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Court comes to the aid of Muslim wives

Lawyers and Muslim community leaders Saturday welcomed a court ruling against recognising a 'talaq' or divorce by mail as valid.

india Updated: Mar 08, 2003 19:27 IST

Lawyers and Muslim community leaders Saturday welcomed a court ruling against recognising a 'talaq' or divorce by mail as valid.

A magistrate's court here had on Friday, the eve of International Women's Day, ruled that 'talaq-ul-biddat', or the pronouncement of talaq thrice, through the post could not be considered valid.

"It's a good thing and will put an end to the arbitrary method of divorce practised in Muslim society. The procedure of divorce generally followed nowadays has nothing to do with religion," said lawyer Saiba Faroqui.

"People have developed certain traditions in the name of religion and we have been accepting it since ages. Islam does not permit such atrocities on women."

Metropolitan Magistrate Kamini Lau had pronounced the judgement in the case of a Muslim woman who got a letter from her husband in 1999 with the word "talaq" written three times. The letter did not mention any witnesses.

The woman had got married in 1992 and then separated, alleging physical torture leading to abortion twice.

Lau said Islam has the provision of pre-divorce conference between the husband and wife and requires enough efforts of reconciliation to be made in the presence of witnesses. This provision is undermined when a husband demands divorce through the post.

In May last year, Mumbai High Court's Aurangabad bench had made Islamic divorce valid only if proved in a court of law. It said Muslim law prescribes that there should be a process of reconciliation before divorce and that an "instant divorce" is not part of Islamic law, the Sharia.

Said Syed Shahabuddin of the All India Muslim Personal Law Board: "A large number of Muslims do consider that the process of divorce through post is not good. But the clerics may have a different view.

"The procedure of divorce set by the Sharia is ignored many times. There are many things based on traditions. This is unfair. The court judgement should be welcomed."

Shahabuddin said the Quran recommends reconciliation at least twice before the divorce. But this is hardly followed and there is gross misuse of the existing law. People give divorce on the telephone and even while drunk, he added.

"Pronouncing talaq three times in one breath is also anti-Islamic. But it is widely practised. There should be a gap of one month between each pronouncement," explained Faroqui.

Mohammad Sajjad, who teaches history at Jamia Milia Islamia university, said: "Divorce in Muslim society has become child's play and we need to focus on the plight of women suffering because of this."

But some clerics feel the judgement amounts to interference in Muslim personal law.

Mohammad Moazzam Ahmed, vice head priest of the Fatehpuri mosque, said: "According to the Sharia, divorce by post is accepted provided it has evidence that the two sides had made enough effort at reconciliation.

Divorce is only the last resort. Therefore, this judgement is interference with the Sharia."
Legal experts, however, pointed out that the Sharia is practised differently in various Muslim countries and laws relating to women in an Islamic nation like Bangladesh are far more progressive than in India.

To seek divorce in Bangladesh, a Muslim husband has to give a notice to the chairman of the local administrative unit and can leave his wife only 90 days after the notification.

The chairman, on receiving the notice, constitutes an arbitration council to try to bring about reconciliation. In the 90-day period, the husband can even revoke the divorce.

While delivering Friday's judgement, Lau noted that even in Pakistan there is a provision of an arbitration counsel, who assists in prior conciliation for divorce. Failure to follow this can lead to imprisonment of one year.

First Published: Mar 08, 2003 19:27 IST