Thursday, June 30, 2011

Muslim Divorce Law -Muslim Women in India

Muslim Divorce Law &Muslim Women in India:

The sources of the Islamic faith are the Koran, or Qur'an ("the reading"),which is the holy book of Islam, and the Prophetic Traditions (the sunna). In Islam, man is the servant of God (al-abd). By surrendering (Islam) to the will of God he finds salvation and worldly peace. Man is also the most important of God's creatures, his viceregent (kalifah) on Earth.

Introduction to Islamic Jurisprudence :

The Islam was founded by Prophet Mohamed [Quraysh tribe],who lived between 571- 632 Ad ,he received message of god 'Wahi' in his fortieth year, first believed by Khadija and followed by Waraqa[blind scholar].

On his death in 632 the Prophet left no clear message as to how leadership of the Muslim community should devolve after him. After the death of Prophet ,Abu Baker ,his father –in-law was elected successor,[seat of preacher] to the great prophet.
This election lead to great schism between Sunnis and Shias, which lead to development of different schools of Islamic  jurisprudence.Shias means ‘partisan’[partisans of House of Ali] "faction of Ali", or "party of Ali",Shia Muslims further believe that Ali, Muhammad's cousin and son-in-law, was the first of the Twelve Imams and was the rightful successor to Muhammad and thus reject the legitimacy of the first three caliphs. shias assert that Ali should have been made first caliphs[perfect man:al-insan al-kamil) after death of prophet and regard the first three usurpers[illegitimate or controversial]
Whereas, Sunnis recognize four legitimate caliphal successors to Muhammad ; Abu Bakr , 'Umar , 'Uthman ibn 'Affan and 'Ali ibn Abi Talib , who are collectively referred to among Sunnis as the "Rightly Guided Caliphs" (al-khulafa' al rashidun).


The Schools of Islamic Jurisprudence :

The different schools and sub –schools of Muslim Laws may be broadly divided

Sunni :.The word "Sunni" comes from the term Sunnah, which refers to the sayings and actions of Muhammad that are recorded in hadiths (collections of narrations regarding Muhammad).Followers of Sunni Islam consider Sahih al-Bukhari and Sahih Muslim to be the authentic hadiths. The Muslim usage of this term refers to the sayings and living habits of Muhammad. In its full form, this branch of Islam is referred to as "Ahlus-Sunnah Wa Al-Jama'ah" (literally, "People of the Tradition and the Congregation"). Anyone claiming to follow the Sunnah and can show that they have no action or belief against the Prophetic Sunnah can consider him or herself to be a Sunni Muslim. However, it should be noted that Shi'a Muslims also hold that they follow the Sunnah. The majority of Indian Sunnis are followers of the Hanifi division. Sunni Islam is practiced by the majority (90 percent) of Muslims, with large communities in western Asia, the Indian subcontinent, the Caucasus, Central Asia, China, and Southeast Asia. After the breakup of the Islamic Mughal empire and the imposition of British rule in India in the nineteenth century, Sunni theologians and intellectuals in India adopted the reform ideals emerging from the Arab lands, believing that religious revivalism could help their communities confront British colonialism.
Hanafi: During 8 th century Hanifa founded this school, most famous school of sunni law ,favoured by Abbasid Caliphs ,its doctrine spread far and wide.Abu Hanifa earned the appellation ‘The Great Imam’.[Abu Yosuf &Imam Ash-shaybani were his celebrated pupils].The home of school is Iraq.This doctrine spread to Asia and Indian sub continent.
Fatawa-I-Alamgiri collected during Aurangzeb time contained the doctrine of Hanafi School and this was translated by Bailee [Bailee digest].The doctrine of Hanafi school were elaborated in the Hedaya.This book was translated from Arabic into Persian and then from Persian into English under East India Company by Hamilton.

