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Unilateral Divorce in Muslim Law

Extracts from this document...

Introduction

INTRODUCTION The Muslim law of divorce is the logical consequence of the status of marriage. As it regards marriage as an Aqd or a contract, it confers on both the parties to the contract the power of dissolving the tie or relationship under certain specified conditions. Divorce is one of the institutions of Islam regarding which much misconception prevails, so much so that even the Islamic law as administered in the courts, is not free from these misconceptions. Muslim law knows various forms of dissolution of a marriage, at the initiative of the husband, the wife, by mutual agreement, or by judicial process.[1] On Muslim law of divorce in general and the Hanafi law in particular, it can be said that divorce at the instance of the husband is prominent and rather simple. However, this does not mean that divorce is treated as desirable. In fact, there is a much quoted saying of the Prophet to the effect that, of all permitted things, divorce is the most reprehensible.[2] Divorce at the instigation of the wife has often been portrayed as particularly difficult, and this is certainly true for Hanafi Muslim law, which is most restrictive in this regard. But the issue should not be overstated, since the basic principle of Muslim divorce law is that a marital bond which does not function any more should be terminated to avoid further problems.[3] The pre-Islamic law, treating women as chattels, allowed husbands absolute discretion to divorce and gave wives virtually no right in this regard.[4] The trend for reforms in Muslim law, therefore, has been towards making divorce by the husband more difficult and less instant and harsh, whereas women?s rights to divorce have been strengthened and expanded by reforms in various countries, notable in the South Asian jurisdictions. It is useful to summarise at the outset the most important aspect of the institution of the Muslim divorce given by the husband, the talaq, which appears in different forms.[5] In essence the talaq is the ...read more.

Middle

A talaq pronounced by a person of unsound mind or below the age of puberty is void.[32] Such a talaq cannot become effective even if the guardian accords his consent.[33] The second requirement of capacity is that the person must be of sound mind. A talaq pronounced by an idiot, lunatic or person of unsound mind is void. However, a person of unsound mind may validly pronounce talaq during lucid intervals. Muslim law authorities go to the extent of holding that a pronouncement of divorce made by a person who suffers from a disease which dulls his mind and makes him almost like person of unsound mind will not be valid. Dumb Person. ?A talaq pronounced by a dumb person is valid, provided it is expressed in positive and intelligible signs. Shia law lays down that a talaq pronounced by a dumb husband by signs sufficiently and clearly indicating to divorce is valid. It appears that under Sunni law a person who is born deaf and dumb may pronounce talaq by intelligible signs or in writing. But a person whose dumbness is not congenital but supervening can do so only by a written deed. Better opinion seems to be that when a dumb person is literate, he should pronounce divorce in writing.[34] Person in Delirium, in Faint or Sleep or Unconsciousness. ?All schools of Muslim law agree that a talaq pronounced by a husband who is in delirium, in faint, in sleep or unconsciousness is totally invalid.[35] Talaq under Compulsion. ?The most curious aspect of Hanafi law of divorce is that a talaq pronounced under compulsion or under intoxication is valid. So is a talaq pronounced to please one?s father. According to the Hedaya:[36] The foundation of this is that the man alluded to has the choice of two evils, one, the thing with which he is threatened or compelled, and the other, divorce upon compulsion and viewing both, he makes choice of that which appears to him the easiest, namely, divorce and this ...read more.

Conclusion

These are first of all the pronouncement of talaq must be proved (it is not sufficient to merely state in court in a written statement or in some other pleading that talaq was given at some earlier point of time), then reasonable cause must be shown as also the attempt at reconciliation must be demonstrated to have taken place Also the husband has to duly establish that he has properly followed the procedure of divorce as laid down in the Quran. Therefore, we see, that only that talaq will be validated by the Court which is in consonance with the basic tenets of the Holy Quran and any procedure that is against the injunction of the Holy Quran will not be accorded the validity of law. At the same time, it needs to be highlighted that under Muslim law, even though marriage is a contract, the husband and the wife are under a moral and legal obligation to fulfil their duties towards each other and cannot cut off their marital ties whenever they want without any legitimate reason. A husband while practicing his right to pronounce divorce on his wife should follow the said procedure as laid down in the Holy Quran and avoid as far as he can to exercise this right. It will be in the betterment of the Muslim Community if the customary law of talaq is codified by the Parliament just like the Hindu Marriage Act. Such a law will not only create an awareness of the correct procedure as ordained in the Quran but will also make sure that the Muslim husband while exercising his right to pronounce divorce does not abrogate his wife?s fundamental rights. Such a law would remove the misgivings and fallacies that exist in Islam on this particular subject of talaq and will bring about a clarity which will not only help the cause of the Muslim women but the entire Muslim Community as a whole. ...read more.

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