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Thursday, August 19, 2010

Muslim Law


MUSLIM LAW-1                                                                                                                                   Asad

 

DOWER



Definition of ‘mahr’

BAILLIE: dower is not the woman for entering into the contract; but an effect to the contract imposed by the law on the husband as a token of respect for its subject, the woman

ABDUR RAHIM (On the basis of Hedaya): “ It is either a sum of money or other form of property to which the wife becomes entitled by marriage … It is an obligation imposed by law on the husband as a mark of respect for the wife … (This definition has adopted by Mulla also).

TYABJI: “Mahr or dower is sum that become payable by the husband to the wife on marriage, either by agreement between the parties, or by operation of law.”


The nature of dower


Mahmood, J; in Abdul Kadir v. salima, gives the best description of the nature of dower. He observes:

Dower, under the muhammadan law, is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage, and even where no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon the wife as a necessary effect of marriage. To used the language of the hedaya, the payment of dower is in enjoyed by the law merely as a token of respect for its object (the woman), wherefore the mention of it is not absolutely essential to the validity of a marriage and for the same reason a marriage is also valid although a man were to engage in the contract on the special condition that there should be no dower.

Even after the marriage the amount of dower may be increased by the husband during converture; in this sense and no other can dower under the muhammadan law be regarded as Arabic textbooks of muhammadan law have compared it to price in the contract of sale it is simply because marriage is a civil contract under that law and sale is the typical contract which muhammandan jurist are accustomed to refer to in illustrating the incident of other contract by analogy.’’ (Italics are mine).












MUSLIM LAW-1                                                                                                                                     Asad
   
The line of reasoning based on the analogy of sale was criticised by Ameer Ali and by sir shah Sulaiman in anees begum v. mohd Istefa and in Wajid Ali khan case. Sir sulaiman observed:
“It is quite obvious that the analogy of sale cannot be carried too far. The marriage cannot be regarded as purely a sale of the person by the wife in consideration for the payment of dower.”

It was observed in this case that the similarity of dower to sale price cannot be pushed in too far nor can the principles the governing the sales of the goods be applied in all their details. For examples the contract of sale of goods can be cancelled if a portion of the price has not been paid. Even if the goods have been once delivered they may in such an even be returned. But if consummation of marriage has taken place and the wife at her could cancel a part of the dower remains unpaid, it would be absurd to think that marriage will. Moreover the question –whether the dower is the consideration for the first consummation of marriage only or whether it is the consideration for the first consummation of marriage only or whether it is the consideration for the society of the wife during the married life? –Could not be answered by applying the analogy of sale to dower money and marriage.

Islam insists that dower should be paid to the wife herself. It sought to make dower into a real settlement in favour of the wife a provision for the rainy day and socially a check on the capricious exercise by the husband of his almost unlimited power of divorce.

A husband thinks thrice before divorcing a wife when he knows that upon divorce the whole of dower would be payable immediately.
There is a classic example given by someone, which must be mentioned here. A person purchases a horse. To whom he must pay the price? Not to the horse itself, certainly. But to the owner. Thus, if dower be regarded as sale-price, it must be paid to the guardian of the wife. Since it is paid to the wife herself, it cannot be the price. It is a token of respect.



Kinds of dower:

Broadly, there are two kind of dower:(i) specified, and (ii) unspecified. But the specified dower has been further divided into- (a) prompt, and (b) deferred.

(i)                  Specified dower – An amount settled by the parties at the time of marriage or after, is called specified dower. If the bridegroom is minor, his father may settle the amount of dower, but according to Shia law, he will be so liable.

The husband is bound to pay the amount of the specified dower, however exercise or beyond the reach it may be. In oudh, however, the excessive amount may be curtailed to a reasonable amount.




