JUDGMENT : Hasnain Massodi, J. 1. Women have been at the bottom of barrel, for most part of human history. In archaic society essentially patriarchal in character, women remained confined to four walls of house, debarred from public life, before marriage under complete control of her father or male kin in absence of father and under subjection of her husband after marriage. Her position in either case was nothing except that of a mere chattel or a piece of property. The father or a male kin having guardianship over a girl, would receive consideration in cash or kind from the man to whom she was given by him, in marriage. She did not have a role in selection of her life partner. Her consent was not considered necessary and therefore never sought. She though required to play multiple roles ranging from providing comfort to her husband, bearing children, gathering and cooking food for the family, working in fields, adding to family assets, did not have any right over property created by her hard labour, not even the shelter she and her husband built. She was denied right to possess, own, control or manage property. Be it any part of the world or any civilization, the story of woman was one of subjection, humiliation, disrespect, misery and deprivation. John Stuart Mill in his essay: "The Subjection of Women" thus narrates plight of women in various civilizations over the ages: "Originally women were taken by force, or regularly sold by their father to the husband. Until fairly recently the father could dispose of his daughter in marriage at his own will and pleasure, without any regard to hers. After the marriage, the man had anciently, the power of life and death over his wife. She could invoke no law against him, he was her sole tribunal and law. For a long time he could repudiate her, but she had no corresponding power in regard to him: By the old laws of England, the husband was called the Lord of the wife, he was literally regarded as her sovereign, that the murder of a man by his wife was called treason (petty as distinguished from high treason) and was more cruelty avenged that was usually case with high treason, for the penalty was burning to death. The author giving an account of the status of woman in nineteenth century England comments: "Meanwhile the wife is the actual bond servant of her husband: no less so, as far as legal obligation goes, than slaves commonly so called. She vows a lifelong obedience to him at the altar, and is held to it all through her life by law. Casuists may say that obligation of obedience stops short of participation in crime, but it certainly extends to everything else. She can do no act whatever but by his permission, at least tacit. She can acquire no property but for him; the instant it becomes hers, even if by inheritance, it becomes ipso facto his. In this respect the wife's position under the common law of England is worse than that of slaves in the laws of many countries. In Roman Law, for example a slave might have his Peculiar which to a certain extent the law guarantees to him for exclusive use." 2. In Roman Law, as stated in Encyclopedia Britannica, a woman was completely dependent. On her marriage, the property, if any, she had, went to her husband, she herself was purchased property of her husband and like a slave, acquired only for his benefit. A women could not hold any civil or public office, could not be a witness or surety, tutor or curator. In Mosaic Law to betroth a woman to oneself meant simply to acquire her possession by payment of the purchase money. Plight of women was no different in Greek and other civilizations. The women was taken as curse, a source of sin, and devil's gateway. 3. The fate of women in Pagan Arab Society was as bad, if not worse, as in any part of world. The condition of women in Arab Society in the age of ignorance (Jahilya) is described by Moin Qazi in his book "Women In Islam, Exploring New Paradigms" in following words:- "Women suffered great injustices in the pagan Arab society and were exposed to diverse kinds of humiliation prior to Islam. Slavery, debauchery, drunkenness and sexual abuse were rife; when poor women could be maltreated without redress and wealthy women could live totally without morals if they wished, without much criticism. Women were not entitled to inherit from their parents or husbands. Slavery, debauchery, drunkenness and sexual abuse were rife; when poor women could be maltreated without redress and wealthy women could live totally without morals if they wished, without much criticism. Women were not entitled to inherit from their parents or husbands. Arabs believed inheritance should only be granted to those who had martial abilities, like being able to ride a horse, fight, gain war booties and help protect the tribe and clan territory. Since women did not generally have martial qualities, they were themselves inherited like any moveable commodity after the death of an indebted husband." The author further commenting on the condition of women in Arab Society writes:- "Women were held in bondage to their husbands, who could keep them or divorce them at their will and pleasure. Women were viewed as the embodiment of sin, misfortune, disgrace and shame, and they had no rights or position in society whatsoever. If the deceased husband had adult sons from other marriages, the oldest son amongst them had the right to add her to his household, just as a son inherits other chattels of his deceased father. She was unable to leave the house of her stepson unless she paid a ransom. As a general practice, men had the freedom to acquire as many wives as they desired with no set limits. 4. The women in Arab world suffered dehumanising treatment from proverbial "cradle" to "grave". She was made to suffer as a child, a grown up girl and a woman. The worst form of gender injustice practised in Arab world was "female infanticide". The Arabs treated birth of a daughter, shameful and their bruised ego, prompted them to kill daughters by burying them alive. A daughter, at times was lured by her father, to a short visit outside habitation, to dump her in a well in the desert. The second Caliph Umar ibn al-Khattab is reported in Women in Islam, Exploring New Paradigms (supra), to have said that in the age of ignorance (Jahilya) the scene that made him cry was, when a girl would with her tiny hands, wipe of dust from the beard of her father, busy digging a grave to bury her, least knowing that she was to be buried alive in the grave being dug by the father. 5. 5. The dawn of Islam brought whiff of fresh air to Arab Peninsula and its fragrance soon swept entire world. It proved harbinger of a healthy change in entire outlook towards rights of women. It was for the first time in the history of human-kind that woman was free from shackles of servitude - worse than slavery, that had been her fate for centuries. What made change different from isolated efforts made earlier, was its all encompassing character. As discrimination was not restricted to a particular stage in women's life but spread over her entire life from birth to death, Islam did not confine to a particular problem or a particular stage in life but touched all the stages and all the aspects of a woman's life - from the time a girl child was born till end. 6. Islam forcefully disapproved practice of female infanticide and placed a complete ban on the inhuman practice. The Holy Quran deprecating the practice ordained:- "58. When news is brought to one of them, of (the birth of) a female (child), his face darkens, and he is filled with inward grief. 59. With shame does he hide himself from his people, because of the bad news he had! Shall he retain it on (sufferance and) Contempt, or bury it in the dust? Ah! what an evil (choice) they decide on! (16 : 58-59 English Translation A. Yousuf Ali's The Holy Quran) It prohibited female infanticide commanding: "31.Kill not your children for fear of want. We shall provide sustenance for them as well as for you: Verily the killing of them is a great sin." (17 : 31 English Translation A. Yousuf Ali's The Holy Quran) Prohibiting female infanticide, obviously includes prohibition of female foeticide, as well. The modern technology that has enabled us to know gender of the child, still in womb, has extended gender discrimination to the un-born girl child. The discrimination, therefore, commences well before the girl child is put in a "cradle". Islam by prohibiting female infanticide, in effect, prohibits female foeticide. 7. Having put an end to the inhuman and cruel practice of female infanticide, Islam turned to emphasise and guarantee equal rights to female child, equal treatment of female and male children. The discrimination, therefore, commences well before the girl child is put in a "cradle". Islam by prohibiting female infanticide, in effect, prohibits female foeticide. 