Muslim Man’s Power To Divorce Is Restricted

Disposing off Mohammad Naseem Bhat Versus Bilquees Akhter, a petition for maintenance, Mr Justice Hasnain Masoodi of the J&K High Court ruled that Muslim man’s power to divorce his wife is not “unrestricted or unqualified”. The 23-page judgment is vital to the conjugal litigations and the Muslim Personal Law. In public interest, Kashmir Life reproduces the entire judgment delivered on April 30, 2012.

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
561-A No. 158/2009
IA No. 336/2009
Date of order:      30 / 04 /2012

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Mohammad Naseem Bhat

Versus

Bilquees Akhter and anr.

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Coram: Hon’ble Mr. Justice Hasnain Massodi, Judge

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Appearing Counsel:

For the appellant(s): Mr. H. I. Hussain, Advocate
For the respondent(s): Mr. S. H. Thakur, Advocate
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i.    Whether approved for reporting in Press/Media: Yes/No/Optional
ii.    Whether to be reported in Digest/Journal: Yes/No

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1.    Petitioner seeks quashment of Revisional Court order dated 15.10.2009 in Criminal Revision Petition No. 7/2009 titled Bilquees Naseem Vs. Naseem Ahmad Bhat whereby the Revisional Court has reversed the finding recorded by the Trial Court that Bilquees Naseem was divorced by her husband Mohammad Naseem Bhat disentitling her from claiming maintenance under Section 488 Cr. P. C. The admitted and undisputed facts are as under:-

2.    Mohammad Naseem Bhat and Bilquees Akhter alias Bilquees Naseem—petitioner and respondent No. 1 in the present petition, contracted marriage on 24.08.2002 and out of wedlock Baby Kareena Naseem- respondent No. 2 in the petition, was born on 06.06.2003. They however, some time after respondent No. 2 was born, fell apart. The parties have their own versions as regards reasons for their separation.

3.    Be that as it may, respondent No. 1 on her behalf and on behalf of her minor daughter-respondent No. 2 on 30.01.2006 filed an application under Section 488 Cr. P. C. in the Court of JMIC/3rd Additional Munsiff Srinagar. The respondent’s case before the Trial Magistrate was that the present petitioner not happy that respondent No. 1 had begotten a female child, subjected her to inhuman treatment and threw her out along-with Baby Kareena Naseem from her marital home, leaving her without any source to fall back upon. It was insisted that the petitioner was a man of substance, had an income of Rs. 30,000/- per month and had sufficient resources to maintain the respondents. The respondents asked for Rs. 3000/- per month to each of them, as maintenance allowance. The petitioner resisted the application on the grounds that he had divorced respondent No. 1 on 22.12.2005 and he was not under any obligation to pay maintenance allowance to respondent No. 1. The petitioner denied that the respondents were thrown out and insisted that the respondent No. 1 left his house on her own, taking with her all her belongings including ornaments and apparel and even got false and frivolous case registered against him at Women’s Police Station, Rambagh, Srinagar.

4.    Learned Trial Magistrate on perusal of pleadings and appreciation of evidence brought on the file, held  respondent No. 1 to have been divorced by  petitioner before respondent No. 1 approached the Trial Magistrate with her application under Section 488 Cr. P. C. and thus not entitled to receive any maintenance from the petitioner. However, the petitioner was directed to pay an amount of Rs. 1800/- per month to  respondent No. 2 from the date of filing of the application.

5.    The respondent aggrieved with the order of the Trial Magistrate dated 30.06.2009, whereby her claim for maintenance was rejected, questioned it through medium of a revision petition before 1st Additional Sessions Judge, Srinagar. Learned Revisional Court on perusal of the record and after making a survey of law on the subject, set aside the Trial Magistrate order dated 30.06.2009 holding it to be perverse, illegal and passed in a mechanical manner. The Revisional Court asked the Trial Magistrate to determine the quantum of maintenance allowance to which respondent was entitled in the facts and circumstances of the case.

