Interpreting Divorce Laws in Pakistan
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Transcript of Interpreting Divorce Laws in Pakistan
Interpreting Divorce Laws in Pakistan: Debates on Shari’a and Gender Equality in 2008
Muhammad Khalid Masud
Introduction
Interpreting women's access to divorce in present day Islamic family laws is
an extremely complex process. The impact of trans-national and cross-cultural
developments in the laws of divorce in Europe has problematised Islamic family
laws for the Muslim societies in Europe as well as in the Muslim World. Moreover,
Islamic law of divorce itself is a social construct produced by juristic interpretations
[and different local practices?] over? several centuries. Legal interpretation has
never been a simple ‘semantic’ pursuit of determining the meaning of a legal text; it
is a legal ‘construction’ within a legal framework of normativity and justification.
Interpretation is eventually a ‘social construction’ that reflects the social environment
and the social concerns of the time (Masud 2010).
Legal interpretation operates in a framework of normativity that defines the legal
norm with reference to at least the following concepts: source/s of law or validity,
method/principles of legal reasoning/justification, intent/objective of law, legal
change/reform, and system of legislation and adjudication. Over the years, these
elements have undergone divergent political, social and cultural transformations.
1
Therefore, it is imperative to employ interdisciplinary perspectives because recent
studies have shown that legal norms are closely associated with religious and social
norms especially with reference to divorce. Recent studies of divorce laws, employing
feminist (Mir-Hosseini 1999), psychological (for example, Wallerstein 2000),
anthropological (for example, Mehdi 2001), and comparative (e.g., Anwar 2009)
perspectives have respectively shown strong patriarchal biases in divorce laws,
unhealthy growth of children in divorced families, diverse normativity of divorce
practices, and gender discrimination.
It is therefore imperative [different word: necessary? essential? important? crucial?
to study divorce laws from multiple interdisciplinary perspectives in order to properly
understand the process of legal interpretation. In this paper I present an analysis of
varying legal interpretations of divorce laws in Pakistan, especially with reference to
a very significant recent debate on the recommendations for reform of divorce laws
made by the Council of Islamic Ideology in 2008.
The Council of Islamic Ideology is a Constitutional body established in 1962 to
review the existing laws in Pakistan and submit to the Parliament recommendations
for reforms, checking? if they are repugnant to the injunctions of the Qur’an and
Sunna. Reviewing the Family Laws Ordinance 1961, the Council recommended in
2008? the right of divorce to women, proposing definitive procedure for delegated
divorce and for distinguishing Khul’ from judicial separation. These recommendations
triggered a heated debate in the press and electronic media. The Government of
Pakistan bowed to the opposition by the religious and conservative groups and
announced to reconstitute the Council. This is an important example of the difficulties
of legal reforms, but this paper focuses on the question of interpretation. The paper is
divided into three sections: after summarising the Council’s recommendations in the
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first section, the second and third sections offer an analysis of other interpretations of
the divorce laws in Pakistan.
II
Council’s Recommendations
The Muslim Family Laws Ordinance 1961, an outcome of a long struggle by women
groups, liberal thinkers and Islamic modernists, introduced reforms and amendments
to the existing Anglo-Muhammadan personal laws, especially with reference to
inheritance, registration of marriages, polygamous marriages and divorce, also
touching on maintenance and dower. Regarding divorce, the Ordinance introduced a
procedure that seemed to require a written notice, a specified period for reconciliation
and involvement of an Arbitration Council. There needs to be a reference here
somewhere to the Allah Rakha case of 2000, which holds that ‘shall’ in the MFLO
does not mean ‘must’!! See Allah Rakha v. Federation of Pakistan, PLD 2000 FSC 1.
The case appears to be still pending now before the Sharia Bench of the SC, but there
are a number of more recent cases reflecting the confusions over what the law actually
is.
The discussion produced here by Masud explains very well how contested and hotly
debated divorce law continues to be in Pakistan, especially here with regard to the
woman’s right to divorce, which would be covered under section 8 MFLO in analogy
with section 7. What is not said here is that THIS issue, the right of women to throw
out their men, is apparently the key matter that upsets people.