7. Having put an end to the inhuman and cruel practice of female infanticide, Islam turned to emphasise and guarantee equal rights to female child, equal treatment of female and male children. It asked parents to feel as proud and happy when blessed with a girl child as on birth of a male child and to pay equal attention to her upbringing. Islam wiped out sense of shame, felt by a father in birth of a female child. Holy Quran disapproved the practice of denying same care to a female child as given to a male child: "139. They say: "What is in the wombs of such and such cattle is specially reserved (for food) for our men, and forbidden to our women; but if it is still-born, then all have shares therein." For their (false) attribution (of superstitions to Allah), He will soon punish them; For He is full of wisdom and knowledge." (6 :139 English Translation A. Yousuf Ali's The Holy Quran) 8. Prophet of Islam (SAW) stressed that girl child had same rights as male child and deserved same care, love and affection as her male siblings:- "Whosoever has a daughter and he does not bury her alive, does not insult her, and does not favor his son over her, God will enter him into Paradise. (Ibn Hanbal, No. 1957). Girls are models of affection and sympathy and a blessing to the family. If a person has one daughter, God will screen him from the fire of the hell owing to his daughter; if he has two daughters, God will admit him to paradise; if he has three daughter, God will exempt him from the obligations of charity and Jihad. (Ibn - Hanbal, No. 2104) If a person has three daughters whom he provides for and brings up, God will surely reward him with paradise (Abu Hurairah: Kans al-Ummal: 277)" The Prophet of Islam (SAW) is said to have held his two fingers close together, to indicate how close a person who has two daughters, and did not burry them, did not insult them and brought them properly, would be to him. Once a companion was sitting with the Prophet of Islam (SAW) and his son came, the companion kissed his son and put him on his lap, then his daughter came and he just sat her by his side. The Prophet of Islam (SAW) told the companion "you do not do the justice", meaning he should have treated daughter equally, kissed her and put her in his lap. 9. To set an example for others, Prophet of Islam (SAW) would love his daughters, play with them, carry them when necessary and treat them with care, love and affection. He loved his fourth and youngest daughter-Fatimah the most, and would say "Fatimah is a part of me: who wrongs her wrongs me and who pleases her pleases me". Whenever she visited Prophet of Islam (SAW), he, in front of everyone would stand up, kiss her and let her sit at his favourite place where he had been sitting. He would always find time, from all important engagements, to give company to his daughters and family. 10. Next and most important stage in life of a girl came with attainment of puberty. A girl after she was guaranteed and enjoyed equal love, affection and care of her parents, siblings and other family members, was to be given a say in choosing her life partner. This was the most important stage, as depriving her of such right would in quite few cases result in agony, pain and sorrow for the rest of her life. We may recall that after discriminatory treatment meted out to the girl child at or soon after her birth, that would even go to the extent of burying her alive, the stage when injustice was heaped on a girl was her marriage. Islam declared marriage to be a civil contract and the girl to have a right to be asked her consent to the marriage proposal. Marriage in Islam, is a pure question of offer and acceptance and only after, offer is accepted, dower (mehr) agreed upon and paid in part or full depending on consent of bride, that binding marriage contract comes into existence. Islam promised her not only a right to make, agree or disagree to a marriage proposal but also to have a say in fixing the dower (mehr). Islam promised her not only a right to make, agree or disagree to a marriage proposal but also to have a say in fixing the dower (mehr). This was the second important principle introduced more than fourteen and a quarter centuries ago, in tune with modern day concept of gender justice. A girl, with the dawn of Islam, was no more a chattel or a piece of property that would be handed over by her father or a male kin, for consideration to a stranger chosen by him, to be her husband. Even in case, a contract of marriage on behalf of a girl yet to attain puberty was, entered into by her guardian (Wali), she was to have an option to ratify or rescind the contract on attaining puberty (majority), under the principle of "option of puberty" (Khyar-ul-bulugh). 11. The third and most important right given to the girl contracting marriage, was to receive and retain the dower (mehr) paid by her husband. It may be recalled that before Islam, dower was to be taken by the father or the male kin of the bride. Islam by giving right to a women to have proprietary rights over the dower paid to her by her husband, took the first step to acknowledge right of a woman to receive, own and hold property. She had a right not only to receive and retain dower but also to receive it in part, relieve the husband of obligation to pay the rest of the dower or to defer payment of unpaid part of the dower. 12. Once marriage was solemnised, woman given the status of an equal party to the contract and granted right to consent to the marriage, have a say in fixation of dower (mehr) and other terms of marriage contract, it was now turn of her rights and status in the marital house. Her rights obviously would flow from concept of marriage, envisioned by Islam. Islam views marriage as important and sacred union between man and woman. Holy Quran ordains: "21. And among His signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquillity with them. Her rights obviously would flow from concept of marriage, envisioned by Islam. Islam views marriage as important and sacred union between man and woman. Holy Quran ordains: "21. And among His signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquillity with them. And He has put love and mercy between your (hearts) verily in that are signs for those who reflect." (30 : 21 English Translation A. Yousuf Ali's The Holy Quran) Islam lays stress on mutual love and affection between husband and wife. Men are expressly commanded to treat their wives with kindness and respect. Prophet of Islam (SAW) is reported to have said: "The most perfect in faith amongst believers is he who is best in manners and kindest to his wife." (Reported by Abu Dawoud) Islam commands believers to show love, respect and compassion to their spouses. Prophet of Islam (SAW) in his last (farewell) sermon, thus reminded people of the rights of the women: "O People, it is true that you have certain rights over your women, but they also have rights over you. Remember that you have taken them as your wives only under God's trust and with His permission. If they abide by your right then to them belongs the right to be fed and clothed in kindness. Treat your women well and be kind to them, for they are your partners and committed helpers." Prophet (SAW) said: "The best of you are those who are the kindest to their wives. (Al - Trimidhi) Islam views marriage as Ibadah, disapproves celibacy and expects the spouses to be loyal and faithful to one another and seek emotional pleasure within the bonds of marriage. A woman, given the concept of marriage in Islam, on her marriage gets a (sic) to be treated with love, respect and dignity. Islam in other wordy, guarantees a dignified status to a woman on her marriage. 13. With the marriage would arise the question of running the household, by new weds. Who is to provide for the family and bear day to day expenses. Islam saddles man with the responsibility to maintain his wife, and his children. This duty at no stage shifts or is transferred to woman. It extends even after dissolution of marriage for the period of Iddat and includes the right to shelter during Iddat. Who is to provide for the family and bear day to day expenses. Islam saddles man with the responsibility to maintain his wife, and his children. This duty at no stage shifts or is transferred to woman. It extends even after dissolution of marriage for the period of Iddat and includes the right to shelter during Iddat. A woman, therefore, has a right to be maintained and supported by her husband and is in no circumstances burdened with the duty to maintain her husband or her children. Islam protects a woman against want, hunger, exploitation and penury. 14. Islam by declaring a woman to have a right to fix, receive and deal with the dower (mehr) at the time of her marriage, guarantees her right to own, control and deal with the property. It does not stop there but gives woman right to succeed to the property left by her husband on his death to the extent fixed by Holy Quran. She does not only get a share in deceased husband's property but does not lose right in property so inherited, on her remarriage. This right given to the woman is without a parallel in human history. She is given right to carry the property acquired and so inherited, to the second marital home, as her personal property. Islam goes a step further and, confers right on a woman (mother) to inherit estate left by her son to the fixed extent. Annie Besant, a 20th Century activist in her "The Life and Teachings of Mohammed" published in 1932 has observed: "It is only in the last twenty years that Christian England has recognised the right of woman to property, while Islam has allowed this right from all times. It is a slander to say that Islam preaches that women have no souls." Prince of Wales in a lecture on Islam and the West, quoted in "Women In Islam Exploring New Paradigms" (supra), acknowledged: The rights of Muslim women to property and inheritance, to some protection if divorced, and to the conducting of business, were rights prescribed by the Quran twelve hundred years ago, even if they were not everywhere translated into practice. In Britain at least, some of these rights were novel even to my grandmother's generation!" The views are shared by Anna King, Karen Armstrong in her "Islam: A Short History", and Prof. In Britain at least, some of these rights were novel even to my grandmother's generation!" The views are shared by Anna King, Karen Armstrong in her "Islam: A Short History", and Prof. Bernard Lewis, one of the greatest Western experts on the history of Islam and the Middle East. 15. Divorce, in all civilisations with a few exceptions, was taken as corollary to the marriage. In some ancient societies, marriage was taken to be an eternal bond, without right to either of the parties, to come out of it. A woman once married, was not to come out of wedlock on any ground whatsoever, say if her husband suffered from a contagious disease, went missing or was otherwise unable to perform marital obligations. Islam, however, considered it illogical and unnatural