Chapter 1

INTRODUCTION
Firm union of the husband and wife is a necessary condition for a happy family
life. Islam therefore, insists upon the subsistence of a marriage and prescribes that
breach of marriage contract should be avoided. Initially no marriage is contracted
to be dissolved but in unfortunate circumstances the matrimonial contract is
broken. One of the ways of such dissolution is by way of divorce . Under Muslim
law the divorce may take place by the act of the parties themselves or by a decree
of the court of law. However in whatever manner the divorce is effected it has not
been regarded as a rule of life. In Islam, divorce is considered as an exception to
the status of marriage. The Prophet declared that among the things which have
been permitted by law, divorce is the worst. Divorce being an evil, it must be
avoided as far as possible. But in some occasions this evil becomes a necessity,
because when it is impossible for the parties to the marriage to carry on their
union with mutual affection and love then it is better to allow them to get
separated than compel them to live together in an atmosphere of hatred and
disaffection. The basis of divorce in Islamic law is the inability of the spouses to
live together rather than any specific cause (or guilt of a party) on account of
which the parties cannot live together.1
It is sometimes suggested that the greatest defect of the Islamic system is the
absolute power given to the husband to divorce his wife without cause. The
reforms of Mohammed marked a new departure in the history of Eastern
legislation. He restrained the power of divorce possessed by the husband ; he gave
to the women the right of obtaining a separation on reasonable grounds; and
towards the end of his life he went so far as practically to forbid its exercise by the

1 Ibrahim Abdul Hamid, “Dissolution of Marriage” in Islamic Quarterly, 3(1956) 166-75, 215-
223:4 (1957) 3-10, 57-65, 97-113.

1
men without the intervention of arbiters or a judge. Prophet (PBUH) dislike it
most because it prevented conjugal happiness and interfered with the proper
brining up the children.
Certain circumstances the wife may be expected to fall back on her own
resources. Nasir shows that maintenance is deemed a debt on the husband from
the date of withholding it once it is due.2 Only on payment of such debt is settled
under the sharia law. The prophet preached in his last sermon:
“Show piety to women, you have taken them in trust of God and have made
lawful for you to enjoy by the word of God and it is your duty to provide for them
and cloth according to decent custom.
Faayazur Rahman argues that Quran has asked the believers to give something
to their divorced wives, the quantum of maintenance being left for the believers to
decide. He also argues that there is no evidence that the prophet divorced any of
his wives irrevocably and denied post-divorce maintenance. As the greatest ever
champion of human rights, the Prophet could never take away the rights of
divorced woman. Maintenance of a wife during subsistence of a marriage is a
legal obligation of the husband in Islam. But the sharia provision of maintenance
of the wife from her husband is conditional. The maintenance is only due to the
wife if she is under a valid marriage contract, if she allows her husband access or
iamkin to her all lawful times and if she obeys his lawful commands in the
duration of marriage.3 When the wife is working against the husband’s wishes she
becomes a rebellions or disobedient or Nashuza and is not entitled to maintenance
from her husband. A wife is Nashuza as held in the case of Ahmed All vs. Sabha
Khatun,’ if without a valid excuse she disobeys his reasonable orders, refuses to
cohabit in the house he has chosen, goes on hajj without his consent unless it is
obligatory for her to go; takes employment outside the house without his consent
or is imprisoned so as to be inaccessible to him. However she will not be a
disobedient if her acts are in reply for her husband’s inability to accommodate her

2 Abdur Rahman, The Islamic Law. 2nd ed (London: Ta Ha Publishers, 1984), pp. 207-208.
3 Ibid., p. 214.

2
in accordance to law or failure to pay prompt dower when demanded or when she
has broken the stipulations in the kabinnama or has acted with cruelty.” The non-
hanafi schools are of the opinion that even if she stays at home she will not be
entitled to maintenance, if she refuses sexual intercourse.

Concerning socio-economic conditions, customs and traditions and individual

circumstances of the spouses the quantum of maintenance and the duration of it
have obviously become a debatable issue. The various schools have developed
different criteria to assess the extent of wife’s entitlements. 12 All schools of
Islamic law agree that if both the husband and wife come from wealthy
backgrounds, the level of maintenance should be in accordance with their standard
of living, likewise, if both are from poor backgrounds, the level of maintenance
will reflect this position.

If, however, one party is from a poor background and other is from a wealthy
background, the schools have arrived at slightly different interpretations of the
level of the appropriate maintenance. The Maliki and Hanbali schools adopt the
view that the average and medium level should be maintained in all cases. The
Hanafi school adopts the same position when the husband is wealthy and the wife
is poor. When the wife is wealthy and the husband is poor, however, the Hanafi
school believes that it is unreal to look to an average position. This school adopts
the view that the husband’s condition alone should be the guiding factor.4
Another problem is with the duration of maintenance. Is the husband is bound
to maintain his wife beyond the iddat period. On the other had the question may
put forward whether a wife will entitle maintenance from her husband beyond
iddat period after divorce? This essay is an endeavor to find out the answer of this
question. In this essay the general provision of maintenance with its historical
development has been mentioned. In addition the two remarkable decision of the
highest court in Bangladesh and Pakistan has been discussed to understand the
judicial position regarding the duration of post-divorce maintenance.5

4 Syed Abdul Latif, “Thrzumatul Quran”, 1st ed.Vol. 2, (Delhi: Asia Publishing House, 1967).
5 Ibid., p.125

3
 Chapter 2
CONCEPT OF DISSOLUTION OF MUSLIM MARRIAGE

2.1 Definition of Marriage

Nikah- (Marriage) considered from a purely legal point of view is a civil contract.
But this is only one aspect of the institution of marriage in Islam which tends to
obscure its real significance. In the words of the Hedaya, the well known legal text
of the Jo1arutfi school,

“In its primitive sense means carnal conjunction. Some have said that it signifies
conjunction generally. In the language of the law it implies a particular contract
used for the purpose of legalizing generation.”

2.2 Dissolution Of Muslim Marriage ACT, 1939

Marriages, as they define, are made in heaven and solemnized on earth. It is a
sacrament for Hindus, a sanctified contract for Muslims and a sacred knot for
Christians. Husbands and wives vow for each other, yet there have been
innumerable cases of betrayals by the spouses.
The complexity of modern society and its possible consequences such as fast
changing socio economic conditions, the disintegration of the joint family
structure, the rapid development of industrialization and urbanization, education
and employment and laws giving equal status and rights to women, led a
tremendous impact on the institution of marriage. Few decades ago divorce was
considered as an evil, the grounds of divorce were very limited and it was sought
only under compelling circumstances. Positions have however, changed now.
Marriage is no longer treated as an indissoluble union. In fact, there has been a
considerable legislative and judicial interference in the sphere of matrimonial laws
during the past few decades all over the world. In view of the changing times,
divorce laws are being substantially modified and liberalized.

4
Like Hindu law, followers of Islam have their own personal law, which states that
Nikaah or marriage is a contract and may be permanent or temporary and permits
a man four wives if he treats all of them equally. There should be a proposal or
`offer,` made by or on behalf of one of the two parties;
The Muslim marriage law also states that to have a valid marriage under the
Muslim law, if a person is of sound mind, normal and has attained puberty at the
age of 15 his or her marriage cannot be performed without his or her consent.
There are certain prohibited relationships, whose marriage is considered void.
Like mother and son, grandmother and grandson, uncle and niece, brother and
sister and nephew and aunt.
i. An `acceptance` of such proposal or `offer` by or on behalf of the other party;
ii. The `offer` and `acceptance,` both, must be expressed in the same meeting.
There is no prescribed form for proposal and acceptance. However, a
proposal, made at one meeting and an acceptance, made at another meeting,
will not constitute a valid marriage;
iii. The offer and acceptance must be made in the presence of two male
witnesses, or one male and two female witnesses, who must be adult
Mohammedans of sound mind; iv. A marriage, contracted without witnesses,
is not void but is considered irregular. Such irregularity can be cured by
consummation. However, according to Shia law, the presence of witnesses is
not necessary in any matter.