6.    The order of Revisional Court is questioned in the petition on hand on the grounds set out in the petition. It is insisted that the Trial Court order is well reasoned, in conformity with law and does not suffer from any error, illegality or impropriety so as to warrant interference under Section 435 Cr.P.C. The Revisional Court order, according to petitioner, amounts to abuse of process of Court and deserves to be quashed in exercise of inherent powers vested in the Court under Section 151-A Cr.PC.

7.    I have gone through the petition as also Trial Court and Revisional Court record. I have heard Counsel for the parties.

8.    Whether a Muslim husband has an absolute and unqualified power to pronounce divorce on his wife and wriggle out of his obligations under the marriage contract? The fate of the present revision petition hinges on answer to this question. It needs to be pointed out at the outset that a Muslim in the matters of marriage, divorce, adoption, maintenance and inheritance etc. is in terms of Jammu and Kashmir Shariat Act, 2007, governed by the Shariat Law. The primary sources of Shariat Law are Quran, and Sunna-practice and sayings of Prophet. Ijma, Qiyas and Ijtihaad supplement the primary sources. To find out the answer to the question, and manner in which the marriage may be dissolved or the marriage contract may come to an end, we have to go to the fundamental sources of Shariat Law and to understand the concept of marriage in Islam, the rights of the parties to the marriage contract i.e. husband and wife, and the mode and manner the marriage contract is dissolved.

9.    The marriage is a social institution that forms bedrock of family and Society. The Supreme Court in G.V.Rao   Vs. L.H.V Prasad and others (2000) 3 SCC 693 called marriage “sacred ceremony, the main purpose of which is to enable the young people to settle down in life and live peacefully”. In Smeda Nagpal  Vs. State of Delhi and others (2000) 9 SCC 745, the Supreme Court holding that “basic unit of Society   is  a family, observed that “marriage  creates the most important relation in  life, which  influences morality and civilization of people, than  any other institution”. The concept of   marriage in Islam is no different. Marriage in Islam is a “solemn covenant”. It is union of love, affection, mutual respect, loyalty and obedience. The Institution of marriage in Quran is described as sign of mercy of Almighty Allah with the object to bring peace and tranquillity to the husband and the wife. Quran—Chapter 30 verse 21 ordains.

“And amongst His signs is that he created for you spouses from among yourselves, that you may find peace in them, and he put between you affection and mercy. Verily in that there are signs for those who reflect”.

10.    In Islam marriage, is not only means to achieve emotional and biological gratification but also Ibadah as by contracting marriage, the parties to the marriage display obedience to Allah and to the Sunnah.  There is no celibacy in Islam.     The marriage is a religious duty, a moral safeguard and a social necessity as it enables the marrying couple to establish a family as a fundamental unit of the society. The Prophet is reported to have said “marriage is my tradition whosoever keeps away there from is not from amongst me.”

11.    Since the marriage is based on mutual love, affection and loyalty, Islam does not give preference to either of the parties to a marriage.  The message in Chapter 30 Verse 21 is not gender specific. It does not address a Muslim man or Muslim woman. It does not say that Almighty Allah created for a man, woman as his spouse or vice-versa. It, on the other hand, addresses both men and women saying that He created spouses and it is a sign of His mercy. This clearly indicates that a man and woman are equal partners in a marriage. Again Quran uses expression “Zawj” for both husband and wife. It means either of the pair. Wherever Quran makes mention of ideal partners in a marriage, it refers to them as “Zawj” and not husband or wife. This again makes it clear that husband and wife in Islam are equal partners and have equal status.