So it links very strongly to khula!
It discouraged the common practice of triple divorce and the requirement of
intermediary marriage for the divorced wife for her return to the husband who
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pronounced irrevocable divorce. The Ordinance (section 8) did not clearly provide
for women’s right of divorce but it referred to ‘where any of the parties to a marriage
wishes to dissolve the marriage otherwise than by Talaq’ recognised wife’s right to
dissolve as one of the parties. It did not mention Khul’ but the judges assumed it to be
included in the types of dissolution. Consequently, a woman seeking Khul’ was not
obliged to return the dower but was also required to explain to the satisfaction of the
court the causes of seeking divorce. It might be helpful to explain here that Pakistani
Muslim women can thus use either section 8 MFLO, or the DMMA of 1939 to obtain
divorce. in recent years I have seen a shift away from the DMMA 1939 and more
cases reported under section 8 MFLO, but unfortunately for men, the cases mostly
give the woman the right to claim that she cannot live with him any more ‘withing
the bounds of Allah’, and that is all a Pakistani woman has to say to get out of a bad
marriage. This is perhaps to be interpreted as a strategy to avoid zina in an Islamic
society, recognising that keeping people together who do not like each other will
create more zina.
Clearly, what is missing here for the reader is the information that this deliberation
is most probably an effort to advise the government/the judges on how to handle the
Allah Rakha appeal that is still pending!
After two years deliberations on the Muslim Family Laws Ordinance 1961, the
Council submitted its recommendations for the review of these laws on 15 November
2008. Among these various recommendations, the Council called for the following
amendment.
It may be legislated that if a wife demands in writing the dissolution of
marriage her husband shall be obliged to divorce his wife within ninety days,
failing which the dissolution will become effective after the completion of the
4
appointed period unless the wife withdraws her demand. The husband will
have no right to return to his wife after that period. If the husband demands
return of gifts or property that he had given to her the wife shall be obliged to
access the court for the settlement or she may return the property except for
dower and maintenance (Ideology 2009, 4).
The Council referred to the Qur’an 2: 228-9, 231 and 4:35, and on the precedent of
Sunna with reference to Thabit b. Qays’s wife. The Council suggested necessary
amendment to this effect in section 7 of the Muslim Family Laws Ordinance 1961.
Given that the law of Pakistan already allows Muslim women to divorce, what is the
real message here of such deliberations? Is this a purposely inflated debate so as to
avoid having to take any immediate action?
According to the procedure the Council submits its recommendation to the Ministry
of Religious Affairs for onward submission to the Parliament. The Constitution
of Pakistan (Article 230) provides that the recommendations should be presented
to the Parliament for discussion within six months after their submission, and
should be enacted within two years. Earlier in 2008, the Government had amended
the procedure to allow the Council to submit its recommendation directly to the
Assembly.
The Council’s above recommendations were [of course] opposed by the religious
groups as soon as they became public. [this confirms what I felt earlier, this remains
a highly politicised debate – but do the Islamists actually want to withdraw the right
for women to demand divorce?] The groups organised rallies and demanded removing
the Chairman and some members of the Council immediately and reconstitution of
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the Council to withdraw the recommendations. They termed these recommendations
contrary to the Qur’an and Sunna and an interference in the Divine laws. [is this
argued because of presumptions that women have no right to seek divorce? If so,
should this not be said here? The Minister of Religious Affairs denounced the
recommendations and promised reconstitution of the Council. The Ministries of
Justice and Parliamentary Affairs who had earlier constituted committees to examine
the recommendations but in view of the controversy in the media postponed the
meetings and issued statements assuring that no legislation contrary to Islamic
teachings would be allowed. [This means again Pakistan is seen to be giving in to the
talebanisation efforts].