2.3 Dissolution of marriage can be by following ways: By Divorce

A Husband may divorce in the following manner-
1. Talaq: which is release from the marriage tie immediately or eventually
2. Ila: where a husband of sound mind takes a vow that he will abstain from
all relationship from his wife.
3. Zihar: where husband sane and adult compares his wife to his mother or
any other female within the prohibited degrees.
A wife may divorce in the following manner-
a. Talaqetafwiz: talaq by the wife under the husbands delegated power.

5
2.4 Muslim Women- Dissolution of Marriage
(a) Divorce by husband
Among the pre-Islamic Arab, the power of divorce possessed by the husband was
unlimited. They could divorce their wife at any time, for any reason or without
reason. They could also revoke their divorce, and divorce again as many times as
they preferred. They could, if they were so inclined, swear that they would have
no intercourse with their wives, though still living with them. They could
arbitrarily accuse their wives of adultery, dismiss them, and leave them with such
notoriety as would deter other suitors; while they themselves would go exempt
from any formal responsibility of maintenance or legal punishment.6
According to Abdur Rahim, at least four various types of dissolution of
marriage were known in the pre-Islamic Arabia. These were talaq, ila, Zihar,
Khula. A woman, if absolutely separated through any of these four modes, was
probably free to re-marry. But she could not do so until sometime, called the
period of iddat, had passed. It was to ascertain the legitimacy of the child. But it
was not a strict rule. Sometimes, pregnant wife was divorced and was married to
another person under an agreement. It is interesting to note that the period of iddat
in case of death of husband then was one year.
The Prophet of Islam looked upon these customs of divorce with extreme
disapproval, and regarded their practice as calculated to undermine the foundation
of society. It was impossible, however, under the existing conditions of society to
abolish the custom entirely. The Prophet had to mould the mind of an uncultured
and semi barbarous community to a higher development. Accordingly, he
allowed the exercise of the power of divorce to husbands under certain conditions
He permitted to divorced parties three distinct and separate periods within which
they might endeavour to become reconciled, but should all attempts of
reconciliation prove unsuccessful then in the third period the final separation
became effective.7

6 Ibrahim Abdul Hamid, “Dissolution of Marriage”21st Edition.

7 Ameer Ali, The Spirit of Islam, p. 243-44.

6
The reforms of the Holy Prophet Muhammad marked a new departure in the
history of Eastern legislation. He restrained the unlimited power of divorce by the
husband, and gave to the woman the right of obtaining the separation on
reasonable grounds. He pronounced "talaq to be the most detestable before God of
all permitted things”8 for it prevented conjugal happiness and interfered with the
proper upbringing of children.
Ameer Ali asserts:
"The permission (of divorce), therefore, in the Koran though it gave a certain
countenance to the old customs, had to be read in the light of the Law giver's own
enunciation? When it is borne in mind how intimately law and religion are
connected in the Islamic system, it will be easy to understand the bearing of his
words on the institution of divorce.
The effective check placed by Islam on frequent divorce and remarriage was
that incase of irrevocable separation, it is essential for remarriage, that the wife
should marry another man, and this marriage be consummated before divorce, and
the wife should observe iddat. This was a measure which rendered separation
more rare. Certain critics accuse this procedure as "a disgusting ordeal" and
"revolting", but they ignore that among a proud, jealous, and sensitive race like
the Arabs, such a condition was one of the strongest antidotes for the evil. It
intended to control one of the most sensitive nations of the earth, by acting on the
strongest feeling of their nature, the sense of honour.
It is sometimes suggested that the greatest defect of the Islamic system is the
absolute power given to the husband to divorce his wife without cause. Dower to
some extent restricts the use of this power. But experience shows that greater
suffering is engendered by the husband's withholding divorce than by this
irresponsible exercise of the right.
It is true that the divorce does him at the root of many sufferings, but it is to
be borne in mind that the husband's right to divorce is in fact circumscribed in
various ways. The amount of dower itself serves as "a check on the capricious

8 Abu Daud, Sunan, xiii 3

7
exercise of his unlimited power of divorce".9The higher the amount of dower, the
more difficult is the pronouncement of talaq. Then talaq tafweed (divorce by
delegation) is perhaps the most potent weapon in the hands of a Muslim wife to
obtain her freedom without the intervention of any court". 10 The wife may at the
time of entering into a marriage contract to secure the right of divorce from the
husband.
"One cannot deny that many Muslim men abuse the matrimonial laws of
Islam and treat their women shabbily. But it certainly does not mean that Muslim
women live inconstant dread of the blighted word - talaq, talaq, talaq as some self-
appointed experts on Shariat... would have us believe", observes Parwez Hafeez.
According to him, Muslim men despise divorce as much as Muslim women.
Divorce is considered a dirty word and is strongly disapproved of even in Muslim
society. Because of the social stigma attached to it, the overwhelming majority of
Muslim men never dream of uttering the word. The rate of divorce among Indian
Muslim is more or less the same as among other communities. In the Western
society, where divorce is a time-consuming, expensive and torturous process, the
divorce rate in some countries is as high as 45 percent. Bertrand Russel, much-
married and much-divorced, observes the author, acknowledged that where family
feeling is strong, the rate of divorce is low even if it is legally easy and conversely
where family feeling is weak, rate of divorce is high even if it is legally difficult. It
need not be mentioned (hat family ties are extraordinarily strong in Muslim
society. The "rational, realistic and modern law of Islamic divorce" appears
repugnant to many because of their mind-set that divorce is something inherently
immoral. But social scientists and marriage counsellor agree that it is a better and
healthier for a constantly squabbling couple to part than to persist with a marriage
that becomes a mere sham. When a matrimonial alliance turns into a prison
sentence, making life an unending nightmare for both or either of the spouses,
divorce is the only escape-route to relief, liberty and sanity. Other societies

9 Asaf A. A. Fyzee, Outlines of Muhammadan Law, 4th ed. (Oxford: Oxford University Press,
1993).p.136
10 Ibid., p. 159.

8
realized this reality only in the current century while law-givers of Islam realized
it fourteen centuries ago.11
The legal systems of various countries have grudgingly accepted the truth that
if the marriage has broken down irretrievably let there be a divorce. Called the
"breakdown theory", this law was incorporated by British in 1969 and
recommended by the Indian Law Commission in its report in 1978. Besides these
precautionary devices, Islamic law has given rights to the wife to get rid of an
unpleasant husband and has the marriage dissolved through the prescribed
procedure on certain grounds. 12 The law also protects the wife against the
malicious intent of the husband in pronouncing talaq. This situation is well-
explained by Mulla who says that the rights of mutual inheritance cease
immediately when the talaq becomes irrevocable, though the death, whether of the
husband or wife, may occur before the expiry iddat. To this there is an exception
in favour of the wife. It is this that if the repudiation was made during the
husband's death- "illness (marz-al-maul), and he dies, before the expiry of the
iddat the wife is entitled to inherit from him, the reason being that a repudiation by
a man in his last illness is nothing but a device to defeat the wife's right of
inheritance.

