Shayara Bano vs Union Of India And Ors. Ministry Of Women ... on 22 August, 2017

[Cites 225, Cited by 2604]



Supreme Court of India
Shayara Bano vs Union Of India And Ors. Ministry Of Women ... on 22 August, 2017

Equivalent citations: AIR 2017 SUPREME COURT 4609, AIR 2018 SC (CIVIL) 1169, (2017) 179 ALLINDCAS 104 (SC), (2017) 179 ALLINDCAS 104, (2017) 2 MARRILJ 247, 2017 (3) CRIMES 281 LN, (2017) 3 CURCC 82, 2017 (3) KCCR SN 254 (SC), (2017) 3 KER LJ 16, 2017 (3) KLT SN 87 (SC), (2017) 4 CAL HN 60, (2017) 4 JCR 69 (SC), (2017) 5 ALL WC 4353, (2017) 5 BOM CR 481, (2017) 6 MAD LJ 378, 2017 (9) ADJ 1 NOC, (2017) 9 SCALE 178, 2017 (9) SCC 1, (2018) 1 JCR 108 (SC), 242 (2017) DLT 1 (CN)(SC), AIR 2018 SC (CIV) 1169

Author: Jagdish Singh Khehar

Bench: S. Abdul Nazeer, Uday Umesh Lalit, Rohinton Fali Nariman, Kurian Joseph, Jagdish Singh Khehar

Reportable

IN THE SUPREME COURT OF INDIA
Original Civil Jurisdiction


Writ Petition (C) No. 118 of 2016

Shayara Bano … Petitioner
versus
Union of India and others … Respondents
with

Suo Motu Writ (C) No. 2 of 2015

In Re: Muslim Women’s Quest For Equality

versus
Jamiat Ulma-I-Hind

Writ Petition(C) No. 288 of 2016

Aafreen Rehman … Petitioner
versus
Union of India and others … Respondents

Writ Petition(C) No. 327 of 2016

Gulshan Parveen … Petitioner
versus
Union of India and others … Respondents

Writ Petition(C) No. 665 of 2016

Ishrat Jahan … Petitioner
versus
Union of India and others … Respondents

Writ Petition(C) No. 43 of 2017

Atiya Sabri
Signature Not Verified
… Petitioner
Digitally signed by
SARITA PUROHIT
versus
Date: 2017.08.23
13:12:55 IST
Reason:
Union of India and others … Respondents


J U DG M E N T
Jagdish Singh Khehar, CJI.




2
 Index

Sl. Divisions Contents Para-grap
No. hs
1. Part-1 The petitioner’s marital discord, and the 1- 10
petitioner’s prayers
2. Part-2 The practiced modes of ‘talaq’ amongst 11- 16
Muslims
3. Part-3 The Holy Quran – with reference to ‘talaq’ 17- 21
4. Part-4 Legislation in India, in the field of Muslim 22- 27
‘personal law’
5. Part-5 Abrogation of the practice of ‘talaq-e-biddat’ by 28- 29
legislation, the world over, in Islamic, as well
as, non-Islamic States
A. Laws of Arab States (i) – (xiii)
B. Laws of Southeast Asian States (i) – (iii)
C. Laws of Sub-continental States (i) – (ii)
6. Part-6 Judicial pronouncements, on the subject of 30 - 34
‘talaq-e-biddat’
7. Part-7 The petitioner’s and the interveners’ 35 – 78
contentions:
8. Part-8 The rebuttal of the petitioners’ contentions 79 - 111
9. Part-9 Consideration of the rival contentions, and our 112- 114
conclusions
I. Does the judgment of the Privy Council in the 115-120
Rashid Ahmad case, upholding ‘talaq-e-biddat’,
require a relook?
II. Has ‘talaq-e-biddat’, which is concededly 121-127
sinful, sanction of law?
III. Is the practice of ‘talaq-e-biddat’, 128-139
approved/disapproved by “hadiths”?
IV. Is the practice of ‘talaq-e-biddat’, a matter of 140-145
faith for Muslims? If yes, whether it is a
constituent of their ‘personal law’?
V. Did the Muslim Personal Law (Shariat) 146-157
Application Act, 1937 confer statutory status to
the subjects regulated by the said legislation?
VI. Does ‘talaq-e-biddat’, violate the parameters 158-165
expressed in Article 25 of the Constitution?
VII. Constitutional morality and ‘talaq-e-biddat’. 166-174

3
 VIII. Reforms to ‘personal law’ in India. 175-182
IX. Impact of international conventions and 183-189
declarations on ‘talaq-e-biddat’.
X. Conclusions emerging out of the above 190-190
consideration
10. Part-10 The declaration 191-201



Part-1.

