`without taking from the woman anything you have given her'. The spirit of the
Koran vis-a-vis the process of divorce and the divorced woman, as reflected
in this command to the man, is imbued with sensitivity towards gender.
B.The same command is repeated in Section 241 of
the same Surah as a reminder to Muslims that in matters of Talaq (as in other
matters) women must be treated with utmost kindness.
c. Wa
lil-mutallaqati mataa-um bil maruf. Haqqan `alal muttaqiin. (And remember for women who have been
divorced, they should treated with ihsaan and suluk (kindness and grace). For
all pious men this is the duty). The Koran is replete with passages for proper
and egalitarian treatment of women. Muslims are commanded never to create
impediments if a divorced woman wishes to contract another marriage. If a
Muslim wants to exchange one wife for another he is commanded not to take
anything from her, even if he has given her a quintaar, meaning, pile of gold
(Surah Nisa, Section 20). In the same Surah, Muslims are commanded to give
the wife's mehr with good grace at the time of marriage itself, unless she
decides to defer it of her own free will.
37. Talaq
is permissible in the Koran only on condition that there is a complete
breakdown of marriage. Parting
of ways must be graceful, and utmost care is taken to inflict no suffering on
the woman. The common practice of
impulsively uttering Talaq thrice in a go, or writing Talaq thrice on a
postcard, or hiring a quiz to affix his signature on a scrap of paper, is
totally anti-Islamic. No cleric, regardless from which school of Fiqah, can
ever condone this form of Talaq.
38. Just as the man is permitted Talaq, so also
is the woman permitted to take khulla. In this matter as in all others, women
and men have equal rights in Islam. In Surah Al Baqr (Section 228), there are
five words which according to Maulana Abul Kalam Azad's explication of the
Koran, altered the status of women for all time to come. The words are: Wa la hunna mislullazi alayhinna bil ma`ruuf.
This means that (in matters of husn-e-suluk `beauteous treatment') women have
the same rights over men as men have over women. In Section 229 of the same
Ayat, a woman is permitted to end a tortuous married life by taking khula
although she has to go through the Qazi, unlike the man who does not have to
fulfill this condition.
39. This condition was stipulated, once again, to
protect the woman because of the possibility of a patriarchal backlash.
Maulana Azad, in his explication, states that if the woman for good reasons
takes khulla, and if she forfeits
part of her mehr of her own free
will, it is permissible. The implication here is startling in view of the
common practice. Most women are brainwashed to believe that for a virtuous
wife, it is incumbent to forfeit her mehr altogether. This they do without
understanding their rights; and when the husband pronounces Talaq, he can
throw her out minus the mandatory mehr, however small. But the clear
instruction in Islam is that even if a wife takes divorce, she is entitled to
mehr; she may of her own free will give up part of it as bargain for her
freedom. As commonly practised, however, it is essential for the woman to
forsake her mehr if she takes khulla.
40. The fact of the matter is that we Muslims
selectively practice whatever suits our need. We indulge in triple Talaq, in
polygamy, in dodging mehr and maintenance. We ascribe our actions to our
religious sanctions and continuously harp on our religious code. But we
blatantly violate the injunctions of Islam. We pronounce triple Talaq without
following the commands pertaining to it. We marry again and again without
adhering to the commands pertaining to second and subsequent marriage. We
still do not give share to the women in property, in succession, despite Holy
Quran, providing for the same. Thanks to the way we practice it, Islam is
looked upon by the world as the most anti-gender religion. For this
perception, it is we Muslims who are to be blamed. It is time we applied the
corrective to our own selves and stop using religion as an excuse for our
misdemeanors.
|
41.
Cultural perceptions of women in pre-Islamic days have influenced the
interpretation of the Quran. The 'women question' had been interpreted through
male perspectives and desires. The modernists have also argued that fundamental
principles of social justice, freedom and equality were buried under the
growing power of patriarchal class relations.