to force, by the power of law, a life partnership on partners who would not feel comfortable with each other and not trust each other. It recognized that in a broken marriage, the partners undergo feeling of repugnance; they hate each other and cannot tolerate living with each other and to force such a life by the power of law, is in itself a severe punishment, worse than life imprisonment. There is an old saying that "one of the great calamities is to live with someone who does not agree with you, yet does not leave you." Islam recognized right of husband and wife to part ways, when compelled by circumstances beyond their control, to drag rather than live a peaceful matrimonial life. In contrast, wherever divorce existed, in other civilizations it was exclusive prerogative of man without any corresponding rights to woman. Woman could not come out of nuptial knot for any reason whatsoever. In pre-Islamic Arab (jahilya), as stated by Furqan Ahmed, in his essay, "Triple Talaq: An Analytical Study with Emphasis on Socio-Legal Aspect" and quoted by Samreen Hussain in Triple Talaq: A Socio - Legal Analysis, the power of divorce possessed by the husband was unlimited and was frequently exercised without any regard to the marital obligations. They could divorce their wives at any time, for any reason or even without any reason. They could pronounce divorce and also revoke the same as many times as they preferred. They could, moreover, if they were so inclined, swear that they would have no physical relation with their wives, though still living with them. They could divorce their wives at any time, for any reason or even without any reason. They could pronounce divorce and also revoke the same as many times as they preferred. They could, moreover, if they were so inclined, swear that they would have no physical relation with their wives, though still living with them. They could arbitrarily accuse their wives of adultery, throw them out and leave them with such notoriety as would deter other suitors; while they themselves would go exempt from any formal responsibility of maintenance. In pre-Islamic Arabia, divorce was used as an instrument of torture. 16. Islam practically prohibited unlimited or multiple divorces by providing that the marriage would permanently come to an end, three months after talaq was pronounced and neither revoked nor marital relations restored or on pronouncement of third divorce, without an option to the husband to revoke talaq and resume marital relations. Islam permitted revocation of first and second talaq by the husband and resumption of marital relations. However, such a right was lost on pronouncement of third talaq. Once third talaq was pronounced, resumption of marital relations was ruled out, and remarriage with the same person prohibited, unless the divorcee contracted marriage with other person, marriage was consummated and thereafter she was divorced by her second husband. Islam, thus, saved women, the agony of repeated divorces, revocation of such divorces and resumption of marital relations. The object was to make a man well aware of consequences of divorce, make him deliberate on the proposed decision and only thereafter decide on continuation or cessation of matrimonial relations. Even otherwise, Islam giving utmost importance to the institution of marriage as a building block of society and interested in stability of marriage, discouraged divorce. It declared talaq as "worst of all permitted things" (quoted by Abu Dawud in Kitab Sunnah). There is an oft quoted Hadith that "the throne of Allah shudders when there is divorce" and "Divorce is most detestable in the sight of God; abstain from it". Imam Ja'far Sadiq quotes following Hadith to remind Muslims that Allah detests and disfavours divorce: "To God, no house is dearer than the house where there is the union of marriage, and no house exists which deserves His wrath more than that in which the union of marriage is broken by divorce." 17. Imam Ja'far Sadiq quotes following Hadith to remind Muslims that Allah detests and disfavours divorce: "To God, no house is dearer than the house where there is the union of marriage, and no house exists which deserves His wrath more than that in which the union of marriage is broken by divorce." 17. Islam provides for a mechanism to help the parties make a sincere effort to resolve their differences before the husband, proceeds to execute his intention to divorce his wife i.e. pronounces talaq. Holy Quran ordains: "If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they seek to set things right, Allah will cause their reconciliation: for Allah hath full knowledge, and is acquainted with all things." (4 : 35 English Translation A. Yousuf Ali's The Holy Quran)) It is only after the disapproval by Islam, of talaq in a whimsical manner and without due deliberation, fails to dissuade husband from pronouncing talaq, conciliation does not succeed and help parties to workout an amicable settlement, that the husband may for a genuine reason and adhering to requirements laid down under Shariat law, as a last resort pronounce talaq. However, he still has three months to ponder over possibility of reconciliation and revoke talaq and resume marital relations. In case, he does not revoke talaq, nor does he resume relations, talaq assumes finality. In case he revokes talaq but after a month i.e. period of purity (tuhr) followed by cycle, pronounce talaq a second time, the talaq is still revocable till a third talaq is in like manner pronounced. The waiting period of three months to make talaq operational is provided to give the parties, one more opportunity to reconcile and resolve their disputes and also to their relations and friends to step in and help them re-unite. Islam, therefore, ordains pre-talaq and post-talaq reconciliation efforts, involving the elders from two families. Talaq in Islam is a medicine to be administered only after all medicine to save the marriage fail to yield results. The focus is always on saving the marriage. 18. Islam gave wife a right to initiate the process to come out of marital bond or seek divorce, on the grounds recognized under Shariat Law. This was something unknown since twilight of civilization. This undoubtedly was a remarkable step towards the goal of gender justice. The focus is always on saving the marriage. 18. Islam gave wife a right to initiate the process to come out of marital bond or seek divorce, on the grounds recognized under Shariat Law. This was something unknown since twilight of civilization. This undoubtedly was a remarkable step towards the goal of gender justice. It was no more exclusive domain of a husband to end the marriage contract by unilaterally pronouncing talaq. Though the wife does not have a right to pronounce talaq unless such a power is delegated to her by her husband at the time of contracting marriage (talaq-i-tafweez), all the same she is given a right to seek divorce through intervention of Qazi (court), on the grounds pleaded by her or by mutual consent, on the terms agreed by the parties. Dr. Ahmed A. Galwash in his "The Religion of Islam" quoted by V.R. Krishna Iyer (as His Lordship then was) in A. Yousuf Rawther v. Sowramma AIR 1971 Kerala 261 writes: "We have to examine whether the 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. Before the advent of Islam, neither the Jews nor the Arabs recognized the right of divorce for women: and it was the Holy Quran that, for the first time in the history of Arabia, gave this great privilege to women." 19. Even when divorced, Islam protected rights of a woman (divorcee) as regards custody of children, property acquired by her as dower (mehr), or otherwise in her ownership, receipt of deferred dower, in addition to a right to maintenance, support and shelter for a limited period (period of iddat). Holy Quran ordains: "19. O ye who believe! Ye are forbidden to inherit women against their will nor should ye treat them with harshness, that ye may take away part of the dower ye have given them,--except when they have been guilty of open lewdness; On the contrary live with them on a footing of kindness and equity if ye take a dislike to them it may be that ye dislike a thing, and Allah brings about through it a great deal of good. 20. 20. But if ye decide to take one wife in place of another, even if ye had given the latter a whole treasure for dower, take not the least bit of it back : Would ye take it by slander and a manifest wrong? 