MUSLIM LAW-1                                                                                                                                     Asad


Prompt and deferred dower: - prompt dower is payable on demand, and deferred dower is payable on the dissolution of marriage by death or divorce. The wife may realize the prompt portion of the dower at any time before or after consummation, but the deferred dower could not be so demanded.
In the case where it is not settled how much of the dower is prompt and what part of it is deferred, the Shia law holds that the whole of dower is prompt; the Sunni law, however, holds that only a part is prompt. This part is to be fixed with reference to (i) custom, or (ii) the status of the parties, and (iii) the amount of settled dower.

There are two aspect of the prompt dower (mahr-i-muajjal)- the time factor and quantum factor. Prompt in theory means immediately on demand or at the time of marriage, or at any time before consummation, or after consummation when demanded. In practice, however, it is seldom paid promptly at the time of marriage or even when demanded; and equally tardily demanded. We may illustrate the point with the facts of a recent case E.V. Kunhimariam Vs. O. Mammu. In the word of justice Sukumaran.


(ii) Unspecified dower: - in such case where dower has not been settled at the time of the marriage or after, it is fixed with reference to the social position of the wife’s family and her own personal qualification. Help would be taken by taking into accounts of dower fixed in case of wife’s sister, paternal aunts, etc., and according to the hedaya, the wife’s age, beauty, intellect and virtual will also be considered. Such dowers are called mahr-ul- misl.
Under school of Muslim law, even where the wife stipulates that she will not demand any dower, she remains entitled to it and the rule of estoppels will not apply to her. This implied dower is called proper dower, or customary dower or mahr-i-misl or mahr-ul-misl.


 Subject matter of dower

The fitting subject matter of dower is not only confined to a sum of money or property; it includes personal services and other thing. The following were recognized as the subject of dower.
(i)                  A handful of dates (Abu Daud)
(ii)                A pair of shoes (Tirmizi)
(iii)               If the husband is a slave, his services to his wife (Mohit Sakhsee)
(iv)              The services of the husband slaves to the wife (Fatawa-i-Alam-giri)
(v)                Husband services rendered to the guardian o f a minor wife (Durrul Mukter)
(vi)              Teaching Koran to the wife (Tradition).

In fact, the main contention of the Muslim jurists is that anything, which comes within the defination of maal, can be the subject matter of dower.

 

 

 

 

 

 

MUSLIM LAW-1                                                                                                                                    Asad



Maximum and minimum amount of dower:

Minimum –hanafis-10 dirhams (Rs 5-6 after devaluation).
Malikis –3 dirhams (Rs  1.50-2 after devaluation).

Shafiis
Shias

Maximum – among Sunnis there is no maximum; any amount may be fixed. Fyzee cites an example based on his personal knowledge, of a dower amount of Rs 2,20,00,000.
Among some of the sects of shias, however, there is a tendency not to stipulate for a sum higher then the minimum fixed by the prophet for his favourite daughter Fatima, the wife of Ali, namely 500 dirhams (Rs 100 approximately).



Amounts of dower and conditions of payment


(1)    If the marriage is consummated, and is dissolved by death:
(a)    Whole of the specified dower, or
(b)   Proper dower if unspecified,
(c)    Specified or proper dower, whichever is less, in the case of irregular marriage.



(2)    If the marriage is not consummated, and is dissolved by the act of party;
          (i) When divorce by the husband – 
(a)    Half of the specified dower,
(b)   A present of three articles, if unspecified 
(ii) When divorced by the wife: no dower.
    (iii) If the marriage is irregular in the case.
                  (1) and (2) above.
 