Lastly, the inequality of sexes is explained by Abdur Rahim in these words:

"The relations between two members of the opposite sexes which marriage
legalizes are, however, so subtle and delicate and require such constant
adjustment, involving the fate and well-being of the future generations, that in
their regulation, the law considers it expedient to allow the voice of one partner
more or less predominant over that of the other".13

11 Parwez Hafeez, “Talaq is as dirty a word for Muslim men as it is for women”. The Asian Age,
23 August, 1995. https://thelily.com/muslim-men-in-india-could-once-divorce-their-wives-by-
saying-three-words-e034fc7fea84
12 Asaf A. A. Fyzee, Outlines of Muhammadan Law, 4th ed. (Oxford: Oxford University Press,
1993).Ibid.,p.137
13 Abdur Rahim, Muhammedan Jurisprudence, 19, p. 327. \
https://archive.org/details/principlesofmuha031574mbp

9
 The structure of the Islamic law of divorce is, as already stated, based on the
so-called "breakdown theory", now being adopted by modern laws on matrimonial
disputes. Without prescribing any specific "grounds" for divorce, it allows
dissolution of marriages at the instance of husband (by talaq) or the wife (by
Khul) and by mutual consent (by mubara‟at) subject in each case, to such ifs and
buts that in modern legal terminology can be best translated into nothing but
"irretrievable break down".14
The Prophet who set the examples by never divorcing any of his wives
despite occasional provocation inspired religious awe against divorce by declaring
that "among legally permitted things most detestable in God's sight is divorce”.
The Qur'an prescribed bilateral reconciliatory measures to precede essentially
every case of divorce. 15 Only where marital relationship was ruptured past all
repairs, room was kept for a respectable parting of ways. Divorce, since it
disintegrates the family unity, is, of course, a social evil in itself, but is a
necessary evil. It is better to wreck the unity of the family than to wreck the future
happiness of the parties by binding them to a companionship that has become
odious.16

(b) Wife's right to divorce

The general survey in the foregoing pages reveals the right of divorce sanctioned
in favour of the husband. In the following pages right to divorce sanctioned in
favour of Muslim wife will be examined. There are two ways in which a woman is
allowed to seek separation from her husband; first, through mutual agreement
between the husband and the wife which is called Khula, secondly, through a
judicial decree by filing a suit against the husband in a law court called fask. It
will be seen that the wife is not at liberty like husband, to get herself released by

14 Tahir Mahmood, “Halala: A misunderstood concept of Muslim Law”. 11 NO. 4 Islamic &
Comparative Law Quarterly, December 1982, p. 299.
15 Quran, IV: 35.
16 Asaf A. A. Fyzee, Outlines of Muhammadan Law, 4th ed. (Oxford: Oxford University Press,
1993). Ibid.,p. 148.

10
an outright declaration of divorce. If her husband refuses to release her from the
marriage bond, she has to go to a court of law and obtain a decree in her favour.
This may seem to place her at a disadvantage in comparison with her husband and
it may be asserted that this implies inequality of rights, as between husband and
wife. Actually, the intervention of the state in this matter is a device for the fuller
protection of her rights. Conditions all over the world, including even Western
countries, are such that a woman is not altogether free to exercise the legal rights.
The husband can, if he so desires, place many impediments in her way. If the state
does not come to her help in order to safeguard her rights, the woman may find
herself handicapped in many ways, despite all talks and preaching of sex equality.
It is, therefore, in her own interest to seek the support of authority in defending
and exercising her rights. This was all the more necessary in the past when
woman's social position exposed her to greater difficulties.
As in the case of divorce by the husband, the legal permission given to
woman to seek and obtain separation through mutual agreement or through the
intervention of the court does not imply moral approval of the act. Islam has
unreservedly condemned men and women who use their legal rights of divorce
except on legitimate grounds and in absolutely unbearable condition. Thus a
tradition of the Prophet states: 'God does not like men and women who seek
variety of sexual experience'. Another tradition says, 'God has showered curses on
those men and women who make frequent use of divorce for the sake of sexual
enjoyment' Again, the Prophet of God said; 'A woman who seeks divorce from her
husband without any excess on his part will be cursed by God and His angels' Yet
another Hadith says: 'Women who make a play thing of their divorce rights are
hypocrites'. According to Ahmed and Tirmizi, the Holy Prophet of Allah said,
'Whichever woman asks her husband for divorce without fault, the fragrance of
paradise is unlawful for her'. These warnings and moral exhortations are intended
to discourage men and women from disturbing the stability of family life and
resorting to separation except in cases of unavoidable necessity. Moral dissuasion
apart, there is no dispute about a woman's legal right to seek separation from her
husband. This she may do either by giving up a part or the whole of the dower

11
given to her by the husband or by offering an arranged sum of money to her
husband in return for his consent to release her from the marriage bond. Thus both
men and women are required to undergo monetary sacrifice for securing their
separation. This is likely to act as a deterrent in both cases. Should the husband
refuse to part with his wife on any of these terms, it is open to the latter to the
protection of law by filing a suit against him and obtaining a legal decree of
separation. Actual legal decisions by the Prophet of Islam show the spirit and
principles which the law courts should apply to cases brought by women against
their husband.
The most famous among the cases is that of Thabit b. Qais whose two wives
sought divorce from him. One of them Jamila bint Abi Salul, disliked his features.
She came to the Prophet of God and complained against him, saying: 'O Prophet,
nothing can bring him together with me. I lifted my face covering to see him
coming along with a few other men and I noticed that he is the blackest, the most
short-statures and the ugliest of them.' Another report says: 'she said, by God, I do
not dislike his morals or behaviour, but 1 cannot stand his ugliness. According to
Ibn Majah, she is reported to have said, „By God, if fear of God did not stand in
my way, I would have spit him on his face‟. According to the author of Fath-al-
Bari, Jamila said 'You see, O‟ Prophet, how beautiful I am, but Thabit is an ugly
person'. Bukhari reports that she said to the Prophet: 'I do not blame him for his
morals or religion, but I am afraid Islam will lose its hold upon me if I am
compelled to live with him'. After hearing her complaint, the Prophet said to her,
'Will you give him back the orchard he gave you?' She replied, 'yes and also more,
if he wants'. The Prophet asked her not to give more and ordered Thabit to accept
the orchard and divorce her. It will, thus, appear that distaste for the husband's
appearance was considered a sufficient ground by the Prophet for the dissolution
of marriage. It is significant that the Prophet did not endeavour to expound to
Jamila the Philosophy about facial appearance agreeable or otherwise. What is
important to note is that once the Prophet was satisfied that there existed a deep-
seated distaste in the heart of the wife for her husband, the marriage was ordered
by him to be dissolved. The Prophet had, presumably, so ordered in view of the

12
moral consequence. The repercussions thereof could have been harmful for
character, religion and morality. These considerations must out-weigh the harmful
ramifications of dissolution of marriage.17
Another wife of Thabit b Qais, Habibah bint Sahil, according to a report from
Imam Malik and Abu Dawud, came to the Prophet early one morning. When the
Prophet came out, he saw her standing before the door. On the Prophet's enquiry
how she happened to be there, she replied: 'I and Thabit cannot pull together.'
When Thabit came, the Prophet said to him: 'This is what your wife says about
you, so leave her'. According to Ibn Majah, Habibah complained to the Prophet
that Thabit had beaten her so badly as to break her bone. In any case, the Prophet,
on hearing both sides of the matter, ordered dissolution of the marriage.
During the time of „Umar, the second Caliph, a suit of divorce was brought to
him. He advised the wife not to leave her husband and try to pull on with him. The
woman refused to do so 'Umar put her in a dirty room for three days. On the
fourth day he asked her how she had fared. She said that she had real peace of
mind only for those three days, whereupon 'Umar ordered dissolution of her
marriage’.

During the time of ‘Umar, the second Caliph, a suit of divorce was brought to
him. He advised the wife not to leave her husband and try to pull on with him. The
woman refused to do so 'Umar put her in a dirty room for three days. On the
fourth day he asked her how she had fared. She said that she had real peace of
mind only for those three days, whereupon 'Umar ordered dissolution of her
marriage’.
These three cases show that the mere fact of a woman having disgusted with
her husband is sufficient ground for legal separation between them. In the case of
Thabit b. Qais, the Prophet showed by his action that a woman's disapproval of
her husband on physical grounds is a legitimate ground for a decree of separation
in her favour. It is enough for the court to satisfy itself that one of the partners had

17 SAM Khusro, A Muslim Wife’s right to divorce: A note on the proper perspective‟

13
developed sufficient antipathy against the other to make reconciliation impossible.
The court need not inquire into the detailed reasons of this antipathy, because a
woman may dislike her husband on many grounds, some of which she may not
like to state openly There may also be reasons for disgust which may not seem
valid to the court or any other arbiter, but which may be sufficient to spoil the
marital relations of husband and wife The court has no right to give its verdict on
the point whether the reasons for dissatisfaction as expressed by the wife are valid.
All it can do is to satisfy itself on the point whether the dissatisfaction is genuine
or feigned, whether it arises from causes which are temporary and may disappear
or it is so deep-rooted as to preclude the possibility of happier relations being
restored. It is inadvisable for the court to inquire whether a wife seeking divorce is
doing so because she is sexually erotic and desires a variety of sexual pleasure or
her aversion to her husband springs from genuine causes The right of a man to
divorce is not limited by conditions that he should not use it for satisfying his
anarchic sexual desire, the mere fact being unable to obtain a divorce from a law
court will not prevent her from forming illicit unions, and in such a case the court,
by refusing a decree of separation, will be supplying an incentive to illegitimate
sexual activity which is morally and socially more reprehensible than frequency of
divorces.18

18 Ibid., p.243

14
 Chapter 3
BASIS OF UNILATERAL DIVORCE

3.1 What Is a Unilateral Divorce?

Unilateral divorce describes a divorce in which one spouse terminates the
marriage without the consent of the other spouse. Spouses can do this by filing for
divorce on no-fault grounds, which allows couples to divorce regardless of
whether the other spouse consents and without casting blame on the other spouse
for the marriage coming to an end. Regardless of the state you live in, you may
file for no-fault divorce.