42. The common prejudices and patriarchal
attitudes among men towards women affect women's social standing as well as
their legal rights. Despite the
Quranic flexibility to accommodate
innumerable cultural situations, the
orthodox jurists preferred a single interpretation based on the cultural
context of that time. They believed that Islam is inimical to change. The orthodox jurists
failed to differentiate between the revealed, immutable and historically
conditioned laws that were the product of the early Jurists' fallible human
reasoning and the assimilation of cultural practices.
43. In 1943,
the Jammat-e-Islami chief, Maulana Abul
Ala Maududi, opined: “Due to want of knowledge, Muslims have been generally
given to understand that a Talaq can be pronounced only through the
triple-divorce formula, although it is an innovation and a sin leading to many
legal complications. If people knew that triple divorce is superfluous and even
a single Talaq would dissolve the marriage, of course, leaving room for
revocation during the next three months and remarriage thereafter, innumerable
families could have been saved from disruption.”
44. The law in force in India is not Islamic
law but Anglo-Muhammadan law, which the courts followed during the Raj. In
1905, one English judge of the Bombay High Court, Justice Batchelor, was honest to admit that “there can be no doubt that
Talaq-ul-bidat (or irregular divorce) is good in law, though bad in theology”.
The Privy Council ruled in 1894 that it would rely on “the ancient doctors of
the law” and not on the original sources, the Koran and the hadith. The Supreme
Court of Pakistan rejected this approach. [The Big Idea: Reform,
reform, reform..A.G. Noorani. ]So did Justice Baharul Islam in two
judgments he delivered in the Guwahati High Court. He became judge of the Supreme Court. In a judgment delivered
on September 18, 2002, Justice R.C. Lahoti of the Supreme
Court (now Chief Justice of India) approved both. He said, “Quoting in the judgment several
Holy Koranic verses and from commentaries thereon by well-recognised scholars
of great eminence, the learned Judge, Baharul Islam, expressed disapproval of
the statement that ‘the whimsical and capricious divorce by the husband is good
in law, though bad in theology’, and observed that such a statement is based on
the concept that women were chattel belonging to men, which the Holy Koran does
not brook. The correct law of Talaq as ordained by the Holy Koran is that Talaq
must be for a reasonable cause and be preceded by attempts at reconciliation
between the husband and the wife by two arbiters — one from the wife’s family
and the other from the husband’s; if the attempts fail, Talaq may be effected.”
[ibid.]
45. PTI Oct 28, 2007, 11.11am IST. NEW DELHI: Suggesting a rethink on the
triple Talaq way of terminating Muslim marriages, the Delhi High Court
has ruled that a couple's divorce is invalid if the husband pronounces Talaq
in anger or fails to communicate it to his wife, leaving no scope for
reconciliation.
"It (triple Talaq ) is an innovation
which may have served a purpose at a particular point of time in history but,
if it is rooted out such a move would not be contrary to any basic tenets of
Islam or the Quran or any ruling of the Prophet Muhammad," said Justice B D
Ahmed.
Justifying
his suggestion on rooting out triple Talaq system, Justice Ahmed said
the "harsh abruptness" of triple Talaq has brought about
extreme misery to women and even the men who are left with no chance to undo
the wrong or any scope to bring about reconciliation.
46. Shibu Thomas, TNN Jan 21, 2007, 01.00am
IST. MUMBAI: Talaq,
Talaq, Talaq. These
three words are not enough for a Muslim husband to divorce his wife, the Bombay
High Court has ruled. In a crucial judgment that will almost certainly rekindle
the triple Talaq controversy,
Justice B H Marlapalle held that the Talaq between Dilshad Begum and Ahmadkhan Hanifkhan
Pathan was not legal and valid as the husband had not gone through the
preconditions of arbitration and reconciliation prescribed by Muslim law.
"The reasons for divorce,
appointment of arbiters, the arbiters resorting to conciliation proceedings and
the failure of such proceedings or a situation where it was impossible for the
marriage to continue, have not been proved in this case," said the judge,
reiterating the landmark judgment by a full bench of the High Court in similar
circumstances in 2001. A full HC bench had then held: "Mere pronouncement
of Talaq by the
husband or merely declaring his intentions or his acts of having pronounced the Talaq is not
sufficient and does not meet the requirements of law."
