Wednesday, 4 May 2011

Divorce: Woman’s right

As the husband has the unilateral right to terminate the marriage at will by pronouncing talaq without showing any reason. For this reason they do not need to use other forms of divorce. Only the women use other forms of divorce especially talaq e tafwid or khul.

Like husband the wife does not have the right to terminate the marriage at will. The wife may only terminate the marriage unilaterally if she is delegated the power to do so by the husband and this is known as talaq e tafwid. This mode of divorce is accepted by all schools.

A marriage may also be dissolved by mutual agreement between the parties. This form of dissolution is called khul. Khul is concluded by an offer and acceptance. It is usually the wife who makes the offer, offering to pay a certain sum of money, usually the dower, in consideration for the husband releasing her from the marriage. Of course the offer may emanate from the husband although this is rarer (Mubara). In this case he will offer to repudiate his wife in return for a certain amount of compensation. If it is the wife who makes the offer she may withdraw the offer at any time before acceptance is made but if it is the husband who makes the offer he may not retract the offer which remains effective until it is rejected.  All school except shafi accepts anything that is of value as consideration but Shafi law the compensation must be monetary. A divorce effected by means of khul is immediately irrevocable but to the lesser degree.

When both of these processes of termination of marriage fail the wife may seek to dissolution by judicial process. It is also known as judicial khul. The Hanafi School is the most restrictive towards women in matters of divorce, allowing a wife to obtain dissolution only if her husband proves unable to consummate the union. Once consummated a Hanafi marriage may not be dissolved at the instance of the wife.

The other schools of law accept inability of the husband to consummate the marriage as a ground to divorce and also added some additional ground where the husband is suffering from insanity, leprosy or venereal disease.

The law of the Maliki, Shafi and Hanbali schools is more favourable to women and in addition to a degree to be granted for the husband’s physical defects they recognize other grounds for which a divorce may be granted – such as failure to maintain, desertion for a ‘prolonged period’ of time (usually 60 days) though in Hanbali law there is an exception if his absence is considered excusable. Hanbali law also allows a wife to obtain a judicial divorce if her husband is in breach of a stipulation inserted in the marriage contract.

The Maliki School is the most liberal with regard to the right of the wife to obtain judicial divorce. However, when the Maliki court grants the wife a decree it does so by pronouncing an irrevocable talaq on behalf of the husband thereby continuing the legal fiction that it is the right of the husband alone to terminate the marriage. Maliki law is unique in that it gives the women the right to obtain a divorce on the ground of dharar (harm or prejudice). If she is unable to prove her claim that continuing to live with her husband is causing her harm but persists in her claim that there is discord between them the Maliki court will reconstitute itself into an arbitration tribunal. Two arbitrators will be appointed, one from the family of the wife and the other from the family of the husband. The arbitrators must first attempt with the judge to bring about reconciliation between the parties. If their attempts fail they must then hear the evidence of both parties and establish which of them is primarily responsible for the breakdown of the marriage. If they decide that it is the husband who is primarily responsible for the discord between them they will pronounce an irrevocable talaq. However, if they find that it is the wife itself who is at fault they will pronounce repudiation in return for the giving of compensation by the wife to the husband.

Reforms have taken place in many countries of the Muslim world extending the right of a wife to divorce. These reforms have sought inspiration from the Maliki doctrine. Most reforms have taken place in Muslim world resided by Hanafi Muslim.

In India Article 2 of Dissolution of Muslim Marriages Act 1939 gave wives some grounds based on Maliki law to dissolve their marriages at their instigation. Such as-

a)    Where the husband has been missing for four years
b)    Where the husband has failed to maintain her for two years
c)     The husband has been sentenced to imprisonment of seven years or more
d)    That the husband has failed to perform his ‘marital obligations’ for three years
e)     That the husband was impotent at the time of the marriage and has remained so
f)        that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease
g)    The wife having been given in marriage by her father or other guardian before she attained the age of fifteen repudiated the marriage before attaining the age of eighteen provided that the marriage is unconsummated or that the husband treats her with cruelty.

The Act also gives the wife the right to petition for divorce on ‘any other ground which is recognized for the dissolution of marriage under Muslim law’.

Bangladesh & Pakistan have Muslim Family Law Ordinance 1961 in addition to Dissolution of Muslim Marriages Act 1939 which added a further ground allowing a woman whose husband took a second wife without complying with the provision of the Ordinance requiring him.

Moreover in Pakistan a new ground of divorce for woman adopted by the decision of Khurshid Bibi v Mohammed Amen. The Supreme Court of Pakistan considered the Sura 2 verse 229. In this verse the court found that the ‘you’ in the words ‘if you fear’ referred to the judge and accordingly the court held that if the judge found that the parties to marriage could no longer live within ‘the limits prescribed by Allah’ the court could dissolve the marriage by means of a judicial khul. The court in making its decision did not consider the Maliki law on dharar (prejudice) and indeed held that provided the court was satisfied that the parties could no longer cohabit ‘within the limits prescribed by Allah’ it was not for the court to allot blame to either of the parties.

In Iran in accordance with the provision of 1130 of the Civil Code the Court may grant a wife divorce if she is able to prove that she is suffering harm from the continuation of the marriage.

A Tunisian wife has been given the power of talaq so that she may unilaterally terminate her marriage at will, but the pronouncement of talaq must be made in a court of law.

In Egypt Law 1 of 2000 provides that if the husband and wife are unable to agree to a divorce by mutual consent the wife may petition the court to grant her a judicial khul in return for relinquishing her financial claims and returning her dower to her husband. Before a divorce is granted the court must attempt to bring about reconciliation, but if after three months no reconciliation has taken place and the wife formally declares that life with her husband is repugnant to her and that she cannot continue to live with him within the limits prescribed by Islam the court must grant her a judicial khul.

Thus the law of Egypt is more favourable to a woman seeking dissolution of her marriage by means of a judicial khul than is the law of Pakistan. Under the law of Egypt it is the woman herself who declares before the judge that she can no longer live with her husband ‘within the bounds prescribed by Allah’. Once she has made her declaration the judge has no discretion to refuse the divorce. On the other hand, in Pakistan it is for the court to decide if in the circumstances of a particular case the parties can no longer continue to live together as husband and wife without transgressing ‘the bounds prescribed by Allah’.

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