3.2 History of Unilateral Divorce Law

Fault divorce was the traditional state regulation in the United States which allowed for
divorce only for such grounds as infidelity and physical abuse. The necessary condition to
have a divorce was to have a partner at fault. Furthermore, the fault divorce had to be
mutually agreed upon by both partners. Marriages that were viewed as broken the couple
could not be dissolved without more complex justification. This law was widely viewed
as socially inadequate, which led to a movement for reform of U.S. divorce laws. The first
step in these reforms was moving to no-fault divorce, which was in place before 1950 in a
number of states. The no-fault divorce, while maintaining the mutual consent feature,
allowed the divorce even if neither party was at fault. The UD, which allowed divorce
with the consent of just one rather then both spouses, was possibly the biggest change to
divorce law in the United States in its history. The UD was rare before the late 60s, but it
was in place in most states by the mid-1970s. The first American state to allow the UD
was New Mexico in 1933, and in the sequence, Alaska in 1935. The majority of states,
however, changed their regulation in the 70ís.19

19 http://onlinelibrary.wiley.com/doi/10.1111/j.1741-3737.2017.00621.x/full

15
3.3 Power to Divorce is with the Husband
A husband may divorce his wife by repudiating the marriage without giving any
reason. Pronouncement of such words which signify his intention to disown the
wife is sufficient. Generally this done by talaaq. But he may also divorce by Ila,
and Zihar which differ from talaaq only in form, not in substance. A wife cannot
divorce her husband of her own accord. She can divorce the husband only when
the husband has delegated such a right to her or under an agreement. Under an
agreement the wife may divorce her husband either by Khula or Mubarat. Before
1939, a Muslim wife had no right to seek divorce except on the ground of false
charges of adultery, insanity or impotency of the husband. But the Dissolution of
Muslim Marriages Act 1939 lays down several other grounds on the basis of
which a Muslim wife may get her divorce decree passed by the order of the
court.20
In pre-Islamic times divorce was a weapon used against the woman solely in
a man's hands; when he wanted to harm the wife he would seek to divorce her
and then take her back as he pleased. There were no set rules and the woman had
no rights in the matter. So Allah Allah (The Almighty) invalidated this injustice
by revealing the verse which says:
(Divorce is two times: then one may retain with goodness (and reasonable
terms), or let go with goodness (and reasonable terms).)
As a way to help preserve the marriage even when some differences occur, a
Muslim man following the Sunnah (way)of the Prophet (Peace be upon Him)
may only divorce his wife while she is clean from menses wherein he has not
had sexual relations with her in that month. Since this requires some waiting
period before the pronouncement of divorce, this allows time for any anger to
subside or misunderstandings to be cleared up, and gives time to other family
members or mediators to help in reconciliation. If they continue on the path
towards divorce, then she must wait three menstrual periods. During this time, he
may take her back honorably into marriage. This will be counted as the first

20 Asaf A. A. Fyzee, Ibid, p.146.

16
divorce and return. If the time lapses and he lets her go her way, she will be fully
divorced for the first time, and is free to marry another man.
Her first husband may remarry her with a new contract, if they both choose
that option. If he does, and he then again divorces her, he may take her back her
within the three menstrual periods, and this will be two divorces and returns.
After two divorces and returns, if he divorces her a third time this is called the
final and separating divorce wherein they are not allowed to remarry unless she
waits the specified time of three menstrual cycles and then freely marries a
different man with no intention of availing herself to this means in order to be
able to lawfully marry her previous husband . If, for any reason, she becomes
divorced from that man, only then, and on the condition that no shady pre-
arranged dealings were made to circumvent this rule, can she re-marry her first
husband. All these measures are designed to help protect the family and sanctity
of the marriage bond, and the rights of the man and the woman. The waiting
period is to determine that she is free from pregnancy. In case of pregnancy, the
woman has to wait until after delivery before she marries a second husband.
Divorce is ultimately allowed in Islam to escape from any harm caused by
the irreconcilable differences. It may become necessary in certain cases. There
are strict rules about divorce to protect the interests and rights of the parties
involved: the husband, wife and children. Some of them have been mentioned
above. Divorce might be forbidden in the case where it would not solve the
problem and cause undue harm to one of the two marriage partners, without
achieving a needed benefit.
Islamic jurisprudence obligates that in order to avoid divorce, solutions
should be sought when critical disputes and differences occur between husband
and wife; Allah, the Exalted, states in the Glorious Qur'an:
(And if a women fears cruelty or desertion from her husband, there is no sin on
both of them if they make terms of peace between themselves; and making peace
is better.)
Allah, the Exalted, also says:

17
(If you fear a breach between them appoint two arbitrators, one from his family
and the other from her family: if the two of them both wish for correction, Allah
will cause their reconciliation. Indeed Allah is Omniscient and Well-Acquainted
with all things.)

One of the most natural and logical ways to help maintain a successful
marriage is to let the man have more control over the divorce process than the
woman because it is the man who is financially obliged to take care of his wife,
household and family, and has ultimate responsibility of their welfare. Therefore,
he must rationally assess the situation, grave consequences, and huge financial
and emotional loss that will result from a divorce. The husband will lose the
dowry he spent for the marriage, and will have to pay the alimony and child
support, as well as any newly acquired expenses from a new marriage on top of
that. Thus, with all these considerations, he will not act just out of quick anger,
fickleness or passing emotion.

3.4 Divorce Given by the Husband

Definition of talak
Under Muslim law ‘talak’ means ‘freedom’. The right of giving freedom by her
husband from marriage to wife is called ‘talak, According to Heyadaya21 it means
relinquishment. The right of enforceable by the husband only.22Asaf A. A. Fyzee
said, “In law, it signifies the absolute power which the husband possesses.” A
husband who is sound mind and adult can divorce his wife without showing any
cause .Though to give divorce is so hated and a heinous act but recognized by law.
Talak is an act of repudiation of marriage by the husband in exercise of his power
which has been conferred on him .The term divorce includes all separation
originating from the husband and repudiation for the talak in the limited sense

21 Md. Altaf Hossain. Islamic Jurisprudence and Muslim Ain sohaika. (Dhaka: City Law Book,
2003), pp.164-65.
22 Aqil Ahmed. Text book of Mohamadan Law. 21st ed. (Allahbad: Central Law Agency, 2004),
p.164.

18
,namely of separation effected by use of appropriate word.23 A separation occurs
when a married couple decides they no longer want to live together, but decide to
live apart for a while.

Talaq Ahsan
Talaq ahsan is effected when the husband pronounces one divorce during a tuhr in
which cohabitation has no taken place between the parties, and then abstains from
cohabitation during the iddat. The talaq becomes irrevocable at the end of the
period of iddat24 But during that period the husband can take back his wife at any
time. When the woman is not subject to courses the talaq can be pronounced even
after cohabitation. The divorce becomes irrevocable only on the completion of
iddat which is three periods, and when the woman is not subject to periods it is
three months. When the woman is pregnant the iddat comes to an end on the
delivery of the child or three months, whichever is later.