Maliki: This School was founded by Malik-Ibn-Anas [Medina] during 8th century –popularize Izmaa as source of law and leaned towards jurisprudence based on Koran and Hadis, spread over Medina to Egypt ,central Africa ,West Africa ,spain and Eastern Arabian Coast.
Shafei :This school was founded by Mohd .Ash Shafei [767-820 Ad] - popularize Qiyas as source of law, spread over Egypt ,Hejaz,south Arabia and east Africa. There very few Shafeis in India,it has large number in Indonesia ,Malaysia and South East Asia.
Hanbali:This school was founded by Ahmad Hanbali [Baghdad] preferred and popularize Usul based on tradition,Hanbali perfected the doctrine of Usul based on Hadis.Two Hanbali scholars Taymiyya and Jawayza wrote Siyasa & Sharia. Hanbali mostly found in Syria and Palestine.
Wahabi Movement started by Mohd.Wahabi in Saudi Arabia during 18th century ,introduced a puritan attitude and all innovations based on Qiyas and Rai.
In India there is a sect known as Ghair Muqqalad who do not strictly follow any school ,who are akin to Wahabis .
In medieval period, descendants of various Mongol armies that invaded and conquered, Iran and South Asia under Genghis Khan and Babar were called Mughals. The term was also used for later immigrants from Iran. There are also a number of other tribal groupings who claim Mughal ancestry.

Shia :This school owes its origin to Imam Jafar –as Sadiq [765 AD],6th Imam of Imamias , Called "faction of Ali", or "party of Ali".
there are differences between shias and sunni jurisprudence ,shias do not accept any tradition attributed to the prophet unless it comes from household of the prophet[ahl-i-bait]


Imamia shias are divided into akbari and Usuli ;

Akbari: accept ijmaa
Usuli: Izmaa generally not accepted

The significant proportion of Shia population are in Syria, Lebanon, Kuwait, Pakistan, India, Afghanistan, Saudi Arabia, south Turkey.Shia are minority in number in India, but Indian sources like Times of India and DNA reported Indian Shiite population in mid 2005-2006 between 25% to 31% of entire Muslim population of India which accounts them in numbers between 40,000,000 to 50,000,000 of 157,000,000 Indian Muslim population
There is no certainty as to when the shia community first established itself in South Asia. As per historical evidences and the genealogy maintained by the Sayyids who migrated to India from Middle East the history of Shia Islam traces long back around 1000 years. The Nawabs of Awadh and Hyder Ali & Tipu Sultan of Mysore, who were rulers in India, were also Shia Muslims and other prominent dynasty like Bahmani Sultanate (1347–1527 AD) Sharqi Dynasty, Berar Sultanate, Qutb Shahi dynasty, Adil Shahi dynasty , Najafi Nawabs of Bengal, Nawab of Rampur, Hyderabad State Nizam rulers.
In the Shiites, there are subdivisions of chishti, suhravardi, shatari, quadiri, nakhsabandi etc

Emergence of Islamic Divorce Law :

During Pre-Islamic period, the divorce was easy and frequent occurrence,this tendency influenced Islamic Law also. The husband has been given an absolute power to divorce his wife without cause. Even divorce given fit of anger is valid. The single pronouncement is sufficient for completion of divorce with out any religious ceremony as Islamic Law. The husband has to pay maintenance up to iddat period [3 months]
The prophet Mohammad disliked the power husband to pronounce the unilateral divorce with out assigning any reasons.The Prophet Mohammed “with Allah ,the most detestable of all things permitted is divorce”.
He was of view that divorce should be given in extreme and intolerable circumstances.He favoured matter should be referred to two arbitrators.He sternly warned his followers that, they will face curse of god divorcing wife capriciously &divorce shake the throne of God.
Al-Ghazali remarked that divorce in Islam is not trouble the wife but only in case of extreme circumstances , necessity and on just or reasonable grounds, divorce is permissible.

Divorce in Muslim Law may be classified into

1.At the instance of Husband: Talak Ahsaan,Talak Hasan ,Talak –ul-biddat[T.talak]

2.Mutual consent :Kula ,Mubarat

3.At the instance of Wife : DM Act,1939,Lian[false adultery charge] ,Tafweez Impotence of husband