The petitioner’s marital discord, and the petitioner’s prayers:

1. The petitioner-Shayara Bano, has approached this

Court, for assailing the divorce pronounced by her husband –

Rizwan Ahmad on 10.10.2015, wherein he affirmed “…in the

presence of witnesses saying that I gave ‘talak, talak, talak’,

hence like this I divorce from you from my wife. From this date

there is no relation of husband and wife. From today I am

‘haraam’, and I have become ‘naamharram’. In future you are

free for using your life …”. The aforesaid divorce was

pronounced before Mohammed Yaseen (son of Abdul Majeed)

and Ayaaz Ahmad (son of Ityaz Hussain) – the two witnesses.

The petitioner has sought a declaration, that the

‘talaq-e-biddat’ pronounced by her husband on 10.10.2015 be

declared as void ab initio. It is also her contention, that such a

divorce which abruptly, unilaterally and irrevocably terminates

the ties of matrimony, purportedly under Section 2 of the

Muslim Personal Law (Shariat) Application Act, 1937

(hereinafter referred to as, the Shariat Act), be declared

4
unconstitutional. During the course of hearing, it was

submitted, that the ‘talaq-e-biddat’ (-triple talaq),

pronounced by her husband is not valid, as it is not a part of

‘Shariat’ (Muslim ‘personal law’). It is also the petitioner’s case,

that divorce of the instant nature, cannot be treated as “rule of

decision” under the Shariat Act. It was also submitted, that

the practice of ‘talaq-e-biddat’ is violative of the fundamental

rights guaranteed to citizens in India, under Articles 14, 15

and 21 of the Constitution. It is also the petitioner’s case, that

the practice of ‘talaq-e-biddat’ cannot be protected under the

rights granted to religious denominations (-or any sections

thereof) under Articles 25(1), 26(b) and 29 of the Constitution.

It was submitted, that the practice of ‘talaq-e-biddat’ is

denounced internationally, and further, a large number of

Muslim theocratic countries, have forbidden the practice of

‘talaq-e-biddat’, and as such, the same cannot be considered

sacrosanctal to the tenets of the Muslim religion.

2. The counter affidavit filed by respondent no.5 – the

petitioner’s husband – Rizwan Ahmad, discloses, that the

‘nikah’ (marriage) between the petitioner and the respondent

was solemnized on 11.04.2001, as per ‘Shariat’, at Allahabad.

It was submitted, that the petitioner – Shayara Bano,

performed her matrimonial duties intermittently, coming and

leaving the matrimonial home from time to time. The

5
matrimonial relationship between the parties resulted in the

births of two children, a son – Mohammed Irfan (presently

about 13 years old) studying in the 7 th standard, and a

daughter – Umaira Naaz (presently about 11 years old)

studying in the 4th standard, both at Allahabad.

3. It is the case of the respondent–husband, that the

petitioner-wife, left her matrimonial home on 9.4.2015 in the

company of her father – Iqbal Ahmad and maternal uncle –

Raees Ahmed, as well as children – Mohammed Irfan and

Umaira Naaz, to live in her parental home. The respondent

claims, that he continued to visit the petitioner, for giving her

maintenance, and for enquiring about her well being. When

the husband met the wife at her parental home in May and

June 2015, she refused to accompany him, and therefore,

refused to return to the matrimonial home. On 03.07.2015,

Rizwan Ahmad, asked the father of Shayara Bano to send her

back to her matrimonial home. He was informed by her father,

after a few days, that the petitioner was not inclined to live

with the respondent.

4. On 07.07.2015 the father of the petitioner, brought the

two children – Mohammed Irfan and Umaira Naaz to

Allahabad. The husband submits, that both the children have

thereafter been in his care and custody, at Allahabad. It is the

assertion of the husband, that the petitioner’s father had given

6
him the impression, that the petitioner would be inclined to

return to Allahabad, consequent upon the husband’s care and

custody of both children, at the matrimonial home.

5. It is claimed by the respondent-husband, that he made

another attempt to bring back the petitioner-wife from her

parental home on 09.08.2015, but Shayara Bano refused to

accompany him. It is submitted, that Rizwan Ahmad was

opposed in the above endeavour, both by the petitioner’s father

and her maternal uncle.

6. Finding himself in the above predicament, Rizwan

Ahmad approached the Court of the Principal Judge, Family

Court at Allahabad, Uttar Pradesh, by preferring Matrimonial

Case No.1144 of 2015 with a prayer for restitution of conjugal

rights. The petitioner-Shayara Bano, preferred Transfer

Petition (C) No. 1796 of 2015, under Section 25 of the Code of

Civil Procedure, 1908, read with Order XXXVI-B of the

Supreme Court Rules, 1966, for the transfer of Matrimonial

Case No.1144 of 2015, filed by the respondent-husband

(seeking restitution of conjugal rights) pending at Allahabad,

Uttar Pradesh, to the Principal Judge, Family Court, Kashipur,

Uttarakhand. In the above transfer petition, the wife inter alia

asserted as under:

““2.3 The Petitioner who hails from Kashipur,
Uttarakhand is unemployed and her father is a
government employee. The only source of income is the
Petitioner’s father who has a low income and despite
7
 this the Petitioner during the time of marriage had made
arrangements beyond their capacity. But soon after the
marriage the Respondent husband started demanding
for additional dowry and made unreasonable demands
for a car and cash.
2.4 The Petitioner who rightfully denied the demands of
the Respondent was tortured and physically abused by
the Respondent and his family. She was often beaten
and kept hungry in a closed room for days. The family of
the Respondent administered her with medicines that
caused her memory to fade. Due to the medicines she
remained unconscious for long hours.
Xxx xxx xxx
2.6 On 09.04.2015, the Respondent attempted to
kill the Petitioner by administering medicines. These
medicines on inspection by a doctor on a later date
were revealed to cause loss of mental balance after
regular consumption. The Respondent brought the
Petitioner to Moradabad in a critical near-death
condition with the intention of abandoning her if his
dowry demands were not fulfilled.
2.7. Thereafter on 10.04.2015 the Respondent
called the parents of the Petitioner to Moradabad to take
their daughter. The parents of the Petitioner requested
him to come to Kashipur to meet and settle the issue.
He refused to go to Kashipur and said that they should
come and take their daughter or fulfil his demands for
more dowry. He demanded Rs.5,00,000/- (Rupees Five
Lakh Only).
2.8. Due to the unreasonable demands and the
torturous behaviour of the Respondent husband, the
Petitioner’s parents came to Moradabad to take her and
she was forced to stay with her parents after
10.04.2015.
xxx xxx xxx
2.13 The Respondent has filed for restitution despite
the fact that he himself had asked the Petitioner wife’s
father to either fulfil his dowry demands or to take the
Petitioner back to her maternal home and in pursuance
of the same had drugged the Petitioner and had left her
in Moradabad.”

7. It is the case of the respondent-Rizwan Ahmad, that in

view of the above averments of the petitioner-Shayara Bano, he

felt that his wife was not ready for reconciliation, and therefore,

8
he withdrew the suit (-for restitution of conjugal rights),

preferred by him at Allahabad, and divorced the

petitioner-Shayara Bano, by serving upon her a ‘talaq-nama’

(deed of divorce) dated 10.10.2015. The text of the

‘talak-nama’, is reproduced below:



“Deed of Divorce

Dated 10.10.2015

Madam,

Shayra Bano D/o Iqbal Ahmad.

Be it clear that I Rizwan Ahmed married with you
without any dowry to spend a peaceful and happy
marital life. After marriage you came in my marital tie.
From the relation between you and me two issues
namely Irfan Ahmad aged about 13 years and Kumari
Humaira Naz @ Muskan aged about 11 years were born
who are receiving education living under my
guardianship. With a great sorrow it is being written
that you, just after 6 months of marriage, with your
unreasonable and against Sharia acts started to
pressurize me to live separately from my parents. I, in
order to keep you happy and as per your wish started to
live at a rented house at Mohalla Ghausnagar and while
working as a clerk under a builder tried my level best to
spend peaceful marital life with you and children.
However, you, in an unreasonable manner and against
Shriah continued to create problem and quarrel in
house on regular basis. When you were asked the
reason in a very affectionate manner about two years
ago, you had put a condition that now when your other
relatives are not with you in such situation come with
me to my parents’ house and live further life there. I
being a person from a self-respecting family refused to
live as ‘son in law living at in-laws house’. Then you,
under the influence of your parents, continued to fake
various mental and physical pains and continued to
behave life a mental patient. When tried to know the
reason then you after much difficulty told that you had
9
med with a serious accident before marriage. I for the
sake of my children and you tolerated that. I became
despondent from your persistent demand of living at
your parental house and your being of stubborn nature,
your giving threat of implicating in false case and threat
of inflicting injury to yourself and of consuming poison
and implicating me in false case on that count given on
daily basis and complained about the same to your
paternal uncle but your father replied that whenever you
do such acts sleeping pills be given to you. I found this
very baffling, upon asking your father told that since the
time before your marriage you had been under
treatment for mental ailment. I ignored such a big
incident and the information received about you.
Resultantly you became audacious in your behavior.
When reported all these things to your father, your
father told me that this is the time of children’s holidays
you be sent to your parents’ house with children. You
take them back after the atmosphere is changed and
summer vacations are over. Acting on the words of your
father I left you at your parents’ place along with
children and while going, you took away gold jewelry
given by me including a gold neck set of two Tolas, gold
bangles of one and a half Tola, two gold rings of half
Tola and cash Rs.15,000/-. I continued to visit you
enquiring your wellbeing and giving you expenses from
time to time. That in the month of May and June when
I tried to bring you then you gave excuses and pleas. I
continued to make repeated attempts between May to
July to bring you back but ultimately on 03.07.2015 you
clearly refused to return and on 07.07.2015 you father
brought both the children at Allahabad Railway Station
and left them there informing me and gave threat on
phone that either you will come here and live or shall
perform the role of father and mother of both the
children. In this regard when I enquired from you then
you also refused to return in clear words and said to the
extent that you raise the children and forget me or
separate from me to bring another mother for the
children. On this also I could not satisfy myself,
whereupon I filed a suit for bringing you back. After
receiving notice, out of the blues you threatened me on
phone that I will soon file a case and will tell you how a
son in law is kept at the in-laws house. Being fed up
with your unreasonable conduct and against Sharaih
acts I found it better to separate from you, therefore, I
on 8.10.2015 applied for dismissal of the suit for
bringing you back and now I, in my full senses and in
10
 the presence of marginal witnesses, release you from my
marriage in the light of Shariah through tripel talaq by
uttering ‘I give talaq’, ‘I give talaq’, ‘I give talaq’. From
today the relation of husband and wife forever ends
between you and me. After today you are unlawful for
me and I have become unlawful for you. You are free to
spend your life the way you want.