Talaq-i-hasan
Talaq-i-hasan is effected when the husband repudiates his wife during a thur
in which he has not had carnal connection with her, and then repeats the
repudiation during the next two thurs. The third repudiation or pronouncement
makes the divorce final and irrevocable; Imam Malik does not consider it a talaq-
us-sunna.

Talaq-i-biddat
Talaq-i-biddat is effected by pronouncing talaq thrice during the some thur, or in
pronouncing the formula of talaq once with the condition that it should be
considered to have been said thrice. As when the husband say “I divorce thee
thrice.” It is immediately effective and irrevocable.

24.[http://www.legalaid.qld.gov.au/Legal+Information/Relationships+and+children/Relationships/
Separation+-+what+it+means.htm ,last visited 13 October 2009].
24 Shaukat Mahmood, Principles and Digest of Muslim Law, 6th ed. (Lahore: Legal Research
Centre, 2002), pp.66-67.

19
Talaq-i-bidaat is the most common and prevalent mode of divorce in Inida and
Pakistan. It is not prohibited even during the woman’s courses. This form of talaq
is not recognized by Shia law.

Ila
IIa is effected when the husband swears that he would not have intercourse with
his wife for a period not less than four months. If he does not have intercourse for
that period the marriage is dissolved without legal proceedings. If the husband
returns to the wife within the period specified in the ila, the ila would come to an
end but he would be liable to expiation.
According to ithna Ashari and Sahfei School, the wife is entitled to apply to the
Court for passing a decree dissolving the marriage. In Sunni Law, legal
proceedings are not required.
In Bibi Rehana v. Iqtidar-uddin 25 after the marriage ceremony was over, the
parents of the boy pushed him into a room where his wife was waiting for him. It
appears from the facts of the case that the husband was not interested in the
marriage. Immediately after entering into the room he took a vow in the presence
of his wife that he would never have sexual intercourse with her. Soon after living
this statement he came out of the room and repeated the vow in the presence of his
mother and his mother’s sister. His father then came out of another room and he
once more repeated that vow. The Court refused to accept the version of the
husband. The Court said that the husband has failed to establish that there had
been a divorce in the ila form.

Zihar (injurious assimilation)

“If the husband (who is sane and adult) compares his wife to his mother or any
other female within a prohibited degree, the wife has a right to refuse herself to
him until he has performed penance. In default of expiation by the penance, the
wife has a right to apply for a judicial divorce (Mulla).

25 (1943), ALL, 295.

20
21
3.5 Marriage, divorce or separation?
Arabic on the "Talaq" word means something is broken or torn. Marriage legally
binding agreement established relationship means breaking the law, the giving of
"divorce" or the divorce. Muslim men and women in law is a legitimate and
recognized rights. If it reaches that stage of the relationship between husband and
wife, they remain together in one or two sides is not possible, then dissolving the
marriage may be in a certain way.
According to Muslim law, divorce, and divorce from the husband or wife of any
of the legal system:
Bidhanamate the power or the right to divorce a husband and wife are not
equal. The husband has almost absolute power. Spouse icchete no one (to comply
with the law by some) to be divorced. According to Muslim law, a divorce can be
given in the following way

3.6 What other ways can be divorced?

(A) Divorced from her husband;
(B) Divorce from his wife, the husband divorces his wife have been given the
ability to e-tauphijera;
(C) Through the open;
(D) The mubaratera;
(E) Through the courts;
Islamic Sharia law and unqualified unlimited power to divorce their
husbands. Husband can divorce his wife without any reason given. But it is not
infinite power to divorce his wife, but the husband to divorce his wife if
conditions do not confer power. In Islam, divorce is allowed but a despicable act.
The Prophet (peace be upon him) said about the divorce divorced hate waiting for
things Allah has created, and Hazrat Ali (RA) narrated that the following be the
word of divorce to realize the severity of the yayatomara get married, but divorced
diyona, divorced when he shook up because of the Throne of God. However, due
to legally divorce his wife without giving her husband the right to divorce her
husband, but Islam has been ordered to be cautious before giving way to cure and
without providing reasons for divorce discouraged. Islam has repeatedly warned

22
the husband of his beloved wife at least not bad. Hadith, announced, "The best
among you is he who, with his wife, the better." Gave advice "Look, if his (her) in
a manner to be angry, then some other behavior that will surely impress you. As a
result of the forgiving eyes on it. "(Hadith meaning) in different ways, thus
repeatedly ordered her husband, said to be good, if not always in harmony with
you to understand him. If you do not even sleep in the same bed as separate. Then
another night room tax, it is not just the two families try to reconcile with the
people. That cannot be resolved, then the divorce decree has been advised to take
effect. The true followers of Islam, he never rejects this legislation together with
the divorce, separation will not be expected to feel that way. Because of the
Prophet to give with one of the three divorces. And his companions had an acute
dislike. Bidati divorce divorced three together are called for in terms of
jurisprudence. The rule is supported by the Sunnah of the divorce, divorce is only
one once. Then wait three seasons. If the recess, then later in the season
pabitratakalina the husband may take back his wife. And if you do not see eye to
eye, then spent three seasons in the marriage can be broken.26

3.7 Providing the ability to divorce her husband by the law:

A full accordance with the laws in force in our country and the healthy adult brain
at any time that a Muslim man can divorce his wife without reason. No, he did not
have to be accountable before the law and wife, she does not want to know why
the divorce was given. However, many still believe that "a divorce, the divorce,
the divorce," or an irrevocable divorce, the divorce is pronounced. But it is a
misconception. While divorce her husband at any time in accordance with the
rules prescribed by law is that the law of the state in the face three times in a row,
"divorce", or together with the pronunciation of "irrevocable divorce" is not the
word of divorce agree. 1961 the Muslim Family Law Ordinance 7 (1) Article,
according to a report by notice to divorce her husband to divorce after the
chairman (the chairman and his wife have been living in the area) habesei to send
her a copy of the notice to the husband. Chairman of husband and wife divorce

26 https://www.huffingtonpost.com/delia-lloyd/5-ways-to-avoid-divorce_b_1019194.html

23
notice sent, but 7 of the same Act, (ii) or imprisonment of up to one year old
anuyaye ten thousand fined or be sentenced to two hour. Within thirty days of
receiving notice of the Chairman of the spouses to reunite the two sides of
representatives shall constitute an Arbitration Council and will take all the
measures necessary to bring about reconciliation between them. But salisite does
not work, and giving notice within 90 days of the notice given to the wife if the
husband does not, however, be effective 90 days after the divorce. 90 days until
the couple as husband and wife will be legally binding and to be able to support
his wife. The significant that the Muslim Family Ordinance of 1961, 7 (1) Article
- Chairman and sending her husband to punish his wife will not notice, but will
not cancel the divorce. Divorce will be effective. (A recent case (Mohammed
Islam vs deleted: Helena Begum and others. Technical Revision No. 698, 199)
marmei the judgment has been given.)
What is the lapse of 90 days before the divorce can be withdrawn?
Yes, the lapse of the 90 days before a divorce can be withdrawn. Because of the
time that has been kept in cold-blooded husband and wife, both parties can take all
the conclusions - can come to an agreement through mutual negotiations.

3.8 Husband to divorce his wife to marry again?

Muslim Family Laws Ordinance of 1961, 7 (6) in accordance with section through
a divorce when divorce, divorce, the couple wanted to get married again to a new
marriage. However, there is no need for the intermediary or the Hilla
marriage. Muslim Family Law Ordinance, 1961 'Hilla' marriage has been
banned. But at the same time more than three times According to the decree of
divorce if the spouses are married to each other, they cannot win, then Hla
married. The word comes from the Arabic ‫ حلة‬Hilla. This means that the validation
/ validation response. After the final separation at the end of the waiting period, if
the wife was married to another man and wife, the second husband dies or
divorces her first husband, but at the end of the waiting period if you wish to
accept him again. In this situation, the central Hilla marriage or the husband is
considered to be valid for performing. For this reason it is called Hilla marriage.

24
When a woman wants to divorce her husband cannot. Muslim law to divorce the
husband and wife enjoy limited rights.
A . divorced woman can complete the following written anyway.
Katalaka-e-tauphija can cause the separation.
B. You can open through the separation.
C. Both husband and wife mubaratera can cause the separation.
D. If the court to dissolve the wife.

