Retraction by the husband and wife
Sometime one of the parties may change his mind and therefore
refuses to undergo the li’an process even after being requested to do so by the
judge or perhaps a person to who had taken the li’an oath retract his oath.
A retraction is a public statement made about an
earlier statement that withdraws, cancels, refutes, diametrically reverses the
original statement or ceases and desists from publishing the original
statement.[1]
Retraction means the withdrawal of a statement previously made. As already
mentioned, when a wife complains to the qadi, that her husband either to admit
that his charge against his wife was false or to take the prescribed oath.
Retraction by the husband of his accusations
against his wife is not merely a part of the procedure of li’an, but is
the substantive right of the husband who may choose to continue the marital
relationship and suffer punishment for slander rather than let the marriage be
dissolved through li’an. He can exercise retractions as a matter of right. The
right of the husband has also been recognize in a number of cases under the
present law.
The objective of retraction is to give
the husband a chance for repentance before the marriage dissolved. If the
husband realizes the injustice he has done to his wife or if in spite of his
suspicious and accusation in anxious to maintain the marriage, he can retract
his accusation and the marriage shall not be dissolved. But the maintenance of
the marriage is not only object the retraction. What the equally important is
the retraction clears the character of wife. The objective is clear whenever it
was do during the late stage. It means that it not necessary that is should
made at the time of the filling the written statement or vice versa. It can be
made at any time before the qadi made his decision.
Certain conditions must be satisfied
before a retraction be made. They may be summarized as follow:
1)
The husband must admit that he accuse that his wife was made
the adultery
2)
He must clearly and unconditionally admit in unambiguous
language that his accusation was false.
3)
The retraction must be made before the close of the case
4)
The husband must frankly and unconditional admit in a clear
language that the accusation he had made against his wife was false
In this issue the majority of ulama
are the view that if the husband refuses to take lian oath then he should be
liable for the qazaf. This is the opinion of the all jurist except Hanafi. As
allah says in surah An-Nur :
tûïÏ%©!$#ur tbqãBötƒ öNßgy_ºurø—r& óOs9ur `ä3tƒ öNçl°; âä!#y‰pkà HwÎ) öNßgÝ¡àÿRr& äoy‰»ygt±sù óOÏdωtnr& ßìt/ö‘r& ¤Nºy‰»uhx© «!$$Î/ ¼çm¯RÎ) z`ÏJs9 šúüÏ%ω»¢Á9$# ÇÏÈ [2]
6. And for those who launch A
charge against their spouses, And have (in support) No evidence but their own,— Their solitary
evidence (Can be received) if they Bear witness four times (With an oath) by
God That they are solemnly Telling the truth. [3]
But, if the wife doesn’t want to take the lian oath,
she is subject to the zina. this is the opinion from syafie and maliki jurist.
If the husband exposes himself as a liar
due to his refusal to take lian oath, as by withdrawing the charge of zina
after the process he is then subjected to the qazaf. If he subsequently retract
his lie by saying that he had fresh evidence on his wife had commit adultery or
he wishes to not take lian oath, so the excuses or reason cannot be
entertained. This is because the testimony and lian itself is for the
purpose of substantiating his claim. The
above applies to cases where the qazaf is directed against the chaste woman. If
its vice versa, the accused will be subjected to takzir.
THE EFFECT OF IMPLIMENTATION OF LIAN
1)
NATURE OF SEPARATION
The marriage shall be dissolved by qadi’s
order. Its means the said by qadi is an essential condition for the dissolution
of marriage and the marriage. When the qadi orders the separation in case of
the husband denied his child, then the child shall not be considered to be his but shall be to the mother.
The intimacy between the parties becomes
unlawful after they had taken the prescribed oaths. But the marriage shall not
dissolved when one of the parties died before the qadi make the jurisdiction on
it. So the other parties shall get the
inherit from the deceased parties.
As stated in section 50A clause
(1) Islamic Family Law Act (Federal Territories) 1984 Act 303 stated that Where
the parties to a marriage have taken oath by way of li’an according to Hukum
Syarak before a Syariah Judge, upon judgment, the Syariah Judge shall order
them to be farak and be separated and live apart forever. In clause (2) stated
that The Court shall record the divorce by li’an accordingly and send a
certified copy of the record to appropriate Registrar and to the Chief
Registrar for registration.[4]
2)
REMARRIAGE
The separation that takes place in lian
after the qadi decision can be named as talakbainkubra. It is irrevocable
repudiation and puts end to marital relationship and establish the illegality
of sexual intercourse and end of marriage and they cannot remarry again
forever. It means that the marriage is automatically dissolved as soon as the
mutual imprecations have been complete. The wife becomes prohibited to the
husband forever on the dissolution of marriage under the provision of lian, so
he cannot remarry her under any circumstances. This opinion is based on a tradition that the prophet
[pbuh] said :
" المتلاعنين لا يججتمعان أبدا "
The meaning: “the two parties (spouses) who make imprecations can
never be together.
3)
THE LINEAGE OR NASAB
OF THE WALAD LIAN
The shortest of duration of pregnancy is
six month. In the majority cases it is nine months and the longest 4 years[5].
As long as the woman is married to the husband and she gives birth to a child
after six month from marriage, it is definitely the child of the husband.
However, when his wife gives birth to a child after 6 month and he is conform
sure the child it not form his own, then it is allowed for him to denied the
child. As stated from a various hadis.
“ there was a man who imprecated his wife by lian in the period of
the prophet [pbuh]. Then, the prophet dissolved their marriage and gave the
child to the mother.
As we know, the illegitimate child has no relationship of nasab
with the father and there is no wala’ from the father side.
4)
INHERITANCE
The parties retain mutual rights of inheritance and all rights and
duties, as the marriage subsists till it dissolved by the qadi. In case of
walad lian the majority of the schools of law are in agreement to declare that
the child cannot get any inheritance from the husband because there is no nasab
relationship between them and the child can only get inheritance from his
mother. Thus the illegitimate child cannot get any inheritance from the father.
Case
Muhammad Safdar Satti v. Mst. Aasia Khatoon
This appeal of the court is
directed against the judgement date 11.2.1999 of the learned syariat court,
Islamabad passes in criminal revision no. 11/I of 1998, whereby revision filled
by the respondent no 1 was allowed.
2. that appellant and the respondent were married on 21101988 and
use to live as husband and wife. It was in year 1992 their relations become
strained and culminated in talaq. That appellant vide notice dated 04091992
pronounced talak starting inter alia, that respondent had indulged the nefarious
activities and had also had given birth to illegitimate son namely usama
sadfar. Thereafter appellant filed a suit for the first son namely . anees
sadfar claimed to be from his wed-lock
wherein he also affirmed having pronounce talaq to respondent.
Respondent filed a complain under
section 7/11 of the offence of qazaf. (enforcement of had) against appellant
which come up for hearing before the learned additional session judge,
rawalpandhi. Charge under section 7/11 or the ordinance on03101997. Learned
syariah court judge in the impugned judgement has rightly observed that
marriage between appellant and respondent has already been dissolved as such
taking proceeding under section 14 of the ordinance would not be appropriate.
We are fortified from the injuction of holy quran explained supra that while
lodging a charge of zina against wife or husband there must have an exist
relationship of husband and wife in between them.section 14 of the ordinance is
also clear on this aspect of matter.
From what has been discussed above, we are of the considered
opinion that the impugned judgement based on valid and cogent reasons and is
entirely in consonance with the law laid down by this court. Neither they is
any misreading nor non reading of the facts and law. Resultanty, instant
criminal appeal is dismissed being devoid of force. Appeal dismissed.
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