Note: So far is the question of your dower (Mehr) and
expenses of waiting period (iddat) that I am paying
through demand draft no.096976 dated 06.10.2015
drawn at Allahabad Bank, Karaili, Allahabad Branch,
which comprises a sum of Rs.10,151 towards payment
of dower and Rs.5,500/- towards the expenses of waiting
period which I am sending along with this written deed
of divorce, you kindly take paid to accept the same.

Dated 10.10.2015

Witnesses:-

1. Mohd. Yaseen, s/o Abdul Majid, R/o J.K.
Colony, Ghaus Nagar, Karaili, Allahabad;
2. Ayaz Ahmed S/o Imtiyaz Hussain R/o G.T.B.
Nagar, Karaili Scheme, Allahabad

Sd/ Hindi Rizwan Ahmed
(Rizwan Ahmed)
S/o Iqbal Ahmed
Ghaus Nagar, Karaili, Allahabad”

8. Based on the above, the case of the

respondent-husband is, that he had pronounced ‘talaq’ in

consonance with the prevalent and valid mode of dissolution of

Muslim marriages. It was submitted, that the pronouncement

of divorce by him, fulfils all the requirements of a valid divorce,

under the Hanafi sect of Sunni Muslims, and is in consonance

with ‘Shariat’ (Muslim ‘personal law’).

9. It is also the submission of the respondent-husband,

that the present writ petition filed by the petitioner-wife under

11
Article 32 of the Constitution of India, is not maintainable, as

the questions raised in the petition are not justiciable under

Article 32 of the Constitution.

10. Keeping in view the factual aspect in the present case,

as also, the complicated questions that arise for consideration

in this case (and, in the other connected cases), at the very

outset, it was decided to limit the instant consideration, to

‘talaq-e-biddat’ – triple talaq. Other questions raised in the

connected writ petitions, such as, polygamy and ‘halala’ (-and

other allied matters), would be dealt with separately. The

determination of the present controversy, may however,

coincidentally render an answer even to the connected issues.

Part-2.

The practiced modes of ‘talaq’ amongst Muslims:

11. Since the issue under consideration is the dissolution

of marriage by ‘talaq’, under the Islamic law of divorce, it is

imperative, to understand the concept of ‘talaq’. In this behalf,

it is relevant to mention, that under the Islamic law, divorce is

classified into three categories. Talaq understood simply, is a

means of divorce, at the instance of the husband. ‘Khula’, is

another mode of divorce, this divorce is at the instance of the

wife. The third category of divorce is ‘mubaraat’ – divorce by

mutual consent.




12
12. ‘Talaq’, namely, divorce at the instance of the husband,

is also of three kinds – ‘talaq-e-ahsan’, ‘talaq-e-hasan’ and

‘talaq-e-biddat’. The petitioner’s contention before this Court

is, that ‘talaq-e-ahsan’, and ‘talaq-e-hasan’ are both approved

by the ‘Quran’ and ‘hadith’. ‘Talaq-e-ahsan’, is considered as

the ‘most reasonable’ form of divorce, whereas, ‘talaq-e-hasan’

is also considered as ‘reasonable’. It was submitted, that

‘talaq-e-biddat’ is neither recognized by the ‘Quran’ nor by

‘hadith’, and as such, is to be considered as sacrosanctal to

Muslim religion. The controversy which has arisen for

consideration before this Court, is with referenc to

‘talaq-e-biddat’.

13. It is necessary for the determination of the present

controversy, to understand the parameters, and the nature of

the different kinds of ‘talaq’. ‘Talaq-e-ahsan’ is a single

pronouncement of ‘talaq’ by the husband, followed by a period

of abstinence. The period of abstinence is described as ‘iddat’.