If you disagree, between husband and wife is not well, but she divorced her
husband in exchange for money or property that contributes to persuade. Since
most women do not have property or property, but it does not have the ability to
control, or the seal is part of the dower with her husband to divorce his wife can
try to persuade.

The husband and wife, both hostile to each other, and they broke up their marriage
contract brings the mobarata said. Mobaratao open like a kind of contract-based
divorce.
E-tauphija divorce and separation cannot take a woman in the open, and if it is
essential to take a wife divorced in 1939, the Muslim marriage law very clearly
what has been called the divorce a wife can apply to the court. The reasons are:
1. When her husband disappeared four years.
2. Two years after her husband failed to pay alimony.
3. Or more than seven years in prison when sentenced her husband.
4. Husband of three years without any reasonable cause fails to comply with the
responsibilities of marriage.
5. If impotent filed until the time of marriage, and it is maintained.
6. Her husband is crazy for two years or if the leprosy disease or severe sexual
disorder.
7. Denying marriage. If the parents or guardian of a woman's daughter was
married before the age of 18, the girl refused to marry before 19 years of marriage
might be broken, but if conjugal relations with her husband (approach) is not
established, then no court refused to marry may seek a divorce decree.

25
8. The husband is in violation of the provisions of the 1961 Muslim Family Laws
took more than one wife.
9. Due to her husband's cruelty.

3.9 The court recognized that the use of cruel, services:

A) the habitual way wounding his wife or cruel behavior, even if such conduct is
not at the level of physical oppression, who has made his life miserable when.
B) the daughter's husband (women of ill reputation) with the living.
C) if the woman forced to live immoral.
D) the loss of his wife's property.
E) obstructs dharmapalane wife.
F) if more than one wife if you do not use all alike.
G) any other reason (the reason is breaking the law, a marriage contract).
However, the burden of proof in court accused the wife of the above. Subject to
the complaint on behalf of her divorce decree may receive a certified copy of the
court decree within seven days after the court will send to the
Chairman. Chairman of the notisake divorce notice and take action in accordance
with law as a chairman to be able to notice that the day after ninety days from the
date of the final divorce will take effect.

3.10When divorce is not effective?

Pregnant and give birth to a child when the divorce will not be effective until the
divorce. For determining the validity or the child's paternity has been made in the
law.

3.11 Registration is divorced or not?

According to Islamic law, a husband or wife in case of divorce, divorced from any
mandatory registration. Muslim Marriage and Divorce (Registration) Act, 1974, in
accordance with the provisions of the Registrar nikaha oral application on the
basis of its authority in case of divorce, the woman received pardanasina can
register any person may file an application for divorce. Delegation of authority to
the husband divorces his wife that he had no documents or certified copies of
documents nikaha the Registrar of divorce, known as e-tauphija not registered any
divorce. Nikaha Registrar's refusal to register the divorce within thirty days of

26
such refusal, the applicant may file an appeal to the District Registrar and the
Deputy Registrar shall be called the final order (Article 6).
After the completion of a marriage or a divorce registry nikaha nikahanama
parties concerned registrar or deed of divorcement, and to provide a certified copy
of a certified copy of any such fees can not be (Article 9).

3.12 Chairman prevent divorce:

There are a lot of people decided to divorce in anger or emotion. They understand
their mistakes. But what will happen when it does not understand. If the chairman
of the arbitration agreement by both sides through talks and called on them to
arrange the reunion Both are good. According to the chairman, and this is very
important to prevent divorce.27

27 Muslim Marriage and Divorce (Registration) Act 1974

27
 Chapter 4
A COMPARISON OF PRACTICES, LAW AND ISLAM

4.1 Unilateral Divorce in Muslim Personal Law

Divorce is one of the institutions in Islam regarding which much misconception
prevails, so much so that even the Islamic law, as administered in the courts, is not
free from these misconceptions.28

This paper seeks to bring out the full force and effect of this statement by
examining the prevailing system of divorce in Muslim law.
Under Islamic law, broadly speaking, there are two types of talnq: tal71q al-sunna
and tal71q al-bid'a. In talnq al-sunna, there is room for a well considered
judgment and also for reconciliation. But, at present it is the concern of Muslim
scholars only, and is rarely used in day to day life. On the other hand, talnq al-
bid:a, which is "good in law, though bad in theology",
is the most commonly pronounced taliiq. Irrespective of their propriety, each of
the aforesaid forms of talnq is unilateral and may be pronounced arbitrarily
without rhyme or reason. Unilateral divorce has always' been detested as harsh
and unjust to women; but, strange enough, it has never been discontinued and still
hangs as the sword of Damocles over the head of every Muslim woman. J.N.D.
Anderson has aptly observed ':

It is the Islamic law of divorce not polygamy which is the major cause of suffering
to Muslim women.... The Muslim wife indeed has always lived, so far as the law

28 Mohammad Ali, Commentary 011 the Holy Quran, 96. http://ahmadiyya.org/m-ali/quran-

1917.htm

28
is concerned, under the ever present shadow of divorce, a shadow mitigated only
in comparatively rare cases by certain precautionary devices .29
The verdicts of Muslim jurists regarding the propriety of unilateral divorce are not
uniform. Ameer Ali has said:

Great divergence exists among the various schools regarding the exercise of the
power of divorce by the husband of his own motion and without the intervention
of the judge. These divergent verdicts and other aspects of the subject, including
the modern trends in the Muslim world, will be briefly discussed in this paper.

4.2 Basis of unilateral divorce

Some jurists hold that in an archaic society where the ideas of honour and decency
are at a low ebb and the human values are not well defined, the laws regulating the
relation between the sexes take their imprint from a coarse imperiousness of male
desires and favour the stronger sex. Instances of such laws are the Hebraic law the
laws of Manu and to a great extent the matrimonial law of pre-Islamic Arabia. The
Prophet of Islam found that divorce was effected by husbands of his days with as
much facility as the snapping of one's finger and for no other reason than mere
caprice. He looked at the baneful and pernicious custom of divorce with horror
and tried to contain it within tolerable limits. The idea on which unilateral divorce
is based is that men are superior to women. Some Muslim scholars seek authority
for this view in these words of the Qur'an. Men are maintainers of women,
because Allah has made some of them to excel others and because they spend out
of their property (t.e. on dower and maintenance).30

29 J.N.D: Anderson, Islamic Law in tile Modern World, 51-52, (London, 1959).
http://www.123helpme.com/islamic-law-the-modern-world-preview.asp?id=176383
30 The Qur'an, IV : 35.

29
4.3 Restraints on divorce under the traditional law
Some Muslim jurists and scholars point out that from the very beginning of the
recognition of the principle of unilateral divorce, forces have been at work which
have restricted and limited its free and unnecessary use. As observed by Abdur
Rahim:
If the exercise of a particular right is likely to lead to abuses, the law would guard
against such a contingency by imposing conditions and limitations. There are
certain limitations imposed by the law upon the right of the husband to dissolve
the marriage.31
The first restraint is implied in the doctrine of halala which requires that a man
who has irrevocably divorced his wife can remarry her only after the divorced
woman has married another man and the second marriage has been lawfully
terminated after consummation. This restraint acts powerfully on ignorant minds
by appealing to their sense of jealousy and honour. It was a device for arresting
"the scandal of indefinitely repeated divorces and re-marriages which had become
frequent in Arab society and were opposed to the interests of public morality.
The second restraint which may effectively, though indirectly, clog the husband's
right to divorce, is a stipulation fixing the dower at the time of marriage at" a sum
"out of all proportions to the means of the husband, as is the custom in India.32 It
compels the husband to fulfil the terms of the marriage contract in their entirety,
and also serves as "a check upon the capricious exercise of his unlimited power of
divorce.33
The third restraint is provided by the doctrine of talnq al-tafwtd (delegated
divorce), which provides that the wife may at the time of entering into a marriage-
contract, secure the right of divorce from the husband. This doctrine "is perhaps
the most potent weapon in the hands of a Muslim wife to obtain her freedom

31 Abdur Rahim, Muhammadan Jurisprudence. 327 (1948).

32 Abdur Rahim, Muhammadan Jurisprudence, 333 (1918). Also W.H. Macnaghten, Principles
and Precedents of Moohummudan Law, 15. (1925) where the author has said: Dower is
demandable on divorce, and with a view to the prevention of such a contingencv, it is usual to
stipulate for a larger sum than can ever be in the power of the husband to pay.
33 Ibid., p.142

30
without the intervention of any court. The fourth restraint is found in the provision
that if talaq is pronounced by the husband during his marad al-maut (death-
illness) and he dies before the expiry of the 'ldda, the wife remains entitled to
inherit from him.16 The reason of the rule is that a repudiation by a husband in his
death-illness may be nothing but a device to defeat the wife's right of inheritance.

