Srinagar, Nov 02,2012: The Jammu and Kashmir high court has held that a Muslim man's power to divorce his wife is not "unrestricted or unqualified".
Justice Hasnain Masoodi in his 23-page judgment extensively went into details of the Shariah law and Quranic injunctions to hold that a "husband cannot have unrestricted or unqualified power to pronounce the Talaaq."
The court delved into the fundamental sources of Shariah law to explain the concept of marriage in Islam, the rights of the parties to the marriage contract and the mode and manner the contract is dissolved.
"Though Islam visualizes a situation where a marriage may run into rough weather for reasons beyond control of the parties to the marriage contract, and provides for a mechanism to end or dissolve the relationship in such case, yet the device of divorce is to be used as the last option when the marital relations have irretrievably broken down," the court said.
It maintained that in Islam divorce or Talaaq by the husband may take three forms including Talaaq-e-Ahsan which is single pronouncement of divorce made during a 'Tuhr' (period between menstruations) followed by abstinence from physical relationship for the period of Iddat (waiting period).
The second form is Talaaq-e-Hasan which is three pronouncements of divorce made during successive Tuhrs, without any physical relationship during any of the three Tuhrs.
The third is Talaaq-e-Bidhi which is three pronouncements of divorce made during a single Tuhr either in one sentence or in three sentences or in any other form like in writing, indicating intention of the husband to irrevocably dissolve the marriage.