HC’s Talaaq Ruling: Justice Kirmani Files Plea for Review

Srinagar, Nov O8: Former High Court judge, Justice (retd) Bashir Ahmad Kirmani, has filed a petition in the Jammu and Kashmir High Court for rehearing the Bilquees case, in which the bench ruled that the practice of ‘arbitrary’ divorce or the power of the husband to pronounce talaaq (divorce) was not absolute or unqualified.

“The case involves the question of interpretation,” Justice Kirmani said after filing the petition on Wednesday. "There can be two opinions when it comes to interpretation but there is a limitation to the interpretation of the Qur’an.”

"The Quran is the principal source of Muslim Law, and the interpretation of any Muslim Law should not contradict with its primary source,” he said.

“The objective of the re-hearing is to put another opinion before the court. Let it decide which one is more appropriate among the two. The methods of interpretation in Muslim Law is itself prescribed by the Qur’an,” he said.

Justice Kirmani said that he will himself be pleading the case before the court.

The former judge, who would be pleading the case himself, has mentioned para 26 and 27 of the HC judgment in his petition, praying for it to be admitted for re-hearing.

The petition has been entertained by the High Court registrar, and the date of hearing would be listed soon, sources said.

“The judgment touches upon some very crucial questions of the Family Law applicable to the vast majority of the population of the state and is likely to operate in a wide area, as such, in its given texture requires a thorough second look,” the petition reads.

“…while determining the certain basic facets of ‘Talaaq’ under Muslim Law, the judgment limits consideration of the subject in fullness, leaving certain elements integral thereto out of its purview, rendering the findings inapt and hence to open to misapplication,” it adds.

The petition has mentioned that the provisions as contained in the judgment do not fully tally with the ‘intent and import thereof, leaving it open to misinterpretation and the sequence, subtext and the background of the material quoted in the judgment is not fully reflected in the narrative forming its core.

Pertinently, the judgment had been delivered in a case in which the wife had initially come up with an application in the trial court seeking maintenance. However, the husband had resisted the application on the grounds that he had divorced her and was not under any obligation to pay maintenance allowance.

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