Debates
Generally the recommendations were welcomed [yes, but by wohom?] as a relief for
women suffering under the present laws. Controversy arose about the way the Council
interpreted women’s right of divorce. Disregarding the politics of the controversy,
rhetoric of the debate and abusive language used in these debates, the critique of these
recommendations used largely two frameworks of legal interpretation: Shari’a Law
and Common Law. Shari’a law framework defines normativity in religious terms. It
is informed by the traditional Islamic jurisprudence based on adherence to a particular
school of law. Shari’a is Divine law revealed by Almighty God and is preserved in
the Qur’an. It is available as a written text, which is deemed to be? clear, complete,
comprehensive, final and immutable. This framework believes in the supremacy of
Shari’a over all other laws, as the latter are human and changeable. This framework
regards the function of state and judiciary to implement Shari’a, not to legislate it. So
what we have here is the old Coulson problem of 1969, the conflict of ahl al-hadith
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and ahl ar-ra’y.] The Common law framework, on the other hand, is informed by
common law jurisprudence according to which normativity of law is defined by the
constitution, codified law and judicial precedents. = state law is higher than God’s
law, Clear-cut case of conflict then.
III
Shari’a Law Framework
The arguments by the religious groups appearing in the press and electronic media
opposing Council’s recommendations may be summed up as follows:
1. There is no clear text in the Qur’an and Hadith providing a wife the right to
divorce her husband. ok
2. The Qur’an is clear that men have authority over women (4:33) and the right
of divorce belongs only to men as the right to contract marriage belongs to
men (2: 237).ok
3. Women are weak and emotional and that is why Shari’a does not allow them
the right of divorce. Call for women’s right of divorce means promotion of
Western values and culture. ok?
These arguments are a product of Shari’a law framework that regards Shari’a
laws of marriage and divorce as comprehensive and final; no change is allowed.
Any change in these laws amount to interference in Divine law and creation of
alternate Shari’a. The basic ambiguity in the Shari’a law framework is that does not
distinguish between Fiqh and Shari’a and believes that both are divine and equally
immutable. It believes in the divine origin of fiqh doctrines because they are based
on the interpretations of the Qur’an and Sunna. The framework overlooks the social
and cultural context in which these doctrines developed and produced divergent
7
interpretations. Diversity in juristic interpretations (Ikhtilaf al-fuqaha) is a well-
recognised principle in Islamic jurisprudence and a vital ground for the validity of the
schools of law (Masud 2009). It is the concept of obligatory adherence to one of these
schools (taqlid) that leads to the alleged finality of the respective school doctrines. To
counter the taqlid approach in the Shari’a law framework several further approaches
have emerged: Maqasid approaches refer to the objectives of Shari’a in addition
to the textual interpretation of Shari’a in cases where analogies are not available.
Several forms of critical approaches revisit the traditions of Tafsir, Hadith and Fiqh
with new epistemology and hermeneutics in order to clear ambiguities.
Historically speaking, the concept of divorce in Pakistani legal thought and culture
has a trajectory of several social influences, local, customary and foreign. The strong
conception that only men have the right of divorce is largely [can this be more
specific?] a local cultural perception extended to Shari’a. In order to understand
the taqlid approach it is essential to analyse some of the basic assumptions in this
interpretational framework.
Firstly, contrary to the assumption that Shari’a does not allow the right of divorce
to women it is to be noted that even Hanafi Fiqh, the dominant school of Muslim
law (madhab) in Pakistan, recognizes the following rights of divorce for women:
Talaq Tafwid (conferring on the wife the power to repudiate herself), Khiyar bulugh
(option by a minor female to repudiate marriage on attaining puberty), Khiyar ‘ayb
(option to repudiate marriage when she finds physical defect in her husband) and
Mubarat (dissolution of marriage by husband and wife by agreement with mutual
waiving of financial obligations), and Khul’ (right of the wife to redeem herself from
the marriage for a consideration) (Al-Marghinani [1995], 1: 191-3, 236, 261, 264,
274). Some of the above rights are common between husband and wife, but the fact
8
that they are also available to women is sufficient to question the above assumption
that women have absolutely no right to exit from a bad marriage. Further, in 1931
the Hanafi jurists in India made the right of women to dissolution of marriage by
the court, which was not available in the Hanafi School, available through juristic
interpretation and Ijtihad (Thanawi 1931). Is this a reference to the DMMA of 1939,
or earlier moves?
