Wednesday, 4 May 2011

Divorce: Man's Right

Divorce may be affected by a repudiation of the wife by the husband (talaq), by mutual consent (khula) or by decree of the court dissolving the marriage (faskh). Islamic law gives to the husband the right to unilaterally terminate the marriage by talaq at will without showing cause and without recourse to the court. On the other hand, the wife’s power to end the marriage is delegated, secondary and limited. The husband may delegate the power to pronounce talaq to some other person or indeed the wife, who then use the so called delegated talaq (Takaq e tafwid).

The Sunni law requires neither the presence of the wife herself nor witness for a talaq to be valid. In contrast the itna’sharia sect of Shia school requires that a precise set of words, adult male Muslims of good character must be present when the pronouncement is made.

In Sunni law a talaq may be either be in accordance with the Sunna or it’s may be in the bida form. A divorce in accordance with the Sunna can fall into two categories. One of them is Talaq al Ahsan (Most approved form) and another is Talaq al Hasan (approved form).

Talaq in accordance with Sunna are those which offer the opportunity of revocation. Talaq al bida is the irrevocable mode which is more or less instantly effective. Sunni Islam recognizes a talaq in Bida form as well as in terms of Sunna. However the itna’sharia of the Shia school only recognizes as valid a talaq pronounced in accordance with Sunna.

The most approved form is when the husband pronounces a single talaq when the wife is not menstruating. However where the parties have been away from each other for a long time or where the wife is old and beyond the age of menstruation then this condition is not applicable. Immediately on pronouncement of the repudiation the wife begins iddah period. While the iddah is continuing the husband may revoke the repudiation and take back his wife. This form of repudiation provides an opportunity for revocation, as the husband can take back his wife at any time during this period. Revocation can be implied by conduct. If any intercourse takes place during the iddah period, the divorce is void and of no effect. If the iddah period expires and husband has not revoked his talaq the repudiation becomes irrevocable. This irrevocability is of the lesser degree and the parties may, if they so chose, remarry by new contract (therefore there is no need for an intervening marriage).

In the approved form of talaq the husband pronounces three repudiations during three successive periods of purity. The law allows a husband to repudiate his wife three times only. Once he has pronounced three talaq his wife is irrevocable repudiate to the grater extent (which means she can remarry the husband after an intervening marriage to another man). If the husband has elected to repudiate his wife by the good form he may revoke his talaq unless it is the third of the three.

The most prevalent form of talaq is talaq al bida where the husband pronounces three talaq at the single tuhr. It has the advantage for the husband at least of simplicity and finality. Such a divorce creates an instant irrevocable termination of the marriage. It is not possible for the parties to remarry each other unless and until the wife has gone through another marriage which has it being consummated and dissolved. All Sunni school except Shafi does not accept this form of divorce. But Imam Ahmed Hanabal made a conclusion that Holy book permits only triple divorce across a period of 3 months. According to him, even if three divorces are pronounced on a single occasion, they should be treated as one. The husband would retain the right to revoke the divorce and marry the wife again. (A critical appraisal of “triple divorce” in Islamic law, Nehaluddin Ahmed)

Now question arise when talaq will be effective? The effective time of talaq depends on the form. In the Ahsan form, talaq is effective at expire of the iddat period. In the Hasan form, it is effective on the third pronouncement. In the Bida form, it is effective immediately after the pronouncement.   

The concept of unilateral talaq has been subjected to severe criticism. The trend for reforms in Muslim law has been towards making divorce by the husband more difficult, where as woman’s right to divorce has been strengthen and expended by reforms in various country.

For example, Tunishan law requires the husband to go the court to obtain a divorce.  Article 25-33 of Tunishian law of personal status 1956 state that divorce can be obtained only is judicial means. Article 30 states that extra judicial divorce is no longer effective. Article 32 introduces an arbitrarily process leading down that the court shall not grant divorce until it has existed all means of  establishing the causes of conflict between the spouses and failed to reconcile them. Tunishian Law is clearly an example of social engerring.

Egyption law has repealed the Hanafi doctrine which looked to the act of talaq and ignored its intent. The Egyption reformers adopted the Hasan and Ahsan form and abolished the instant effect of talaq al bida. Jordian law also derecognizes a talaq which is not indented as well as the talaq al bida.

In Syria the Syrian law of personal status 1953 provided that if a divorce is coupled with number, expressly or impliedly still not more than one divorce shall be deemed to have taken place. Moreover, under Article 117 gave the power to Quadi to ask the husband to pay the wife compensation if he considers that the husband has repudiated his wife without reasonable cause. Professor Culson emphasis that this provision represent the first real attempt in Muslim law to control the husband and unilateral power of repudiation in that his motive for exercising this power was subject to scrutiny.

In India no reforms have been affected in this area but in both Pakistan and Bangladesh S. 7(1) of the Muslim Families Laws Ordinance (MFLO) 1961 is the relevant statute. Under this section after pronouncement of talaq the husband is required to give a written notice to the chairman and a copy to the wife. If he does not comply this section shall be punishable with simple imprisonment for a term which may extent for one year or with fine or with both: S.7(2). Unless this talaq revoked, it will only effective after the expiration of 90 days form the day on which notice has been delivered to the chairman: S.7(3). Within 30 days of the received of notice, the chairman has a duty under S.7(4) to constitute an arbitration council for the purpose of bring about a reconciliation between the parties.    

This section is silent on the consequence of non compliance other than treating the husband with punishment. However at a glance it seems that under S.7 of MFLO a Muslim husband may pronounce talaq in whatever form he wishes but it would not have instant effect and would be subject to reconciliation and notice requirement. In other words it has changed talaq al bida’s time of effect. Now question arise to what extent this section is helpful? Here some important case required analyses.

In Ali Nawaz Gardezi v Mohammed Yousuf, notice to chairman is mandatory and a divorce would be ineffective without such notice. The decision of this case is still binding in Bangladesh. However, the Federal Shariat Court decided in the case of Allah Rakha v The Federation of Pakistan, that section (3) of the MFLO 1961 was repugnant to the principles of Islam and declared it void. Accordingly from 31 March 2000, in Pakistan a divorce will be effective even if no notice has been given. Some one may argue that because of this decision the whole purpose of S.7 become frustrated and for this reason this section became unnecessary. I do not think so. Notice requirement is still valid. Now if the husband does not inform the chairman and wife by notice he will be punishable. Only significance of the decision is that the count down of 90 days will start from the pronouncement of talaq rather than delivery of notice. The Bangladeshi court did not adopt this case principle so that 90 days will be counted from when the chairman got the notice.   

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