The question was discussed by Justice Krishna Iyer, while delivering the judgment in ‘A. Yousuf Rawther vs Sowramma: AIR 1971 Ker 261’.
Below mentioned text is taken from that judgment.
The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions. The statement that the wife can buy a divorce only with the consent of or as delegated by the husband is also not wholly correct.
The view has been ventured by Muslim jurists that the Indo-Anglian judicial exposition of the Islamic law of divorce has not exactly been just to the Holy Prophet or the Holy Book.
Marginal distortions are inevitable when the Judicial Committee in Downing Street has to interpret Manu and Muhammad of India and Arabia. The soul of a culture — law is largely the formalised and enforceable expression of a community’s cultural norms — cannot be fully understood by alien minds.”
Divorce can be given only when there is problem form wife’s side
Religious ceremonies occur even in Muslim weddings although they are not absolutely essential. For that matter, many non-muslim marriages, (e.g. Marumakkathayees) also do not insist, for their validity, on religious ceremonies and registered marriages are innocent of priestly rituals.
It is a popular fallacy that a Muslim male enjoys, under the Quaranic law, unbridled authority to liquidate the marriage. The whole Quoran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him,
“if they (namely, women) obey you, then do not seek a way against them”.” (Quaran IV:34).
The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law.
If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously.
The Pre-regulation of divorce’s power
As the learned author, Ahmad A. Galwash notices, the pagan Arab, before the time of the Prophet, was absolutely free to repudiate his wife whenever it suited his whim, but when the Prophet came He declared divorce to be “the most disliked of lawful things in the sight of God.”
He was indeed never tired of expressing his abhorrence of divorce. Once he said:
‘God created not anything on the face of the earth which He loveth more than the act of manumission. (of slaves) nor did He create anything on the face of the earth which he detesteth more than the act of divorce”.
The Modern regulation of divorce’s power
Commentators on the Quoran have rightly observed — and this tallies with the law now administered in some Muslim countries like Iraq — that the husband must satisfy the court about the reasons for divorce.
The situation in India
However, Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quoran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce.
Dr. Galwash deduces,
“Marriage being regarded as a civil contract and as such not indissoluble, the Islamic law naturally recognises the right in both the parties, to dissolve the contract under certain given circumstances. Divorce, then, is a natural corollary to the conception of marriage as a contract, ……………”
“It is clear, then, that Islam discourages divorce in principle, and permits it only when it has become altogether impossible for the parties, to live together in peace and harmony. It avoids, therefore, greater evil by choosing the lesser one, and opens a way for the parties to seek agreeable companions and, thus, to accommodate themselves more comfortably in their new homes.”
Divorce right for women
Islamic law allows the wife to claim divorce when she finds the yoke difficult to endure “for such is marriage without love …………… a hardship more cruel than any divorce whatever”.
The learned author referred to above states,
“Before the advent of Islam, neither the Jews nor the Arabs recognised the right of divorce for women: and it was the Holy Quoran that, for the first time in the history of Arabia, gave this great privilege to women”.
After quoting from the Quoran and the Prophet, Dr. Galwash concludes that
“divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of the marriage by ‘Talaq’ or by ‘Khola’. When the proposal of divorce proceeds from the husband, it is called ‘Talaq’, and when it takes effect at the instance of the wife it is called ‘Kholaa'”
Consistently with the secular concept of marriage and divorce, the law insists that at the time of Talaq the husband must pay off the settlement debt to the wife and at the time of Kholaa she has to surrender to the husband her dower or abandon some of her rights, as compensation.
The misconception over talaq
Maulana Muhammad Ali in his book “The Holy Qur’an” has this to say:
“Divorce is one of the institutions of Islam regarding which much misconception prevails, so much so that even the Islamic law as administered in the courts, is not free from these misconceptions …………… The Islamic law has many points of advantage as compared with both the Jewish and Christian laws as formulated in Deut. and Matt. The Chief feature of improvement is that the wife can claim a divorce according to the Islamic law, neither Moses nor Christ (nor Manu, may I add) conferring that right on the woman,…………” (Page 96)
Dealing with divorce, the Holy Quoran says: “And women have rights similar to those against them in a just manner ………………”
This statement, Muslim doctors of law assert, was ‘a revolutionising one’ for the Arabs of those days and almost equated women with men.
The decisions of court and the books on Islamic law frequently refer to the words and deeds of the Prophet in support of this truly forward step. He said
“if a woman be prejudiced by a marriage, let it be broken off”.
The hadith on khula
The first ‘kholaa’ case in Islam is quoted by Bukhari in the following words:
The wife of Thabit-ibn-Quais came to the Prophet and said
‘O Messenger of God, I am not angry with Thabit for his temper or religion; but I am afraid that something may happen to me contrary to Islam, on which account I wish to be separated from him.’
The Prophet said:
‘Will you give back to Thabit the garden which he gave to you as your settlement?’
She said, ‘Yes’: Then the Prophet said to Thabit, ‘Take your garden and divorce her at once’.” (Bukhary is the greatest commentary of Mohammadan orthodox traditions).
“This tradition clearly tells us that Thabit was blameless, and that the proposal for separation emanated from the wife who feared she would not be able to observe the bounds set by God namely not to perform her functions as a wife. The Prophet here permitted the woman to release herself by returning to the husband the ante-nuptial settlement as compensation for the release granted to her.”
Asma, one of the wives of the Holy Prophet, asked for divorce before he went to her, and the Prophet released her as she had desired. Yusuf Ali, in his commentary on the Holy Quaran, says:
“While the sanctity of marriage is the essential basis of family life, the incompatibility of individuals and the weaknesses of human nature require certain outlets and safeguards if that sanctity is not to be made into a fetish at the expense of human life.”
The procedure of dissolution of marriage in quran
Here is a significant verse from the Quoran,
“And if ye fear a breach between husband and wife, send a judge out of his family, and a judge out of her family: if they are desirous of agreement, God will effect a reconciliation between them; for God is knowing and apprised of all.” (Chapter IV, Verse 35).
Maulana Muhammad Ali has explained this verse thus:
“This verse lays down the procedure to be adopted when a case for divorce arises. It is not for the husband to put away his wife; it is the business of the judge to decide the case. Nor should divorce cases be made too public. The, judge is required to appoint two arbiters, one belonging to the wife’s family and the other to the husband’s. These two arbiters will find out the facts but their objective must be to effect a reconciliation between the parties. If all hopes of reconciliation fail, a divorce is allowed, but the final decision for divorce rests with the judge who is legally entitled to pronounce a divorce.
Cases were decided in accordance with the directions contained in this verse in the early days of Islam.”
To sum up, the Holy Prophet found a dissolute people dealing with women as mere sex-satisfying chattel and he rid Arab society of its decadent values through his doings and the Quoranic injunctions. The sanctity of family life was recognised; so was the stubborn incompatibility between the spouses as a ground for divorce; for it is intolerable to imprison such a couple in quarrelsome wedlock. While there is no rose but has a thorn if what you hold is all thorn and no rose, better throw it away.
A. Yousuf Rawther vs Sowramma: AIR 1971 Ker 261