High Court upholds 2012 judgment on divorce

Samaan Lateef

Tribune News Service

Srinagar, January 27

The Jammu and Kashmir High Court has upheld its previous verdict that a Muslim man cannot have ‘unrestricted or unqualified’ powers under Islamic law to pronounce ‘talaaq’ (divorce).

Dismissing review petitions against the judgment, Justice Hasnain Masoodi said, “The earlier judgment is in strict conformity with the law. The power to pronounce ‘talaaq’ is not unbridled but subject to the limitations provided under Shariat law itself.”

In the 56-page judgment which was signed this week, the High Court said ‘talaaq’, if necessary, was to be pronounced not in a whimsical or arbitrary manner, but for a genuine reason. “A serious and sincere effort for reconciliation between estranged spouses must precede ‘talaaq’ pronouncement,” he said.

Justice Masoodi set aside the review petition argument that the court lacked jurisdiction to review its order or any matter under the code of criminal procedure.

“This court is a court of record having inherent and plenary powers under Section 94 of the Constitution of J&K. The High Court has unlimited jurisdiction, including the power to determine its jurisdiction,” he said.

The High Court had pronounced in 2012 that in the true light of Islam, ‘talaaq, talaaq, talaaq’ could not be absolute unless the husband could prove genuine reasons for divorce. The verdict infuriated conservatives in Kashmir, who had moved court and organised protests.

Retired Justice Bashir Ahmad Kirmani had sought a review of the ruling, saying the court had interpreted the Koran and Hadith out of context.

According to Justice Masoodi, the woman had been given both power and respect by Islam, but this was being ignored.

The judgment was delivered in the case of Bilques Bano, who got married in 2002 and gave birth to a girl in 2003. She had pleaded that her husband was not happy for giving birth to a female child. She had said he assaulted her and drove her out of the house with the infant.

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.

Pointing to increasing instances of marital discord, Justice Masoodi said, “If 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 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 turned irretrievable.