India & Pakistan

• In India and Pakistan, the Family Courts (India-established by the Family

Court Act of 1984; Pakistan- by the Pakistan Family Court Act 1964) has
jurisdiction in case of suits for restitution of conjugal rights.

QUESTION OF CONSTITUTIONALITY OF SUITS FOR

RESTITUTION OF CONJUGAL RIGHTS

• In Nelly Zaman V. Giasuddin Khan (1982) 34 DLR 221, the court laid
down that any unilateral plea of a husband for forcible restitution of conjugal
rights as against a wife unwilling to live with her husband is violative of the
accepted State and Public Principle and Policy.

In the following cases the CD declared that the law of restitution of

conjugal right to be violative and inconsistent with the provisions of
the Constitution.

• Nelly Zaman vs. Giasuddin Khan [43 DLR (1991) 543]

• Hosne Ara Begum vs. Alhaj Md. Rezaul Karim & others [43 DLR (1991)
543]
• Sharmin Hossain @ Rupa vs. Mizanur Rahman [2 BLC (1997) 509 (H.C.)]
• Khodeja Begum and other vs. Md. Sadeq Sarker [18 BLD (1998)] and
• Sherin Akther vs. Md Ismail [51 DLR (1999) 512]
 On the contrary, in the following cases, the law of restitution of
conjugal rights was held to be neither to be discriminatory nor ultra
vires the constitution

• Chan Mia (Md.) v. Rupnahar [51 DLR (1999) 292 (H.C)]

• Hosna Jahan (Munna) v. Md. Shajahan (Shaju) and Other [51 DLR (1999)
295 (H.C.)]

PRE-ISLAMIC SITUATION

❖ Marriage being a civil contract under Muslim law can be terminated for the
benefit of the parties as any other contract.
❖ In pre-Islamic Arabian society males could take as many wives they wanted
or liked and also divorce was unlimited.
❖ Among the ancient Arabs divorce was free and easy occurrence. The society
was completely male dominated and patriarchal.
❖ According to the holy Quran (II:229): "A divorce is only permissible twice;
after that the parties should either hold together on equitable terms i.e., retain
them with humanity (acceptable manner) or release them with kindness
(good treatment)."

ISLAMIC REFORMATION

❖ The prophet of Islam has reported to have said that, "With Allah the most
detestable of all things permitted is divorce."
❖ In Shahi-al-Bukhari, it was reported that the prophet said, "If a woman be
prejudiced by marriage, let it be broken off."
 THE FORMS OF DISSOLUTION OF MARRIAGE

1. By death of any party c. By mutual consent:

2. By the act of any party i. Khula (redemption)

ii. Mubarat (Mutual freeing)
a. By the husband:
d. Judicial Process:
i. Talag (repudiation)
i. Lian (mutual imprecation)
e.g., Talag-al-Sunna, Talaq-al-Bida
ii. Faskh (Judicial rescission)
ii. Ila (Vow of Continence)

iii. Zihar (Injurious assimilation)

b. By the wife:

i. Talaq-e-Tafwid (delegated divorce)

BY THE DEATH OF ANY PARTY

❖ The marriage is automatically dissolved by the death of any party.

❖ The husband may remarry immediately if his wife dies but the widow has
to wait for a certain period before she can remarry i.e., iddat.
❖ The period of iddat is four months 10 days but if she is pregnant the whole
period of pregnancy.
 BY THE ACT OF ANY PARTY

A. By the Husband:
i. Talaq (repudiation):
❖ Talaq means repudiation. It comes from the word 'Tallaqa' which means to
release an animal from its tether whence to repudiate the wife, or free her
from the bondage of marriage.
❖ A Muslim husband of sound mind may divorce his wife whenever he so
desires without assigning any cause. It is the primary right for the husband.
Also, he can revoke the declaration unilaterally without wife's notice or
option to choose.
❖ Muslim law places the right in husband with the expectation that he will take
recourse to it rationally and with justice.
❖ But this unfettered and unilateral right of the husband to divorce his wife
without the intervention of the court is often exercised arbitrarily and
irrationally, making the lives of women miserable.
❖ The pronouncement of talaq may be revocable or irrevocable.
❖ As the prophet of Islam did not favor the institution of talaq, the revocable
forms of talaq are considered as the approved or Talaq-al-Sunna or Talaq-
e-Rajee. And the irrevocable forms as disapproved forms or Talaq-al-Bain
or Talaq-al-Bida.
❖ In revocable forms, there is an opportunity to reconcile the parties. But in
irrevocable forms, there is no chance to reconsider the question.
 TALAQ-AL-SUNNA OR TALAQ-E-RAJEE

❖ In conformity with the dictates of the Prophet are of the following forms:
a. Ahsan (the most approved): One single pronouncement in the period of
purity or Tuhr (when the women is free from menstrual courses) followed by
sexual abstinence.
❖ Where the wife is old and beyond the age of menstruation, or consummation
did not happen, the condition of Tur is unnecessary.
❖ After iddat, the divorce is irrevocable, if sexual intercourse in iddat, divorce
is void, marriage is valid.
b. Hasan (approved form): It consists of three successive (not consecutive)
pronouncements during three periods of purity or tuhr. (Not recognized by
Imam Malik).
❖ After the third pronouncement the marriage is dissolved finally and
irrevocably.
❖ Each of these pronouncements should have been made at a time when no
intercourse has taken place like Ahsan form.
 TALAQ-AL-BIDA QR TALAQ-AL-BAIN

❖ These forms are disapproved by the prophet. Violates the Sunna form of
Talaq. They are the following:
a. The Triple Declaration: In this form three pronouncements are made in a
single purity either in one sentence e.g. I divorce thee for three times, or in
three sentences: I divorce thee. I divorce thee. I divorce thee. Such a divorce
is irrevocable.
b. One Single Irrevocable Declaration: The declaration is made during the
purity or otherwise or may be given in writing. It comes into operation
immediately.
❖ If talaq pronounced during menstrual cycle, or cohabitation made after
utterance, or more than one talaq pronounced in one purity cycle, it will be
bida talaq but revocable.
❖ There is one differing opinion regarding this, according to Imam Hanbal
(through In Abbas from the prophet), declaration of triple divorce,
pronounced in one session, counts as a single divorce and is revocable.
❖ Also, if husband declares a divorce with promise of no revocation, according
to Hanafi, Maliki and one Hanbali view it will be irrevocable and
according to Shafi and one Hanbali view, it will be revocable.