12.    With the above baseline, Islam does not prefer or encourage a   particular pattern of life for a   married couple. It gives them complete freedom to decide on life pattern and assign roles as long as such patterns   or roles are not in conflict with fundamental principles of Islam. The husband and wife, at the time the marriage is contracted, must be competent to enter into a contract. The contract is to be based on mutual consent i.e. offer and acceptance.  This further reinforces the proposition that a   man and women have equal rights,   equal role   and equal power while   contracting marriage.  The parties after they contract marriage retain their personal rights as against each other and as against others. Having regard to the object of the marriage and its basis, it does not require any emphasis, that marriage in Islam is not temporary feature. It is meant to continue and remain intact for the entire span of life.

13.    In Islam husband and wife protect each other. Quran calls them “garments for each other”.  The verse is to indicate the level of proximity or intimacy between the spouses. Here again Quran does not make any difference between wife and husband. A garment does not only protect a person from heat and cold or bodily injury but also is something close to the body of a person. The expression “garments for each other” therefore, means that no other person can be as protective and close to husband or wife as his or her spouse. The love, affection, care and protection that marriage creates between spouses have positive spill over for the family, the society, the world and the universe. The marriage in Islam therefore forms building block for the universal love and peace.

14.    Though Islam does not  treat marriage as a temporary  relation and  expects  it to   create an eternal bond between the spouses  based  on love, affection, fidelity,  and mutual  respect,  yet it  does not rule out a situation where  because of  reasons beyond control  of the parties   marriage may break down. Islam recognises three modes of dissolution of  marriage.  It may be dissolved by (i) mutual consent of the spouses—Khula, (ii) divorce by the husband—Talaak or (iii) by intervention of the Court—judicial divorce. Ila, zeher, mubara’at are other modes of dissolution of marriage. In the present case we are concerned with divorce by husband—Talaak. It may take three forms:

(i)    Talaak ahsan—single pronouncements of divorce made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat.

(ii)     Talaak hasan—three pronouncements of divorce made during  successive tuhrs, without any intercourse  during any of the  three tuhrs,

(iii)     Talaak bid’i—three pronouncements—of divorce made during a single  tuhr  either in one  sentence or in three sentences  or any other form  like in  writing, indicating  intention of the husband  to  irrevocably dissolve  the marriage.

15.    It is important to note that Talaak ahsan,  whereby a  husband pronouncing  divorce during tuhr i.e. period of  purity, before having  any  sexual relations with  his wife, is only   form of   divorce   that finds  approval of Quran. This is the approved form of divorce, as it leaves room for reconciliation. Talaak ahsan, in a way, is a mechanism of experimental temporary separation, where spouses falling apart have adequate opportunity  to proceed on an onward journey and understand negative spill over of separation on them and those around them. Talaak hasan is next to Talaak ahsan in the degree of acceptability. However after divorce is pronounced twice i.e. in two consecutive period of  tuhr, the parties thereafter have a choice to either live together as husband and wife forever  or to separate   forever never thinking of reunion. Once the two consecutive experiments of reconciliation fail, third divorce operates as Talaaki bai’n. Quran in Chapter 2 verse 229 commands “a divorce is only pronounced twice; after that the parties either to hold together on equitable terms or separate with kindness”. Talaaki bid’i is a later innovation and does not find   approval of Shariat Law.  It is a  medicine  that was conceived to cure the  menace of multiple  divorces at one time, but  turned out  to be more lethal  than the  disease it was to cure. It nonetheless, operates immediately, dissolves   marriages, leaving the divorcee with rights, like right to claim   maintenance and right to shelter during the period of iddat. Most despised and discouraged of all forms of talaak, the talaak bid’i is frequently used device to dissolve marriage.

16. In case of irrevocable divorce where husband pronounces divorce twice i.e. two consecutive tuhr’s and thereafter decides not to live with his wife or pronounces a third divorce, the husband pronounces triple divorce or uses any other form of divorce to make it clear that it is to operate irrevocably, he cannot remarry the divorcee. Quran  in Chapter  2 verse 2230 ordains “so if a husband  divorces his wife  irrevocably, he cannot  after that remarry  her  until  after she  is married to another person  and he has divorced her”. There is no such bar in case of Talaak ahsan. Chapter 2 verse 232 provides “when ye divorce  women, and they fulfill the term of their (iddat), do not prevent them from marrying their (former husbands) if they mutually agree on equitable terms”.  However, as the Talaak bid’i is the most frequently used method of divorce, the discussion is to remain focused on the said form of Talaak.

