Judicial Divorce: Annulment. Power of the Qazi.

The Quran teaches that in case of a breach

between husband and wife, each party must hire an arbitrator. This is argued to be the basis for
Faskh. This can be used by the woman too, schools differ on why should or shouldn't the woman
be allowed the right to dissolution through Faskh

Faskh & Lian. Lian isn't truly or strictly a judicial termination.

Hanafi law states the Qadi must intervene in divorce matter because as Fyzee (1974) noted, once
the Holy Prophet PBUH had terminated such a marriage.

Faskh allows, and enables women to demand a divorce if the husband is a sufferer of insanity,
leprosy, or scrofula. As the purpose of marriage, wasn't hindered by such diseases, majority don't
allow divorce but minority views are in favor. Shiʿi jurists allow Faskh if the wife isn't informed
of such diseases before marriage, or if the condition gets worse after marriage. The Shafi and
Maliki schools, commonly grant divorces on such grounds.

This is usually seen as a women's divorce but also for men, by some jurists.

Unilateral Talaq power has been heavily criticised. Western scholar states it's only this power
which stands out in the entire Islamic Family law, looking like unfair to women.

This power is so disliked that under some legislations, Talaq only finalises inside the court -Nasir
(1990).

In south Asian laws, the extrajudicial talaq still remains strong because they have been
following Hanafi laws since decades.

A floodgate to change opened when the Ottoman Law in the 20th century opted to
safeguard Turkish girls from abusive husbands, marrying and deserting them. The law
gave women judicial grounds to do the same.

Ottoman laws followed by Egyptian, introduced Maliki provisions to provide judicial

rescission on grounds of failure to maintain and desertion, A.4 1920, A.13 1929. Hanbali
rules were adopted to repeal Hanafi belief that form of divorce is to be placed over the intent,
A.1 1929. Thirdly, Egypt adopted The Talaq-al-Sunnah as the only valid method, A.5 1929.
Further, Maliki ground of 'Darar' was added in by Article 6, 1929. Am explanatory memorandum
stated 'it's in the interest of welfare to adopt the Maliki doctrine'.

Further, 1979 law no.44 added an obligation on the husband to inform the registery and the wife
of the talaq to be valid.

Jordanian laws go a step further to allow dissolution even if the wife was at fault, and de-
recognised Talaq al Bida, as F. Ahmad (1994)wrote.
According to Coulson, the first attempt to actually curb the power of unilateral divorce was
when article 117, of Syrian Law obligates husbands to pay compensation to women, when
the Qadi found the latter had suffered material damage. The Quran in this regard states 'for
divorced women, maintenance on a reasonable scale' 2:241.

Egyptian laws S.18 of 1979, took this further and states the compensation to wife must be equal
to maintenance of 2 years.

Similarly, Tunisian Laws of 1956, A.25-33 State a divorce is only valid when obtained under
a judicial decree, in accordance to Surah 4:37.

Article 32 adds, the court will only grant a divorce once it has studied the facts and attempted
reconciliation.

Similarly, Iraq's 1959 Personal Status Act and Algeria's 1984 reforms require a divorce to be
recorded and obtained by a court.

African law of Somalia, No.23, 1975 obligates men to take permission by the court before giving
divorce and the triple Talaq was disallowed. Even thought not implemented, this law is an
example of great reformatie legislation.

Women's use of divorce is restricted and this is evidenced by the Hanafi Law's rulings on this,
being most restrictive.

Mans right to divorce has been restricted and women's rights have been enhanced by modern
reforms.

Classical Hanafi law only gave Faskh When the woman could prove the husband was impotent.
Ithna Ashari added the grounds of Leprosy, insanity, general disease. Shafi adds 'wilful refusal'.

Hanbalis add physical and mental defects, desertion for 6 months, failing to comply with a
stipulation. Malikis being the most liberal add failure to maintain, desertion, mental and bodily
defects, Darar/ill treatment, cruelty.

Note: even when the Qadi terminates the marriage, he excercises the Husbands Talaq power,
according to Malikis. The other Sunni schools differ. Overall, it seems like the court and legal
officials play a minimal role.
: Maliki favors women the most, followed by Shi'ite and Hanbali. Before the Muslim Marriage
Act, India also served the Hanafi ideology on this matter. under this act a woman may opt for
dissolution if her situation fulfills one of the acts' conditions.

1. Missing Husband. If the man has been missing for four years. The court will pass a decree
but it will become effective six months later, if the man returns the decree will be canceled. His
brother or uncles will be notified of any decree.

