Divorce Part 2 By Mutahir Tirmizi Adv

In Hanafi law, the husband proposes dissolution, and the wife accepts it at the same meeting. The proposal and acceptance need not be in any particular form. The contract itself dissolves the marriage and operates as a single talaq-i-bain, and its operation is not postponed until the execution of the khu’-nama. In Ithna ‘Ashari law, as is to be expected, certain forms are to be strictly followed and witnesses are required.

In khul’ the wife makes some compensation to the husband or gives up a portion of her mahr; but this is not absolutely necessary. The Egyptian code of Hanafi Law, Art. 275, based upon the classical authorities, lays down: ‘ A khul’ repudiation can validly take place before or after consummation by the wife.
Abu Hanifa holds that, in the absence of agreement, mahr is deemed to be relinquished by the wife both by khul’ and by mubara’a.
Imam Abu Yusuf lay down that mahr is deemed to relinquish by mubara’a, but not by khul’.
Imam Muhammad holds that mahr is deemed to be relinquished neither by khul’ nor by mubara’a.
Khul’ and mubara’a operate as a single, irrevocable divorce. Therefore, marital life cannot be resumed by mere reconciliation; a formal remarriage is necessary.
In either case, ‘idda is incumbent on the wife, and in the absence of agreement.
4. Dissolution by judicial process
i Li’an (Mutual Imprecation)
Divorce by mutual imprecation is mentioned in the Quran and is supported by the traditions of the Holy Prophet (PBUH). It is reported that a man from the Ansar accused his wife of adultery. The Holy Prophet (PBUH) thereupon asked them both to take an oath; then he ordered them to be separated from each other.
The procedure of Li’an may be described briefly as follows:
A husband accuses his wife of adultery, but is unable to prove the allegation. The wife in such cases is entitled to file a suit for dissolution of marriage.
At the hearing of the suit, the husband has two alternatives:
a He may formally retract the charge.
b The husband may, however, not retract and, if he persists in his attitude, he is called upon to make certain oaths. This is followed by oaths of innocence made by the wife. After these mutual imprecations, the judge pronounces that the marriage is dissolved.
c No appeal can be filed against the decree of the court on this ground i.e. lian.
5. Judicial Rescission
a Faskh
The word Faskh means annulment or abrogation. Hence it refers to the power of the Muslim Qazi to annul a marriage on the application of the wife. The law of faskh is founded upon the Quranic injunction.
Abdullah Yusuf:
“The act, applies to every Muslim, to whatever school of law he belongs.”
b The Dissolution of Muslim Marriages Act 1939:
Section 2 lays down that even a single ground mentioned in the
i. Missing Husband
The wife is entitled to obtain in a decree for the dissolution of her marriage if the whereabouts of the husbands have not been known for a period of four years; but a decree passed on this ground will not take effect for a period of six months form the date of such decree, and if the husband appears either in person or through an authorized agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the court must set aside the decree.
ii. Failure of maintain
If the husband has neglected or has failed to provide for the wife’s maintenance for a period of two years, Section 2(ii) has been the cause of a difference of judicial opinion.
In Fazal Mahmud v. Ummatur Rahim, a Peshawar case, it was held that the section does not abrogate the general principles of Islamic law; therefore, before a husband can be said to have neglected or failed to provide maintenance, it must be shown that the husband was under as legal duty to provide such maintenance.
Where the wife refuses to reside with her husband or fails to discharge her marital obligations, without any reasonable cause, she can not claim maintenance, and therefore she is not entitled to divorce.
The Singh High Court has taken a different view. In Nur Bibi v. Pir Bux (AIR 1950) Sindh 8., it was laid down that where a husband has failed to provide maintenance for his wife for a period of two years immediately preceding the suits, the wife would be entitled to a dissolution of her marriage under section 2(ii) of the Act, in spite of the fact that on account of her conduct in refusing to live with her husband, she would not have been entitled to enforce any claim for maintenance against the husband in respect of the period during which the husband has failed to maintain her.