17.     Though Islam visualises a situation where a marriage may run into rough weather, for reasons beyond control of the parties to the marriage and provides for  a mechanism to end  or dissolve the relationship in such case, yet emphasis remains on making every effort to help the marriage work, and to require the parties to marriage realize, that the weft and warp of marriage  is  love, affection, loyalty, care, accommodation and understanding and differences are to be resolved on the basis of said principle. The device of divorce is to be used as a last option when the marital relations have irretrievably broken down and only way in the interest of both the parties and the society  is to help them separate, to make a new beginning and start a new life,  so that they  are in a position to play the roles for  their well  being   and betterment  of  other  members of the Society. In other words, Islam is strongly against the divorce and wants it to be avoided unless there is no alternative, except separation.

18.    A closer look   at the Quranic verses   dealing with the subject   of divorce, as also Sunna relevant to the subject, makes it abundantly clear that the divorce is   discouraged   and   an effort is made  to   make it difficult and inconvenient for a husband to pronounce Talaak. On the other hand every effort is made to facilitate reconciliation, where the relationship is marred by disputes and disagreements. Chapter 65 verse 1 and 2, reference to which would be made  during course  of this judgment, place  restrictions on divorce  and at the same time  ensure that conditions are created for reconciliation. The wife even after Talaak  is   pronounced is to stay in the house of the  husband. The husband is under command not  turn out   the divorcee  from  his   house. The object  is to make the  couple  live  under same roof, during the waiting period and help them realize their importance  for each other and what they mean to each other,   so that the  husband  is prompted   to give a second  look   to his decision   and take back his  wife in marital  fold.

19.     The Prophet is reported to have said “Jabra’il (Gabriel) so much commended the cause of the women, and so counselled me as to  give me the  impression that, except  in the case of adultery, the wife does not deserve to be divorced”. Imam Ja’far Sadiq quotes the Prophet as saying:

“To God no house is dearer than the house where there is the union of marriage, and no house exists which deserves His wrath more than that in which the union of marriage is broken by divorce.” According to Imam as-Sadiq: “The word Talaq (divorce) occurs repeatedly in the Qur’an, and that the details of the matter of divorce have been honoured  with the attention  of the Holy Qur’an.  The reason for this is that God is an enemy of separation”. Tabarasi in Makarimu ’l-akhlaq quotes the Hadith “Get married, but do not divorce because the throne of Allah shudders when there is divorce.” Imam as-Sadiq says:  “No lawful thing is the object of so much wrath and hate in the eyes of Allah as divorce is.  Allah considers the man who repeatedly divorces as His enemy.” Abu Dawud in Kitab Sunnah quotes Hadith “Allah declared lawful nothing so abominable to Him as divorce.” Jalalu-Din-Rumi refers to the tradition of Prophet, “as far as possible do not step into separation, for the most detestable thing to me is divorce”.

20. The Prophet was once informed that Abu Ayyub Al-Ansari was determined to divorce Umm Ayyub—his wife. The Prophet knowing that the divorce of Umm Ayyub was not grounded in a genuine cause said “Verily the divorce of Umm Ayyub is the great sin”. It follows that husband must have a genuine and valid reason to divorce his wife. The power or right to pronounce divorce is not to be used arbitrarily, at whim and caprice and in absence of a valid and genuine reason.