The Hanafi School did not allow dissolution of marriage by the courts even when
the husband refused to pay maintenance, hurt their wives or absented them without
information. [give source?] During 1920-25 several [probably many more?] women
declared apostasy and applied to the courts for dissolution of marriage. This situation
startled the Muslim community. Mawlana Ashraf Ali Thanawi and others after due
deliberation proposed amendments in the Hanafi divorce law to allow dissolution of
marriage in the courts on a number of grounds recognized in the Maliki school. These
proposals eventually produced the Dissolution of Muslim Marriages Act 1939.
These examples sufficiently illustrate that divorce law as developed by the jurists is
neither Divine nor immutable. These doctrines also confirm the existence of textual
evidence in the Qur’an and Sunna in favour of women’s right of divorce, or else
one must admit that these doctrines are not derived from these sources. In fact, as
mentioned above, juristic interpretations take place in a specific framework of legal
and social assumptions. This can be explained with reference to Qur’an 2: 237 which
is often cited to establish man’s exclusive prerogative to divorce.
The verse reads as follows:
And if you divorce them before having touched them, but after having settled
a dower upon them, then [give them] half of what you have settled – unless it
9
be that they forgo their claims or he in whose hand is the marriage tie forgoes
his claim. And to forego what is due to you is more in accord with God-
consciousness. And forget not to act with grace towards one another; verily
God sees all that you do (2: 237)
The phrase “ he in whose hand is the marriage tie” (bi yadihi ‘uqdat al-nikah) uses
the masculine gender form of pronoun. Hence the jurists infer, as the Qur’an confer
the authority of marriage contract on men, that the right to divorce also belongs only
to them. This inference is questionable. First, the context of the verse refers to the
situation when the husband owes a part of the dower to the wife. It is prescribed that
the husband must pay his due unless the wife foregoes her right or the person who
was responsible for tying the marriage contract. How can a husband forego what
he owes to his wife? Furthermore, how can this verse be interpreted to mean that
only men have the authority to dissolve a marriage contract? If the right to dissolve
marriage is restricted only to those who are authorised to marry then why does this
right not belong to women, whom the Qur’an authorises to marry?
Ibn ‘Abbas, ‘Alqama, Hasan, Ta’us, Zuhri, Rabi’ and Maliki and Shi’a jurists argue
that this phrase refers to the marriage guardian who contracted the marriage. A
number of Companions, Successors and Hanbali, Hanafi and Shafi’i jurists maintain
that the verse refers to the husband. The fact that the companions of the Prophet, their
successors and the early jurists remain divided on this point reveals that it was not
as much a question of interpreting the Qur’anic verse as it was the social practice
that informed this interpretation. An analysis of social practices in pre-Islamic and
Medinese societies reveals that khul’ was practis?ed in two types of situations. First,
the husband initiated it when, in order to marry another wife, he wanted to reclaim
the dower he had paid to the present wife. He tormented her to the extent that he
10
would offer her divorce for return of dower. Second, the wife initiated it soon after the
marriage when she developed aversion against the man. In this situation she would
offer to forego the dower due to her or the husband would demand return of dower or
property given to her for marriage (Fawzi 1983, 129-30). The Qur’an disapproved the
first type of practices, forbidding husbands to keep women against their will (2:231
and 4: 19) and recommending husbands not to take back what they have given. In
the second situation, as endorsed by the Sunna in Thabit b. Qays and other cases, the
wife was asked to return the property because the dissolution was not grounded on the
husband’s fault and because probably that property was all that he had.
Secondly, those who argue that the verse refers to the husband are obliged to develop
a very complicated interpretation to shift the meaning of the verse from ‘foregoing
the due’ to ‘pay in addition to what is due’. Accordingly, the verse would mean:
unless wives forego their claim or the husband agrees to pay the full amount of dower
instead of half that is due.
Obviously, the legal framework of their schools regarding marriage guardianship
regulates the jurists’ interpretations; those who disagree on the necessity of marriage
guardianship interpret the verse to mean the husband. Regardless whether it is the
husband or the guardian, the verse mentions the act of foregoing one’s due to the wife
and the guardian/ husband in identical words.