Under
Muslim law, a man can divorce his wife at his will by Talaq (release
from marriage) or Ila (by taking a vow of abstinence) or Zihar (by
declaring his wife to be his mother). A woman can divorce her husband only by
his expressed consent (tafweez). She can also purchase her divorce from her
husband. Marriage can also be dissolved by a judicial decree under the
Dissolution of Muslim Marriage Act.
47. PTI Oct 6, 2002, 10.25am IST.NEW DELHI:
Pronouncing a major judgment relating to divorce among Muslims, the Supreme
Court has ruled that a mere plea of Talaq taken in an unsubstantiated written
statement submitted before a court could not be accepted as a proof of Talaq.
Disagreeing with the established
practice narrated by experts of Muslim Law, Mulla and Dr Tahir Mahmood, a Bench
comprising Justice R C Lahoti and Justice P V Reddi said "the Talaq to be
effective has to be pronounced."
"A plea of previous
divorce taken in the written statement cannot at all be treated as
pronouncement of Talaq by the husband on wife on the date of filing of the
written statement in the court followed by delivery of a copy thereof to the
wife," said Justice Lahoti, writing for the Bench.
One Shamim Ara was married to
Abrar Ahmed in 1968. In 1979, she filed an application before a Family Court
seeking maintenance from her husband under Section 125 of Criminal Procedure
Code on the ground that he had deserted her.
The husband in 1990 filed a
written statement making an averment that he had divorced her in 1987 and thus,
she was not entitled to any maintenance. The Family Court in its judgement in
1993 rejected the wife's plea for maintenance on the ground that she had
already been divorced.
On her appeal, the High Court
held that the communication of Talaq stood completed in 1990 with the filing of
the written statement by the husband.
The Supreme Court said the
correct law of Talaq as ordained by the Holy Quran was that it must be for a
reasonable cause and be preceded by attempts at reconciliation between the
husband and the wife by two arbiters - one from the wife's family and the other
from the husband's; if the attempts failed, Talaq could be effected.
Stating that the husband had
adduced no evidence of the Talaq except for the bald written statement filed in
the court, Justice Lahoti said "There are no reasons substantiated in
justification of Talaq and no plea of proof that any effort at reconciliation
preceded the Talaq".
According to Mulla the statement
by husband in pleadings filed in answer to petition for maintenance by wife
that he had already divorced the petitioner (wife) long ago operates as
divorce. Dr Tahir Mahmood supported Mullah in his book The Muslim Law of
India .
The apex Court Bench said
"We do not agree with the view propounded in the decided cases referred to
by Mullah and Dr Tahir Mahmood in their respective commentaries."
"We are very clear in our
mind that a mere plea taken in the written statement of a divorce having been
pronounced sometime in the past cannot by itself be treated as effectuating
Talaq on the date of delivery of the copy of the written statement to the
wife," Justice Lahoti said.
Allowing the appeal of Shamim
Ara, the Supreme Court said that "neither the marriage between the parties
stands dissolved on December 5, 1990 nor does the liability of the husband to
pay maintenance come to an end on that day. The husband shall continue to
remain liable for payment of maintenance until the obligation comes to an end
in accordance with law."
48. PTI Oct 5, 2005, 09.23pm IST. KOCHI: The
Kerala High Court on Wednesday ruled that mere pronouncement of 'Talaq' three
times, even in the presence of one's wife, was not sufficient to affect a
divorce under the Muslim law.
There should be an attempt at
mediation by two mediators on both the sides and only if it ended in failure
was the husband entitled to pronounce 'Talaq' to divorce his wife, a bench
comprising Justice R Bhaskaran and Justice K P Balachandran said.
The judgement was delivered in
a case wherein one Ummer Farooq of Malappuram challenged the direction of a
family court to pay maintenance to his estranged wife.
The petitioner claimed that
there was a valid ground for divorce and that he was not liable to pay
maintenance. However, the court did not approve of the argument.