Bangladesh: The role of the Kazi (Kadi, Qadi, Qazi; Islamic judge) in Muslim marriage
Research Directorate, Immigration and Refugee Board, Ottawa
This Response to Information Request provides information on the role of the Kazi (Kadi, Qadi, Qazi; Islamic judge) in Muslim marriage in Bangladesh. Most of the information in this Response was provided by the following specialists:
A New Orleans-based Senior Research scientist who is a member of the editorial board of News from Bangladesh, an Internet-based daily published in Dhaka (18 Mar. 2000). An article authored by the research scientist, "Tying the Knot Without any Dowry and Without a Kazi," was published in the 8 February 2000 issue of the Dhaka-based Daily Star;
The Coordinator of the Dhaka-based women's human rights and development organization, Naripokkho (29 Mar. 2000). Additional information on Naripokkho can be found in BGD23835.E of 6 May 1996;
A Dhaka-based human rights lawyer who specializes in women's and children's rights (11 Apr. 2000). The lawyer, also a member of Naripokkho, coordinates the group's "Monitoring Intervention to Coordinate Violence Against Women" project. She is also a member of several national and regional human rights organizations and networks;
A professor in the Department of Law, Brussels Catholic University (12 Apr. 2000). The professor did his undergraduate law degree in Bangladesh, where he also worked as a lawyer at the Dhaka Court. In Belgium he studied International and Comparative Law, including European Union law, and teaches a course in non-European legal culture to students studying for the Master of Legal Theory (LL M). He writes on human rights issues for the Dhaka-based Daily Star and Holiday, and has published articles in international journals.

1. What is the Kazi legally empowered to do both under Muslim marriage law and civil family law?
The Dhaka-based human rights lawyer stated that there are two types of marriage in Bangladesh: religious marriage, which takes place under religious laws specific to each religious community (Hindu, Muslim and Christian), and civil marriage, which is sanctioned by the Civil Marriage Act, 1872. The research scientist clarified that Kazis are not permitted to become involved in civil family law, and that people who require an interpretation of civil law must go through the civil court system.
The human rights lawyer stated that Kazis are legally empowered to register Muslim marriages and divorces. The professor of law agreed, but offered a more detailed explanation of the legal powers of Kazis with regard to Muslim marriage and divorce:




Kazi is not a word in law in Bangladesh. Legally speaking they are the "Nikah Registrar", appointed by the government under the Muslim Marriages and Divorces (Registration) Act, 1974, and rules framed there under, the Muslim Marriages and Divorces (Rules), 1975. Each Kazi is appointed to a defined locality where their job is registration of Muslim marriages and divorces within the given area. According to a recent High Court decision, Nikah Registrars are "public" servants (Kazi Obaidul Haque vs. State 55 DLR (1999) 25).
Although they have a religious basis, marriages in Bangladesh are essentially contracts and are regulated by legislation, especially registration of marriages and divorces, that are not a necessary ingredient of Islamic law. So as public servants, the Kazis merely register marriages and divorces.

2. Can the Kazi perform a marriage ceremony, and if so, would the marriage be recognized as a legal marriage by the state?
The professor of law provided the following information on the Muslim marriage ceremony and the role of the Kazi:
In Muslim marriages, no ceremonies are needed to effect a legal marriage except proposal of marriage and acceptance thereof to take place at the same time and preferably dower amount is determined.
A Kazi thus doesn't perform marriage in this sense. His job merely is to register it; however, he has to be satisfied that all necessary elements of a valid marriage exist before registration.
The aspect of a Muslim marriage having religious significance is usually conducted by the family or local Mullah or even by the Kazi himself.
The human rights lawyer, the research scientist, and the Naripokkho coordinator all agreed, however, that Kazis do perform marriage ceremonies in Bangladesh. The human rights lawyer stated that Kazi-performed marriages are not just legal but the norm in Bangladesh. According to the research scientist, marriages performed by Kazis are "universally recognized in Bangladesh."

3. Can the Kazi perform a marriage ceremony in a private residence or only in his office? Is he restricted in any way? Can he perform a marriage anywhere?
All of the specialists agree that there are no restrictions on where a marriage may take place, and thus a Kazi may perform a marriage ceremony in his office, a private residence, or anywhere else. The human rights lawyer stated that the bride and groom generally determine where the ceremony will take place, but according to the research scientist most marriage ceremonies are still performed by Kazis at the bride's residence. He clarified that while in urban areas the bride's parents normally will rent a location for the purpose of the wedding ceremony, in semi-urban or rural areas the Kazi generally still comes to the bride's residence.
The professor of law offered additional information on the role and responsibilities of the Kazi:
... a Kazi can perform a marriage anywhere including in a private residence, or for that matter at any other place, as long as he carries his register book to register it. If he is requested by the parties to lead the religious part, he also could do so.
Thus he is not restrained in any way, nor is the registration required to take place at his office. However, he is obliged to maintain an office and preserve the records.

