SITUACIÓN ACTUAL DE EMPRESA “Y”

Islamic Law has a unique history of development. In most system of the world, the individual has the freedom to marry or to remain celibate. Marriage is regarded all

over the world as a social institution. Under the Muslim Law it is a contract creates mutual rights and obligation which confers the status of husband and wife on the parties and of legitimacy of the children of marriage.

There are certain formalities for contracting a valid marriage. If any of these requirements are not fulfilled the marriage becomes either void or irregular as the case may be. These essentials are:

(1) Proposal and Acceptance: Marriage, like any other contract, stands on the pillars of proposal and acceptance. One party to the marriage makes a proposal to the other party. Nikah is complete only when the offer is accepted by the other party. The proposal and acceptance must be in the presence of the other party or in the presence of their agents so that the contract is understood before acceptance is given. It is necessary that the transaction must be completed at one meeting in the presence of witnesses.

(2) Competence of Parties: Every Muslim who is entering into a contract of marriage must be competent to marry, i.e. must: (a) be of sound mind, (ii) have attained puberty.

(3) No Matrimonial Prohibitions. There should also not be legal impediments or legal disabilities which means existence of certain circumstances under which marriage is not permitted. These prohibitions are: Absolute incapacity/impediment, Relative impediment, Prohibitive incapacity, Directory incapacity.

In case of Muta Marriages which is observes by Shias. The agreement however has to be accompanied by an amount of dower which is specified, otherwise the agreement is void. Also, if there is no time-limit prescribed the marriage is presumed to be permanent. The children born out of muta marriages are legitimate, capable of inheriting from the father. Muta marriage is a marriage for a temporary but fixed period specifying dower.

The legal incidents of muta marriage are, that no mutual inheritance rights are created, the marriage is dissolved on the expiry of the fixed period or by mutual consent or death, divorce is not recognized and if the marriage is consummated the wife is entitled to get full dower. During the period of muta marriage the

husband cannot terminate the marriage treaty but he can make a gift of the unexpired period. At the same time the husband also possesses the right to deduct a reasonable amount of mehr if the wife leaves the matrimonial home without his authority.

The legal effects of a valid marriage, as given by Fyzee are: sexual intercourse becomes lawful and the children born of the union are legitimate; the wife becomes entitled to her dower; the wife becomes entitled to maintenance; the husband becomes entitled to restrain the wife‘s movement in a reasonable manner; mutual rights of inheritance are established; the prohibitions regarding marriage due to the rules of affinity come into operation; the wife is not entitled to remarry after the death of her husband or after the dissolution of her marriage, without observing iddat; where there is an agreement between the parties, entered into either at the time of the marriage or subsequent to it, its stipulations will be enforced, insofar as they are consistent with the provisions or policy of the law;

and neither the husband nor the wife acquires any interest in the property of the other by reason of marriage.

The Muslim Law provides various remedies for breach of the obligations of the contract of marriage. The remedies which are available to husband against wife are Divorce; Refusal of maintenance; i) Civil suit for restitution of conjugal rights and remedies which are available to wife against husband are Suit for maintenance;

Refusal to live together; Claim under Section 125, Cr.P.C.

When either the husband or the wife has, without lawful cause, withdrawn himself or herself from the society of the other, the aggrieved party may bring a suit for restitution of conjugal rights. A suit for restitution is basically a suit for specific performance of the contract of marriage.

There is not much significance of the matrimonial relief of judicial separation in Muslim law because unbridled powers are given to a Muslim husband relating to divorce. The law however recognizes certain grounds where the wife refuses to live with the husband and will be entitled to judicial separation.

In Shah Abu Liyas v. Ultaf¹⁴³, it was said that a wife who has attained an age at

143 (1896) 19 All 50.

which she can render conjugal rights to her husband is entitled to stay separately while the marriage subsists.

A Muslim woman was allowed to enter into a contract that the husband shall dot contract a second marriage, not remove her from conjugal domicile, pay dower within the stated period, pay fixed maintenance or shall live with her in a specified place. In case the husband is a defaulter in fulfilling the terms, a Muslim wife could live separately.

In the pre-Islamic period, the husband possessed an unlimited power to divorce which included divorcing wives anytime, for any reason or even without any reason. They could revoke their divorce and divorce again as many times they preferred, accuse their wives of adultery, dismiss them and leave them, while they themselves would go exempt from any formal responsibility of maintenance or legal punishment.

After the advent of Islam, the Prophet looked upon these customs of divorce with extreme disapproval. At the same time it was impossible to abolish them entirely. Therefore, a limited power of divorce was allowed, i.e. under certain conditions. He permitted to divorced parties three distinct and separate periods within which they might endeavour to become reconciled; but should all attempts at reconciliation prove unsuccessful, then in the third period the final separation became effective.