49. 'Triple
Talaq misread'
a. Shahina
Mulk, TNN Mar 8, 2010, 06.08am IST. The practice of triple Talaq in one
sitting, which is largely considered antithetical to the spirit of the Quran,
is said to be responsible for the plight of many Indian Muslim women. Those
with in-depth knowledge of the holy book are, therefore, gradually rising to
guard their rights.
b. Fatima Khan, a retired professor, said,
'Islam cannot be blamed for entailing a law that brings miseries to the weaker
sex... Rather, it was the first religion in the world to empower women and give
them equal legal status...Sadly, the Muslim society is still under the
influence of feudal ethos.' She added that for a divorce to be considered final,
the word Talaq must be delivered at three sessions, each separated by a month.
c. Sajada Siddiqui, who works as a
professor in UAE, remarked, 'The Quran is replete with passages for proper and
egalitarian treatment of women. The common practice of impulsively uttering
Talaq thrice at a go is totally anti-Islamic. Muslim nations like Syria, Lebanon and even Pakistan do not
term this pronouncement legal unless the matter is brought to the notice of
court or arbitration council.'
d. Stating that the All-India Muslim
Personal Law Board (AIMPLB) had failed in firmly banning the practice, Sania, a
student, said, 'The Deobandi Ulema, who dominate the board, are groomed in a
tradition of extreme patriarchy, expecting reform from them is a mirage. Muslim
women should themselves step ahead and fight the injustice meted out to them.'
e. Kashish Ahmad (name changed) ' who has
been fighting a long-drawn legal battle in the family court ever since her
husband sent her a telegram with the word Talaq mentioned thrice ' lamented,
'Politicians don't want to jeopardize the Muslim vote bank for the sake of
social justice to the weaker sex and that too in minority. The Indian
politicians with hunger for power have a fatal fascination for unscrupulous
compromises. Secularism and gender parity have perished on the cross of Islamic
obscurantism.' Kashish hoped the government would step in to protect the rights
of Muslim women and not succumb to fundamentalists' pseudo-cry of 'religion in
danger'.
f. Seeking a uniform law, homemaker
Mumtaz Zaidi said, 'Though courts have often declared triple Talaq as
unacceptable, Muslim women are forced to wait for years to get
justice...Divorce should only be permissible if it fulfils all the
prerequisites mentioned in the Quran.' She added, 'Muslim
women have been fettered by inane customs and traditions not sanctioned by
Islam. If they receive proper education, become conscious of their rights and
duties, they can easily break their chains.'
50. Quranic
Justice. Tahir
Mahmood, Feb 1, 2007, 12.00am IST. In January, the Bombay high court ruled that triple
Talaq was not good enough for divorce. Giving judgment in Dilshad Begum's case,
Justice B H Marlapalle observed, "The reasons for divorce, appointment of
arbiters, the arbiters resorting to reconciliation proceedings or a situation
where it was impossible for the marriage to continue have not been proved in
this case".
1. According to him the
pronouncement of Talaq by the husband or merely declaring his intentions or his
acts of having pronounced the Talaq was not sufficient and did not meet the
requirements of law.
3. In the latter case, answering
the claim of a deserted wife to payment of maintenance by her husband a plea
was made that he had divorced her much earlier.
4. The court rejected the
husband's statement. It said, "The particulars of the alleged Talaq are
not pleaded nor the circumstances under which and the persons, if any, in whose
presence Talaq was pronounced have been stated... There are no reasons
substantiated in justification of Talaq and no plea or proof that any effort at
reconciliation preceded the Talaq".
5. In the presence of this clear
verdict of the apex court, the high court's decision in Dilshad Begum's case
could not have been different.
6. None of these judicial verdicts are repugnant
to true Muslim law. The Qur'an regards marriage as a 'misaq-e-ghalid' between
the parties whose sanctity must be respected by all possible means.
7. Only in cases of exceptional hardship does
the holy book of Islam allow dissolution of a marriage, clearly laying down for
that undesirable act a step by step procedure which includes attempting a
reconciliation by arbiters representing the parties: "Should a breach
between the spouses be feared appoint one arbiter each from amongst his and her
people; if they see any chances of reconciliation God will give it due
effect".
