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Muslim men must justify talaq: Jammu and Kashmir high court

The Jammu and Kashmir high court has ruled that a Muslim husband's power to divorce his wife is neither unrestricted nor unqualified.

, ET Bureau|
Nov 01, 2012, 05.52 AM IST
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SRINAGAR: The Jammu and Kashmir high court has ruled that a Muslim husband's power to divorce his wife is neither unrestricted nor unqualified. Divorce is the last option to dissolve a marriage as the husband has to make efforts to settle disputes and disagreements before exercising the right to move out of the marriage, the court said.

"Though Islam visualises a situation where a marriage may run into rough weather for reasons beyond control of the parties to the marriage contract, and provides for a mechanism to end or dissolve the relationship in such case, the device of divorce is to be used as the last option when the marital relations have irretrievably broken down," Justice Husnain Masoodi observed in a 23-page judgment in a case of maintenance.

"A husband, to wriggle-out of his obligations under marriage including one to maintain his wife, claiming to have divorced her has not merely to prove that he has pronounced Talaaq or executed divorce deed to divorce his wife, but has to compulsorily plead and prove: that effort was made by the representatives of husband and wife to intervene, settle disputes and disagreements between the parties and that such effort for reasons not attributable to the husband did not bear any fruit; that he had a valid reason and genuine cause to pronounce divorce on his wife; that Talaaq was pronounced in presence of two witnesses endued with justice; and that Talaaq was pronounced during the period of Tuhr (between two menstrual cycles) without indulging in sexual intercourse with the divorcee during said Tuhr," the 23-page judgment reads.

Justice Husnain Masoodi has observed that divorce, as per the Quranic injunctions and the Shariah, will operate only after "husband pleads and proves all the above ingredients" enabling him "to escape obligations under the marriage contract, including one to maintain his wife". Insisting that Islam recognises husband and the wife as equal partners, the judgment says the Quran has no reference supporting superiority of one gender in the marriage.

"Islam does not give preference to either party to a marriage. The message in Chapter 30, Verse 21, is not gender specific. It does not address a Muslim man or Muslim woman. It does not say that Almighty Allah created for a man, woman as his spouse or vice-versa. It, on the other hand, addresses both men and women saying that He created spouses and it is a sign of His mercy. This clearly indicates that a man and woman are equal partners in a marriage," the judgment reads.

"Again Quran uses expression Zawj for both husband and wife. It means either of the pair. Wherever Quran makes mention of ideal partners in a marriage, it refers to them as Zawj and not husband or wife. This again makes it clear that husband and wife in Islam are equal partners and have equal status."

Zawj, an Arabic word, means a married person regardless of the gender.

Muslim marriages are dissolved in three forms: talaaq-e-Ahsan, talaaq-e-Hasan and talaaq-e-Bidat.

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