4.4 A Comparison of Practices, Laws and Islam

Dissolution of marriage in Pakistan takes different forms, including separation
without divorce pronouncement; talaq (divorce by the husband);khula; talaq-e-
mubarat (mutually negotiated divorce as part of the khula process); talaq by the
wife through delegated right of divorce; and dissolution of marriage through court.
Three other forms, which are permissible in Islam but not common in Pakistan,
include eila, an oath of abstinence from conjugal relations by the husband; liaan,
in which permanent separation is awarded by a court after a man accuses his wife
of adultery; and khiyar-al-buloogh, in which either spouse, in a child marriage
contracted through the respective guardians, is given the right to repudiate the
marriage upon attaining puberty.
The following discussion presents a comparison of prevalent practices, Islamic
teachings and laws concerning marriage dissolution in Pakistan.
Divorce is the breaking of the spousal relationship with express or implied words,
directly or through representation, by the husband, effective instantaneously or
consequentially. As far its effects are concerned, it is of three kinds: 1) Revocable
divorce (talaq-i-rajaee), in which the husband pronounces divorce once and at
some later stage realizes that he made a mistake and decides to rescind the
pronouncement unconditionally and resumes the normal spousal relationship; 2)
Irrevocable divorce of minor degree (talaq-i-bain sughra), in which the parties, if
they both agree, can re-enter into the marriage contract; 3) Irrevocable divorce of
major degree (talaq-i-bain kubra) in which the husband cannot re-enter the
marriage contract with his divorced wife unless she, after having married and
establishing conjugal relations with her new husband, is divorced for some reason
and is willing to re-enter into a marriage contract with her former husband.

31
There are cases when couples who are separated but not divorced live separately
with their respective families, while the formal termination of marriage is
withheld. This practice basically stems from the desire to avoid the stigma of
divorce or seek escape from spousal torture. It is also considered a symptomatic
remedy until better sense prevails and the differences are resolved amicably.
However, in such situations, the woman often has to undergo considerable
mental stress and humiliation. Although she is deprived of spousal
companionship, she cannot legally enter into a new marriage prior to the
termination of the first one. The husband, however, can avail this option. Children
in such situations usually suffer unnecessarily, especially if they are residing with
the mothers who cannot afford to maintain them adequately or are so distressed
that they cannot perform the dual-parent role effectively.

This practice goes against the teachings of Islam, which does not permit the
husband to be unjust or selfish. Instead, he is required to either reconcile affably,
or divorce her without compromising her honor, dignity and security, or
withholding her personal property and belongings. Islam gives concrete rights to
women in this regard, unlike the pre-Islamic practices. It even allows a woman to
remarry if her husband has gone missing.
The prevalent family laws in Pakistan also do not approve of the unfair nature
of separation occurring under any process whether eila or zihar. For instance,
Section 2 of the Dissolution of Muslim Marriage Act 1939 facilitates a woman to
annul her marriage through providing detailed subtle grounds of contemporary
nature in addition to the grounds formally recognized by the Shari’ah. The intent
of existing laws clearly favors women towards the annulment of marriage in case
they cannot get along with their husbands.
Section 8 of the Muslim Family Laws Ordinance 1961 addresses divorce and
allied issues unambiguously. Section 6 declares that contracting a second marriage
without the prior permission of the first wife (or earlier wives, if there is more
than one) is a crime punishable with imprisonment or fine or both. The same
section implies the payment of the entire dower, whether prompt or deferred, to

32
the first wife immediately. The first wife can also claim her maintenance if the
husband falls short of fulfilling his responsibilities. In case the wife herself opts to
leave her husband’s house without any solid reason, such as cruelty or
irresponsible behavior on her husband’s part, she is not entitled to seek
maintenance.
It has to be concluded that, notwithstanding the clear provisions of family
laws and Islamic teachings, the prevalent practice in the country is unfair and, in
some cases, abusive towards women. For most women in such cases, the options
are quite limited and they are generally forced to live in very unfavorable
conditions, hoping that things may eventually take a positive turn.34

34 https://www.thereligionofpeace.com/pages/articles/sharia.aspx

33
 Chapter 5
CASE STUDY

5.1 Md. Hefzur Rakman v Shamsun Nahar Begum35

In the case of Md Hefzur Rahman vs. Shamsun Nahar Begum an attempt was
taken in Bangladesh to change the tradition. This has been the only case where the
burning issue of post-divorce maintenance received a detailed judicial analysis
and examination. Before we proceed further, here is a brief account of the facts of
the case.36

Md. Hefzur Rahman had married with Shamsun Nahar in March 1985. A
dower of Taka 50,001/- had been fixed and a son was born in December 1987 out
of the wedlock. In August 1988, the husband divorced the wife. Three months
later, the wife filed a suit for recovery of her dower and for maintenance for
herself and the child at Taka 2000/- per month. The Family Court directed the
husband to pay Taka 48000/ as the balance of the ma/zr, Taka 1000/- per month
for maintenance of the child and a sum of Taka 3000/- for the iddat period of 3
months. The husband appealed against this decision to the Court of District Judge
and managed to have the maintenance payments reduced to Taka 600/- per months
each for the wife and the Son. The husband then filed a further appeal to have the
maintenance payments reduced still further.37

35 DLR(1999) AD 186
36 Syed Ameer Ali, Ibid., p.142
37 DLR (1999)

34
In the case of Safura khatun v Osman Gani Mollah the wife-plaintiff has instituted
her suit for maintenance for the period of Iddat claiming Rs.105/-.Her case in
short is as follows,

During the Iddat period she was not maintained by the defendant, that is the
plaintiff in the other suit, and as such, she has been compelled to bring the suit.
The defendant of the defendant is that were was no valid divorce by the plaintiff
in the money suit and as such, she is not entitled to get any decree for maintenance
for the period of Iddat. Both the court below have decreed the suit of the husband-
plaintiff and dismissed the suit of the wife plaintiff. Hence the present appeals at
the instance of the wife. Mr. Syed Amjad Hussain, the learned Advocate for the
Appellant, contends that in view of the fact that the husband left the wife without
her previous consent and in view of the fact that the husband did not maintained
the wife for two years, she was under the kabinnama entitled the exercise the right
of tawfiz talak. It has been found by both the courts below that the husband did
not sent money regularly to the wife but only Rs.46/- was sent in all through out
the two years and, in the opinion of both the court below that was sufficient
compliance with the previous of the kabinnama. I am sorry I cannot agree with the
finding. Rs.46/- for two years cannot he by any imagination Sufficient to meet the
maintenance expenses and such as, it cannot be said that there was a sufficient
compliance of the term of the kabinnama.
The decision of this Suit was given by; J. Hasan, in March 5 of 1957 : That was
Appeal no. 392/1952 is allowed and the judgments and decree of the both Courts
below are set aside., and her suit for Rs.45/- is decreed.

