Case comment“Masroor Ahmed v. State (NCT of Delhi) 2008 (103) DRJ 137 (Del.)”
ISLAM, ONE of the greatest of world religion through the 1500 years of existence, has been by far the most misunderstood and misrepresented. The reason for this is not outside but it is only due to sheer ignorance of its own follower. One of the major reason regarding the misunderstanding and misrepresentation is the law relating to the marriage and divorce.
Firm union of the male and female as 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. A divorce may be either by the act of the husband or by the act of the wife. There are
several modes of divorce under the Muslim law, which will be discussed hereafter. Regarding the misunderstanding and misrepresentation the, above case is a best example. It explains about the divorce in Muslim law and arises major issue regarding the Talaq. Issues raised are: (1) What is the legality and effect of a triple talaq?
(2) Does a talaq given in anger result in dissolution of marriage?” (3) What is the effect of non-communication of the talaq to the wife?” (4) Was the purported talaq of October 2005 valid?”
(5) What is the effect of the second nikah of 19.4.2006?
Question of marital rape arises. On the other hand, the maintenance of the child is questioned.
DIVORCE IN MUSLIM LAW (TALAQ)
Talaq as defined in law “is a release from the marriage tie, either immediately or eventually, by the use of special word”. A Muslim husband under all schools of Muslim law can divorce his wife by unilateral action and without the intervention of the court. 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 is done by talaq. But he may also divorce by Ila, and Zihar which differ from talaq 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. There are two categories of divorce under the Muslim law:
1.) Extra judicial divorce, and
2.) Judicial divorce
#The category of extra judicial divorce can be further subdivided into three types, namely, • By husband- talaq, ila, and zihar.
• By wife-...
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