Saba Shafi
In the serene valleys of Kashmir, where snow-capped mountains meet ancient traditions, marriage is a sacred bond, often sealed under Islamic law with Nikkah and Haq Mehar. Yet, when love falters, the path to divorce becomes a confusing maze of emotions, religion, and legal battles. Instead of finding peace, families often end up in courtrooms, caught between Shariah principles and the Indian legal system. This clash creates a drama where no one truly wins—except, perhaps, the lawyers.
Court data paints a stark picture: around 70% of cases in Kashmir’s lower courts are family disputes, with many centered on maintenance claims under Section 125 of the Criminal Procedure Code (CrPC). These cases involve marriages solemnized under Islamic law, yet when they dissolve, couples turn to criminal courts rather than religious frameworks. The result? A legal tug-of-war that can stretch for years, leaving families drained emotionally and financially.
Under Shariah, divorce is straightforward. A wife is entitled to maintenance during the iddat period (about three months) and her Mehar, a financial gift promised by the husband at marriage. As Islamic scholar Dr. Muhammad Iqbal once said, “Islam seeks justice that is swift and compassionate, rooted in faith.” But in practice, things get murky. Section 125 CrPC, designed to prevent destitution, requires husbands to pay monthly maintenance, sometimes indefinitely, even after a Shariah-compliant divorce. This creates a paradox: a marriage rooted in faith is undone by a system that often feels alien to it.
Feminist writer Chimamanda Ngozi Adichie reminds us, “The problem with systems is not that they exist, but that they often fail to see the human behind the rule.” In Kashmir, this failure is evident. Wives, seeking financial security, face years of delayed court hearings, with maintenance payments often too small to cover legal fees. Husbands, whether at fault or not, may feel trapped by ongoing financial demands, sometimes facing jail for non-compliance. And children? They grow up amidst bitterness, caught in a cycle of blame and bureaucracy.
The question arises: if a marriage is solemnized under Shariah, shouldn’t its dissolution follow the same principles? Why do we switch to a criminal lens for disputes rooted in faith? Conversely, civil marriages follow civil laws, and attempting to dissolve them with a simple “Talaq, Talaq, Talaq” wouldn’t hold. This inconsistency creates a legal patchwork that serves neither justice nor compassion. As Indian feminist Kamla Bhasin once wrote, “Justice delayed is justice denied, especially when it tears families apart.”
The emotional toll is heavy. A 2022 study by the Jammu & Kashmir High Court noted that family disputes, including maintenance cases, often take 5–10 years to resolve, with some dragging on for over a decade. Each adjournment—sometimes four a month—adds to the financial and emotional burden. One wife shared, “I just wanted support for my children, but I’ve spent years in court, and I’m still waiting.” Meanwhile, a husband remarked, “I followed Shariah, but the court doesn’t care. I’m paying for a marriage that no longer exists.”
So, what’s the way forward? The answer lies in blending cultural sensitivity with legal clarity. Family courts could include mediation panels with religious scholars to resolve disputes in line with Shariah for those who choose it. Empowering Qazis to handle certain divorce matters with legal recognition could make the process faster and more compassionate. Revisiting Section 125 CrPC is also crucial. Is it truly helping women in Shariah-based marriages, or is it being misused in emotional battles where dignity is lost?
As Gloria Steinem, a global feminist icon, said, “The truth will set you free, but first it will make you uncomfortable.” Facing the flaws in our system is uncomfortable but necessary. Kashmir’s families deserve a process that respects the sanctity of marriage, acknowledges the pain of divorce, and delivers timely justice. Instead of endless courtroom dramas, we need solutions that heal rather than harm.
The current system leaves everyone exhausted—wives chasing elusive justice, husbands burdened by unending obligations, and children caught in the crossfire. Lawyers may profit from the chaos, but families pay the real price. It’s time for a system that listens to both the heart and the law, ensuring no one is left waiting for justice that never arrives. Until then, Kashmir’s courts will remain a stage for a never-ending saga of love and loss.
(Note:Saba Shafi is a vocal trainer and writer who uses her platform to highlight social issues with empathy and insight, advocating for justice and change.)