Khul’
Interpreting the following Qur’anic verse the Shari’a law framework of khul’
subjected women’s right of divorce to their return of dower.
“…There shall be no sin upon either of them for what the wife may give up [to
her husband] in order to free herself. These are the bounds set by God; do not,
11
then, transgress them: for they who transgress the bounds set by God-it is they,
they who are evildoers” (2:229).
First, the verse does not make the return of dower obligatory, it allows this only in
exceptional circumstances and by mutual agreement, meaning the wife’s more or less
voluntary offer. Second, the Qur’an does not use the term khul’ but since the Khul’
practice existed in pre-Islamic Arabian society, the verse was conveniently interpreted
to mean khul’. Not only that, the unjust elements of the practice were also assimilated
into Islamic law. The Qur’an refers to this unjust practice as follows: “But if you
desire to give up a wife and to take another in her stead, do not take away anything
of what you have given the first one, however much it may have been. Would you,
perchance, take it away by slandering her and thus committing a manifest sin?”
(Qur’an 4:200). Third, the exclusive citation of this verse for justification of Khul’
disregards the Qur’anic aversion against the practice of husband’s reclaiming dower
from the wife: “And how could you take it away after you have given yourselves to
one another, and she has received a most solemn pledge from you?” (4:21).
, Cited in full, the verse reveals a broader context of Talaq as dissolution of marriage,
both by the husband and the wife. The verse defines marriage and dissolution in terms
of fairness (ma’ruf) and goodly manner (Ihsan) that requires mutual agreement.
A divorce may be [revoked] twice, whereupon the marriage must either be
resumed in fairness or dissolved in a goodly manner. And it is not lawful for
you to take back anything of what you have ever given to your wives unless
both [partners] have cause to fear that they may not be able to keep within the
bounds set by God: hence, if you have cause to fear that the two may not be
able to keep within the bounds set by God, there shall be no sin upon either of
them for what the wife may give up [to her husband] in order to free herself.
12
These are the bounds set by God; do not, then, transgress them: for they who
transgress the bounds set by God-it is they, they who are evildoers (2: 237).
The Qur’an refers to four types of dissolution of marriage. First, if the husband
initiates divorce, he must follow a process of announcement of divorce (talaq)
and waiting period (idda) for reconciliation. The wife has rights of lodging and
maintenance during this period. She must not be harmed. If they fail to reconcile,
then they should part gracefully (2: 231, 236-7, 65: 1, 6,7). The divorce must be
announced in the presence of two witnesses (65:2).
Second, when a breach (shiqaq) develops between the husband and wife and they fear
that they cannot live according to God’s law, the dispute may be settled by the family
members on both sides as arbiters (4: 35). In case of failure, the arbiters can dissolve
the marriage by settling their financial obligations to each other with their mutual
consent (2: 229).
Third, if the wife does not abide by the marriage contract, the husband should adopt
measures for reconciliation, including admonition, refusing intimate relations and
coercion. If these measures fail, then the situation is to be treated as breach (shiqaq)
and family members should try for reconciliation, failing which the marriage may be
dissolved (4: 34-5).
Fourth, if the husband does not abide by the marriage contract and ill-treats her or
turns away from her, then both should try an amicable settlement. The husband has no
right to abandon her. If they cannot reconcile, they can part ways (4: 128-30).
It is significant to note that regarding the third situation, the jurists read verse 34
and 35 separately, not including dissolution. With reference to the fourth situation
the jurists interpret the verse to mean the wife’s reconciliation with disagreeable
13
conditions. The jurists generally rationalise the husband’s ill-treatment or turning
away on grounds of the wife getting old, her ugliness, poverty and misconduct and
suggest that the wife should reconcile with the situation by giving up some of her
rights. Such reconciliation is justified if the wife willingly accepts the situation to
her benefit, but it cannot be rationalised as a general rule. Read with other verses of
the Qur’an, this verse gives the wife in such situations the right of divorce, of course
when the husband refuses to fulfil his duties.