2.Failing to Maintain: for two years. [fazal Mahmud vs Ummatur Rahim] Peshwar case. it must
be proved that the man was under a duty to pay such maintenance. [Nur Bibi v Pir Bux] it doesnt
matter what's the reason for not paying your wives, their right to claim for dissolution remains.

3.imprisonment of husband: for a period of seven or more years. the sentence must be final.

4.Failure to perform marital obligations: for three years.

5.Impotence: The court will pass a decree, which becomes effective after a year within which
the husband can prove he has ceased to being sterile. The man must apply to get a years' time, so
he can recover. The wife, even if aware before marriage can proceed to dissolve.

6. Insanity, leprosy, venereal disease: insanity for two years.

option of puberty.

7.cruelty: bad conduct of the husband, need not be physical. If the man blends with women of
bad reputation, forces the wife to do immoral acts, stops the wife from rightfully exercising her
property rights, hinders her in the practice of her religion, if the man treats one of his multiple
wives unjustly.

8. Incompatibility of temperament is not a sufficient ground.

9. Change or Religion and its effects on marriage: Apostasy (Ridda)/conversion. Islam

considers it a treasonable crime to commit apotasy, the man may be given a death penalty and
the woman, lifetime imprisonment. Apostasy may be expressed or by conduct. Upon the act of
forsaking Islam, the marriage with his Muslim wife also terminates. Ameer Ali argues against
this.

A woman who was earlier a Muslim, converting to another religion doesn't cancel the marriage
but a convert to Islam, who changes her faith again, does.

Fatawa al-Azhar includes a fatwa by Shaikh Muhammad Abdou: It is held in Islam that an
apostate forsakes Islam. The apostasy of each spouse causes the dismissal of the marriage.

Qur'anic verses
Do not hold on to marriage ties with unbelieving women (10:60) They are no longer lawful [as
wives] for the unbelievers, and these are no longer lawful to them.

Ameer Ali contradictorily stated that apostasy doesn't make a marriage to dissolve. Classical
Jurists of Islam believe that once and as soon as the wife quits Islam, dissolution occurs. The law
in India states that, under the 1939 act, marriages remain uninjured and intact. A Hindu
for example, turning to Islam, shall advance to her Hindu wife to convert as well or else the
marriage dissolves. It is argued that Modern state law is unlikely to follow such rules. Ameer Ali
argues that apostasy is no longer such a stringent state offense in South Asian laws, as men aren't
being beheaded and on the other hand if women are allowed annulment of marriage, on grounds
of apostasy, justice won't be served. The normal Islamic rules regarding marriage should be
applied.

Dissolution of Muslim marriages act 1939

One aim was to give women more grounds of divorce and the other to stop women from abandon
Islam to obtain divorce (not for women?)

Section 2 DMMA allows women divorce on grounds: husband is missing since 4 years but
decree finalises after 6 months, no maintenance since 2 years, 7 years or more imprisonment
which is final, failure to perform marital obligations since 3 years, impotency unless on
application the man proves otherwise within 1 year, insanity, child marriage and option of
puberty, cruelty need not be physical, husband associates with immoral women, forces wife to
act immorally, prevents her from using her property, hinders her religious practice, in case of
polygamy treats her unequally.

Incompatibility

[Umar Bibi v Mohammad Din] incompatibility not a ground for divorce.

Cruelty

[itwari v Asghari] cruelty means to cause bodily or mental pain enough to endanger the wife's
safety and life.

[sharif v Nasrine] shows that cruelty based claims aren't attended according to Muslim law but
rather Indian Law policies.

Maintenance
Krishna Iyer J in [Yousuf Rawther v Sowramma] held that divorce can be awarded if
maintenance wasn't paid even if the husband was under no duty to pay. He argued against
unilateral divorce right of men saying that to not give women such a right would be misguided.

The judgement has been criticised for asserting that men must pay maintenance by many,
including Professor Anderson.

Breakdown Principle

In [Aboobacker v Mamu Koya]

It was held that 'the Islamic ethos accepts irreconcilable breach as a ground for divorce'. Judge
held deep incompatibility is the test.

Divorced women

Pakistani law assumes a divorced wife is to be maintained by her family.

Incompatibility

[Sayeeda Khanam v Muhammad Sami]

District Judge held incompatibility, dislike, hatred aren't grounds under Muslim law for divorce.
Muhammad Jan in his judgement held it's dangerous to allow wives, to go against consent of
their husbands and by giving up dower, abandoning the marriage. Hanafi law was upheld