Reinterpretation of the institution of Muslim marriage in a high court judgement has infuriated the Kashmir clergy. As a former high court judge seeks rehearing of the case and the clergy is busy tracing grey areas, Syed Asma revisits the issue that is a controversy in the making.
Traditionally it has been science versus the church. These days, however, in Kashmir it is judiciary versus clergy. A high court judgement passed in April last in a maintenance allowance petition of a divorced woman has become a controversy with the clergy differing with part of the verdict.
In his verdict, Mr Justice Hasnain Masoodi has included excerpts from Quran and quoted Hadith in the judgement. However, the clergy and senior lawyers believe the court, which is not entirely based on Shariat, is not qualified to comment on the religious matters. It is not their jurisdiction, they claim.
“The case was a dispute over maintenance allowance and should have been resolved on the similar lines. There was no need to raise questions about a man’s power to divorce his wife,” says Zaffar Qureshi, a senior lawyer and president of J&K Bar Association. “This judgement has high chances of landing all of us into serious trouble.”
Qureshi and the local religious leaders believe the judgment would have repercussions on the young couples and it can be misused easily by both husband and wife. The 23-page judgement was passed in a case where a divorced woman, Bilquis Akhtar, was seeking quashing of a court order which had barred her from claiming maintenance allowance under section 488 CrPC. The court order had maintained that she was divorced and hence not entitled to receive any maintenance from her husband. But the court said her daughter should be given an allowance of Rs 1800 per month. Bilquis Akhtar was married to Naseem Bhat in 2002 and they got divorced in 2005, two years after their daughter, Kareena Naseem, was born.
Justice Masoodi, quashing the earlier court order, raised and answered what is being termed as an ‘irrelevant question’ on whether a Muslim husband had an absolute and unqualified power to pronounce divorce on his wife and wriggle out of his obligations under the marriage contract. He has tried to answer it in the light of Quran and Hadith.
“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,” the judgment reads. “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.”
But the senior lawyers say Justice Masoodi should have either called upon the local Islamic scholars and leaders or should have consulted domestic and international Islamic schools or universities for help, instead of interpreting the holy Book on his own. “It is an unintentional mistake and should be rectified immediately,” says Qureshi.
Taking a strong note of the judgement, the Kashmir’s clergy are working on forming a committee which will include representatives from all existing sects in Kashmir, says Ghulam Rasool Malik, president, Jamaat-i-Ahlihadees, J&K. It had organised a seminar and invited all the religious dignitaries and a few lawyers to look into the matter more seriously.
They are working to find grey areas in the verdict and may take it to the court as well, the committee members say. The judgement is criticized on few points and is foreseen to create dispute among different sects of Islam in Kashmir.
Zahid Ali Lone, the spokesperson of Jamaat-i-Islami, J&K, says the entire judgement is based on Quran and Hadith but the way these have been interpreted are not acceptable. “To interpret Quran and Hadith, one needs to be an Islamic scholar,” adds Qureshi.
Lone said all the conditions which are only recommendatory in Islam have been made “mandatory in this judgment” which has put forward four conditions which need to be “compulsorily” pleaded and proved for approving a deed of divorce.
One of the conditions put forward is that efforts should be made by the representatives of husband and wife to intervene and settle their dispute. It has to be proved in the court that such effort did not bear any fruit but, Lone says, it is not necessary to have arbiters. “But it can be done as it is said that divorce should be the last resort and every attempt should be made to make marriage a success. It is not obligatory,” claims Lone.
Justice Hasnain Masoodi
The other condition that needs to be fulfilled is of having a ‘valid’ and ‘genuine’ cause to pronounce divorce on one’s wife.
But the religious leaders say Islam has kept the conditions recommendatory because it is not possible all the time for a husband to put forward reasons of getting separated from his wife. Some reasons are to be personal, they insist.
“One of the main reasons for not compelling a husband to share the cause of their separation is that it can have repercussions on the divorced woman if she decides to remarry,” says Ghulam Rasool Malik. Moulana Rehmattulah of Dar-ul-Uloom Rahimiya in Bandipore says divorce is a man’s ‘emergency exit’.
“It is his moral obligation to put forward the reason of divorcing his wife but is not mandatory,” he insists. Other condition that Rehmattulah criticizes is of pronouncing Talaaq in presence of two witnesses. He says witnesses are usually required in court cases but the judgment demands pronouncing Talaaq in front of the witnesses which is not possible and is wrong. Jamaat spokesperson, Lone says this point in judgement might be considered since some sects ask for the presence of witnesses and some do not.
Rahmattulah says seeing the magnitude of the mistake, they are making efforts so that Quran should not be misinterpreted in future. He has decided to gift English translation of Quran and a book of collections of Muslim laws to all the judges in Kashmir.
The last compulsory condition in the judgment that needs to be proved in court is that Talaaq was pronounced during
ZAHID ALI
the period of tuhr (period of purity) and the couple were separated during tuhr. The judgement mentions: “It is only after the husband pleads and proves all the above ingredients that divorce—Talaaq, 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.”
In the present case, the petitioner, Naseem, could not prove all the condition and hence the judge has not approved the deed of divorce. The couple has been separated from the last seven years and Bilquis has taken away all allowances that she owned after getting divorced.
The Islamic organisations say that even if the conditions were not fulfilled, the divorce is pronounced and should be taken as happened. The couple in no way can live together, they say, it is irreligious. Lone says this judgement can create a menace in the society and can easily play with the dignity and self respect of a woman.
Lone suggests that instead of misinterpreting Islam and creating a menace by interfering in the institution of marriage, the judiciary along with the Islamic scholars should make some strong recommendations regarding women property inheritance rights and help them to get a more secure place in the society. This may also reduce the divorce rate in the society as well, he opines.
Justice(RETD) B A KIRMANI
Awareness, Lone believes, is the only remedy in such cases. “We have revived their women’s wing which is trying to make women aware of their rights and will help them to secure a dignified place in the society,” he said.
In reaction to the judgement, retired Justice Bashir Ahmad Kirmani, has filed an application in the High Court seeking re-hearing of the petition. “The interpretation of some of the provisions of the sources of Muslim Law as contained in the judgement does not fully tally with the intent and import thereof, leaving it open to misinterpretation,’ Kirmani argues.
The application further points out ‘that the sequences, subtext and the background of the material quoted in the judgement is not fully reflected in the narrative forming its core.’ Kirmani further argues ‘that while determining certain basic facets of Talaaq under Muslim law, the judgement limits consideration of the subject in fullness, leaving certain elements integral thereto out of its purview, rendering the findings inapt and hence open to misapplication.’
MARRIAGE HAS EQUAL PARTNERSHIP
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.”
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. 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.
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.”
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.
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.
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.
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.
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.” (Select excerpts from the judgment which is fully available on www.kashmirlife.net)