The reforms of Prophet Mohammed marked a new era in the history of Eastern legislation.¹⁴⁴ An effective check placed by Islam on frequent divorce and remarriage was that, in case of irrevocable separation, it is essential for a remarriage that the wife should marry another man and this marriage should be consummated before divorce and the wife should observe the period of iddat.

It intended to control one of the most sensitive nations of the earth by acting on the strongest feeling of their nature, the sense of honours.

There are many classifications given for dissolution of a Muslim marriage.

However, the best classification is given by Fyzee. The death of the parties, i.e.

husband or wife leads to the dissolution of nikah with the right given to husband

144 Khalid Rashid: Muslim Law, Eastern Book Co., Lucknow.

that he may marry immediately but to the wife to wait till the expiry of the period of iddat, i.e. 4 months and 10 days and if pregnant till delivery.

According to the Fatwa-i-Alamgiri, when married parties disagree and are apprehensive that they cannot observe the bounds prescribed by the divine laws, the woman can release herself from the tie by giving up some property in consideration of which the husband is to give her khula. Tyabji says that marriage may be dissolved by an agreement between the parties for a consideration paid or to be paid by the wife to the husband. Such an agreement where the wife alone is desirous of having the marriage dissolved is called a khula.

Mulla considers khula as divorce by mutual consent but Paras Diwan differs saying that it would be proper to call it a divorce at the instance of the wife.

In Moonshee Buzul-ul-Raheern v. Luteefut-on-Nissa¹⁴⁵ it was held that divorce b y khula is complete from the moment the husband repudiates the wife. There is no period during which such a divorce can be repudiated. As regards the property which can be given in consideration of the release by the husband, all agree that it can be everything that can be given as dower.

The Hedaya refers to the word mubara’at as meaning an act of freeing one from another mutually. It is mutual discharge from the marriage tie.¹⁴⁶ As Fyzee puts it, while in khula the request proceeds from the wife to be released and the husband agrees for certain consideration usually the Mehr, in Mubara’at apparently both are happy at the prospect of getting rid of each other.¹⁴⁷ Khula and Mubara'at are irrevocable divorce and it is necessary for a wife to observe the period of iddat and she is entitled to maintenance.

In Jani v.Mohd. Khan,¹⁴⁸ it was held that Muhara’at is also a form of dissolution of the marriage contract, it signifies a mutual discharge from marriage claims. In this form, the aversion is mutual as both the sides desire separation.

Thus it involves an element of mutual consent.

Talak-e-Tafwid (Delegated Divorce)

145 (1861) 8 MIA 379.

146 Hedaya, Vol. 1, p. 322.

147 Fyzee, p. 156.

148 AIR 1970 J&K 154.

This kind of talaq is unique to Muslim law and has no parallel in other systems and finds favour in both important schools of Muslims, i.e. the Shias and the Sunnis.

According to Baillie, as a man may in person repudiate his wife so he may commit the power of repudiating her to herself or to a third party.1⁵a That is, the husband may delegate the power of divorce to his wife. He may do so at the time of the marriage contract or at any time he likes. Fyzee says that the husband has the power to delegate his own right of pronouncing divorce to the wife.

In Buffatin v. Salim¹⁴⁹, a stipulation that under certain specified conditions the wife can pronounce divorce upon herself has been held to be valid, provided, first, that the option is not absolute and, secondly, that the conditions are necessary and not opposed to public policy.

The delegation of the power to divorce is technically called tafweez. Tafweez is of three kinds:

(a) lkhtiar (choice) giving her the authority to talaq herself, (b) Ambriyad leaving the matter in her own hand, and

(c) Mashiat (pleasure) giving her the option to do what she likes.

Lian

The right of a wife to get a divorce on the husband‘s imputing a false charge of adultery is known as lian. The Quran and Hadith both guarantee dissolution of marriage by way of lian. If the husband has falsely and baselessly charged the wife with adultery, Islam guarantees to the wife a right to such dissolution of her marriage. According to Tyabji, if a Muslim adult husband who is of sound mind, makes a statement that his wife has been guilty of adultery he gives his wife an option of applying to the court to put the husband upon the alternatives of (a) retracting his statement, or (b) swearing four times by God that she is guilty of adultery, and imprecating upon himself the curse of God if he accuses her falsely.The mere charge levied by the husband will not dissolve the marriage automatically. A dissolution decree by a court is necessary for the termination of marriage.

Faskh

The term Faskh in Arabic means cancellation, revocation, abrogation. It means cancellation of marriage on account of physical defects in husband or wife. It is a

149 AIR 1950 Cal. 304.

dissolution of marriage by Kazi (Law Courts). Before the passing of the Dissolution of Muslim Marriages Act, 1939, a Muslim woman was not allowed to seek dissolution of her marriage, however she could apply for dissolution under the doctrine of Faskh on the following grounds:

(a) Irregular marriage, (b) Khyar-ul-Bulugh, (c) Marriage within prohibited degrees, (d) Post-marriage conversion of the parties to Islam, (e) Impotency of husband, or (f) Lian.

