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2012 judgment on divorce upheld by State High Court

Srinagar, January 28: The previous verdict that gives a muslim man the  ‘unrestricted or unqualified’ powers under Islamic law to pronounce ‘talaaq’ (divorce) observed by Jammu and Kashmir High Court has been withheld.

The verdict was withheld by Justice Hasnain Masoodi while reviewing petitions against the judgment. He observed that the previous judgment was in strict conformity with the law. The power to pronounce ‘talaaq’ is not unbridled but subject to the limitations provided under Shariat law itself.

The High Court in its 56-page judgment said that the word ‘talaaq’ should be pronounced for a genuine reason and not arbitrarily. “A serious and sincere effort for reconciliation between estranged spouses must precede ‘talaaq’ pronouncement,” Justice said.

Pertinently, in a judgment announced by State High Court, the word ‘talaaq, talaaq, talaaq’ could not be absolute unless the husband could prove genuine reasons for divorce. This judgment infuriated conservatives in Kashmir, who had moved court and organized protests. The review in the ruling was then sought by Retired Justice Bashir Ahmad Kirmani who said the court had interpreted the Koran and Hadith out of context.

The judgment was observed while hearing the case of Bilques Bano, the woman who got married in 2002 and became the mother of a baby girl in 2003 after which she was thrown out of the house with the infant.

The lady pleaded that the husband who assaulted her and she had sought maintenance from her husband for her child and herself while maintaining that she was not divorced. Her husband had given her ‘talaaq’ verbally.

The Justice Masoodi while pointing towards increasing instances of marital discord said that the statistics of family matters, viz maintenance, restitution of conjugal rights and dissolution of marriage pending in courts and rate of institution of fresh matters, is any indicator, the problem has assumed alarming proportions and calls for an immediate response.

The court also called on social planners to step in and facilitate the constitution of a mechanism at the village and ward levels to help families plagued by marital discord and disharmony and resolve their disputes before the situation turns irretrievable.

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