21. And how could ye take it when ye have gone in unto each other, and they have taken from you a solemn covenant? (4 :19-21 English Translation A. Yousuf Ali's The Holy Quran)) 20. A woman after marriage when blessed with children assumes the status of motherhood. Islam is as concerned about rights of mother as about the rights of a girl child, rights of a woman while contracting marriage and thereafter her rights in her marital home. A woman, as a mother commands highest respect in Islam. The Holy Quran reminds a Muslim of the difficulties mother had to face during pregnancy and at the time of child birth and thereafter while providing for the child and helping the child to cross different stages of life. Holy Quran emphasises the struggle a mother is to make for child and sacrifices given by her:- "14. And we have enjoined on man [to be good] to his parents: in travail upon travail did his mother bear him, and in years twain was his weaning: (hear the command), "Show gratitude to Me and to thy parents: To Me is (thy final) Goal." (31:14 English Translation A. Yousuf Ali's The Holy Quran) "15. We have enjoined on man kindness to his parents: in pain did his mother bear him, and in pain did she give him birth. The carrying of the (child) to his weaning is (a period of) thirty months. At length, when he reaches the age of full strength and attains forty years, he says, "O my Lord! Grant me that I may be grateful for thy favour which Thou hast bestowed upon me, and upon both my parents, and that I may work righteousness such as Thou mayest approve; and be gracious to me in my issue. Truly have I turned to Thee and truly do I submit (to Thee) in Islam" (46 : 15 English Translation A. Yousuf Ali's The Holy Quran)) 21. It is said that a person approached Prophet of Islam (SAW) saying: "O Messenger of God! Truly have I turned to Thee and truly do I submit (to Thee) in Islam" (46 : 15 English Translation A. Yousuf Ali's The Holy Quran)) 21. It is said that a person approached Prophet of Islam (SAW) saying: "O Messenger of God! Verily I have done a great crime; is there any act by which I may repent?" He said, "Have you a mother?" "No," said the questioner. "Have you an aunt?" asked Prophet. He said, "Yes, I have." Prophet said, "Go, do good to her, and your crime will be pardoned." The famous book of Hadith - Sahih Bukhari quotes an incident reported by Abu Hurairah that a man came to the Prophet of Islam (SAW) and asked as to who is more entitled to be treated with the best companionship by him. Prophet (SAW) replied "your mother". The person asked who next and Prophet (SAW) replied "your mother". It is only after Prophet (SAW) replied thus thrice - each time reminding him that it was his mother who best deserved his companionship, that Prophet (SAW) replied that next to his mother, it was "his father" who would deserve his companionship. Holy Quran repeatedly enjoins people to show respect to their mothers, be kind and decent to them and say them good and soothing words. Prophet of Islam (SAW) commanded:- "Do not leave your mother unless she gives you permission or death takes her, because that is the greatest (deed) for your reward. (Narrated by Ibn Abbas. Kanz al-Ummal 472)" "I know of no other deed that brings people closer to Allah than kind treatment and respect towards one's mother". (Al-Adab Al Mufrad Bukhari 1/4) 22. Islam is equally concerned about rights of woman as a member of society. It while defining her rights as a member of the family, does not lose sight of her rights and status in the society. It guarantees similar rights, privileges, dignity and respect to a woman as to a man. Islam made piety, virtue, fear of god, good conduct as a basis for final reward. The criteria did not have any reference to the gender. It guarantees similar rights, privileges, dignity and respect to a woman as to a man. Islam made piety, virtue, fear of god, good conduct as a basis for final reward. The criteria did not have any reference to the gender. Holy Quran made promise of such reward to: "For Muslim Men and women:- for believing men and women, for devout men and women, for true men and women, for men and women who are patient and constant, for men and women who humble themselves, for men and women who give in charity, for men and women who fast (and deny themselves), for men and women who guard their chastity, for men and women who engage much in Allah's praise for them he has Allah prepared forgiveness and great reward. (33 : 35 English Translation A. Yousuf Ali's The Holy Quran) 23. The men and women are not only promised equal reward if they conduct themselves in affairs of life in recommended way, but are saddled with same duties and reminded of same responsibilities while discharging their duty towards the people under their control or guardianship. Prophet of Islam (SAW) is reported to have stated:- "A man is shepherd over his family and he is accountable for their welfare. A women is shepherdess over her husband's household and children and she is accountable for their welfare. (Sahih Bukhari 6719, Sahih Muslim 1829) "Women are partners of men" (Abu Dawud, Sunan, 1/61) 24. Holy Quran, thus, emphasises equality between men and women, obligations they owe to each other and what brings them close to their creator: "1. O mankind! reverence your Guardian-Lord, Who created you from a single person, created, of like nature, his mate, and from them twain scattered (like seeds) countless men and women" (4:1 English Translation A. Yousuf Ali's The Holy Quran)) "13. O mankind! We created you from a single (pair) of a male and a female, and made you into Nations and tribes, that Ye may know each other (Not that ye may despise each other). Verily the most honoured of you in the sight of Allah is (he who is) the most righteous of you. and Allah has full knowledge and is well acquainted (with all things). Verily the most honoured of you in the sight of Allah is (he who is) the most righteous of you. and Allah has full knowledge and is well acquainted (with all things). (49 : 13 English Translation A. Yousuf Ali's The Holy Quran)) Woman is equal to man in all essential rights and duties; Allah makes no distinction between man and women. They are to be equally rewarded or punished for their deeds. Holy Quran says: "And their Lord hath accepted of them and answered them: "Never will I suffer to be lost the work of any of you, he male or female: Ye are members, one of another." (3 : 194 English Translation A. Yousuf Ali's The Holy Quran) "49 And of everything We have created pairs: That ye may reflect" (51 : 49 English Translation A. Yousuf Ali's The Holy Quran)) 25. From the above discussion, an irresistible conclusion one draws, is that rights of women is one of the important dimensions of revolution brought by Islam. Islam changed the course of human history amongst others, as regards overall attitude towards rights of women. It enjoined every muslim to respect rights of woman. It guaranteed a girl child right to live, right to equal love, affection and care as her male sibling. It gave a girl on reaching age of puberty, a right to have a say in choosing her life partner, right to fix, receive and deal with the dower (mehr), right to love, affection, respect from her husband, right to maintenance, right to inherit the property left by her husband on his death during subsistence of the marriage, right to have a say in upbringing and guardianship of her minor children, right to maintenance during Iddat, and right to shelter, if marriage for any reason comes to an end and a right to live with respect, honour and dignity as a member of family and the society. 26. The brief summary and over view of rights of woman in Islam, made in preceding paras, is to help us understand issues raised in petition under section 561-A Cr.P.C. disposed of on 30th April 2012 and applications on hand arising out of the said order. Let us now summarise the background facts, the grounds urged in the applications and settled legal position in the backdrop of above discussion. 27. Let us now summarise the background facts, the grounds urged in the applications and settled legal position in the backdrop of above discussion. 27. One Bilquees Akhter and her minor daughter, namely, Kareen Naseem on 30.01.2006 approached JMIC/3rd Additional Munsiff, Srinagar with application under 488 Cr.P.C. They on the grounds urged in the application sought a direction to the non-applicant commanding him to pay each of them maintenance allowance of Rs. 3000/- per month. The non-applicant in his objections did not dispute the factum of marriage or that Baby Kareen Naseem was born of the wedlock. He, however, sought to wriggle out of his liability to pay maintenance allowance to applicant No. 1 on the ground that as he had on 22nd December, 2005 divorced applicant No. 1, he was not under an obligation to maintain her. 28. Learned trial Magistrate, on going through the pleadings and the evidence brought on record held the applicant No. 1 to have been divorced by the non-applicant, as pleaded in objections to the application, and therefore, not entitled to any maintenance from non-applicant. Her application was, accordingly dismissed. 29. The applicant No. 1, aggrieved with the trial Court order dated 30.06.2009 whereby her maintenance claim was rejected, questioned the order in a revision petition before 1st Additional Sessions Judge, Srinagar. The revisional Court on perusal of the trial Court record and on going through case law on the subject, set aside the trial Court order and held it to be perverse, illegal and passed in a mechanical manner. It directed the trial Court to determine the quantum of maintenance allowance due to the applicant No. 1 and pass a direction accordingly. 30. The Revisional Court order was assailed in a petition under Section 561-A Cr.P.C. The petitioner/non-applicant insisted that the Revisional Court order amounted to abuse of process of the Court and warranted quashment in exercise of inherent powers of the Court. 31. This Court, after dilating on the concept of marriage in Islam, discernible from two important sources of Shariat Law i.e. Holy Quran and Hadith, various forms of talaq and the mode and manner in which marriage in Islam may come to an end, held that a husband under Shariat Law does not have absolute, unqualified and unbridled power to pronounce talaq and that such power is subject to the limitations laid down under the Shariat Law. It was held that power to pronounce talaq is not to be used in an arbitrary manner, at whim and caprice of the husband and in absence of a valid and genuine reason. A reference was made to Holy Quran (4:35), to emphasise that even where the relations between husband and wife are plagued by differences and disagreements, the parties as a first step are to mandatorily make an effort to resolve the dispute with the assistance of two arbiters, each from the families of husband and wife. This Court referring to Holy Quran (65:1,2) held that the talaq if necessary is to be pronounced during the period of purity (tuhr) and that too in presence of two witnesses endued with justice. It was held that a person to escape his duty to maintain his wife on the ground that she was divorced before she brought an action for recovery of maintenance allowance, has to plead and prove that he adhered to all the aforementioned requirements i.e. there was a genuine reason to pronounce talaq, an effort was made with the help of two arbiters to resolve the dispute and unite the couple, talaq was pronounced during the period of purity (tuhr) and in presence of two witnesses, necessary for talaq to be valid under Shariat Law. It was held that the revisional Court was right in concluding that the petitioner/non-applicant had failed to prove that he had divorced applicant No. 1 in accordance with Shariat Law. The petitioner/non-applicant, it was observed, did not prove the aforementioned requirements, to make talaq valid under law and, therefore, marriage did not come to an end and he continued to be under obligation to maintain applicant No. 1 (respondent in petition under Section 561 -A). 