Perspective

Among the pre Islamic Arabs, the power of dissolution of marriage possessed by the husband was unlimited. They could divorce their wives at any time, for any reason or without any reason. They could also revoke their divorces as many times as they preferred. Islam reformed the abuse and put it on a sound social base. It did not abolish it altogether, for its total abolition would be as unwise, being opposed to the best interest of social tranquility and justice as permitting it on every flimsy pretext would lead to give injustice and dislocation of social life. Marriage is the institution for protection and betterment of human being. Islam strongly asserts not to smash this relationship. Islam allows dissolution of marriage only on those circumstances when dissolution would be better than keeping marital relationship. Prophet Mohammad (Sm) says-”With Allah, the most detestable of all things permitted is divorce” Under the holy Quran, marriage state is to be maintained as far as possible and there shall be reconciliation before divorce, therefore, the kasao discourages and permits it only in circumstance after pre-divorce reconciliation.

In shariah law, the husband can give divorce to his wife without intervention of the court through Talaq (repudiation). Islamic law places the right in the husband in the expectation that he will take recourse with justice, some of the classical writers e.g. Mulla, Fyzee, and some of the ulema’s view is that there is unilateral powers of husband to give divorce his write through Talaq. But the supreme court of India expressed disapproval and disagreement with the above views. Approving the decision of Guzrat High Court in Jiauddin Ahmedf vs, Anowara Begum and Ravia Khatun vs. Abdul Khaleq laskar, the highest court of India held that- “the correct law as ordained by the holy Quran is that Talaq must be for reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbitrators, one from the wife’s family and the other from the husband’s. I think this is the correct exposition of Islamic law of divorce if we analyze the mode of Talaq under Hanafi law.

Talaq-e-Ahsan (most approved form) consists of the pronouncement of one single talaq, while wife is in her state of purity (tuhr), the husband abstaining from sexual intercourse and this abstention is to endure during the whole period of iddat which covers three monthly courses so that on expiration of this period the morning stands dissolved. So there is approximately 87 days or 90 days time to affect the talaq. This system was more preferred by the Prophet. In this system, there is a chance of reconciliation of the dispute. This concept has been adopted in section 7 of Muslims Family Law Ordinance 1961. No talaq shall be effective until 90 days is expired. Hence, there is a chance of reconciliation to keep the marriage the, it fails, marriage tie will break.

Talaq-e-hasan (approved from) consists of three successive pronouncements during three consecutive periods of purity. Each pronouncement should have been made at a time when no intercourse has been taken place during that particular period of purity. At the pronouncement of third times, talaq will be effective. Here is also a chance of reconciliation. In pre-Islamic Arabs, There was no limitation of pronouncement of talaq. In this regard, Islam reforms that this situation can not sustain for unlimited time so at the talaq is pronounced at third time. The marriage tie will break Holy Quran says- ‘’then when they have reached their term, take them break in kindness or post from them in kindness.’

There is another form of talaq in Hanafi law known as talaq-e-bidah which terminates the mental tie immediately. In this form, pronouncement is made in a single tuhr, either in one sentence I divorce thee triply or trice or in three sentences. I divorce thee, I divorce thee. I divorce three. Such a talaq is lawful, through sinful in Hanafi law but in Fatemid law and Ithna Ashari law, this types of divorce is not permissible. Imam Ibn Terimiya rigorously asserted that dissolution of marriage at a single sitting is not permissible in the light Islamic law. As so called triple divorce or talaq-e-bain is bidah from of talaq and it is not approved by the prophet. This form of talaq should be prohibited Muslim Family law ordinance 1961; sec. 7 restores the sunnatic provisions of talaq which is very much consistent with the spirit of Islam. It can be mentioned here that so called triple divorce is very prevalent in Bangladesh and some of the Ulemas (religious scholars) supports this from of talaq. This is the violation of sunnatic from and women’s position is deteriorating this from of talaq. But if the Islamic form of talaq is followed, position of women will be up graded.

Islam gives women the power to terminate marital relationship through pronouncing talaq through there is some constraints. The wife has not absolute right to pronounce talaq. In Islamic law, as the marriage is a civil contract and if husband delegates the power to pronounce talaq to wife, the wife can divorce his husband. This provision has been included in the Kabinama column 18.  It should be remembered that if husband delegates the power to pronounce talaq to his wife, the right to pronounce talaq by husband does not lapse but subsist so long as the wife does not exercise the right. Therefore, Islamic law gives women enormous power in case of pronouncing talaq and equates women with men.