21.    From the above brief overview of Quran and Sunna relevant to the subject—the fundamental sources of Shariat Law governing the Muslims in the matter of marriage, divorce and other family matters, it  emerges that though husband under Shariat law has power to divorce his wife yet this power is not absolute,  unqualified and unbridled. The proposition is further reinforced by Q?ran Chapter 4 Verse 35 of Surah Nisa. It reads:

“If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they seek to set things alright, Allah will cause their reconciliation: for Allah loveth not the arrogant, the vainglorious; ”

22.    The Quran ordains that wherever and whenever there appear fissures in the marital relationship and there is disagreement between the spouses, the husband does not have an absolute and unqualified power to divorce his wife so as to get out of relationship, bruised by discontent. As the first step, two arbiters are to be appointed one from the husband’s family and one from the wife’s family and the two arbiters so appointed are to be given an adequate opportunity to resolve the dispute and give their verdict. The verdict whatever given by the two arbiters is expected to be followed by the spouses. It is pertinent to mention that Quran uses the word “Hakm” or “arbiter” and not “mediator”. The arbiters therefore, have not  to simply mediate but to give their verdict so as to redress the grievances, and such verdict is expected to be followed by the spouses. It is important to note that after insisting on “appointment of arbiters, “Quran reminds us that “Allah loveth not the arrogant, the vainglorious”. It is to exhort the parties to a marriage plagued by disputes, to abide by the verdict given or course suggested by the arbiters and not to be rude, obstinate or recalcitrant.

23.    The Quran in chapter 65 Verses 1 and 2 ordains:

    1.“ O Prophet when ye do divorce women, divorce them at their prescribed periods, and count (accurately) their prescribed periods: and fear Allah your Lord: and turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some open lewdness, those are limits set by Allah: and any who transgresses the limits of Allah, does verily wrong his (own) soul: thou knowest not if perchance Allah will bring about thereafter some new situation.

2. Thus when they fulfil their term appointed, either take them back on equitable terms or part with them on equitable terms; and take for witness two persons from among you, endued with justice, and establish the evidence for the sake of Allah. Such is the admonition given to him who believes in Allah and the Last Day. And for those who fear Allah, He (ever) prepares a way out.”

The above quoted verses, obviously place, certain restrictions on the power of husband to pronounce divorce. The restrictions are that  the husband, even  where  he has a valid reason to divorce his wife, has to divorce her at the prescribed period. The divorce is to be pronounced after end of menstrual cycle but before the husband indulges in sexual intercourse with his wife. In case after menstrual cycle the husband and wife copulate during  the period of purity or tuhr, the husband cannot  pronounce  Talaak during that tuhr  and has to wait  till tuhr comes to an end, and the second   menstrual discharge ends and thereafter  pronounce Talaak in next tuhr. Again divorce is to be   pronounced in  presence of two   witnesses who are endued with justice.   There   is no scope  for disagreement    with the legal  proposition that as  Quran and  Sunna  refer to   Talaak ahsan,  restrictions placed on use of said device, as laid down in   Chapter  65 verse   1 and 2  and elsewhere in Quran and Sunna have reference to Talaak ahsan. However, there is no reason to conclude that the said restrictions applicable to the   most approved  form of  divorce,  should not be applicable to the most despised  and discouraged form of Talaak i.e. Talaak bid’i. On the other hand restrictions warrant  strict  enforcement in case of  Talaak bid’i.

