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Dissolution of Marital Tie by a Muslim Wife: Rights and Limitations

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Dissolution of Marital Tie by a Muslim Wife: Rights and Limitations DISSOLUTION OF MARITAL TIE BY A MUSLIM WIFE: RIGHTS AND LIMITATIONS Tfiesis SuSmittecf for tfiejiwanf of the degree of Bocfbt of $fiilo^opt)p «^*. isi"^=i..Aw1.AWV •'-• •••' ^'•#' •^r/ BY MOHD. WASIM ALI UNDER THE SUPERVISION OF PROF. SALEEM AKHTAR CHAIRMAN DEPARTMENT OF LAW ALIGARH MUSLIM UNIVERSITY ALIGARH (INDIA) 1999 --..X !*i Acc. No T5518 ^'•o/. :!*aleo.ni Akhtar ALIGARH MUSLIM UNlVERSlTi -man I'II^I^„..LI \LIGARH—202 002 :'ARTMENT OF LAW C E RTIFICATE This is to certify that Mr. Mohd. Wasim AH has completed the present research work entitled ^^Dissolution of Marital Tie by a Muslim Wife: Rights and Limitations"" under my supervision. His research work is an original contribution towards the academic excellence. He has fulfilled all the requirements needed for the submission of this research work. Throughout his research work, he has been sincere, studious and highly obedient. I further certify that the instant research work has not been earlier submitted elsewhere for the award of any Ph.D. Degree. I deem it a work of high quality and excellence for the award of Ph.D. Degree. I wish him all the success in life 'rof. Sal^enfAkhtar (Supervisor) OrticciO.^^n PMCivf,.- 40<1'):o J?: re lev ; ?64_2.^0-\MI .|\ F;iN : a<-'U400<;:s IMnil IITOISA Wll'lV ACKNOWLEDGEMENT It is nodiing but an academic tradition to preface such work expressing the heart-feh gratitude and thanks for the academic help and guidance received from different quarters in the course of writing present research work. However, at the very outset, my head and heart kneels before the Almighty Allah, the most gracious and benevolent, with whose kind blessings I have been able to complete my thesis work. Sometimes the words are found inadequate to express gratitude, which one owes to very respected persons. 1 am infact short of appropriate words to express my great indebtedness to my guide but one has to express his feelings on this occasion to fulfil his obhgations. 1 owe a deep sense of gratitude to my supervisor, Prof. Saleem Akhtar, Chairman, Department of Law, Aligarh Muslim Universit>' Aligarh, for his perceptive guidance and keen interest in my work. Whenever I approached him to seek clarification on complicated and controversial issues, he helped me with his scholarly thoughts and encouraged me with valuable suggestions without least bothering of his valuable and precious time. Despite his heavy academic as well as administrative busy schedule, he had been kind enough to scrutinize the entire script diligently and intelligently giving valuable guidance on the subject. Without his kind support it would not have been possible to complete this task so easily. My sincere thanks are also due to Prof. Syed Shamimul Hasnat Azmi, Dean, Faculty of Law, Aligarh Muslim University Aligarh, for ready help from him at times. He always extended his cooperation, encouragement and perceptive guidance in his official capacity. 1 respectfully express my thanks to him. I am highly indebted to my senior teachers, Prof. Qaisar Hayat, Prof Ishaq Qureshi, Prof. Nazir Hasan Khan, Mr. Akhlaq Ahmad. 1 am also grateful to Prof. Mohd. Shabbir, (now in Malaysia) who suggested me to work on this topic. I shall, infact, be failing in my duty if I do not acknowledge my profound indebtedness to Dr. Iqbal Ali Khan, Reader, Department of Law, who had been kind enough to play a supervisory role by going through each and every chapter of my thesis with his valuable suggestions from time to time. I owe a deep sense of gratitude to him not only for his constant and able guidance but also for the moral support and the encouragement extended by him in the hours of distress and difficulties. In fact, this work would not have seen the light of the day if I would not have been in his touch. I am also deeply indebted to Dr. Mohammad Afzal Wani, Reader, Department of Law, for giving proper academic shape to my thesis after going through the script. I put on record the scholarly and elderly help extended to me in the course of writing the thesis. My thesis finds full Ul expressions of his research experiences and abilities. I am also thankful to Dr. Faizan Mustafa, Mr. Shakeel Ahmad Samdani, Dr. Zaheeruddin, Mr. Zubair Ahmad khan, Mr Shakeel Ahmad, Mr. M. Z. Mahfooz Nomani, Dr. Badar Ahmad, Mr. Iqbal Hadi and other faculty staff members for their positive scholarly advice. My special thanks are also due to my friend Dr. Mohd. Ashraf, Lecturer, Department of Law, and his father Prof Mohd. Yaseen for their all possible academic help in the preparation of the present research work. They had always encouraged me by