4. At what point in the marriage process do the bride and groom discuss column 18 of the marriage contract (Nikahnama), which pertains to delegation to the wife of the power of divorce?
The professor of law stated that the vast majority of marriages in Bangladesh are arranged by the families of the bride and groom. Even with love marriages, i.e. where the bride and groom courted beforehand, in most cases the marriage is organized by the families.
All of the specialists agreed that column 18 of the marriage contract is normally discussed before the marriage ceremony. The professor of law stated that all of the terms and conditions of the marriage contract, not just column 18, are usually discussed before the marriage by the elder members of both families. According to the coordinator at Naripokkho, column 18 should be raised when the families are discussing the amount of mahr [property or money bestowed upon the bride for her personal use, in particular to ensure her immediate financial welfare in the event of divorce] to be exchanged, and even before approaching the Kazi. All of the specialists stated that the issue is raised again when the Kazi reaches column 18 of the marriage contract, before final solemnization of the marriage. The research scientist stated that the Kazi twice will loudly announce all of the terms and conditions of the marriage-once in the presence of the groom and the guests, and a second time in the female quarter where the bride is located. The professor of law stated that sometimes heated arguments about the conditions of the Nikahnama will break out between the families.
According to an article published in the 9 April 2000 issue of The Daily Star, in the past women were not allowed to divorce their husbands unless the power was expressly delegated in the marriage contract. However, even if the power to divorce was not delegated to the bride, a woman could still sue for dissolution of marriage under the Family Court Ordinance, 1985 (ibid.). The article further states that the current practice is to give women the power to divorce, regardless of whether it is specifically delegated in the marriage contract. The coordinator of Naripokkho, who recently was married, stated that unless the families object, Kazis are informally instructed to put it in the affirmative. In other words the default mode for column 18, which asks "Has the groom delegated his wife the power to divorce," is "yes."

5. Does the Kazi give a copy of the marriage contract to the bride as well as to the husband? If so, when?
The professor of law, the research scientist and the human rights lawyer stated that a copy of the marriage contract is available after it has been registered by the Kazi and a small registration fee paid. The research scientist stated that a copy of the marriage contract is usually picked up from the Kazi's office one or two weeks after the marriage ceremony. The coordinator of Naripokkho stated that the copy must be picked up from the Kazi's office within one month. The human rights lawyer and coordinator of Naripokkho stated that the Kazi is obligated to provide the couple with only one certified copy of the marriage contract, but the professor of law stated that both the bride and groom could get copies if they wished, since they are provided upon payment of a fee.

6. When is the marriage registered, and by whom and with whom? Is it registered with the mosque or with a central religious or government body? What happens to the original copy of the marriage contract?
According to Human Rights in Bangladesh 1998, the annual report published by the Bangladeshi human rights NGO Ain-O-Salish Kendro (ASK), despite the Muslim Marriages and Divorces (Registration) Act requirement that all Muslim marriages be registered, an estimated 40 per cent of all such marriages remain unregistered (1999, 142).
All of the specialists agreed that as the government-appointed Nikah Registrar, the Kazi has the authority to register marriages in Bangladesh. The human rights lawyer and the professor of law stated that under Muslim marriage law, only Kazis are empowered to register marriages in Bangladesh. If someone other than a Kazi, such as a religious figure, performs a marriage ceremony, he must inform the local Kazi within a specified period of time.
The professor of law stated that a marriage should be registered at the time it is solemnized, but sometimes the Kazi collects only the most necessary information to post in the register book. He also indicated that although both bride and groom must sign the register, in many instances the bride's signature is either not taken or ignored. The research scientist stated that the record in the Kazi's register is the primary evidence of marriage in Bangladesh, and that it is unlikely one could challenge its validity.
The coordinator of Naripokkho, the professor of law, and the research scientist all stated that the original copy of the marriage contract is maintained at the Kazi's office. According to the coordinator of Naripokkho, there is no central government body that maintains marriage records.