32. Two applications registered as IA Nos. 468/2012 and 469/2012 - later under Section 94 of the Constitution of Jammu and Kashmir, have been filed to seek rehearing of the petition under Section 561-A Cr.P.C. (158 of 2009), and review of the order dated 30.04.2012 whereby petition under Section 561-A Cr.P.C. was disposed of. 33. 32. Two applications registered as IA Nos. 468/2012 and 469/2012 - later under Section 94 of the Constitution of Jammu and Kashmir, have been filed to seek rehearing of the petition under Section 561-A Cr.P.C. (158 of 2009), and review of the order dated 30.04.2012 whereby petition under Section 561-A Cr.P.C. was disposed of. 33. Review of the order dated 30.04.2012 is sought on the ground that Court lacks jurisdiction "to interpret Qura'nic verses (sic) Hadith or Sunnah, as the same can only be interpreted by the highest renowned Islamic scholars, like the scholars from Al-Azhar University, Mecca, Islamic University of Pakistan and not by the Court constituted under the Constitution". This Court, it is pleaded, should have avoided to answer the question framed more particularly when it required translation of Qura'nic verses and thereafter proceeded to interpret and "take clue from the Hadith which subject is not the domain of Constitutional Court". The question framed, it is insisted, did not arise from the case set up before the Court. It is pleaded that this Court ought to have relied on the precedent of Hon'ble Supreme Court or any other High Court where basic dispute was amongst the Muslims. It is pointed out that even in Mohd. Ahmed Khan v. Shahbanoo AIR 1985 SC 945 the Apex Court only quoted the commentary on and the translation without, interpreting Holy Quran or Hadith. It is pleaded that this Court under Section 94 of the Constitution of Jammu and Kashmir has inherent and plenary powers including power to review its own judgment. Support in this regard is sought from law laid down in M.V. Elisabeth v. Harwan Investment and Trading Limited, 1993 (Suppl. 2) SCC 233 and M.M. Thomas v. State of Kerala, 2000 (1) SCC 672. Rehearing of the petition is sought on the ground that the order dated 30.04.2012 is likely to operate in a wide area; that certain elements integral to the subject are left out and some other aspects are beyond purview of Shariat Act and that as the source of muslim law, relied upon, do not tally with the intent, the order under review is open to misinterpretation. 34. I have gone through the applications and have heard Mr. Z.A. Qureshi, Senior Advocate, at length. 34. I have gone through the applications and have heard Mr. Z.A. Qureshi, Senior Advocate, at length. The applicant in IA No. 468/2012 has of late not appeared, presumably because the averments made overlap the grounds set up in the IA No. 469/2012, all along represented by Mr. Qureshi. I have also heard Ms. Shabnum Lone, Advocate, requested to assist the Court, as the parties in the main petition have gone unrepresented. 35. The threshold argument that the applications on hand may not be maintainable as this Court lacks jurisdiction to review its order passed under Section 561-A Cr.P.C. or for that matter any other matter under Code of Criminal Procedure, does not sound convincing. True that a Court under Code of Criminal Procedure is not clothed with the power to review its orders, yet a distinction is to be made between a Court of ordinary jurisdiction and Court of Record. This Court is a Court of Record, having inherent and plenary powers under Section 94, Constitution of Jammu and Kashmir. The High Court of Jammu and Kashmir, like other High Courts, has unlimited jurisdiction including power to determine its jurisdiction. A Court of Record is one, the Records whereof are admitted to be of evidential value and are not to be questioned when produced before any Court. The High Court, as a Court of Record, is therefore, duty bound to keep its records correctly and in accordance with law. So viewed, if any apparent error is noticed by the High Court in respect of any order passed by it, the High Court is obligated to rectify such error. The power of the High Court, in this regard, is plenary in character and is to be distinguished from the power under the Code. Reference in this regard may be made to Naresh Sridhar Mirajkar v. State of Maharashtra AIR 1967 SC 1 . Reliance on M.V. Elisabeth and M.M. Thomas cases (supra) is also well placed. So viewed, this Court would be acting within its plenary and inherent powers under Section 94, Constitution of Jammu and Kashmir, while examining the case set up in applications on hand. Let us now proceed to deal with the case set up to seek review and rehearing of the matter. So viewed, this Court would be acting within its plenary and inherent powers under Section 94, Constitution of Jammu and Kashmir, while examining the case set up in applications on hand. Let us now proceed to deal with the case set up to seek review and rehearing of the matter. The non-applicant in application under Section 488 Cr.P.C. (petitioner in petition under 561-A Cr.P.C.), as already stated, resisted the application on the ground that as he had divorced applicant No. 1 (pronounced talaq) through a written divorce deed, earlier to the date application was filed, he was not under an obligation to maintain applicant No. 1. The applicant No. 1 denied that non-applicant had divorced her and insisted that she continued to be non-applicant's wife. Learned Magistrate conscious that controversy raised, required him to determine validity of talaq claimed to have been pronounced by the non-applicant, noticed law laid down in AIR 1933 Calcutta 27, AIR 1970 Andhra Pradesh 298, AIR 1939 Allahabad 592, AIR 1936 Lahore 611 and Mst. Fazi v. Ali Mohammad Pandoo [JKJ Soft JKJ/11079]. One of the reported case noticed by learned Trial Magistrate, laid down that a Muslim may divorce wife at his mere whim and caprice without assigning any reason. Be that as it may, learned trial Magistrate, having regard to the evidence on record and case law relied upon, felt persuaded to hold that divorce (talaq) pronounced by non-applicant satisfied requirements of law, ended the marriage between parties and non-applicant was not under an obligation to maintain the applicant. The application was accordingly dismissed to the extent of applicant No. 1. The Revisional Court, again alive to the controversy raised, as regards validity of the divorce, held it not to satisfy the settled legal principles and to be an attempt to escape from the obligations cast on the non-applicant to maintain applicant No. 1. The application was accordingly dismissed to the extent of applicant No. 1. The Revisional Court, again alive to the controversy raised, as regards validity of the divorce, held it not to satisfy the settled legal principles and to be an attempt to escape from the obligations cast on the non-applicant to maintain applicant No. 1. Learned Revisional Court took support from following observation made in one of the reported cases: "The law on Talaq as ordained by Holy Quran is (i) that talaq must be for a reasonable cause and (ii) that must be preceded by an attempt of reconciliation between her husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his." Learned Revisional Court, while holding so, referred in detail to observations made in Yousuf Rawther v. Sowramma AIR 1971 Kerala, Sri Jiauddin Ahmed v. Mrs. Anwara Begum, (1981) 1 GLR 358, Mst. Rukia Khatoon v. Abdul Khalique Laskar (1981) 1 GLR 375, as also law laid down by the Hon'ble Supreme Court in Shamim Ara v. State of U.P. AIR (2002) SC 3551. The question, therefore, all along has been validity of the divorce (talaq), claimed by the petitioner to have been made (pronounced) by him, which in turn would necessarily raise the question as regards ingredients or requirements of talaq under Shariat Law. Viewed thus, there is no substance in the plea that the question framed while dealing with the petition under Section 561-A Cr.P.C. did not arise and was not to be framed and muchless answered. 36. The Jammu and Kashmir Shariat Act, 2007 makes Shariat Law applicable to muslims in the matters of marriage, divorce, adoption, maintenance and inheritance etc. Section 2 of the Act reads as under: "2. Notwithstanding any customs or usages to the contrary, in all questions regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provisions of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lain, khula and mubaraat, dower, guardianship, gifts, trusts and trust properties, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)" The Holy Quran and Hadith are fundamental sources of Shariat Law. Whenever Court is called upon to deal with any of the matters referred to in Section 2 of the Act, the Court is necessarily to turn to Holy Quran and Hadith, to determine the issue raised before it. To illustrate, where a muslim to avoid marital obligations, towards his wife, pleads divorce (talaq) and his claim is contested by wife on the ground that it does not conform to or satisfy requirements of Shariat Law, the Court, seized of the matter to return finding either way, is to go to the fundamental sources of Shariat Law and if necessary to other sources like Ijma, Qiyas and Ijtihaad, that supplement the fundamental sources. Holy Quran, it needs no emphasis, does not only deal with Ibadat, i.e. pure religious matters, but also Mumlat i.e. day to day affairs. It scripts a complete code of conduct for a believer. It lays down principles in minute details as regards Nikah (marriage), dower (mehr), divorce (talaq), khulla, guardianship of minors (hizanat), inheritance (warasat), maintenance and other like matters. It is, therefore, not right to insist that a "Constitutional Court" cannot refer to Holy Quran or Hadith while determining the issue raised. 