saying that "it is the work which ultimately pays" and in fact it tremendously boosted my morals to complete this onerous task. At last but not the least 1 am deeply beholden to my respected teacher Prof Mohd. Mustafa Ali Khan who had been a source of inspiration to me and infact my existence in Aligarh in either capacity owes to his kindness and well-wishings in all spheres of life. He helped me when 1 needed and encouraged me when I desired so. I am highly indebted to my elder brother Mr. Syed Ali who has been responsible in shaping my academic career with his sweat and blood right from the school days till date. It is because of his immense help that I got completed my work. I am also thankful to my wife Ms. Nishat Fatima who had been a constant source of inspiration and scholarly encouragement, looking after me in every respect throughout the completion of this thesis. IV My sincere tiianks are also due to my friends and well-wishers, specially, Mohd. Zafar Ahmad Khan, Rao Hashmat Ali Khan, N.P. Tomar, Ishrat Ali Chaudhary, Mr. Jaseem Hasan Siddiqui, Mr. Zafar Iqbal and Mr. Nafees Ahmad. My &anks are also due to my nephew Mr. Mohd. Zafar Sadiq and Farhad Ali for their diligent proof reading of the script. I am indebted to the staff members of Maulana Azad Library, Aligarh Muslim University Aligarh, for their immense cooperation. I am also grateful to Mr. Kabir Ahmad, Librarian Islamic Studies Department and also to the Library staff of the Department of Law, Aligarh Muslim University Aligarh, for their help in the collection of relevant materials in writing the thesis. Lastly, I wish to thank Mr Abid Jamal Siddiqui for process the thesis excellently and making it presentable. Mdhd. WasimAli CONTENTS Pages Certificate Acknowledgement '-'v Chapter -1 Introduction 1-12 Chapter - II Institution of Divorce: Origin and Development lS-63 Chapter - III Talaq-Al-Biddat: Classical Views and Judicial Trends 64-98 Chapter-IV A. Divorce by Khula: A Privilege and Power of Muslim Wife 99-164 B. Divorce by Mubara'at: A Right to Separation by Mutual Consent 165-172 Chapter - V Delegation of Divorce: Women's Right to Declare Divorce 173-221 Chapter-VI Divorce by Ila: Concept and Utility 222-245 Chapter-VII Divorce by Zihar: Effect and Expiation 246-271 Chapter-VIII Divorce by Lian: Concept and Procedure 272-299 Chapter - IX Muslim Women's Right to Dissolve Marriage under the Statutory Law 300-390 Conclusion and Sufff^estions 391-414 Select Bibliography 415-421 Table of Cases 422-424 CHAPTER -1 INTRODUCTION It is a universally acknowledged truth and Judicially endorsed view that Islamic Law of divorce in its pristine purity is an admirable system of modern jurisprudence providing many rational, revolut­ ionary and humanitarian gender concepts which could not be conceived by any other system of law then in force at that time as well as at present time. Justice V.R. Krishna Iyer in a felicitous manner in YusufRowthan v s SoMramma^ observed: "Since infallibility is not an attribute of judiciary, the view has been ventured by Muslim Jurists that the Indo- Anglian Judicial exposition of Islamic law of divorce has not exactly been just to the Holy Prophet or the Holy Book. Indeed a deeper study of the subject discloses a surprisingly rational, realistic and modern law of divorce". The above observation of learned Judge present a correct, just, unbiased and authentic view of Islamic law of divorce. Islam provides a modern concept of divorce by mutual consent what is now known as the break-down theory of divorce. The modem concept of break-down theory of divorce does not want the court to go into the causes of break-down of marriage. The Islamic Jurists also did not authorise the Qazi or court to inquire into causes of antipathy and 1. AJ.R. 1971, Ker. 271. hatred of a wife seeking dissolution of marriage. If it is established by the facts and circumstances of a case that marital relation between the spouses has poisoned to such an extent that it is impossible for them to pull on any longer, the policy of Islamic law of divorce desires the separation of disgruntled spouses as against the continuation of strained relation in the interest of couples as well as society at large. Islam also does not want the matter to be taken to the court at all unless it becomes unavoidable. Unequivocally declaring "divorce to be the worst of all permitted things", the Holy Prophet (PBUH) warned his people to keep away from it. And where this worst were to happen unavoidably, he wanted the husband or wife (who ever might be aggrieved) or both of them jointly, to act quietly and privately. He did think of Judicial intervention only in exceptional cases where either the husband or wife was at fault leading to such break down but insisted on the subsistence of marriage.
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