7. Can a parent or friend obtain a copy of the marriage contract on behalf of the wife or husband for the purpose of sending it abroad? If so, what if any documentation is required?

All of the specialists agreed that parents, close family friends and other authorized people can obtain official copies of the marriage contract from the Kazi's office. The research scientist stated that a copy of a marriage contract can only be obtained from the particular Kazi's office where the marriage was registered, and the person requesting the copy need only indicate the date and time the marriage was solemnized. The professor of law indicated that the Kazi should ascertain the identity and relationship to the wife or husband of the person requesting the copy.
According to the human rights lawyer,
A friend or relative who wishes to obtain a certified copy of a Nikahnama is not required to produce any specific document, only pay the fee. However, it is necessary to have some proof of the relationship between the wife/husband and the person who wants the copy of the Nikahnama. The Kazi usually ask for it, but there is no specific rule. The person only needs to show that s/he is genuine.

8. Who has the power to marry a couple? Can someone other than a Kazi, such as an Imam, perform a religious marriage?
All of the specialists agree that a Muslim religious figure such as an Imam can perform a religious marriage. According to the human rights lawyer, any adult male Bangladeshi can perform a marriage ceremony. The research scientist stated that while a Kazi-performed marriage is preferred, in rural areas any Muslim cleric can perform the ceremony. He noted as well that some magistrates can legally perform marriages. These are known as "court marriages." The research scientist also stated that while an Imam can perform a marriage ceremony, the marriage must be properly recorded in the ledger of the Kazi in whose district the bride's parents reside. The professor of law agreed that although Imams can and often do perform religious marriages, and although such marriages are not illegal under Bangladeshi law, legal consequences could follow if the marriage is not registered.
On 8 February 2000 The Daily Star reported that en masse community weddings, in which dozens of couples are married without a Kazi being present, are becoming increasingly popular in Bangladesh.

9. What if any role does the Kazi play in divorce proceedings?
The Naripokkho coordinator and the research scientist were uncertain about the Kazi's role in divorce proceedings. The coordinator speculated that he would have little more to do than to confirm the mahr amount and that the marriage actually took place, but added that this would be unnecessary when a marriage contract is available.
However, both the professor of law and the human rights lawyer stated that Kazis are responsible for registering divorces and maintaining the relevant documentation. The professor of law stated that a Kazi may register a divorce "only after it has reached finality by exhausting the procedures laid down by law. The Kazi has merely to ascertain, before registration, that the legal procedures have been observed."
According to the human rights lawyer, the Kazi must also supply a copy of the divorce registration when required, such as in a remarriage.

10. Would any of the foregoing be dependent on rural or urban location?
All of the specialists agreed that the laws regarding registration of marriage and divorce are applicable to both cities and villages. However, three of the specialists indicated that there may be significant variance in practice between urban and rural areas. According to the professor of law, "in real life, in the villages and even on occasions in deprived urban communities, marriages still are performed and not registered, and other procedures flouted." The research scientist agreed, stating that "in urban settings most marriages are recorded in the Kazi's ledger, but in rural settings it depends. In the hinterlands or obscure places, it is doubtful that anyone bothers to go to the Kazi's office." The Naripokkho coordinator explained that in rural areas "there are many fewer Kazis, ... [so] the chances of being married by a Kazi ... are not as great. Kazis who go to urban homes to perform marriage ceremonies are less keen to do so in rural areas. As well, they may not write 'yes' for #18 [of the marriage contract]."
Additional information on marriage in Bangladesh can be found in BGD28420.EX of 29 January 1998. Additional information on the role of the Kazi in divorce proceedings can be found in BGD33257.E of 25 November 1999.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.