In K.C. Moyin v. Nafeesa¹⁵⁰, the court held that under no circumstances could a Muslim woman unilaterally repudiate a marriage by fasklr, it had no legal sanction without seeking the intervention of the court.

Finding no option to repudiate undesired marital bonds, Muslim women were forced to renounce their faith. With the passing of the Dissolution of Muslim Marriages Act, 1939, a woman married under Muslim law was entitled to obtain a decree for dissolution on the grounds provided under the Act.

The Act consolidates and clarifies the Muslim law relating to suits for dissolution of marriage by women but recourse to ordinary process of the civil courts of the country must be taken. An appeal against an order of the subordinate courtt is competent under Section 96 of the Code of Civil Procedure.

Under the Dissolution of Muslim Marriages Act, 1939,Section 2 mentions the grounds on which a Muslim woman may obtain a decree of divorce. These are:

(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected the wife or failed to provide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reaso nable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

150 AIR 1973 Ker 176.

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage at the age of 18 years (i.e. before attaining 18 yrs): Provided that the marriage has not been consummated;

(viii) that the husband treats her with cruelty, that is to say-

(a)habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment, or

(b) associates with women of evil repute or leads an infamous life, or (c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Koran;

(ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law: Provided that

(a) no decree shall be passed on ground (iii) until the sentence has become Final;

(b) a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree; and

(c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground.

In Mohd. Abdul Zalil Ahmed v. Marina Begum¹⁵¹, a wife filed an application for divorce under the Dissolution of Muslim Marriages Act, 1939. The main grounds for relief were husband's failure to perform, without reasonable cause, his marital obligation and cruelty, i.e. physical torture and ill-treatment making her life miserable.

151 AIR 1999 Gau 28.

The Act was passed to give certain rights to married woman and was not against the tenets of the Quran. The grounds for dissolution of marriage under Section 2 are, inter alia, the husband failed to perform, without reasonable cause, his marital obligation for a period of three years, the husband treats her with cruelty, that is to say, habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment.

After the wife‘s petition, both the parties filed a joint petition for a decree in terms of the application filed by the wife. The family court, however, did not allow this on the ground that mutual consent was not a ground available under the Act. Against this the husband went in appeal. The Gauhati High Court, allowing the petition, held that even though there is no provision for divorce by mutual consent under the Muslim Act of 1939, it should be borne in mind that the parties can compromise on such a matter and a decree may be passed in terms of the compromise if otherwise it does not militate against the grounds as reinforced in Section 2 of the Dissolution of Muslim Marriages Act, 1939. The husband in this case had already remarried and the wife‘s marriage had been fixed up. Without divorce, she could not have married again. In view of this, the court held, ―it will not be just and proper to keep her hanging in the air‖. A decree for divorce was accordingly passed.

Iddat

It is incumbent upon a woman whose marriage has been dissolved by divorce or death of her husband to remain in seclusion and to abstain from marrying another man for a certain period. This is known as the period of iddat. The most approved definition is given by Fyzee. According to him, Iddat is the term by completion of which a new marriage is rendered lawful. Ameer Ali says that it is ―an interval which the woman is bound to observe between the termination by death or divorce of one matrimonial alliance and the commencement of another‖.

The object of iddat is to ascertain the pregnancy of a wife so as to avoid confusion of parentage.

When a person dies leaving a widow she is prohibited from marrying before the expiration of 4 months and ten days.

If the widow is pregnant at the death of her husband the iddat will not terminate until delivery or miscarriage. If delivery or its miscarriage comes before 4 months and 10 days, the remaining period will have to he observed.

The period of iddat in cases of talaq is three courses, if the woman is subject to menstruation; otherwise three lunar months. If the woman is pregnant at the time of divorce, the iddat will not terminate till delivery. If marriage is not consummated no iddat is required.

If consummation has not taken place, the marriage is irregular and parties have separated, there is no iddat. But if consummation has taken place the wife is bound to observe iddat.

Where a husband had divorced his wife and has died before the completion of iddat, the woman is required to undergo a fresh iddat for four months and ten days from the date of her husband‘s expiry. The period of Iddat to be observed starts from the date of divorce or death and not from the date on which information has been received. In case of death of either party during the period of iddat the other is entitled to inherit. The wife becomes entitled to maintenance, deferred dower and also prompt

Where a husband had divorced his wife and has died before the completion of iddat, the woman is required to undergo a fresh iddat for four months and ten days from the date of her husband‘s expiry. The period of Iddat to be observed starts from the date of divorce or death and not from the date on which information has been received. In case of death of either party during the period of iddat the other is entitled to inherit. The wife becomes entitled to maintenance, deferred dower and also prompt