5.2 Safura khatun v Osman Gani Mollah38

In the case of Safura khatun v Osman Gani Mollah the wife-plaintiff has instituted
her suit for maintenance for the period of Iddat claiming Rs.105/-.Her case in
short is as follows:

38 9 (1957), DLR, 455

35
 During the Iddat period she was not maintained by the defendant, that is the
plaintiff in the other suit, and as such, she has been compelled to bring the suit.
The defendant of the defendant is that were was no valid divorce by the plaintiff
in the money suit and as such, she is not entitled to get any decree for maintenance
for the period of Iddat. Both the court below have decreed the suit of the husband-
plaintiff and dismissed the suit of the wife plaintiff. Hence the present appeals at
the instance of the wife. Mr. Syed Amjad Hussain, the learned Advocate for the
Appellant, contends that in view of the fact that the husband left the wife without
her previous consent and in view of the fact that the husband did not maintained
the wife for two years, she was under the kabinnama entitled the exercise the right
of tawfiz talak. It has been found by both the courts below that the husband did
not sent money regularly to the wife but only Rs.46/- was sent in all through out
the two years and, in the opinion of both the court below that was sufficient
compliance with the previous of the kabinnama. I am sorry I cannot agree with the
finding. Rs.46/- for two years cannot he by any imagination Sufficient to meet the
maintenance expenses and such as, it cannot be said that there was a sufficient
compliance of the term of the kabinnama.
The decision of this Suit was given by; J. Hasan, in March 5 of 1957 : That
was Appeal no. 392/1952 is allowed and the judgments and decree of the both
Courts below are set aside., and her suit for Rs.45/- is decreed.

In the Shah Banu Case39 the interveners on behalf of the husband in Shah
Bano could not refute the words of the Quran, all they could do was to contend
that Yusuf Ali’s translation of mataa as “maintenance” was incorrect and to point
out that other translations employed the word “provision.” This the Supreme
Court termed “a distinction without a difference” -- as indeed it was on the facts
of the case before it: whether mataa was rendered “maintenance” or “provision,”
there was no pretence that the husband in Shah Bano had provided anything at all
by way of mataa to his divorced wife. In the Lok Sabha debates after the
judgment, Ibrahim Sulaiman Sait (speaking in support of overruling the Shah

39 AIR(1985), SC, 945

36
Bano decision by statute), while apparently conceding that a divorced Muslim
woman was entitled to mataa, argued that mataa “is a single or one time
transaction. It does not mean payment of maintenance continuously at all.” This
concession supports the argument that the word “provision” in section 3(1)(a) of
the Muslim Women Act incorporates mataa as a right of the divorced Muslim
woman distinct from and in addition to mahr and maintenance for the period
of iddah. Thus, even assuming (without conceding) that the “maintenance”
referred to in section 3(1)(a) is confined to maintenance for the period of iddah,
there still remains the question of “provision.” This “provision” (mataa) is neither
defined by the Act nor subjected to a statutory maximum. The determination of
what constitutes, on the facts of any given case, “a reasonable and fair provision”
rests completely in the discretion of the magistrate. Section 3(3) of the Act
instructs the magistrate to determine what would constitute “reasonable and fair
provision and maintenance” with reference to the needs of the divorced woman,
the means of the husband, and the standard of life the woman enjoyed during the
marriage. There is no reason why “reasonable and fair provision” could not take
the form of the regular payment of alimony to the divorced woman.

But the Decision of Shah Banu case was reversed by Hefzur Rahman v
Shamsun Nahar Bagum and Others40 where it says that a Muslim divorced woman
is entitled to have maintenance till the period of iddat and no further.

40 Asaf A. A. Fyzee, Ibid., p.147

37
5.3 Ashoka Hurra v Rupa41
In Ashoka Hurra v Rupa it was held by the Supreme Court that divorce should be
granted even though the wife had the wife had unilateral withdrawn the consent as
the marriage was found to be irretrievably broken down the period of (: months is
the upper Limit for the withdrawal of the petition 3 but the court has power to
)rant divorce even after the expiry of six months 3if other conditions are fulfilled
,Another trend that is discernible in our high court 3 where waiting period of six
months is dispensed with if there is history of long protracted litigation and
marriage is found to be irretrievably broken down.

41 (1997) 4 SCC 226

38
 Chapter 6
RECOMMENDATIONS AND CONCLUSION

6.1 Recommendations
It is argued that Islam has given unfettered power to the husband to give divorce
to his wife without any cause. But experience shows that greater suffering is
endangered by the husband’s withholding divorce than by his irresponsible
exercise of this right. Under such conditions the power to release herself is the
surest safeguard for the wife. No system of law can produce material happiness,
but humane laws may at least alleviate sufferings. And when marital life is
wrecked, the home utterly broken up by misunderstanding, jealousy, cruelty,
infidelity, what greater boon can a spouse have to secure his/her liberty.42Divorce
of course, a social evil in itself, but it is a necessary evil. It is better to wreck the
unity of the family than to wreck the future happiness of the parties by binding
them to a companionship that has become odious. That’s why Quran permits
divorce partly because to enable men to get rid of an odious

1. Statutory provisions regarding Post Divorce Maintenance should be increase.

2. The decision of High Court Division should be considered with due respect.
3. The Governmental body who have the power to implement the laws must be
active.
4. Governmental and non-governmental organization must be active whether the
post divorce maintenance of Muslim women is fairly or not. In this regards,
the local government agency should be come forward.

42 Asaf A. A. Fyzee, Ibid, p.147

39
6.2 Conclusion

In my opinion, divorce severs all the lawful relationship between husband and
wife. They become completely strangers to each other. if the husband marries a
second time, the present wife, whose expenses have been declared wholly a
liability of the husband by Shariat, is as much a woman as the one divorced. So;
the attempt to help a woman who has been divorced and paid her due share is like
‘trying to rob Peter to pay Paul’. The grant of continuous maintenance to the
divorced wife would not only mean monetary injustice to the present wife but also
lead to the moral degeneration of the beneficiary. In my view Appellate Division
is not wholly right in establishing or affirming the orthodox rule on post divorce
maintenance. They could decide the issue on a case by case basis. It will not be
un-Islamic to rule for post divorce maintenance at least for those woman who are
divorced for no fault of their own, who are no longer of marriageable age and who
are destitute and poor and who has no child or other close relatives having means
to maintain her.

In a situation where a Muslim divorced woman has no blood relatives who

would normally support her, the Magistrate should ask to make a monthly
allowance for her maintenance

40
 REFERENCES:
Books
1. Aqil Ahmed. Text book of Mohamadan Law. 21st ed. (Allahbad: Central
Law Agency, 2004).
2. Md. Altaf Hossain. Islamic Jurisprudence and Muslim Ain Sohaika.( In
Bangali), (Dhaka: City Law Book, 2003).
3. Shaukat Mahmood, Principles and Digest of Muslim Law, 6th ed. (Lahore:
Legal Research Centre, 2002).
4. Asaf A. A. Fyzee, Outlines of Muhammadan Law, 4th ed. (Oxford: Oxford
University Press, 1993).
5. Jamal Nasir, The Status of Women under Islamic Law and under Modern
Islamic Legislation, 1st ed., (London: Graham & Truman, 1990).
6. Latif, Syed Abdul, Thrzumatul Quran, 1st ed.Vol. 2, (Delhi: Asia
Publishing House, 1967).
7. Nazmi , Dr. Mohammad, Mohammedan Law, 3rd ed., (Allahabad: Central
Law Publication, 2005), [Durrul-Mukhtar (Dayal’s English Translation)].\

Statutes
1. Muslim Family Law Ordinance, 1961.
2. Dissolution of Muslim Marriage Act, 1939.
3. Muslim Marriage and Divorce (Registration) Act 1974
4. Family Courts Ordinance, 1985

41
Cases
1. Safura khatun v Osman Gani Mollah, 9 (1957), DLR, 455.
2. Shah Banu Case, AIR(1985), SC, 945.
3. Hefzur Rahman v Shamsun Nahar Bagum and Others, 59(1999), DLR, AD,
172.

Web Pages
1. [http://www.wluml.org/english/pubs/pdf/misc/talaq-i-tawfid-eng.pdflast
2. [http://www.lawyersclubindia.com/articles/-Divorce-by-wife-IN-
MUSLIM-LAW/1632.
3. http://14.139.60.114:8080/jspui/bitstream/123456789/736/28/Unilateral%2
0Divorce%20in%20Muslim%20Personal%20Law%20.pdf

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