TERMINATION OF MARRIAGE AND ITS LEGAL CONSEQUENCES UNDER ISLAMIC LAW

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TERMINATION OF MARRIAGE AND ITS LEGAL CONSEQUENCES UNDER ISLAMIC LAW

Abstract:

Even though marriage, under Islamic Law, is not meant to be a temporary affair, the reality of life shows that some marriages are better terminated, because the objectives for which marriage has been instituted cannot be achieved through them. Thus, terminating such failed marriages is allowed so as to protect the welfare of the community ad social morality. Since the Shari’ah has allowed the termination of any marriage which has not achieved and cannot achieve its objectives, it provides detailed explanations regarding the circumstances and rules of terminating such marriage and anything that appertains to that. But unfortunately the vast majority of Muslims, in our society, are ignorant of these rules, especially the rules that deal with talaq (divorce), Khul (divorce with consideration) , termination of marriage by judicial process, iddah (waiting period before re-marrying) and hadanah (custody of children after termination of marriage). The result is, in most cases, depriving some of the spouses, especially the women, of their legal rights which consequently has a serious repercussions not only on the spouses or their immediate family, but also on the society generally. The worst part of it is that even the judges to whom most of the cases of terminating marriage are brought are more often than not, not well-versed in or are totally ignorant of many of these rules. The undesirable consequences of this is that, many cases (regarding termination of marriage) are wrongly decided by these judges, thereby committing a serious injustice to some of the spouses, especially the wives, regarding their rights to maintenance during the iddah, or their rights to hadanah and Khul What usually exacerbates the injustice is the ignorance of the spouses regarding their rights. In view of the above and similar reasons, there should be a detailed work, based on the original and detailed (Arabic) sources, dealing with termination of marriage and its legal effect, under the shari’ah (without confining this to one particular madhhab), in the language that many of our literate Muslim brothers and sisters understand so that they know much of these rules. This may hopefully help in mitigating most of our problems emanating from ignorance of the rules. Hence the choice of the topic of this thesis. Chapter one of the thesis is the general survey on the islamic conception of marriage and its termination. The chapter also discusses the differences between talaq (divorce) and faskh (annulment of marriage) and the legal implication of the differences and the circumstances when termination is legally considered as talaq and when it is considered as faskh. Then the thesis is divided into two parts: part I deals with the procedure of talaq and under it: chapter two deals with talaq, its definition, and wisdom for legislating it, the extent of each of the spouses rights regarding it. It also deals with capacity of the person effecting talaq and the subject matter of talaq methods of effecting divorce and witnesses in divorce. Chapter three discusses the question of making talaq subject to certain conditions and delegating power to someone to divorce by the husband. Various views of schools of jurisprudence, especially Maliki and Hanafi schools regarding the issues, are extensively discussed. Chapter four deals with classifications of talaq: Talaq sunni, talaq bid’iy and tripple talaq, tlaq raj’iy and talaq ba’in. Revocation of talaq after effecting it by the husband is also dealt with in the chapter, extensively. Chapter five is an extensive exposition of khul (Divorce with consideration) and its legal effect; court’s role in it and capacity of the parties to it; and whether khul is legally considered as talaq or faskh. In chapter six termination of marriage through judicial process is extensively discussed. In it, the grounds for such terminations are expounded. Chapter seven deals with termination by means of ila (vow of continence) and li’an. Zihar is also dealt with even though is not actually a termination. But it was historically considered as termination and it also creates a temporary prohibition of conjugal relationship between the spouses until the husband performs exiation (kaffarah). Part two of the thesis is a detailed exposition of the legal consequence of termination of marriage. Under it chapter eight deals with iddah (waiting period which is observed by a divorcee before she marries). The philosophy and various types of iddah, the wife’s right to nafaqah (maintenance) during the iddah, are thoroughly discussed. Chapter nine is the extensive exposition of rada (suckling) and hadanah (custody of children) after talaq., The question of payment to child’s mother for suckling the child after separation from the child’s father, and who is entitled to have the custody of the child after divorce, and who is responsible for paying the expenses of the hadanah, including the remuneration of the custodian and provisions for accommodation and servant are all discussed. Chapter ten is the summary of what has been discussed in the main body of the thesis, observations of what is practically obtaining in our society concerning termination of marriage and some recommendations, which will hopefully help in solving problems concerning termination of marriage (in particular) and marriage itself, in general. Alhamdu Lillah

TERMINATION OF MARRIAGE AND ITS LEGAL CONSEQUENCES UNDER ISLAMIC LAW

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