37. The Courts in India, as elsewhere during last more than a century, have referred to and reproduced verses of Holy Quran and Hadith, wherever necessary in the facts and circumstances of the case, to determine issues raised on the anvil of Shariat Law. To illustrate Hadith reported by Abi Waqas, that forms foundation of restriction on power of testamentary disposition possessed by a Muslim, has been frequently quoted whenever question touching law relating to wills arose before the Court. In Sri. Jiauddin Ahmed v. Mrs. Anwara Begum (1981) 1 GLR 358 where the petitioner, as in present case, disputed any obligation to maintain the respondent (his wife) on the ground that he because of misbehaviour of the respondent, divorced her by pronouncing talaq, duly registered at Qazi's office at Dibrugarh, Baharul Islam J(as His Lordship then was) extensively quoted Holy Quran and Hadith to hold that talaq claimed to have been pronounced by the petitioner did not satisfy the legal requirements and end the marriage between the parties. It would be appropriate, in this regard, to extract following from the judgment:- "6. It would be appropriate, in this regard, to extract following from the judgment:- "6. The first point that falls for consideration is whether there has been a valid talaq of the wife by the petitioner under the Muslim Law. "Talaq" is an Arabic word meaning divorce. It carries the literal significance of "freeing" or "the undergoing of a knot". Talaq means divorce of a woman by her husband. Before the advent of Prophet Muhammad the condition of women in the world particularly in Arabia, was very miserable. For all practical purposes women were the properties or chattel, as it were, of men. A man could marry any number of wives and could divorce any of them at any time at his whims or caprice, Islam realized that for peace and happiness of a family and for protection and beneficial upbringing of children, divorce was undesirable. The Holy Quran put strong restrictions on the divorce of women by their husbands. Though marriage under the Muslim Law is only a civil contract, yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity, that a high degree of sanctity is attached to it. But in spite of the sacredness of the character of the marriage-tie, Islam recognizes the necessity, in exceptional circumstances, of keeping the way open for its dissolution. 7. There has been a good deal of misconception of the institution of "talaq" under the Muslim Law. Both from the Holy Quran and the Hadith it appears that, though divorce was permitted, yet the right could be exercised only under exceptional circumstances. The Holy Prophet is reported to have said: "Never did Allah allow anything more hateful to Him than divorce". According to a report of Ibn 'Umar' he said: "With Allah the most detestable of all things permitted is divorce. 8................... 9. It is, therefore, necessary to refer to the relevant verses of the Holy Quran which is the primary source of the Muslim Law, on the relationship between the husband and wife and divorce of the wife by the husband." The Holy Quran ordains (English translation from A. Yusuf Ali's The Holy Quran): "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. 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. 129. Ye are never able to be fair and-just as between women, even if it is your ardent desire: But turn not away (from a woman) altogether, so as to leave her (as it were) hanging (in the air). If we came to a friendly understanding, and practice self-restraint, God is oft-forgiving, most merciful. 130. But if they disagree (and must part, God will provide abundance for all from his all-reaching bounty: For God is he that caret for all and is wise." The Holy Quran has further ordained: "229. A divorce is only permissible twice: after that, the parties should either hold together or 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. If ye (judge) 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 gives 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 divorce, 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 under it and. 231. when ye divorce women, and they fulfil the term of their ('Iddat'), either take them back on equitable terms or set them free with kindness; but do not take them back to injure them, (or) to take undue advantage; if any one does that, he wrongs his own soul. 231. when ye divorce women, and they fulfil the term of their ('Iddat'), either take them back on equitable terms or set them free with kindness; 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 favors on you, and the fact that he sent down to you the book and wisdom, for your instruction. And fear God, and know that God is well acquainted with all things. 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) most virtue and purity amongst you. And God knows, and ye know not." The learned Judge after making an elaborate reference to Holy Quran and writings of noted commentators, concluded: "13. A perusal of the Holy Quranic verses quoted above and the commentaries thereon by well recognized scholars of great eminence like Muhammad Ali and Yusuf Ali and the pronouncements of great jurists like Ameer Ali and Fyzee completely rule out the observation of Macnaghten that "there is no occasion for any particular cause for divorce, and mere whim is sufficient" and the observation of Batchelor, J. (ILR 30 Bom. 537) that "the whimsical and capricious divorce by the husband is good in law, though bad in theology". These observations have been based on the concept that women wore chattel belonging to men, which the Holy Quran does not brook, Costello, J. in 59 Calcutta 833 has not, with respect, laid down the correct law by talaq. In my view the correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters-one from the wife's family the other from the husband's. If the attempts fail, talaq may be effected. 14. The modern trend of thinking is to put restrictions on the caprice and whim of the husband to give talaq to his wife at any time without giving any reason whatsoever. 14. The modern trend of thinking is to put restrictions on the caprice and whim of the husband to give talaq to his wife at any time without giving any reason whatsoever. This trend is in accordance with the Holy Quranic injunction noticed above, namely, that normally there should be avoidance of divorce, and if the relationship between the husband and the wife becomes strained, two persons-one from each of the parties should be chosen as arbiters who will attempt to effect reconciliation between the husband and the wife; and if that is not possible the talaq may be effected. In other words, an attempt at reconciliation by two relations-one each of the parties, is an essential condition precedent to talaq'." 38. The Division Bench of Gauhati High Court in Must. Rukia Khatun v. Abdul Khalique Laskar (1981) 1 GLR 375 again speaking through Baharul Islam, Chief Justice (as His Lordship then was) reproducing Holy Quranic verse (4:35) and excerpts from the works of Maulana Mohammad Ali, held: "11. In our opinion the correct law of 'talaq' as ordained by Holy Quran is: (i) that 'talaq' must be for a reasonable cause; and (ii) that it must be preceded by an attempt at reconciliation between the husband and wife by two arbiters, one chosen by the wife from her family and the other by the husband from him. If their attempts fail, 'talaq' may be effected. In our opinion the Single Judge has correctly laid down the law in Criminal Revision No. 199/77 (supra), and, with respect the Calcutta High Court in ILR Cal 833 and the Bombay High Court in ILR 30 Bom. 537 have not laid down the correct law." 39. The Kerala High Court earlier in A. Yousuf Rawther v. Sowramma AIR 1971 Kerala 261. V.R. Krishna Iyer J. (as His Lordship then was) after referring in extenso to The Religion of Islam by Dr. Ahmad A. Galwash observed:- "It is a popular fallacy that a Muslim male enjoys under the Holy Quranic law, unbridled authority to liquidate the marriage. The Holy Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him. "If they (namely woman) obey you then do not seek a way against them" (Holy Quran IV:34). The Holy Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him. "If they (namely woman) obey you then do not seek a way against them" (Holy Quran IV:34). Commentators on the Holy Quran 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. However, Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or what the laid down and the same misconception vitiates the law dealing with the wife's right to divorce." Learned Judge, quoting Dr. Galwash, observed: "Marriage being regarded as a civil contract and as such not indissoluble, the Islamic law naturally recognizes 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 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." V. Khalid J. (as His Lordship then was), in Mohammad Haneefa v. Pathummal Beevi (1972) KLT 512, apparently expressing his reservations with the view taken by a Division Bench of Kerala High Court in Pathayi v. Moideen (1968) KLT 763 that a muslim can divorce his wife, whenever he desires, and the divorce (talaq) would be valid even pronounced under compulsion, or in jest, or in anger, observed "I feel it my duty to alert public opinion towards a painful aspect that this case reveals should muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives?............ My judicial conscience is disturbed The question is whether the conscience of the leaders of public opinion of the community will also be disturbed." 40. Should their personal law remain so cruel towards these unfortunate wives?............ My judicial conscience is disturbed The question is whether the conscience of the leaders of public opinion of the community will also be disturbed." 40. Hon'ble Supreme Court in Shamim Ara v. State of U.P. AIR (2002) SC 3551 noticed judgments rendered by various High Courts on the subject including the above mentioned reported case law, and recorded agreement with the view taken and law laid down, observing: "We are in respectful agreement with the above said observations made by the learned Judges of High Courts. We must note that the observations were made 20-30 years before and our country has in recent times marched steps ahead in all walks of life including progressive interpretation of laws which cannot be lost sight of except by compromising with regressive trends." The facts of Shamim Ara's case were identical to the facts of present case. The husband attempted to avoid payment of maintenance to his wife on the ground that she was divorced before she approached the trial Court. The Apex Court observing: "There are no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq". Held that talaq was not pronounced in accordance with law, and the marriage between the parties, was not dissolved. The husband (respondent No. 2) was held to continue to be liable to pay maintenance, till the obligation came to an end in accordance with law. The Court further observed: "We are also of the opinion that the talaq to be effective has to be pronounced. The term 'pronounce' means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in the Court followed by delivery of a copy thereof to the wife." 41. What emerges from the above brief discussion of the case law is that it is permissible and at times necessary, to refer to Holy Quran and Hadith relevant to the subject, whenever an issue is raised before the Court, that is to be decided on the touchstone of the fundamental sources of Muslim law. While there may be no disagreement with the proposition that, the Court should avoid interpretation of Holy Quran or Hadith, as it is to be left to the experts on the subject, yet Courts may extract and reproduce the verses of Holy Quran or Hadith relevant to the controversy raised while recording finding on such controversy. This is exactly what has been done while rendering judgment under review. This Court while recording the judgment, incidentally has reproduced verses of Holy Quran and Hadith as extracted in the above referred judgments, without embarking on interpretation of the verses and Hadith quoted. The plea made in this regard is, therefore, erroneous and mistaken. The above discussion also leads to the conclusion that the judgment under review is based on precedent of Hon'ble Supreme Court and the High Courts, in cases where parties were Muslim, though details of reported case have not been given and citations have not been recorded. This answers the plea that this Court while rendering judgment under review did not follow the precedent. Let us now briefly examine, how divorce law (talaq) of Islam is understood and followed in other countries. Our attention obviously is to go in the first instance to the neighbouring countries. 42. President of Pakistan on 2nd March, 1961 promulgated the Muslim Family Laws Ordinance, 1961 (MFLO 1961, hereafter). Section 7 of the Ordinance needs to be noticed: "7. Let us now briefly examine, how divorce law (talaq) of Islam is understood and followed in other countries. Our attention obviously is to go in the first instance to the neighbouring countries. 42. President of Pakistan on 2nd March, 1961 promulgated the Muslim Family Laws Ordinance, 1961 (MFLO 1961, hereafter). Section 7 of the Ordinance needs to be noticed: "7. Talaq - (1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife. (2) Whoever contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees, or with both. (3) Save as provided in sub-section (5), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice, under sub-section (1) is delivered to the Chairman. (4) Within thirty days of the receipt of notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation. (5) If the wife be pregnant at the time talaq is pronounced talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever be later, ends. (6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section, from re-marrying the same husband, without an intervening marriage with a third period, unless such termination is for the third time so effective." A bare look at Section 7 would reveal that though it does not contemplate pre-talaq conciliation, yet it makes talaq pronounced ineffective for a period of three months. The person pronouncing talaq in any form whatsoever, is to give notice in writing to Chairman Union Council of his having done so, and receipt of the notice is to trigger constitution of Arbitration Council and reconciliation proceedings. The Arbitration Council so constituted, during the waiting period of 90 days, is to make an effort to bring about reconciliation between the parties. The Arbitration Council so constituted, during the waiting period of 90 days, is to make an effort to bring about reconciliation between the parties. The person pronouncing talaq has to send a copy to wife, and period of ninety days is to commence from receipt of such copy. Section 7, by implication rules out triple talaq, in one go or single pronouncement, as triple talaq is not to leave scope for reconciliation and furthermore, the wife even after 'talaq effective' under Section 7, is free to remarry same husband, without an intervening marriage with a third person. Section 7, in effect provides for reconciliation before talaq becomes effective and is to lead to same result as in case of such effort before pronouncing talaq or pre-talaq reconciliation. The question arises as to what would be the effect of failure to give notice in writing to the Chairman on validity of talaq. Supreme Court of Pakistan in Syed Ali Nawaz Gardezi v. Lt. - Col. Muhammad Yusuf, PLD 1963 SC 51, has held that Section 7 "clearly contemplates a machinery of conciliation whereby a husband wishing to divorce his wife unilaterally, may be enabled to think better of it, if the mediation of others can resolve the differences between the spouses. The talaq pronounced is to be ineffective for 90 days from the date on which notice under sub-section (1) of Section 7 is delivered to the Chairman and this period is to be utilized for the attempt at reconciliation, the object of Section 7 is to prevent hasty dissolution of marriages by talaq, pronounced by the husband unilaterally, without an attempt being made to prevent disruption of the matrimonial status. If the husband himself thinks better of the pronouncement of talaq and abstains from giving a notice to the Chairman, he should perhaps be deemed, in view of Section 7, to have revoked the pronouncement and that would be to the advantage of the wife." The principle known as "The Gardezi Rule" though an obiter, has been raised by Courts in Pakistan to the status of a "celebrated ratio". However, in Noor Khan v. Haq Nawaz and Chuhar v. Ghulam Fatima, the effect of "the Gardezi rule" has been neutralized and brought down to the status of a 'rebuttable presumption'. In Mst. Kaneez Fatimah v. Wali Muhammad failure to give notice to Chairman has been held to make talaq, ineffective. However, in Noor Khan v. Haq Nawaz and Chuhar v. Ghulam Fatima, the effect of "the Gardezi rule" has been neutralized and brought down to the status of a 'rebuttable presumption'. In Mst. Kaneez Fatimah v. Wali Muhammad failure to give notice to Chairman has been held to make talaq, ineffective. However, as Kaneez Fatimah was the case of divorce by consent, the principle laid down may not apply to a case where marital status of a woman is questioned by her husband on the ground of pronouncement of talaq, notwithstanding his failure to give notice to the Chairman of the Union Council. In Mst. Farah Naz v. Judge Family Court PLD 2006 SC 457, Supreme Court, has reiterated the principle, though without making reference to Gardezi's rule (supra). The net result is that where a woman's rights arising out of marital status are denied by the husband on the ground of cessation of such relations because of talaq though without notice to Chairman of the Union Council, "The Gardezi Rule" is followed and talaq taken to have been revoked because of failure to issue notice to Chairman of the Union Council. In other words, where failure to issue notice to Chairman of the Union Council, is pleaded by a man to his advantage to deny any right to divorcee arising out of dissolution of marriage, the Courts are slow in allowing the man to draw advantage out of his own failure. Conversely, where a wife pleads that marriage subsists, notwithstanding talaq pronounced by her husband, as he failed to give notice of talaq to Chairman Union Council, the Courts applying "The Gardezi Rule" have held that failure to give notice, amounts to revocation of talaq or at least renders it ineffective. There is logic and rationale in construction placed on Section 7. The person pronouncing talaq, is to get a certificate of dissolution of marriage, from Union Council on expiry of ninety day, after serving notice in terms of Sub-Section 1, Section 7. In case, he does not serve notice, it may well be presumed that he has abandoned his intention to divorce his wife. Section 7 being in the nature of protection to wife against arbitrary and whimsical exercise of power to pronounce talaq, may become irrelevant, where divorcee raises no objection to talaq, and lays a claim for enforcement of rights, in wake of dissolution of marriage. Section 7 being in the nature of protection to wife against arbitrary and whimsical exercise of power to pronounce talaq, may become irrelevant, where divorcee raises no objection to talaq, and lays a claim for enforcement of rights, in wake of dissolution of marriage. To sum up MFLO 1961 provides for reconciliation between the spouses by a statutory body (Arbitration Council) before talaq takes effect. Same is the legal position as regards talaq in Bangladesh, inasmuch as, it has inherited MFLO, 1961, in force before it ceded from Pakistan. 