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The concept of divorce in Islam

Tamizul Haque Barrister-at-Law A divorce by Khoola is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In such a case the terms of the bargain are a matter of arrangement between the husband and wife, and the wife may, as the consideration, release her dyn-mohr and other rights, or make any other agreement for the benefit of the husband. The law of khul and mubara'a has within the course of the last few years, assumed a great deal of importance in India. According to the Hanifi law, the husband proposes dissolution, and the wife accepts it at the same meeting. The proposal and acceptance need not be in any particular form. The contract itself dissolves the marriage and operates a single talaq-e bain, and its operation is not postponed until the execution of the khul-nama (document of release). In Ithna Ashari law, as is to be expected, certain forms are to be strictly followed and witnesses are required. Tyabji has shown that jurists of authority differ on this question: (i) Abu Hanifa holds that, in the absence of agreement mahr is deemed to be relinquished by the wife both by khul and by mubara'a; (ii) Abu Yusuf lays down that mahr is deemed to be relinquished by mubara'a but not by khul; and (iii) Imam Muhammad holds that mahr is deemed to be relinquished neither by khul, nor by mubara's. Where the Hanafi jurists of authority differ, it is the duty of the court to consider the matter for itself and to arrive at a just decision. The whole procedure of khul and mubara'a depends upon consent and understanding, and it is submitted that the court would not be justified in making a presumption one way or the other. Each case is to be determined with reference to its facts; and where there is no agreement as to consideration, it would be proper for the court to award the mahr, or part of it, to the wife, if it is just and convenient to do so, but not otherwise. Divorce by mutual imprecation is mentioned in the Holy Quran and is supported by the traditions of the Holy Prophet. It is reported that a man from the Ansar accused his wife of adultery. The Holy Prophet thereupon asked them both to take an oath; then he ordered them to be separated from each other. The law of Islam punishes the offence of adultery (zina) severely, and so it takes a serious view of an imputation of unchastity against a married woman. If a husband accused his wife of infidelity, he was liable to punishment for defaming his wife (gadhf) unless he proved his allegation. If there was no proof forthcoming, the procedure of lian was adopted. The procedure of lian may be described briefly as follows. A husband accuses his wife of adultery, but is unable to prove the allegation. The wife in such cases is entitled to file a suit for dissolution of marriage. It is to be observed that a mere allegation or oath, in the form of an anathema, does not dissolve the marriage. A Kazi must intervene; in Indian law, a regular suit has to be filed. At the hearing of the suit, the husband has two alternatives: (i) he may formally retract the charge. If this is done at or before the commencement of the hearing (but not after the close of the evidence or the end of the trial), the wife is not entitled to a dissolution (ii) The husband may, however, not retract and, if he persists in his attitude, he is called upon to make oaths. This was followed by similar oaths of innocency made by the wife. The four oaths are tantamount to the evidence of four eye witnesses required for the proof of adultery in Islam. After these mutual imprecations, the judge pronounces that the marriage is dissolved. The High Court of Bombay has laid down that three conditions are necessary for a valid retraction: (i) The husband must admit that he has made a charge of adultery against the wife; (ii) he must admit that the charge was false, and (iii) he must make the retraction before the end of the trial; but, even after the passing of the Dissolution of Muslim Marriages Act VIII of 1939, the husband's retraction non-suits the aggrieved wife. The essence of lian is the persistence by the husband in an unproved allegation of unchastity on the part of the wife. If the infidelity is proved, the wife's action for dissolution fails. Dissolution of Muslim Marriages Act, 1939 The word faskh means annulment or abrogation. It comes from a root which means to annual (a deed) or to rescind (a bargain). Hence it refers to the power of the Muslim kazi to annul a marriage on the application of the wife. It may be defined as 'The dissolution or rescission of the contract of marriage by judicial decree. This is known as tahkim in Fatimid law. The Quaranic basis of the law will be found in the fourth chapter, dealing with wives. There it is laid down that men are in charge of the affairs of women and should deal fairly with them. Women are likewise asked to be obedient to men, but if they do not behave themselves, men may admonish them, banish them to beds apart, and scourge them. And if ye fear a breach between them twain (the man and wife), appoint an arbiter from his folk and an arbiter from her folk. If they desire amendment Allah will make them of one mind. The law of faskh is founded upon this Quranic injunction and traditions of the Holy Prophet (S.M) like the one cited by Ameer Ali, The power of the Kazi or judge to pronounce a divorce is founded on the express words of the Holy Prophet: if a woman be prejudiced by a marriage, let it be broken off. The classical jurists, however, differed in their opinion and in the course of centuries the schools of Islamic law held widely divergent views regarding the interpretation of the basic texts. While it was conceded that it was possible for the wife to obtain dissolution, the schools could not agree either as to the grounds of dissolution or as to the procedure to be followed. Els