One significant provision in the distinction between Shia and Sunni law of divorce in India is the requirement of witnesses. While Sunni law requires two male witnesses, Shia law allows for either two male witnesses or one male and two female witnesses. This provision plays a crucial role in the divorce proceedings for Non-Resident Indians (NRIs) who follow either Shia or Sunni law.
The requirement of witnesses in divorce cases is mentioned in various sections of the Muslim Personal Law (Shariat) Application Act, 1937. Section 2 of the Act states that the provisions of Muslim law shall apply to all Muslims in matters relating to succession, marriage, dissolution of marriage, maintenance, and guardianship. Section 3 further clarifies that any custom or usage contrary to Muslim law shall not be applicable unless it is proved that such custom or usage has been continuously observed for a long period.
In the case of divorce, both Shia and Sunni laws require the presence of witnesses to validate the dissolution of marriage. However, there is a difference in the number and gender of witnesses required. According to Sunni law, two male witnesses are necessary to establish the divorce. On the other hand, Shia law allows for either two male witnesses or one male and two female witnesses.
This distinction has been recognized and upheld by various Indian courts through several case laws. One such case is Mohd. Ahmed Khan v. Shah Bano Begum (1985), where the Supreme Court held that under Muslim law, a divorce pronounced by a husband in the absence of his wife without any reasonable cause and without her consent would be invalid. In this case, the court emphasized the importance of consent and proper procedure in divorce proceedings.
Another significant case is Shamim Ara v. State of U.P. (2002), where the Supreme Court reiterated that a divorce pronounced by a husband without proper evidence or witnesses would be invalid under Muslim law. The court emphasized that mere oral pronouncement of divorce without any witnesses would not be sufficient to dissolve the marriage.
The provision of witnesses in divorce cases is particularly relevant to NRIs who follow either Shia or Sunni law. As NRIs often face unique challenges in legal matters, including divorce, the requirement of witnesses provides a standardized procedure for the dissolution of marriage. It ensures that divorces are not arbitrarily pronounced and that proper evidence is presented to establish the validity of the divorce.
Moreover, the provision of allowing two female witnesses in Shia law is significant in promoting gender equality and inclusivity. By recognizing the testimony of two female witnesses as equivalent to that of one male witness, Shia law acknowledges the importance of women’s voices in legal proceedings.
In conclusion, the requirement of witnesses in the distinction between Shia and Sunni law of divorce in India is a significant provision. While Sunni law requires two male witnesses, Shia law allows for either two male witnesses or one male and two female witnesses. This provision ensures that divorces are not arbitrarily pronounced and provides a standardized procedure for NRIs who follow either Shia or Sunni law. It also promotes gender equality by recognizing the testimony of female witnesses.