43. Sri Lanka Marriage and Divorce (Muslim) Act, 1951, as amended up to 2006, provides that a husband intending to divorce his wife "shall give notice of his intention to the Qazi" who shall attempt reconciliation between the spouses "with the help of the relatives of the parties and of the elders and other influential Muslims of the area." However, if after thirty days of giving notice to the Qazi, attempts at reconciling the spouses remain fruitless, "the husband, if he desires to proceed with the divorce, shall pronounce the talaq in the presence of the Qazi and two witnesses." In Malaysian states of Sarawak and Federal area of Kuala Lumpur, a husband who desires to divorce his wife has to inform the Court and wife may request the Court to look into the causes of proposed divorce and advise the husband not to proceed with it. However, if the differences are irreconcilable, then the husband may pronounce one divorce before the Court. Tunisian Code of Personal Status, 1956, does not recognize a divorce pronounced outside or by-passing a Court. In terms of Article 32 of the Code, no divorce shall be decreed except after the Court has made an inquiry into the causes of the marital discord and failed to bring about reconciliation. The Algerian Law provides that "divorce may only be established by a [Court] judgment preceded by an attempt at reconciliation by the judge which shall not exceed a period of three months." In Egypt, Sudan, Syria, Morocco, Iraq, Jordan, Afghanistan, Libya, Kuwait, Yemen, United Arab Emirates, Qatar and Bahrain, emphasis is placed on reasonable effort to save marriage, and help the spouses amicably resolve their differences, pick up the threads after temporary discord, afresh and discharge marital obligations towards each other, towards their children, family and society, in accordance with Shariat Law. 44. 44. While dealing with the question of talaq and its requirements under Shariat Law, we cannot afford to lose sight of fallout of separation of husband and wife on immediate family and the society. We are also not to be oblivious to the contemporary realities. The parents, blessed with a child - male, female or both, utilize all their resources to ensure their good upbringing, good education and health care, so that they attain position in the society, dreamt but in most of the cases not realized by the parents. Once they are done with their education, the cause of their utmost concern is marriage of their daughter. Though equally concerned about marriage of their son, his marriage takes the back seat and preference remains of marriage of daughter. Parents make a strenuous' effort to find a good match for their daughter and thereafter mobilize, all their resources to solemnize the marriage. It is a fact of common knowledge that marriage of a daughter because of skyrocketing prices, drains all the family resources. In case, the marriage, afterwards breaks down, spouses fall apart and the divorcee returns to her parental house, it may be immensely difficult if not impossible, for the parents, because of financial and other constraints, to look for another groom for their divorced daughter and organize second marriage. It may be equally difficult for the divorcee to find a match of her choice. The result is disagreements, disappointments, dejection and depression. Things are worse, where divorce takes place after the couple is blessed with children. The family falls apart and children are caught in fight between warring parents. The children become orphan, though both the parents are alive and busy in fight over their custody. They are deprived of love, care and affection crucial for their mental and physical health as also overall upbringing. The marital discord between their parents adversely affects psyche of children and all the stakeholders i.e. husband, wife, children, parents and their close relations live in bitterness for the rest of their lives. This has a negative spill over on the whole society. The family, as pointed out elsewhere, is the building block of the society, and the broken family affects not only lives of family members but all those related or associated with the family - relations and friends. This has a negative spill over on the whole society. The family, as pointed out elsewhere, is the building block of the society, and the broken family affects not only lives of family members but all those related or associated with the family - relations and friends. This helps us to understand as to why Islam lays emphasis on stability of the marriage and ordains to avoid divorce or separation as far as possible. 45. Islam views marriage as an important and sacred union between man and woman that fulfils half of ones spiritual obligations - a relation of affection and mercy, love and respect and above all, an act of Ibadah (worship to Allah). Islam, therefore, is interested in stability of marriage It while acknowledging that small difference and disagreements may crop up between husband and wife, does not approve that such difference and disagreement should be allowed to rock the boat and spoil marriage. Islam does not permit those close to the couple, to watch their inter se dispute from sidelines and play the role of mere spectators. It enjoins upon them to step in and help the parties resolve the dispute, make amends and live a blissful life in accordance with tenets of Shariat. Islam, therefore, while providing for dissolution of marriage, unilaterally by husband by pronouncing talaq or at the instance of wife with the intervention of Court (Qazi) or by mutual agreement, makes it the last option. Islam prefers saving marriage, and a serious effort for reconciliation before talaq is pronounced. How can a muslim do an act, declared as "worst of all permitted things", "most detestable in the sight of Allah" and on which "the throne of Allah shadders" in a casual whimsical, capricious and arbitrary manner. Against the backdrop of above discussion, and the case law on the subject, the view that a Muslim can pronounce talaq at any time, at his whim and caprice without any reason, is not compatible with the spirit of Shariat Law. 46. The view taken by this Court in judgment under review in 561-A No. 158/2009 titled Mohammad Naseem Bhat v. Bilquees Akhter and Another, for the reasons discussed, is in strict conformity with law and does not call for review or rehearing of the matter. 46. The view taken by this Court in judgment under review in 561-A No. 158/2009 titled Mohammad Naseem Bhat v. Bilquees Akhter and Another, for the reasons discussed, is in strict conformity with law and does not call for review or rehearing of the matter. The argument that a Coordinate Bench has taken the view that the Court cannot embark on an exercise to interpret Holy Quran or Hadith is not to change the outcome inasmuch as elsewhere in the judgment agreement is recorded with such view, emphasising that reproducing verses of Holy Quran or Hadith is to be distinguished from interpretation of the quoted verses or Hadith. The power to pronounce talaq, it is reiterated, is not unbridled but subject to the limitations provided under Shariat Law itself. Two of the limitations that talaq, if necessary, is to be pronounced not in a whimsical or arbitrary manner but for a genuine reason and that a serious and sincere effort for reconciliation between the estranged spouses, must precede pronouncement of talaq, are substantive in character, to be proved to successfully resist an action brought by wife to enforce a right based on her claimed marital status, while other two conditions viz. talaq, even where there is a genuine reason and the reconciliation efforts fail, is to be pronounced in presence of two witnesses endued with justice and during the prescribed period (purity) touch the procedure and the last may be proved by mere statement of the person, insisting on divorce and resisting the claim. 47. In the circumstances and for the reasons discussed, both the applications i.e. IA Nos. 468/2012 and 469/2012 are held to be meritless and accordingly, dismissed. Before parting with this judgment, I find it necessary to point to ever increasing instances of marital discord in our society. If the statistics of family matters viz. maintenance, guardianship, restitution of conjugal rights and dissolution of marriage, matters under Criminal Law arising out of aforementioned matters, pending in the Courts and the rate of institution of fresh matters, is any indicator, the problem has assumed alarming proportions and calls for immediate response. The problem because of its extent and gravity must not escape-attention of social planners and "leaders of public opinion of the community" - an expression used by V. Khalid J. in Mohammad Haneefa's case while voicing his concern, about 45 years back. The problem because of its extent and gravity must not escape-attention of social planners and "leaders of public opinion of the community" - an expression used by V. Khalid J. in Mohammad Haneefa's case while voicing his concern, about 45 years back. It is high time that they step in and facilitate constitution of a mechanism at habitation, village and ward level to help the families plagued by marital discord and disharmony, resolve their disputes and disagreements, before things go too far - and situation becomes irretrievable. A sincere effort made well in time is bound to help a broken family reunite and save all the stakeholders from pain and agony, they may suffer, in case the family falls apart and the society from destability. Application Dismissed.