Divorce can also divided into Judicial and Non Judicial divorce

I. Non –Judicial divorce
II.Judicial Divorce [Divorce under Dissolution of Muslim marriage Act,1939.

I.Non –Judicial includes
1. Talaq

Three modes:
Ahsan[Single pronouncement made during tuhr]
Hasan[three pronouncement during successive tuhr,no intercourse taking place any of three tuhr ]
Talaq–ul-biddat- Triple talak ,three pronouncement popular in among sunnis having introduced during Omayad Dynasty ,not recognized by Shia Law, Talak –ul biddat divorce good in law ,though bad in theology, prevalent in India ],former two modes husband has time to reconsider ,later is irrevocable. 
2.Illa-where husband abstain from intercourse with wife for four months, marriage is dissolved with same legal results as if irrevocable divorce pronounced by the husband 
3.Zihar-If husband [sane mind&adult]compares his wife to his mother or other with in prohibited relationship ,wife has right to refuse herself to him until he has perform penance, default, wife has right to apply divorce.
4.Talaq –e-tafweez-The doctrine of tafweez or delegation of power is husband himself ,repudiate his wife or delegate this power of repudiating her to third party ,or even his wife is called ‘Tafweez’
5.Kula-Means redemption literally means ‘Lay down’ laying down by a husnabd of his right and his authority ,a divorce with the consent and at the instance of wife .
6.Mubarat-Mutual consent ,it signifies a mutual discharge of from the marriage claims [no such provision exists in Hindu Law before enactment of HM act]
Dower is check mate? : If husband wants divorce his wife ,he has to pay huge dower, the dower indirectly act as check mate to indiscriminate divorce.

II.Judicial Divorce 

Before 1939, there was no law for women for seeking divorce and more over, no such provision exists in Hanafi School of Islamic thought.


The dissolution of Muslim Marriage Act,1939-was enacted to provide relief to aggrieved women [especially cruelty] and remove doubts as to effect of the renunciation of Islam by married women on her marriage. This law is applicable to all schools of Islam. 
Before commencement of this act ,a Muslim wife to obtain divorce on impotence of husband ,she has to prove she was not aware of his impotence at the time of marriage and further the court had to adjourn the suit for one year to ascertain if the husband could regain his manhood. Under the act of 1939 both provisons have been removed.


In Fazal Mohammad V Ummatur Rahim ,it was held that this act does not abrogate the general principles of Mohammadan Law. Therefore, it is very clear ,it must be shown that the husband was under a legal duty to provide such maintenance .
Grounds for Decree for Dissolution of Muslim Marriage under Section 2:


A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:

1.Whereabouts of Husband not known :
 
The whereabouts of the husband have not been known for a period of four years. But said divorce degree will not effective for a period of six months ,if the husband appears either in person or authorized agent with in that period.
Notice to be served on heirs of the husband, when the husband’s whereabouts are not known :
In a suit to which clause (i) of Section 2 applies--
1. The names and addresses of the persons who would have been the heirs of the husband under Muslim law if he had died on the date of the filing of the plaint shall be stated in the plaint.
2. Notice of the suit shall be served on such persons, and
3. Such persons shall have the right to be heard in the suit;
Provide that paternal uncle and the broker of the husband, if any, shall be cited as party even if he or they are not heirs.

2.Neglected Wife for two years :
The husband has neglected or has failed to provide for her maintenance for a period of two years. In Manak V Mt .Mul Khan “failure to maintain need not be willful, even if failure to provide for her maintenance is due to poverty, failing health, loss of work, imprisonment or any other cause ,the wife would be entitled to divorce” 
3. Imprisonment of Husband for seven or more years :
The husband has been sentenced to imprisonment for a period of seven years or upwards;
4. Failed to perform Marital Obligation for three years:
The husband has failed to perform , without reasonable cause , his marital obligations for a period of three years;
5. Impotent :
The husband has impotency at the time of the marriage and continues to be so;
6. Insane &Venereal Disease for two years or more 
The husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
7.Repudiating Marriage after attaining age of 18 years:


she,having been given in marriage by her father or other guardianbefore she attained the age of fifteen years., repudiated the marriagebefore attaining the age of eighteen years;Provide that the marriage has not been consummated;
8. Cruelty:


The husband treats her with cruelty
•Habitually assaults her or makes her life miserable by cruelty of conduct does not amount to physical ill-treatment
• Associates with women of evil repute or leads an infamous life,
• Attempts to force her to lead an immoral life
•Disposes of her property or prevents her exercising her legal rights over it,
•Obstructs her in the observance of her religious profession or practice,
•If he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran
9. Any other ground under Shariate :
On any other ground which is recognised as valid for the dissolution of marriages under Muslim law;

Provide that—
a. No decree shall be passed on the 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 satisfied 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.

Effect of conversion to another faith :
The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage,Provided that after such renunciation, or conversion, the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in Section 2 :
Provided further that the provisions of this Section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.
Right to dower not to be affected :
Nothing contained in this Act shall affect any right which a married woman may have under Muslim law to her dower or any part thereof on the dissolution of her marriage.
a Muslim wife can bring a suit for divorce against her husband on the ground that her husband has charged her with adultery falsely under section 2(ix) of the act.