The duration of the ‘iddat’ is ninety days or three menstrual

cycles (in case, where the wife is menstruating). Alternatively,

the period of ‘iddat’ is of three lunar months (in case, the wife

is not menstruating). If the couple resumes cohabitation or

intimacy, within the period of ‘iddat’, the pronouncement of

divorce is treated as having been revoked. Therefore,

‘talaq-e-ahsan’ is revocable. Conversely, if there is no

13
resumption of cohabitation or intimacy, during the period of

‘iddat’, then the divorce becomes final and irrevocable, after the

expiry of the ‘iddat’ period. It is considered irrevocable

because, the couple is forbidden to resume marital relationship

thereafter, unless they contract a fresh ‘nikah’ (-marriage), with

a fresh ‘mahr’. ‘Mahr’ is a mandatory payment, in the form of

money or possessions, paid or promised to be paid, by the

groom or by the groom’s father, to the bride, at the time of

marriage, which legally becomes her property. However, on the

third pronouncement of such a ‘talaq’, the couple cannot

remarry, unless the wife first marries someone else, and only

after her marriage with other person has been dissolved (either

through ‘talaq’ - divorce, or death), can the couple remarry.

Amongst Muslims, ‘talaq-e-ahsan’ is regarded as – ‘the most

proper’ form of divorce.

14. ‘Talaq-e-hasan’ is pronounced in the same manner, as

‘talaq-e-ahsan’. Herein, in place of a single pronouncement,

there are three successive pronouncements. After the first

pronouncement of divorce, if there is resumption of

cohabitation within a period of one month, the pronouncement

of divorce is treated as having been revoked. The same

procedure is mandated to be followed, after the expiry of the

first month (during which marital ties have not been resumed).

‘Talaq’ is pronounced again. After the second pronouncement

14
of ‘talaq’, if there is resumption of cohabitation within a period

of one month, the pronouncement of divorce is treated as

having been revoked. It is significant to note, that the first and

the second pronouncements may be revoked by the husband.

If he does so, either expressly or by resuming conjugal

relations, ‘talaq’ pronounced by the husband becomes

ineffective, as if no ‘talaq’ had ever been expressed. If the third

‘talaq’ is pronounced, it becomes irrevocable. Therefore, if no

revocation is made after the first and the second declaration,

and the husband makes the third pronouncement, in the third

‘tuhr’ (period of purity), as soon as the third declaration is

made, the ‘talaq’ becomes irrevocable, and the marriage stands

dissolved, whereafter, the wife has to observe the required

‘iddat’ (the period after divorce, during which a woman cannot

remarry. Its purpose is to ensure, that the male parent of any

offspring is clearly identified). And after the third ‘iddat’, the

husband and wife cannot remarry, unless the wife first marries

someone else, and only after her marriage with another person

has been dissolved (either through divorce or death), can the

couple remarry. The distinction between ‘talaq-e-ashan’ and

‘talaq-e-hasan’ is, that in the former there is a single

pronouncement of ‘talaq’ followed by abstinence during the

period of ‘iddat’, whereas, in the latter there are three

pronouncements of ‘talaq’, interspersed with abstinence. As

15
against ‘talaq-e-ahsan’, which is regarded as ‘the most proper’

form of divorce, Muslims regard ‘talaq-e-hasan’ only as ‘the

proper form of divorce’.

15. The third kind of ‘talaq’ is – ‘talaq-e-biddat’. This is

effected by one definitive pronouncement of ‘talaq’ such as, “I

talaq you irrevocably” or three simultaneous pronouncements,

like “talaq, talaq, talaq”, uttered at the same time,

simultaneously. In ‘talaq-e-biddat’, divorce is effective

forthwith. The instant talaq, unlike the other two categories of

‘talaq’ is irrevocable at the very moment it is pronounced.

Even amongst Muslims ‘talaq-e-biddat’, is considered irregular.

16. According to the petitioner, there is no mention of

‘talaq-e-biddat’ in the Quran. It was however acknowledged,

that the practice of ‘talaq-e-biddat’ can be traced to the second

century, after the advent of Islam. It was submitted, that

‘talaq-e-biddat’ is recognized only by a few Sunni schools. Most

prominently, by the Hanafi sect of Sunni Muslims. It was

however emphasized, that even those schools that recognized

‘talaq-e-biddat’ described it, “as a sinful form of divorce”. It is

acknowledged, that this form of divorce, has been described as

“bad in theology, but good in law”. We have recorded the

instant position at this juncture, because learned counsel for

the rival parties, uniformly acknowledge the same.

Part-3.

16
The Holy Quran – with reference to ‘talaq’:

17. Muslims believe that the Quran was revealed by God to

the Prophet Muhammad over a period of about 23 years,

beginning from 22.12.609, when Muhammad was 40 years old.

The revelation continued upto the year 632 – the year of his

death. Shortly after Muhammad’s death, the Quran was

completed by his companions, who had either written it down,

or had memorized parts of it. These compilations had

differences of perception. Therefore, Caliph Usman - the third,

in the line of caliphs recorded a standard version of the Quran,

now known as Usman’s codex. This codex is generally treated,

as the original rendering of the Quran.

