Talaq through Faskh (judicial Rescission): Faskh means annulment. It refers to the power of the Muslim Kazi or Judge to annul a marriage on the application of the wife. According to M. Abdul Halim: “Faskh means abrogation or termination and is the dissolution or rescission of the marriage contract by judicial decree”. All schools of Islamic law recognizes that a Muslim wife as a right to approach the Qadi or court for Faskh or Judicial dissolution of her marriage. The basis of the law can be traced in the 4th chapter verse 34-35 of the Holy Quran. There is no provision in the Hanafi code of Muslim law enabling a married woman to obtain a decree from the courts dissolving her marriage in case the husband neglects or fails to maintain her, makes her life miserable by deserting her or persistently maltreating her or certain other circumstances. The absence of such a provision has entailed unspeakable misery to innumerable Muslim women in British India where Hanafi law was dominant. The situation became so alarming that women only for the purpose of dissolution of their marriage renounced their faith. There was a growing demand to reform the laws to ameliorate the status of women. The device to select and combine various elements of different schools of Islamic law is known as Thakayyur or eclectic choice between parallel rules of the various schools of Islamic law. The doctrine of Takayyur or selection was applied. According to Esposito: “Thakayyur refers to the right of a Muslim to select and follow the teaching of a law school other than his own regard to a particular legal transaction.” Following the Maliki law on 17th April, 1936 a bill was introduced by Qadi Ahmad Kazmi. After a great deal of public agitation the bill was made into law on 17th March 1939 as the Dissolution of Muslim Marriage Act of 1939 which lays that wife may obtain a divorce on the following grounds: Dissolution of marriage through Court: Section 2 of the DMM Act, 1939. A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: 1. that the whereabouts of the husband have not been known for a period of four years; a decree passed on this ground shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfied the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; 2. that the husband has neglected or has failed to provide for her maintenance for a period of two years; 2(a). that the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961. 3. that the husband has been sentenced to imprisonment for a period of seven years or upwards; no decree shall be passed on this ground until the sentence has become final. 4. that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years; 5. that the husband was impotent at the time of the marriage and continues to be so; before passing a decree on this ground the Court shall, on application by the husband, made an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground. 6. that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease; 7. that she, having been given in marriage by her father or other guardian before she attained the age of 18 years, repudiated the marriage before attaining the age of 19 years: Provided that the marriage has not been consummated; 8. that the husband treats her with cruelty, that is to say: (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (b) associates with women of evil repute or leads an infamous life, or (c) attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran; 9. on any other ground which is recognised as valid for the dissolution of marriages under Muslim law: Provided that Section 2 of the Act deals with the right of a woman married under Muslim Law to obtain a decree for dissolution that her husband assaults her or makes her life miserable by cruelty. If any incident perpetrated by the husband with cruelty had made her communal life miserable then that would amount to cruel treatment as envisaged in the clause. Held, it was a cruelty to force a young woman, who was desirous of becoming a mother, to abort her pregnancy and some drug was administered to her and miscarriage occurred consequently. (Siddique v. Amina, 1996(1) DMC 87)
Posted on: Tue, 30 Dec 2014 13:41:59 +0000