The position of Muslim women in Asia varies according to several regional and political factors.


References /Texts :

1.Standard texts and Islamic commentaries
2.Ahmed, Laila. (1992) Women and Gender in Islam. New Haven, CT: Yale University Press.
3.Lapidus, Ira. (1991) A History of Islamic Societies. Cambridge, U.K.: Cambridge University Press.
4.Madan, T., ed. (1976) Muslim Communities of South Asia. New Delhi: Vikas Publishing House.
5.Wikimedia web resources
6.GCV Subba Rao.Family Law in India. 

Sunday, June 26, 2011

Some Common Man Questions on “Protection of Women from Domestic Violence Act, 2005”? (PWDVA)

Some Common Man Questions on  “Protection of Women from Domestic Violence Act, 2005”? (PWDVA)

When PWDV Act became operational?

The PWDV act came in to force on the 26th of October 2006[entire India except J&K]

What is the objective of the Act?

Firstly, The PWDV act emphasizes a violence-free atmosphere and creates a social responsibility on the community at large to inform the authorities about domestic violence.

Secondly, The act also makes the government responsible for its effective implementation by ensuring it is given wide publicity. It is also the duty of the government to conduct sensitization training for the stakeholders of the Act. 

Who can seek remedy under PWDA act?

Only women can avail the remedies provided under this Act and this law also recognizes the rights of couples in informal relationships/ unmarried partners[live -in relationship] apart from formal relationship.

Whether men can seek relief under the PWDA act?

 No, only women can seek relief under the act.

Whether women can be made party [like 498 A IPC case ]? 
No remedies lies against women members &no remedies lies against parents of husband , if residing some other place.

 What is definition of Domestic Violence under PWDA act?

The Act provides a broad definition of violence and includes physical, sexual, verbal, emotional, and economic abuse within the ambit of domestic violence. 

Physical abuse:beating, causing bodily harm compromising physical and mental health of women.

Sexual Violence:forced sexual intercourse.

Verbal &emotional abuse: Insults ,ridicule or threats .

Economic abuse:Deprivation of  basic necessities of life or disposing house hold assets or jewelry without  women’s consent .

Which court distresses women can approach, as specified under act?

This is a civil law,but women can approach First Class Judicial Magistrate.

What kind of relief distresses women can claim under the PWDA act?
1.   Protection orders[S 18]
2.   Resident Orders [S 19]
3.   Monetary relief orders [S 20]
4.   Custody orders[S21]
5.   Compensation  order[S 22]
6.   Interim order or Ex parte order[S 23]

How long these orders will be force?

As long as women wants.

Whether accused can be arrested under this act?
 No,this is a civil law and aimed at providing support to women facing domestic violence.

What is the advantage of this law?

It is victim oriented law not a penal law, women does not solely depend on police to initiate action.

 Whether women can file case directly in Court?

Yes, she can file a case in magistrate court directly without seeking help of advocate in simple language or through protection officer [PO] appointed under the act or listed service provider [SP].

She has to file DIR[Domestic Incident Report ] as per prescribed format available with SP/PO  attach it with her application .

*see the website of Local Women &child Welfare Department of concerned state to know details about Protection Officer or Service Provider.

What is time limit under PWDV, Act:
A case filed under the provisions of PWDV Act  is supposed to be disposed of within 60 days of filing, with a view to providing women with quick access to justice. 

Applicability? 
The law recognizes the right of a woman to be free from domestic violence in her mothers’ [Natal] home as well as her in-laws [marital] home.



Whether “Right to reside in Shared House recognized under PWDV Act
The Act grants legal recognition to a woman’s right to reside in a ‘shared household’. 



Whether there is any penal provision under Act?

There is no penal provision, however if the any order is not complied, then accused can be arrested  under section 31.
There is also provision of imprisonment up to period of one year plus  fine Rs 20,000.
The magistrate can also take the case under 498 A of Indian Penal code 1872 in addition to the above.

Whether there is any provision for counseling ?
The court can direct counseling of both parties [S14]

Where does appeal lie?

The appeal lies in the session court against orders of Magistrate court with in the thirty days from the date of receipt of the order.

What is the time limit under act?

The proceeding should be completed with the sixty days[60]

 
References:


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