BY ADVOCATE ZAHID ALI
The guidelines recently provided by the Jammu and Kashmir High Court for applying Muslim Personal Law are proper, just and leading to the right conclusion.
The ruling in Masrat Begum versus Abdul Rashid Khan and Others pertained to the issue of maintenance of divorced wives.
In the ruling, Justice Ali Mohammad Magray said that the authority to interpret the Quran and the Sunnah is the domain of highly knowledgeable scholars and jurists of Islam, and the courts should follow the explanations and expositions provided by these scholars and jurists.
So far as interpreting the Quran is concerned, deep knowledge of the Sunnah and the practices of the companions of the holy Prophet (SAW) is needed in addition to the history of the revelation, and the courts should not interfere in these matters but follow well-known jurists of Islam and the established schools of Muslim jurisprudence.
The learned judge has rightly pointed out that the Muslim Personal Law in force in J&K is not in the form of any legislative enactment, but whatever the Shariah in its purest form says is to be applied by the courts.
The state legislature while passing the J&K Muslim Personal Law (Shariat) Application Act 2007 has not enacted any law concerning any of the subjects enumerated therein as effective and valid. Whatever the generally accepted authentic books of the different Schools contain is to be applied by the courts.
Regarding the subject of divorce, the learned judge has rightly pointed that Talaq, whether Ahsan, Hasan or Bida’at, takes effect according to the procedure laid down for each type, though Talaq-ul-Bida’at is a sin but legally valid i.e. it carries moral turpitude but legally it takes place.
The learned judge has explained different types of Talaq under different Schools of Thought i.e. Hanafi, Shafi, Maliki, Hanbali, and Shia but it is not historically correct that Talaq-ul-Bida’at was recognized by the Umayyad monarchs but it was there even in the period of Khulafa-ur-Raashideen (rightly guided Caliphs).
It is also not correct that in Talaq-e-Ahsan or Hasan, after the expiry of the period of Idd’at, a divorcee cannot remarry her former husband without marrying another man and being divorced by him etc. If in Talaq-e-Ahsan or Hasan, the husband revokes his divorce by words or conduct e.g. sexual intercourse, within the period of Iddat, the Talaq becomes ineffective but after the expiry of the period of Iddat the Talaq becomes Bain (irrevocable), and if both want to remarry each other then they have to enter into a fresh marriage agreement (Nikah).
The three pronouncements of Talaq in the three Tuhr periods or Talaq-e-Bida’at (Talaq-e-Mugallazah) makes it mandatory for a divorcee that she should first remarry another man and after consummation of this marriage, the second husband should divorce her without any fraud or coercion and then only she can remarry her former husband. In case of the death of second husband, such woman can also remarry her former husband after passing the Idd’at as laid down in the Islamic Law related thereto.
In other respects, the judgment lays down sound guidelines for the Muslim community in J&K and as such is a landmark judicial verdict for which the learned judge deserves appreciation. This judgment has allayed many misgivings about the application of the Muslim Personal Law, and the lower courts will have no hesitation in implementing the purest form of the Shariah in matters enumerated in the Muslim Personal Law (Shariat) Application Act 2007.
-the writer is a spokesperson for the Jama’at-e-Islami, J&K
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