Where law meets the ground reality

The compatibility of laws with ground realities is one of the principal features of legal interpretation and it occupies a central position in the development of jurisprudence through court verdicts.

Litigation relating to family disputes has risen rapidly in recent years. Without going into the reasons for this alarming increase, it is an established fact that trial courts and first appellate courts have been, and continue to be, confronted with emerging legal propositions and complications in the application of family laws. One of these is the lawful separation of spouses.

The author came across a brief, in which a wife had filed a suit for dissolution of marriage under Section 2 of the Dissolution of Muslim Marriages Act, 1939. At the pre-trial stage, in terms of the first proviso to Section 10(4), upon failure of reconciliation, the trial court passed a decree for dissolution of marriage forthwith and restored the dower in favour of the husband. This was done in spite of the fact that the wife had never asked for khula; she had sought dissolution of marriage on the ground of cruelty. Dissatisfied with the High Court's judgment, the wife invoked the appellate jurisdiction of Supreme Court.

When the matter came up before the Larger Bench of the Apex Court, the honourable judges were confronted with a situation where cruelty had not been established in its entirety, while the record and evidence showed that hatred was at its hilt in the hearts of spouses. In particular, it was improbable that the wife could continue the marriage remaining within the limits of Islam.

In such a situation, it would have been convenient for the Bench to observe that, since the wife had failed to prove cruelty, no ground existed for dissolution of marriage, and let the marriage be dissolved on the basis of khula, surrendering her dower. Instead, the Apex Court adopted a very dynamic and purposive approach. It invoked clause (ix) of Section 2 of the Dissolution of Muslim Marriages Act, 1939, which provides that a wife may seek dissolution on any other ground recognised as valid for the dissolution of marriage under Muslim Law. After consulting the Council of Islamic Ideology, the Court held that shiqaq is a workable option for spouses to part ways peacefully, with dignity and honour. The judgment is titled Mst Zanib Bibi v Muhammad Waseem, handed down by Mr Justice Shahid Waheed J.

At this stage, it is worth explaining what is meant by shiqaq in terms of Islamic jurisprudence, and as the Larger Bench has defined it. In fact, most law students and judicial officers at the trial courts are not conversant with this term. By rendering a judgment on this point, the Supreme Court has set a milestone in the development of family laws and has enlightened the legal fraternity, including the judiciary, at the trial and appellate levels.

Shiqaq is an Arabic term meaning enmity, rift, separation or dispute. It is a Quranic term used in Surah An-Nisa, verse 35. The Holy Quran describes the purpose of marriage in terms of tranquility, affection and mercy:

"that you may find tranquility in them and He has placed between you affection and mercy." (Al-Qur'an) 30:21)

"Retain in honour or release with kindness." (Al Qur'an 2:229)

"And if you fear a breach between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever knowing and acquainted [with all things]."

(Al Qur'an 04:35)

Islamic jurisprudence defines it as a persistent rift making peaceful living together impossible.

Besides its other features, the judgment lays down, for the first time and with clarity that shiqaq is one of the grounds for dissolution of marriage, and the term has been defined in a logical and comprehensive manner. The Bench distinguished khula from shiqaq. Khula proceeds from the wife's voluntary election to obtain release from the marriage and ordinarily carries the financial consequences applicable to that remedy. Shiqaq, by contrast, arises from an objectively established condition of serious matrimonial breach and it does not depend on the wife's surrender of dower, or any other benefit, as consideration for her release.

The most crucial aspect of the judgment is that it provides the wife a way out and a safe exit. She cannot be made to carry on with an unhappy marriage simply because she is handicapped by the financial implications of dissolution. The Apex Court has in fact lifted a fear and a financial clog from a wife who was, for all practical purposes, made captive of a cruel husband merely because she might not have the capacity to surrender the dower or any other benefit. In this case, the dower was in the form of gold, which the wife had been directed to return to the husband by the trial court.

The practical impact of the judgment is that where the amount of dower is unbearable for a wife to repay, or in some cases impossible, she can obtain an honourable release by way of shiqaq, even where she could not prove the other grounds for dissolution under Section 2 of the Act, particularly cruelty. Proving cruelty is often difficult. Since people rarely come forward as witnesses to cruelty, as is the established norm of our society, the wife has to run from pillar to post to prove her case. On one hand, she undergoes the agony of mental torture caused by her husband; and on the other, she is under stress to fulfil the statutory requirements imposed by law.

Even otherwise, the purpose of developing jurisprudence through judicial verdicts is to make laws more practicable. It is one of the principal sources for the fulfilment of the dream we call 'Rule of Law'. That dream is realised only when our higher courts, through their verdicts, elaborate and transform the implementation of law through the judicial process. This can be achieved only through a dynamic and purposive approach to the interpretation of laws, as the Supreme Court has beautifully achieved in this case.