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Judicial Divorce

Judicial divorce means the dissolution of marriage by a judge and not by the husband. In a large number of countries only a court is competent to effect divorce and to dissolve marriage. According to this system, every divorce is a judicial divorce. We have already made it clear that, in view of the spirit of marriage, the aim of the formation of a family and the position held by woman in the family, a divorce, which runs its normal course, cannot depend upon the decision of a judge.

Now we would like to see whether, from the Islamic point of view, a judge has no power to effect a divorce or there are any circumstances, howsoever exceptional, in which he can do so.

Divorce is the natural right of the husband, provided his relation with his wife run their normal course. Normally, if he wants to live with her, he should look after her, discharge all the rights belonging to her and treat her kindly. If he finds it impossible to live with her smoothly, he should pay up all her dues and part with her. Besides her dues, he is also required to pay her an additional sum as a token of goodwill and gratitude. The Holy Qur'an says: "Provide for them, the rich according to his means, and the strained according to his means, a fair provision', (Surah al-Baqarah, 2 : 236)

But there may be cases when the conjugal life does not run its normal course. There may be a man who neither wants to live happily with his wife nor would he agree to divorce her.

Natural divorce may be compared to a natural child-birth, which automatically takes its normal course. But the divorce by a man, who is not willing to discharge his duty and does not agree to divorce, of his own accord, is comparable to an abnormal delivery which requires a caesarean operation by a surgeon.

Adapted from the book: "Woman and Her Rights" by: "Shahid Murtaza Mutahhari

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