MUSLIM LAW-1                                                                                                                                     Asad 
Divorce


Pre-Islamic background:
Among the pre-Islamic Arabs, the power of divorce possessed by the husband was unlimited. They could divorce their wives at any time, for any reason or without any reason.
According to Abdur Rahman at least four various types of aissolution of marriage were known in pre-Islamic Arabia. These are talaq, Ila, zihar and khula.


After the advent of Islam


The prophet of Islam looked upon these customs of divorce with extreme disapproval and regarded their practice as calculated to under the foundation of society. It was impossible, however under the existing condition of society to abolish the custom entirely. The reforms of Prophet Mohammad marked a new departure in the history of eastern legislation. Ameer Ali asserts:
       “The permission (of dower), therefore, in the Koran though it gave a certain countenance to the old custom, has to be read in the light of the law-giver’s own enunciation. When it is borne in mind how intimately law and religion are connected in the Islamic system it will be easy to understand the bearing of his words on the institution of divorce.”
Fyzee says that it is sometimes suggested that the greatest defect of the Islamic system is the absolute power gives to the husband to divorce his wife without cause. Dower to some extent restricts the use of this power.


Modes of dissolution of marriage


Among the books on Muslim law, including that of Baillie, Willson, Tyabji, Ameer Ali, Mulla and Saksena, Fyzee has given the best classification of divorce. His method of classification is more scientific and easy to grasp and hence, it has been adopted here with little additions.


        Classification:

A. By the death of husband or wife

B. By the act of parties


  1. By the husband:

MUSLIM LAW-1                                                                                                                                      Asad 
                
(i) Talak:
(a)    Talak-us-sunnat: Ahsan (most approved)
                                   Hasan (approved)

(b)   Talak-ul-biddat: triple divorce. One irrevocable divorce (generally in written)
            (ii) Ila (vow of continence).
            (iii) Zihar (injurious comparison).

  1. By the wife:
         Talak-e-tafwid (delegated divorce).

3.   By mutual consent:
(i)      Khula (redemption).
(ii) Mubarat (mutual freeing).

C. By judicial process


1.       Lian (redemption).
2.       Faskh (judicial annulment).


A.      By the death of husband or wife- It is clear and natural that with the death of husband or wife the marriage tie comes to an end. When the wife dies, the husband may remarry immediately, but in case of husband’s death, widow has to wait till the expiry of iddat (4 months and 10 days, or if pregnant, till delivery).



                B. By the act of parties


1. By the husband:
(i)                  Talak: talak means by dissolution of marriage. In its literal sense this Arabic word means “taking off any tie or restraint”, and in law it signifies the dissolution of marriage. In hanafi law, no special form or phrase is necessary to pronounce talak. The Ithna in ashari law, however, insist on strict adherence to a from, that is, must be in the Arabic language uttered orally, in the presence and hearing of two male witnesses, who should be honest and virtuous Muslim. Even the presence of the wife is not required. In fact, while facing proceedings for maintenance, as for example under section 488, CrPC, it is a common practice for the husband ti take the plea that he had pronounced talak on his wife, and the court regard it as a conclusive fact of completed divorce.


MUSLIM LAW-1                                                                                                                             Asad                  

(a)    Talak-us-sunnat. That is, a talak which carries the approval of the prophet. It may be in the most approved form, i.e., ahsan; or hasan, i.e., simply an approved forms.


Ahsan- hedaya brands it as the most laudable divorce, where the husband repudiates his wife by a signal pronouncement in a period of tuhr (purity, i.e., when the wife is free from her menstrual courses), during which he has not had intercourse with her, and then leaves her to the observance of iddat. The divorce remains revocable during the iddat, and the parties retain the right of inheritance. After the iddat period lapsing without revocation, the talak becomes final and irrevocable.