As mentioned earlier, the jurists interpret the Qur’anic verses within the legal
frameworks of their respective schools, which makes their interpretations selective. It
is necessary to read these verses together with others on the subject. A general reading
of the verses about marriage and divorce points to the following basic principles.
1. Women and men are equal before law, even if men have more responsibilities
(2:228).
2. Women cannot be detained against their will in a marriage (4: 19).
3. A wife has the right to divorce when fearing ill-treatment by the husband (4:
128)
4. Husbands cannot revoke divorce for the sake of harm (2: 231).
5. Formal procedure of requiring two witnesses for divorce (65:2).
6. No harassment during the waiting period after divorce (33: 49, 65: 4,6).
7. Divorced wife’s right to maintenance, alimony, and shelter (2: 241, 65:1, 6).
The complexity of the issue of divorce arises from the nature of family laws as they
intersect on both legal and social norms. The Qur’anic laws introduce reforms in the
social practices but still recognize their origins and social norms. The Qur’anic reform
introduces changes in the then existing traditional social practices; the unjust practices
14
are reformed and just practices are continued. This is the process of finetuning and
developing sunna? The jurists dealing with these Qur’anic laws are also working
within the framework of social norms existing in their times. They also adopt what
they consider just and reject what in their eyes is unjust and harmful to family life.
The criticism and violent reaction to the Council’s recommendation was based on
the way Shari’a was interpreted in a particular framework. [this should be more
specific, maybe: a particular traditional framework? Clearly, Muslim tradition itself is
internally diverse]. The following section reviews how women’s right to divorce has
been interpreted in the common law framework.
Common Law Framework
There was predictably? a mixed reaction on the Council recommendations by the civil
society, lawyers and jurists (Naz n.d.). It was generally favourable yet a cautious
reluctance to endorse complete equality between husband and wife in right of divorce
restricted women’s right of divorce to Khul’.
As mentioned above, divorce laws in Pakistan are part of Muslim Family Laws
Ordinance 1961. Should it be mentioned here that the allah Rakha case of 2000 made
it very clear that Pakistan has two types of family law: the laws of Qur’an and sunna,
and the MFLO, coexisting, and thus in conflict, and in a conflict, the traditional lawe
and not the MFLO wins even in Allah Rakha, as long as the interpretation of ‘shall’
in the various sections of the MFLO does not mean ‘must’. If it had meant ‘must’,
the MFLO would have been held un-Islamic!] Not a comprehensive codification, this
Ordinance is essentially [claiming to be?] reform legislation in the specific areas of
succession, registration of marriages, polygamy, talaq, and dissolution of marriage,
[maintenance and dower.] It introduced amendments to the prevailing Anglo
15
Muhammadan law in family matters, as for instance compiled by F. D. Mulla (1977).
It also amended certain provisions in relevant acts, for instance, the Child Marriage
Restraint Act 1929 and the Dissolution of Muslim Marriages 1939. Consequently,
in substantive judicial practice, details were drawn from Fiqh doctrines and the
precedents from Anglo-Mohammedan Law.
Sections 7 and 8 of the Muslim Family Laws 1961, for instance, do not clarify
but suggest a distinction between Talaq and Dissolution. Section 8 mentions
specifically two situations of dissolution: (1) when the husband had delegated the
right of divorce to the wife and she exercises that right, (2) where husband or wife
wishes to dissolve marriage otherwise than by talaq. The section does not clearly
state the various procedures of dissolution other than talaq, but subjects them to the
provisions of sections 7. However, Section 5 of the West Pakistan Family Courts Act,
1964 clarified that khul’ was to be included among the grounds for dissolution of
marriage. The courts treated khul’ as a woman’s right to dissolve marriage parallel
to talaq which was considered the exclusive right of the husband (PLD 1967 SC
97). However, as we have seen above, gender equality has not been the regulating
principle in the common law framework of interpreting divorce laws.