18. During the course of hearing, references to the Quran

were made from ‘The Holy Quran: Text Translation and

Commentary’ by Abdullah Yusuf Ali, (published by Kitab

Bhawan, New Delhi, 14th edition, 2016). Learned counsel

representing the rival parties commended, that the text and

translation in this book, being the most reliable, could safely

be relied upon. The text and the inferences are therefore drawn

from the above publication.

(i) The Quran is divided into ‘suras’ (chapters). Each

‘sura’ contains ‘verses’, which are arranged in sections. Since

our determination is limited to the validity of ‘talaq-e-biddat’,

within the framework of the Muslim ‘personal law’ – ‘Shariat’,

17
we shall only make a reference to such ‘verses’ from the Quran,

as would be relevant for our above determination. In this

behalf, reference may first be made to ‘verses’ 222 and 223

contained in ‘section’ 28 of ‘sura’ II. The same are reproduced

below:

“222. They ask thee
Concerning women’s courses.
Say : They are
A hurt and a pollution :
So keep away from women
In their courses, and do not
Approach them until

They are clean.
But when they have
Purified themselves,
Ye may approach them
In any manner, time, or place
Ordained for you by God.
For God loves those
Who turn to Him constantly
And he loves those
Who keep themselves pure and clean.

223.Your wives are
As a tilth unto you ;
So approach your tilth
When or how ye will ;
But do some good act
For your souls beforehand ;
And fear God,
And know that ye are
To meet Him (in the Hereafter),
And give (these) good tidlings
To those who believe.”

TThe above ‘verses’ have been extracted by us for the reason,

that the Quran mandates respectability at the hands of men –

towards women. ‘Verse’ 222 has been interpreted to mean,

that matters of physical cleanliness and purity should be
18
looked at, not only from a man’s point of view, but also from

the woman’s point of view. The ‘verse’ mandates, that if there

is danger of hurt to the woman, she should have every

consideration. The Quran records, that the action, of men

towards women are often worse. It mandates, that the same

should be better with reference to the woman’s health, both

mental and spiritual. ‘Verse’ 223 postulates, that sex is as

solemn, as any other aspect of life. It is compared to a

husband-man’s tilth, to illustratively depict, that in the same

manner as a husband-man sows his fields, in order to reap a

harvest, by choosing his own time and mode of cultivation, by

ensuring that he does not sow out of season, or cultivate in a

manner which will injure or exhaust the soil. So also, in the

relationship towards a wife, ‘verse’ 223 exalts the husband, to

be wise and considerate towards her, and treat her in such

manner as will neither injure nor exhaust her. ‘Verses’ 222 and

223 exhort the husband, to extend every kind of mutual

consideration, as is required towards a wife.

(ii) Reference is also necessary to ‘verses’ 224 to 228

contained in section 28 of ‘sura’ II of the Quran. The same are

extracted below:

“224. And make not
God’s (name) an excuse
In your oaths against
Doing good, or acting rightly,
Or making peace
Between persons;
19
For God is one
Who heareth and knoweth
All things.
225. God will not
Call you to account
For thoughtlessness
In your oaths,
But for the intention
In your hearts;
And He is
Oft-forgiving
Most Forbearing.
226. For those who take
An oath for abstention
From their wives,
A waiting for four months
Is ordained;
If then they return,
God is Oft-forgiving,
Most Merciful.
227. But if their intention
Is firm for divorce,
God heareth
And knoweth all things.
228. Divorced women
Shall wait concerning themselves
For three monthly periods.
Nor is it lawful for them
To hide what God
Hath created in their wombs,
If they have faith
In God and the Last Day.
And their husbands
Have the better right
To take them back
In that period, if
They wish for reconciliation.
And women shall have rights
Similar to the rights
Against them, according
To what is equitable;
But men have a degree
(Of advantage) over them
And God is Exalted in Power
Wise.”




20
‘Verse’ 224, has a reference to many special kinds of oaths

practised amongst Arabs. Some of the oaths even related to

matters concerning sex. These oaths caused

misunderstanding, alienation, division or separation between

husbands and wives. ‘Verses’ 224 to 227 are pointed

references to such oaths. Through ‘verse’ 224, the Quran

ordains in general terms, that no one should make an oath – in

the name of God, as an excuse for not doing the right thing, or

for refraining from doing something which will bring people

together. The text relied upon suggests, that ‘verses’ 225 to

227 should be read together with ‘verse’ 224. ‘Verse’ 224 is

general and leads up to the next three ‘verses’. These ‘verses’

are in the context of existing customs, which were very unfair

to married women. Illustratively, it was sought to be

explained, that in a fit of anger or caprice, sometimes a

husband would take an oath – in the name of God, not to

approach his wife. This act of the husband, it was sought to

be explained, deprives the wife of her conjugal rights, and yet,

keeps her tied to the husand indefinitely, inasmuch as, she

has no right to remarry. Even if this act of the husband, was

protested by the wife, the explanation provided is, that the

husband was bound – by the oath in the name of God.