Hasan: in talak hasan, the husband successively pronounces divorce there time during consecutive periods of purity (tuhr). It is therefore, ‘a divorce upon a divorce’, where the first and second pronouncements are revoked and followed by a third, only then talak becomes irrevocable. It is also essential that no intercourse should have taken place during that particular period of purity in which the wife is in tuhr, without having intercourse with her, the husband pronounces talak. Then he revokes it by words or by intercourse. Menstruation follows. Again when she is tuhr, and before intercourse, the husband pronounces talak. Now during tuhr, without having had intercourse, he pronounces talak. This is final, and divorce becomes irrevocable.



(b)   Talak-ul-biddat. - Here the husband does not follow the approved form of talak of talak i.e., talak –us-sunnat, and neither pays any attention to the period of purity nor to the abstention from intercourse. This was an escape lane from the restrictions imposed by the prophet, as we saw just above. As by the prophet on the facility of repudiation interfered with the indulgence of their caprice, endeavourer to find as escape from the strictness of law and found a loophole to effect their purpose.


Talak- when becomes irrevocable. - (i) talak ahsan becomes irrevocable on the completion of the period of iddat.   (ii) Talak Hasan comes into force on the very point when the third pronouncement is made. Iddat factor has no influence on it.    (iii) Talak-ul-biddat of both types-triple and signal-also becomes irrevocable right on pronouncement.   (iv) In case of unconsummated marriage talak becomes irrevocable right on pronouncement.  (v) A written talak comes into effect from the moment of its execution, unless it is ambiguous.



MUSLIM LAW-1                                                                                                                            Asad                  


(ii)                Ila (vow of continence). - Ila is when a person swears that he will not have sexual intercourse with his wife and abstains from it for four month, the divorce is affected. The Hanafi jurists argue that since the husband acted
Unjustly towards his wife, it is equitable that on the expiration of four months the should be deprived of the benefit of marriage. The shafiis and shias consider that such a vow does not amount to divorce, but only gives the wife a ground to seek judicial divorce. In Sunni law legal proceedings are not required. The intent of the husband must be expressed clearly. Even after the expiry of 4 months the husband can cancel ILA with the assent of the wife. ILA is not in practice in India.

(iii)               Zihar (injurious comparison). –Zihar signifies a husband’s comparison of his wife with his mother or any female relation within the prohibited degrees. In zihar, the usual phrase is “thou art to me as the back of my mother”. According to ameer Ali the intention of the husband must be to show disrespect to the wife. Zihar is also out of vogue. These words do not naturally come to Muslims in India.



2. By the wife. - Talak-e-tafwid (delegated divorce).

Baillie defines it as follows.

            “As a man may in person repudiate his wife, so he may commit the power of repudiating her to herself or to a third party.”
That is, the husband may delegate the power of divorce to his wife. He may do not so at the time of marriage contract or any time when he so likes.
    This doctrine is peculiar to the Muslim law and has no parallel in other system. The Indian high court have repeatedly held as valid the agreement by which the husband authorizes the wife to divorce her-self from him in the event of his marrying a second wife without her consent.


3.       By mutual consent.

        
(i)                  Khula (redemption) - if the mutual relationship between the husband and wife is not good, the wife, if she so desires, may seek a khula divorce, e.g. by relinquishing her claim to the dower. A husband may similarly propose a khula divorce; the wife or refuse it. If she accepts, it means that she relinquished the right to get dower from her husband. Khula may be for any consideration-dower, money, property, etc.

MUSLIM LAW-1                                                                                                                                      Aasd
                       

(ii)                Mubarat (mutual freeing). - When the divorce is effected by mutual consent of the husband and wife, it is known as mubarat’ at (i.e. freeing one another mutually).

