Chapter-X
CONCLUSIONS
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Chapter-X.
Conclusions
Concluding in the words of a Judge of Hon'ble High Court of
Kerla, in Yousuf Rowthan v. Sowramma, AIR 1971 Ker. 261," Indo-Anglican
judicial exposition of the Islamic law of divorce has not exactly been just to
the Holy Prophet or Holy Book, indeed a deeper study of the subject
discloses a surprisingly, rational, realistic and modem law of divorce."
The true Islamic law in fact stood for what is now known as the
'break-down' theory of divorce. Islam has adopted a golden principal by
selecting a balanced view in between two extreme theories of divorce. Divorce
is made neither very easy nor very hard to adopt. At one hand, it is warned to
its believers not to adopt it as it is "worst of all permitted things", while on
other hand where there remains no alternative to this "worst", the permission
is given to both of the spouses to adopt it and to avoid the "greater harm".
The extra judicial and judicial both the ways are kept open. Where the
marriage broke down irreparably, there can be extra judicial divorce and
where either party was at fault leading to such break down but insisted on the
subsistence of marriage, judicial help may be taken for separation.
Dr. Tahir Mahmood, member of Law Commission of India and
a renowned jurist, rightly observed "I reiterate here that what the Muslims
of India in fact need is a comprehensive code of true Islamic personal law.
It is must to replace the faulty textbooks now relied upon by the courts as
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well as to prevent the growing misuse of Muslim law by the masses. (The
Muslim Law of India, (1980) p.95)
In short, problem of undesirable divorces through practice of
triple divorce may be rightly controlled and discouraged under the very sprit
of Islam. Even it can be made punitive but it cannot be totally derecognized. It
is just like on the same analogy that a child marriage is prohibited and
penalized but it is accepted as a legal marriage. The view taken by the Saudi
Arabia in this regard is correct.
A provision may be made to compensate the aggrieved divorced
woman by the act of wrongful divorce. Certain Muslim Countries rightly
made such provisions, as discussed above.
There is need of codification of laws of divorce of Muslims in
order to avoid the conflict of judgments and to improve the situation.
Turning to other connected issue of maintenance of divorced
Muslim woman after the period of iddat is concern, instead of making much
capital of this issue, it may be looked in other manner also. According to me,
there must be an option given to a divorced woman to claim maintenance
either in the form of per month allowance or in lump sum on happening of
her divorce (judicial or extra-judicial). Now it is for the court to decide the
proper mode of such maintenance after taking into consideration the age of
die woman (considering the chances of her remarriage), number of children,
the financial condition of husband and the burden of maintenance of other
dependents etc. Particularly, where there are chances of remarriage of the
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divorced lady, it is more convenient for her to claim the lump sum amount
and to settle her future life. Like provision is already there in section 25 of
Hindu Marriage Act, 1955 for a Hindu divorced woman. So why not similar
provision may there to the Muslim divorced woman.
In case of passing of a decree of dissolution of marriage, the
court may order under section 25 of Hindu Marriage Act, 1955 to pay
permanent alimony and maintenance to the applicant (may be husband or
wife). The relevant provision of cl. (1) of Sec. 25 runs as-
"the court may order that the respondent shall pay to the
applicant for her or his maintenance and support such gross
sum or such monthly or periodical sum for a term not exceeding
life of the applicant as having regard to the respondent's own
income and other property, if any, the income and other
property of the applicant (the conduct of the parties and other
circumstances of the case) it may seem to the court to be just
and any such payment may be seemed, if necessary, by a charge
on the immovable property of the respondent." Clause (2) and
(3) empowers the court to vary, alter or cancel such order
subsequently if it satisfies that there is change in circumstances
or there is remarriage etc.
The general or secular law of maintenance under section 125 Cr.
P.C. need to be suitably amended on the same line by introducing an option
to the divorced lady, (judicial or extra judicial divorce) to claim either per
month maintenance allowance or to claim fair provision and lump sum
amount of maintenance. The court may be empowered to decide the claim
suitably.
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