Through the above verses, the Quran disapproves thoughtless

oaths, and at the same time, insists on a proper solemn and

21
conscious/purposeful oath, being scrupulously observed. The

above ‘verses’ caution husbands to understand, that an oath

in the name of God was not a valid excuse – since God looks at

intention, and not mere thoughtless words. It is in these

circumstances, that ‘verses’ 226 and 227 postulate, that the

husband and wife in a difficult relationship, are allowed a

period of four months, to determine whether an adjustment is

possible. Even though reconciliation is recommended, but if

the couple is against reconciliation, the Quran ordains, that it

is unfair to keep the wife tied to her husband indefinitely. The

Quran accordingly suggests, that in such a situation, divorce is

the only fair and equitable course. All the same it is

recognized, that divorce is the most hateful action, in the sight

of the God.

(iii) ‘Verses’ 229 to 231 contained in ‘section’ 29 of ‘sura’ II,

and ‘verses’ 232 and 233 included in ‘section’ 30 of ‘sura’ II, as

also ‘verse’ 237 contained in ‘section’ 31 in ‘sura’ II, are

relevant on the issue of divorce. The same are extracted below:

“229. A divorce is only
Permissible twice: after that,
The parties should either hold
Together on equitable terms,
Or separate with kindness.
It is not lawful for you,
(Men), to take back
Any of your gifts (from your wives),
Except when both parties
Fear that they would be
Unable to keep the limits
Ordained by God.
22
If ye (judges) do indeed
Fear that they would be
Unable to keep the limits
Ordained by God,
There is no blame on either
Of them if she give
Something for her freedom.
These are the limits
Ordained by God;
So do not transgress them
If any do transgress
The limits ordained by God,
Such persons wrong
(Themselves as well as others)
230.So if a husband
Divorces his wife (irrevocably),
He cannot, after that,
Re-marry her until
After she has married
Another husband and
He has divorced her.
In that case there is
No blame on either of them
If they re-unite, provided
They feel that they
Can keep the limits
Ordained by God.
Such are the limits
Ordained by God,
Which He makes plain
To those who understand.
231.When ye divorce
Women, and they fulfil
The term of their (‘Iddat’)
Either taken them back
On equitable terms
Or set them free
On equitable terms;
But do not take them back
To injure them, (or) to take
Undue advantage;
If any one does that,
He wrongs his own soul.
Do not treat God’s Signs
As a jest,
But solemnly rehearse
God’s favours on you,
And the fact that He
23
 Send down to you
The Book
And Wisdom,
For your instruction.
And fear God,
And know that God
Is well acquainted
With all things.”



A perusal of the aforesaid ‘verses’ reveals, that divorce for the

reason of mutual incompatibility is allowed. There is however a

recorded word of caution – that the parties could act in haste

and then repent, and thereafter again reunite, and yet again,

separate. To prevent erratic and fitful repeated separations

and reunions, a limit of two divorces is prescribed. In other

words, reconciliation after two divorces is allowed. After the

second divorce, the parties must definitely make up their mind,

either to dissolve their ties permanently, or to live together

honourably, in mutual love and forbearance – to hold together

on equitable terms. However, if separation is inevitable even

on reunion after the second divorce, easy reunion is not

permitted. The husband and wife are forbidden from casting

aspersions on one another. They are mandated to recognize,

what is right and honourable, on a collective consideration of

all circumstances. After the divorce, a husband cannot seek

the return of gifts or properties, he may have given to his wife.

Such retention by the wife is permitted, only in recognition that

the wife is economically weaker. An exception has been carved
24
out in the second part of ‘verse’ 229, that in situations where

the freedom of the wife could suffer on account of the husband

refusing to dissolve the marriage, and perhaps, also treat her

with cruelty. It is permissible for the wife, in such a situation,

to extend some material consideration to the husband.

Separation of this kind, at the instance of the wife, is called

‘khula’. ‘Verse’ 230 is in continuation of the first part of ‘verse’

229. The instant ‘verse’ recognizes the permissibility of

reunion after two divorces. When divorce is pronounced for

the third time, between the same parties, it becomes

irreversible, until the woman marries some other man and he

divorces her (or is otherwise released from the matrimonial tie,

on account of his death). The Quranic expectation in ‘verse’

230, requires the husband to restrain himself, from dissolving

the matrimonial tie, on a sudden gust of temper or anger.

‘Verse’ 231 provides, that a man who takes back his wife after

two divorces, must not put pressure on her, to prejudice her

rights in any way. Remarriage must only be on equitable

terms, whereupon, the husband and wife are expected to lead a

clean and honourable life, respecting each other’s

personalities. The Quranic message is, that the husband

should either take back the wife on equitable terms, or should

set her free with kindness.