The Family Courts Amendment Act 2002 addressed some of these discriminations
(Naz n.d.). The Act distinguished khul’ from dissolution, the law requiring judges not
to ascertain the grounds for dissolution and expediting the settlement of cases within
a specified period. The Law & Justice Commission of Pakistan vide Report No. 33
(Law and Justice Commission of Pakistan 2005) observed that the Act still treated
khul’ not only as dissolution but also extended it to all cases of dissolution where
reconciliation failed. Consequently return of dower was made obligatory even in cases
16
where the wife had not applied for khul’. The Commission proposed a Bill called the
W. P. Family Court (Amendment) Act, 2005 in order to amend section 10 in the 2002
Act to clarify that the proviso of returning dower would apply only if the wife had
applied for dissolution on ground of khul’.
[should this para come earlier, namely on page 15?] The common law framework was
introduced in South Asia during the colonial administration that subjected Shari’a
to state legislation. Consequently, Anglo Muhammadan Law dealing with marriage
and divorce developed on court precedents, and allowed interpretation of Shari’a
as a religious and customary law. Although Pakistani courts have been generally
sympathetic to women, yet the judges interpreted women’s right of divorce essentially
as a judicial dissolution of marriage and have been insisting on investigation of the
grounds of dissolution to the satisfaction of judge. [Careful, this was modified more
recently, as the judges are now saying that iof a wife dares to go to court and say that
she hates her huband, that is all the court needs to know!]
Most British judges in the nineteenth and twentieth centuries considered Muslim
laws of divorce as bad morality (Agnes 1996, 2834), probably due to their Christian
bias against divorce in that period. [Ah, this is interesting, so here is evidence of
Christian values underpinning the restrictiveness, not traditional Muslim arguments]
As W. Macnaghten (1870) observed, the judges found the Hanafi doctrine of khul’
as women’s right of divorce quite problematic; firstly the Hanafi texts contained
conflicting opinions, including khul’ as a type of divorce by the husband also.
Secondly, the requirement of paying money for getting divorce was not agreeable
to them. The colonial judges interpreted khul’ as a settlement between husband and
wife; payment on the part of wife was interpreted as badl-e-sulh (compensation for
reconciliation. [so here it is the colonial judges who deny Muslim women this right! –
17
can this be made clearer?]
Since 1857 when in England, jurisdiction in family laws, especially regarding divorce,
was shifted from Ecclesiastical courts to a newly established Divorce Court (Geldart
1919, 70), colonial judges in India began adopting English legal concepts and
practices such as equity and good conscience to fill the gaps. Khul’ was conveniently
simplified as judicial separation allowing judges to investigate the causes of divorce
to their satisfaction. [It needs to be said more clearly that this reflects Christian
biases against divorce, no?] Consequently khul’, which in traditional law did not
require a wife to explain the grounds for divorce, now meant that the judges instituted
investigation into the causes of divorce.
The idea of judicial divorce was not totally alien to Hanafi jurisprudence, however,
to which the majority of Indian Muslims adhered, but it was allowed only on one or
two grounds. The Dissolution of Muslim Marriages Act 1939, a legislation initiated
by Muslims themselves (Masud 1996, 195-6) [well, in evident self-interest, and
officially implemented by the British colonial power, of course], adopted several
more grounds for dissolution from Maliki jurisprudence. Although the Act did not
prescribe khul’ as a ground for dissolution, the judicial practice largely assumed it as
one of the grounds. This assumption was discriminatory against women as contrary
to men who could validly divorce without going to the court, the women could not
dissolve marriage without going to the court and furthermore, in case of khul’ she
had to pay compensation to the husband. = Both traditional Christian and traditional
Muslim law had reservations about divorce, by the way traditional hindu law shares
those reservations, too!
Pakistani courts continued to treat khul’ as a [limited?] ground for dissolution of
marriage. It was only in 1959 that khul’ was recognised as the wife’s right of divorce.