 Iddat is compulsory after mubara’ at as after khula. Aquil Ahmad notes the following points of difference:


-Redemption of the contract of marriage
-Mutual release from the marital tie.
-Offer comes the wife, husband accepts
-Any party may make the offer, the other side accepts.
-Consideration passes from wife to husband
-No question of consideration
-Aversion is on the side of the wife
-Mutual aversion




   
B.    By judicial process:
                                                                                                                           
(i)                  Lian (mutual imprecation). -The wife is entitled to sue to for a divorce on the ground that her husband has falsely charged her with adultery. At the hearing of the suit, the husband had two alternatives: (a) he may retract (withdraw) the charge before the end of the trial, in which case the wife could not get a divorce, or (b) to persist in his attitude, whereby he will be required to accuse his wife on oath. This is follow by oaths of innocence made by the wife. After these “mutual imprecation”, the court dissolves the marriage. In a lian suit the burden of proof lies on the wife. According to malik this holding is against Muslim law where it is provided that the husband must prove the charge of adultery or suffer the consequences.


(ii)                Faskh (judicial annulment). - Faskh means annulment. It refers to the power of kazi (in India, law court) to annul a marriage on the application of the wife. The law of faskh is founded upon Koran and traditions, “if a woman be prejudiced by a marriage, let it be broken off”. (Bukhari). In India, such judicial annulments are governed by section 2 of the dissolution of Muslim marriage act, 1939. Prior to the act, the Muslim woman could apply for dissolution of marriage under the doctrine of faskh on 4 grounds:
                
(a)    The marriage was irregular,
MUSLIM LAW-1                                                                                                                                  Asad

(b)   In exercise of the right of option- khyar-ul-bulugh,
(c)    The marriage was within the prohibited degrees of relationship,
(d)   Post-marriage conversion of the parties to Islam.
 
Effect of divorce:
(i)                  Cohabitation becomes illegal between the couple.
(ii)                Dower becomes payable to the wife.
(iii)               The husband and the wife are entitled to inherit from the other, if either of them dies during iddat following a revocable divorce. No right of inheritance arises in irrevocable divorce.
(iv)              The wife becomes entitled to maintenance during the period of iddat.
(v)                Remarriage between the couple is only possible after observing a strict procedure. Remarriage with another man can be contracted by the widow after observing iddat only.



 Grounds of decree for dissolution of marriage:
    
A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the husband of the following ground, namely: -
(i)                  That the whereabouts of the husband have not been known for a period of four years;
(ii)                That the husband has neglected or has failed to provide for her maintenance for a period of two years;
(iii)               That the husband has been sentenced to imprisonment for her of seven years or upwards;
(iv)              That the husbands has failed to perform, without reasonable cause, his marital obligations for a period of three pears;
(v)                That the husband was impotent at the time of the marriage and continues to be so;
(vi)              That the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
(vii)             That she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years:
Provided that the marriage has not been consummated;
(viii)           That the husband treats her with cruelty, that is to say;
(a)    Habitually assaults her or make her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
(b)   Associates with woman of evil repute or leads an infamous life, or
(c)    Attempts to force her to lead an immoral life, or







MUSLIM LAW-1                                                                                                                                    Asad                  

(d)   Disposes of her property or prevents her exercising her legal rights over it, or
(e)   Obstructs her in the observance of her religious profession or practice, or
(f)     If he has more wives then one, does not treat her equitably in accordance with the injunction of the Koran.

(ix)              On any other ground which is recognized as valid for the dissolution of marriage    under Muslim law:

Provided that-
(a)    No decree shall be passed on ground (iii) until the sentence has become final;
(b)   A decree passed on ground (i) shall not take effect for period of six months from the date of such decree, and if the husband appears either in person or through an authorized agent within that period and satisfies the court that he is prepared to perform his conjugal duties, the court shall set aside the said decree; and
(c)    Before passing a decree on ground (v) the court shall, on application by the husband, make an order requiring the husband to satisfy the court within a period of one year from the date of such order that he has ceased to be impotent and if the husband satisfies the court within such period, no decree shall be passed on the said ground.



Lecturer _ Farhana Madam.

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