8. If a talaq is pronounced otherwise, it will
theologically be improper and repugnant to Islamic law. The courts are fully
aware of these salient features of Islamic matrimonial law restated in several
books written in modern languages and incorporated into the family-law statutes
adopted across the contemporary Muslim world.
9. Therefore, if contesting a maintenance-claim
des-perately filed by a deserted wife the husband claims to have Declaring
dissolution of marriage to be 'abghad-ul-mubahat indallah' (of all legally
permissible things most detes-table in the sight of God), the Prophet had
warned his people to keep away from it.
10. True Muslim law, in fact, stood for what is
now known as the breakdown theory of divorce - if a marriage has irretrievably
broken down Muslim law would allow its dissolution, at the instance of either
party or by mutual consent of both parties.
11.
An out-of-court divorce is available in such a case to both the man and wife,
though provisions do exist also for a judicial divorce.
12.
The facility of out-of-court divorce is aimed at protecting privacy of intimate
relationships and is furnished in the hope that the aggrieved spouse would
behave in a God-fearing and responsible manner.
13.
A court of justice in our times cannot be expected to be instrumental to the
abuse and exploitation of what under the law of Islam is a per-missible but
highly discouraged course of action.
14.
The All India Muslim Personal Law Board (AIMPLB), after years of hard labour,
has prepared a new monograph on personal law in Urdu. Titled
Majmu'a-e-Qawanin-e-Islam, on the board's request it was translated into
English as Compendium of Islamic Laws. The board published both the original
Urdu text and its English translation in 2001.
15. The verdict of AIMPLB in respect of divorce
is: "The Shariat regards divorce as a permissible but undesirable act...
Uncontrolled use of divorce without regard to the restrictions imposed by the
Shariat is a gunah. To divorce the wife without reason only to harm her and in
violation of the procedure prescribed by the Shariat is haram".
16. How, then, can the
judiciary in 21st century India be expected to legalise a reprehensible conduct
which in the eyes of Islam is not simply an ordinary gunah (sin) but is
admittedly haram (absolutely prohibited)?
The matter merits serious consideration by the Muslim
ulama and contemporary votaries of Shariat laws.
51. Therefore keeping in view the facts and circumstances of the
case and the set of facts as proved during the course of trial, and applying
the holy Koranic Law, readwith the law of the land, as both of them are in
perfect harmony rather than any contradiction, in the words of hon’ble apex
court, "neither the marriage between
the parties stands dissolved on August 19th, 2008. nor does the liability of
the husband to pay maintenance comes to an end on that day. The husband shall
continue to remain liable for payment of maintenance until the obligation comes
to an end in accordance with law." As such finally maintenance to the tune
of rupees 5000.00 per month is awarded w.e.f. the date of application. Arrears
if any shall be paid in equal monthly instalments apart from the maintainace
amount, till they are liquidated.
52. Apart
from this costs are also awarded to the tune of rupees 20,000. To the applicant
as she has been un-necessarily vexed and tormented in the instant litigation
and following the words of Hazrat-e-Umar, “By God, he that is weakest among you
shall be in my eye the strongest, until I have vindicated for him his
rights; he that is strongest I will treat as the weakest, until he complies
with the law.” {Hazrat
Umar Second Caliph of Islam.}Wherein this Court has come to the conclusion that
a mischief has been played upon the applicant.
Case file is disposed off in these
terms, but before parting with the file it is imperative upon this Court to
take judicial note of certain things, as such, petition writer, Mohammed Yusuf
is directed to submit his register of deeds from the records and also notice be
issued to notary public, Habibullah Bhat, district Court Baramulla, to appear
before this Court and show cause as to why action as warranted under law be not
initiated against him. Office to call for original registers of both Habibullah
Bhat notary and Petition Writer Mohammed Yusuf from the district record room
for the year 2008.
Announced:
28th Sept;2012.
( M.A.Alnasir)
Special Mobile
Magistrate Electricity,Pattan.
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