24.    The divorce, (Talaak) to be valid and in accordance with Quran and Sunnah, must be   pronounced   during tuhr. Furthermore, in case husband after the menstrual cycle comes to an end and the period of purity or tuhr   commences, has sexual intercourse with his wife, he is forbidden to divorce his wife in that tuhr and if he persists   with his resolve to pronounce Talaak, he has    to wait till next menstruation and pronounce Talaak in tuhr thereafter.  The legal position is made clear by the case   of Abdullah- bin Umar reported by all the treatise on   Hadith. Abdullah-bin Umar divorced his wife  Amina-binti Gaffar when she was in middle of menstrual cycle. Umer-bin Khatab—father of Abdullah-bin Umer reported the matter to the Prophet. The Prophet disapproved the divorce pronounced by Abdullah- bin Umar, asked him to restore relations with his wife making it clear that in case Umer bin Abdullah was adamant in his resolve to divorce his   wife, he may do so during next tuhr. It follows that the pronouncement of divorce during menstrual cycle is strictly prohibited and any violation or disregard renders divorce (talaak)  non-est and inconsequential. Why does Quran ordain that  Talaak  to be valid  must    be pronounced during tuhr and Sunna insist on it’s  compliance, as is evident from verdict rendered in  Abdullah-bin-Umar’s case, is not difficult to understand.  The husband as per the dictates of  Quran is to stay away from his wife during the period of   menstruation. In such circumstances the husband, when he has no access to his wife, may not be in a position to appreciate in right perspective  the fallout of  divorce  on his life and  that of his family. He would be in a better position to realize the   importance of his wife   if he has  access  to her and they are  in a position to relish their marital relations and perform marital obligations. The husband in such situation may feel dissuaded from pronouncing Talaak on his wife. The restrictions on pronouncement of Talaak after the husband and wife copulate, in that tuhr, is to serve the same purpose. The object is to, as far as possible delay the divorce, so that husband has sufficient time to give a fresh look   to his decision.  Once  period of   tuhr   in which husband  has  sexual intercourse with his   wife comes to  an end, and the wife  does not  have  the menstrual discharge  indicating thereby that she has conceived,  the  husband  realizing  that he has  fathered  a child  may no more be interested in pronouncing Talaak and may very well  abandon  the  idea. The end game is to facilitate and ensure continuation of marriage and to avoid the family breakdown.

25.    To make divorce—(Talaak) valid, it is not enough that it is pronounced in presence of two witnesses. The Quran prescribes qualifications of such witnesses. It emphasises that the witnesses must be endued with justice. The purpose is to ensure that the witnesses, prompted by their sense of justice, may request, implore and persuade the spouses on the verge of separation, to calm down, resolve their disputes and lead a peaceful marital life.

26.    From the above discussion, it  emerges that a husband to wriggle out  of his  obligations  under marriage including one to maintain his wife,  claiming to have divorced her  has not  merely to prove that he   has  pronounced Talaak or executed divorce deed  to  divorce  his wife  but has to   compulsorily plead and  prove:

(i)    that effort was made by the representatives     of husband and wife to intervene, settle disputes and  disagreements between  the   parties   and that such effort  for  reasons not attributable   to the husband   did not  bear any  fruit.

(ii)    that he had a valid reason and genuine cause to pronounce divorce on  his wife.

(iii)    that Talaak was  pronounced in presence of two  witnesses  endued with justice.

(iv)    that Talaak was  pronounced during the period of  tuhr (between two menstrual  cycles) without indulging in sexual intercourse with the divorcee during said tuhr.

27.    It is only after the husband pleads and proves all the above ingredients that divorce—Talaak, would operate and marriage between the parties would stand dissolved   so as to enable husband to escape obligations under the marriage contract,   including one to maintain his wife.  The Court in all such cases would give a hard look to the case projected by the husband and insist on   strict proof.

28.    In the present case the petitioner failed to prove the above ingredients to make the Talaak claimed to have been pronounced by him operational and result in dissolution of marriage. Though a feeble attempt appears to have been made to prove that there was some kind of intervention by the elders before Talaak was pronounced by the petitioner, yet this is of no avail to him, as  all the above requirements or  ingredients  of a valid divorce (talaak) are not proved.

29.    For the reasons discussed, the petition is dismissed. The order of the Revisional   Court is upheld and Learned Magistrate directed to deal with the matter afresh after issuing notices to the parties. The trial Magistrate  as a  first step  shall  determine   on the basis of the pleadings, the amount of the interim maintenance  to be  paid by the present  petitioner to the respondent and ensure  that the interim  maintenance is paid with effect from the date such maintenance is directed, within four weeks  from the date of the order.

(Hasnain Massodi)
Judge
Srinagar
30.04.2012