25
(iv) The ‘verses’ referred to above need to be understood

along with ‘verses’ 232 and 233, contained in ‘section’ 20 of

‘sura’ II, of the Quran. The above two ‘verses’ are extracted

below:

“232. When ye divorce
Women, and they fulfil
The term of their (‘Iddat’),
Do not prevent them
From marrying
Their (former) husbands,
If they mutually agree
On equitable terms.
This instruction
Is for all amongst you,
Who believe in God
And the Last Day.
That is (the course Making for) more virtue
And purity amongst you,
And God knows,
And ye know not.
233. The mothers shall give suck
To their offspring
For two whole years,
If the father desires
To complete the term.
But he shall bear the cost
Of their food and clothing
On equitable terms.
No soul shall have
A burden laid on it
Greater than it can bear.
No mother shall be
Treated unfairly
On account of his child,
An heir shall be chargeable
In the same way.
If they both decide
On weaning,
By mutual consent,
And after due consultation,
There is no blame on them.
If ye decide
On a foster-mother
For your offspring,
26
 There is no blame on you,
Provided ye pay (the mother)
What ye offered,
On equitable terms.
But fear God and know
That God sees well
What ye do.”

A perusal of the above ‘verses’ reveals, that the termination of

the contract of marriage, is treated as a serious matter for

family and social life. And as such, every lawful advice, which

can bring back those who had lived together earlier, provided

there is mutual love and they can live with each other on

honourable terms, is commended. After following the above

parameters, the Quran ordains, that it is not right for outsiders

to prevent the reunion of the husband and wife. ‘Verse’ 233 is

in the midst of the regulations on divorce. It applies primarily

to cases of divorce, where some definite rule is necessary, as

the father and mother would not, on account of divorce,

probably be on good terms, and the interest of children must

be safeguarded. Since the language of ‘verse’ 233 is general,

the edict contained therein is interpreted, as applying equally

to the father and mother, inasmuch as, each must fulfil his or

her part, in the fostering of children.

(v) The last relevant ‘verse’ in ‘sura’ II of the Quran, is

contained in ‘section’ 31, namely, ‘verse’ 237. The same is

reproduced below:

“237. And if ye divorce them
Before consummation,
27
 But after the fixation
Of a dower for them,
Then the half of the dower
(Is due to them), unless
They remit it
Or (the man’s half) is remitted
By him in whose hands
IIs the marriage tie;
And the remission
(Of the man’s half)
Is the nearest to righteousness.
And do not forget
Liberality between yourselves.
For God sees well
All that ye do.”

In case of divorce before consummation of marriage, it is

recognized, that only half the dower fixed needed to be

refunded to the wife. It is however open to the wife, to remit

the half due to her. And likewise, it is open to the husband to

remit the half which he is entitled to deduct (and thus pay the

whole dower amount).

19. Reference is also necessary to ‘verses’ 34 and 35,

contained in ‘section’ 6, as well as, ‘verse’ 128 contained in

‘section’ 19, of ‘sura’ IV. All the above verses are extracted

below:

“34. Men are the protectors
And maintainers of women,
Because God has given
The one more (strength)
Than the other, and because
They support them
From their means.
Therefore the righteous women
Are devoutly obedient, and guard
In (the husband’s) absence
What God would have them
guard.
28
 As to those women
On whose part ye fear
Disloyalty and ill-conduct,
Admonish them (first),
(Next), refuse to share their beds,
(And last) beat them (lightly);
But if they return to obedience,
Seek not against them
Means (of annoyance):
For God is Most High,
Great (above you all).
3. If ye fear a breach
Between them twain,
Appoint (two) arbiters,
One from his family,
And the other from hers;
If they wish for peace,
God will cause
Their reconciliation:
For God hath full knowledge,
And is acquainted
With all things.”
Section 19, Sura IV
“128.If a wife fears
Cruelty or desertion
On her husband’s part,
There is no blame on them,
If they arrange
An amicable settlement
Between themselves;
And such settlement is best;
Even though men’s souls
Are swayed by greed.
But if ye do good
And practice self-restraint
God is well-acquainted
With all that ye do.”

The Quran declares men as protectors, and casts a duty on

them to maintain their women. In order to be entitled to the

husband’s support, the Quran ordains the women to be

righteous, and to be devoutly obedient to the husband, even in

his absence. ‘Verse’ 34, extends to the husband the right to

29
admonish his wife who is either disloyal, or ill-conducts

herself. Such admonition can be by refusing to share her bed,

and as a last resort, even to beat her lightly. Thereafter, if the

woman does not return to obedience, the husband is advised

not to use means of annoyance against her. ‘Verse’ 35, sets

out the course of settlement of family disputes. It postulates

the appointment of two arbitrators – one representing the

family of the husband, and