Nearly 27 years after the controversial Shah Bano judgement, the Jammu and Kashmir hight court has challenged a man's absolute power to pronounce 'talaq' or divorce.
The ground-breaking judgment, which was given on Tuesday, has said a husband's power to pronounce 'talaq' (divorce) is not "absolute and unqualified" and asks the husband to prove that he had a valid and genuine reasons to pronounce divorce on his wife.
The judgment calls triple 'talaq' (three 'talaqs' uttered in one sitting) "the most despised" and asks courts to dissolve marriage only after a talaq is given in presence of`two witnesses who are endued with justice and after the husband provides a proof that enough efforts were made for reconciliation.
Maintaining that divorce be used as a "last option" when a marriage runs into rough weather", the court maintained that a husband needed to "plead and prove" the preconditions before a marriage is considered "dissolved".
It emerges that a husband to wriggle out of his obligation under marriage, including one to maintain his wife, claiming to have divorced her, has not merely to "prove that he has pronounced 'talaq' or executed a divorce deed to divorce his wife but has to compulsorily "prove and plead".
The judgment also said the ruling should apply to all divorce cases. "The court in all such cases would give a hard look to the case projected by the husband and insist on proof."
The 23-page judgment by justice Hasnain Massodi has extensively quoted Shariah (Islamic law) and the Quran before arriving at a conclusion.
The judgment was given in a case filed by a women lawyer who had approached the court for a monthly maintenance allowance from her husband. The woman had claimed that after living as a couple for four years since 1997, later according to the petition, the man had "neglected her and refused to live with her". The trial court had ordered a monthly maintenance of Rs 1,600 to the women. The man had challenged the petition and said he had divorced his wife in 2003, but had provided no proof of divorce. He had, however, sent a written divorce while the
case of maintenance was being heard.
The review court had allowed the marriage to be dissolved setting aside the order of the trial court.
In the present order, the high court upheld the order of the trial court for maintenance and set aside the review courts order. The order also asks the petitioner to proceed for recovery of arrears.
The judgment has generated debate in the Valley. The religious scholars have called for a meeting to discuss the issue before commenting. "The judgment will be discussed in a meeting of scholars and ulemas and than only can we comment. If we have objections we will approach the honourable judge and try and get the order amended. We want to maintain the sanctity of the court as well as our Islamic law as well. It's not a simple thing as just pronouncing a judgment and not looking at the consequences," said Grand Mufti (chief cleric) of Kashmir, Mufti Bashir-u-din.
Four preconditions for dissolving a marriage legally:
Intervention made by representatives of husband and wife to settle disputes and disagreements between the two and efforts do not bear any fruit
A man must have a valid reason and genuine cause to pronounce divorce on wife
Talaq should be pronounced in the presence of two witnesses endued with justice.
Talaak should be pronounced during the period of tuhr (between the two menstrual cycles) without indulging in sexual intercourse with the divorcee during that period.