Moreover, in Islamic Family Law, husband can terminate marital tie through talaq (repudiation) and so does the wife if husband delegates this power. There is another option of the wife to obtain divorce through judicial process (Faskh), the annulment or abrogation. The law of faskh is based on the Quranic injunction chapter vi and Sunnatic provision. Amer Ali regards that according to sahih al Bukhary, the power of the kazi to pronounce a divorce is also founded on in the express words of the prophet that if a women be prejudiced by marriage, let it be broken off. The various schools of Islamic jurisprudence accepted the basic principle that Muslim wife has right to apply to Qazi (judge in the modern sense) to terminate marital relationship but they differed as to the grounds of dissolution of marriage. For example, inability to provide maintenance is not sufficient ground for dissolution when the husband has not sufficient means, whereas in Shafi law, it is a good ground to ask for dissolution of marriage. The Shafi School allows dissolution on the ground of husband’s insanity, imprisonment or affliction with serious diseases. The Maliki School allows a wife a judicial divorce it her husband failed or refused to maintain her, had been missing for four years, had abandoned or deserted her. Hanafi law allows a wife to apply dissolution of marriage only for the husband’s impotency, insanity or leprosy.Not only are there differences between the schools with regard to the grounds for dissolution but also differences on opinion within one ground, For example, Maliki, Hanbali and Shia schools agree that women is entitled to remarry after four years of her husband’s absence provided permission is obtained from Kazi (Judge). Imam Shafi says women should wait seven years. According to Abu Hanafa, women have to wait 120 years. Imam Mohammad says 140 years Abu Yousuf reduced 100 years. According to Hedeya and Fatua-i-Alamgiri under Hanafi Law, wife has to wait 90 years before contracting second marriage.

Therefore, there is diverse opinion and no fixed grounds in shariah law to obtain judicial divorce by wife. So to consolidate the grounds, the Dissolution of Muslim Marriage Act 1939 was passed on basis of principle of Takhayyur (eclectic choice). This process to sale at and combine various elements of different schools of Islamic law. There is a provision in Hanafi code of Muslim law enabling married Muslim women to obtain divorce on the ground of neglects to maintain her makes her life miserable by deserting or persistently maltreating her. The absence of such provision has entailed unspeakable misery to innumerable Muslims women in British India. The Hanafi Jurist, however, have clearly laid down that in cases which application of Hanafi law causes hardship, it is permissible to apply the provisions of the Maliki, Shafi, Hanbali law. Setting on this principle, the ulemas issued fatwa to the effect that a married women may obtain decree from the court. Therefore, to clarify and consolidate the grounds of dissolution of marriage, the dissolution of Muslim marriage Act, 1939 was passed. This Act memorizes the different grounds of dissolution of marriage on the application of wife. This Act is an attempt to codify the Shariah law. It was said in the legislative Assembly debate that time has come to restore all the rights of women that has been given in the holy Quran.

Under Sec 2 of the Dissolution of Muslims Marriage Act, 1939, a women married under Muslim law shall be entitled to obtain a decree for dissolution of her marriage on any one or more of the following grounds that the husband(1) have not been known for a period of four years, (2) neglected or has failed to provide for her maintenance for period of two years, (3) has taken additional wife in contravention of the provisions of Muslim family laws Ordinance, 1961, (4) has been sentenced to imprisonment for a period of seven years or upwards, (5) has failed to perform marital obligation without reasonable cause, for three years (6) has important at the times of marriage and continues to be 20, (7) has been insane for a period of two years or is suffering from leprosy or virulent visceral disease, (8) that wife has been married by her father or guardian before the age of 18 years and repudiated the marriage before attaining 19 years, provided that the marriage has not been consurumated, (9) treats her with cruelty and what will amount to cruelty is given in the Act, and (10) on any other ground which is recognized as valid for the dissolution of marriages under Muslim law.

Analyzing all regulations relating to divorce, it is clear that under Islamic law, women have better protection. Shariah law was unwritten form as like common law but in British India, initiative was taken to codify the Islamic Family law and to some extent success has achieved through there are some deviation of shariah ruling in the process of codification, the loopholes and anti Islamic provision should be identified to protect the best interest of Muslim community. In this regard, Govt. may formulate a board to re-examine the enacted law in order to make the Islamic Family Law more women friendly.

Author:Md. Kowsar Alam
Dept. of Law, University of Dhaka