Husband’s power to pronounce Talaq not absolute: Court
J&K High Court has said that the husband should have a “valid reason and genuine cause” to pronounce Talaq
In a ruling with significant bearing on the interpretation of the process of divorce in Islam, JK High Court has ruled that the husband’s power to pronounce Talaq (divorce) is “not absolute.” The court said that Talaq was the last resort and could be only administered after the husband has exhausted all other options.
“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,” the Court said in its judgement in a divorce case involving Mohammad Naseem Bhat and Bilquees Akhter.
The court said that a husband cannot wriggle out of his obligations under marriage including one to maintain his wife after claiming to have divorced her. “(Husband) has not merely to prove that he has pronounced Talaq or executed divorce deed to divorce his wife but has to compulsorily plead and prove, that an 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 didn’t bear any fruit,” the Court said, adding that it was only after the husband proved that he had exhausted all options of reconciliation that Talaq would operate and marriage between the parties would stand dissolved.
Only in that case, the court has ruled, would husband escape the obligations under the marriage contract, including one to maintain his wife. “The Court in all such cases would give a hard look to the case projected by the husband and insist on strict proof,” the court said.
The court has said that the husband should have a “valid reason and genuine cause” to pronounce Talaq on his wife and that Talaq was pronounced in presence of two witnesses. Talaq also has to be pronounced during tuhr (period between two menstrual cycles) without indulging in sexual intercourse with the divorcee during this period.
In its judgement, the court has ruled in favour of Bilquees Akhter saying that Talaq was not proved. “Though a feeble attempt appears to have been made to prove that there was some kind of intervention by the elders before Talaq was pronounced by the petitioner, this is of no avail to him, as all the above requirements or ingredients of a valid divorce (Talaq) are not proved,” Justice Hasnian Masoodi observed.
Sessions court earlier had directed the trial court to determine the quantum of maintenance allowance for Akhter which was appealed in the high court by her husband.
Riyaz Wani is a Special Correspondent with Tehelka.