18
The court came to that conclusion by asking the question: If a husband and wife
cannot live together in peace and harmony, does Islam allow them to separate or does
it force them to con-tinue? The court interpreted the relevant Qur’anic verse (2: 229)
to imply that khul’ is a judicial dissolution of marriage and the Qur’an authorises the
State or the Court using the words "if you fear"; these words are addressed to the "uli'l
amr" that is, the State, or the Judge. Consequently, the husband’s consent is not
required if the judge is satisfied that there is apprehension of transgression of limits
of God if the marriage continues (Mst. Balqis Fatima v. Najm-ul-Ikram Qureshi, PLD
1959 (WP) Lahore 566). Among other relevant interpretations of the Qur’anic verses
the judgment also referred to equality of rights in divorce between men and women,
Mst. Khurshid Bibi v. Baboo Muhammad Amin (PLD 1967 Supreme Court 97) is a
good example of bringing Common law and Shari’a law framework together. The
court recognised ‘that the fundamental laws of Islam are contained in the Qur'an and
this is, by common consent, the primary source of law for Muslims. Hanafi Muslim
jurisprudence also recognises hadith, Ijtihad and Ijma as the three other secondary
sources of law The last two really fall under a single category of subsidiary reasoning,
Ijtihad being by individual scholars and Ijma being the consensus of scholars who
have resorted to Ijtihad in any one age’ (p. xxx).
The judgment suggested a new method of interpretation: consistency with letter and
spirit of the Qur’an. This method of interpretation “places the husband and the wife
on an equal footing, in respect of rights of one against the other”. The Qur’an read
with Sunna prescribed that ‘the person in authority, including the Qazi, can order
separation by khula even if the husband is not agreeable to that course. Of course the
Qur'anic condition must be satisfied that it is no longer possible for the husband and
the wife to live together in harmony and in conformity with their obligations’ (p. xxx).
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Interpreting talaq and khul’ respectively as husband and wife’s rights of divorce, the
court reiterated that the judge had the jurisdiction to dissolve marriage in khul’ even
if the husband disagreed and added that the wife’s aversion for her husband and harm
and hurt suffered by the wife were sufficient causes for dissolution. Final decision as
to what compensation the wife must pay for her relief must rest with the Court.
Khul’ was recognised as the wife’s right but, nevertheless, the wife had to satisfy
the court that there was no possibility of her living together with her husband. It is
significant to note that continuing with the colonial judicial practice, the courts treated
khul’ as a subject of judicial process, although the 1961 Family Law and 1939 Act did
not specify khul’ in these terms.
As illustrated in Khalid Mahmood v. Anees Bibi (PLD 2007 Lahore 626), the courts’
khul’ came to be distinguished from other dissolution cases after 2002. The point
will be explained later. Presently, it is significant to note that even in the above case,
though the Ordinance absolved ‘the Court from following normal procedure of trial
and to empower it to pass a decree, on failure of reconciliation, without framing of
issues and recording of evidence’ [is quote really necessary here?], the court observed
(p. xxx): ’The power of the Family Court to fix any consideration for dissolution of
marriage cannot be curtailed. The Court can dissolve the marriage on the basis of
Khula even without any compensation, when if finds that khu1a' is being claimed
due to the fault, on the part of husband. In Ikram Ullah Khan v. Maliha Khan (PLD
2007 Lahore 423) the court disagreed with the above interpretation and insisted that
in accordance with the Hanafi authoritative texts, the wife must return the dower if the
husband insisted.
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Obviously the judicial interpretation [after the Allah Rakha case!!!] has been
oscillating between Common law and Shari’a law frameworks, subjecting women’s
right of divorce to the laws of dissolution of marriage, while the courts were not
obliged to investigate the causes of divorce to the satisfaction of the judge in case of
divorce pronounced by the husband.
The courts have been generally sympathetic toward women as there was an imminent
trend since 1960 to refer to Shari’a laws where common law was silent or unfair.
[But why this generosity? The reasoning seems to have changed? If earlier it was
sort of modernist, to allow the wife a right to divorce on equal terms, the more recent
rationale appears to have become a more Islamic one, focused on avoidance of zina.
the effect is the same: Women CAN claim this right). However, a benign patriarchal
interpretation of the laws prevented the courts to address the discriminatory
provisions of the laws. [I would suggest a deepaer analysis, but maybe this comes
below now].
CONCLUSION
A woman’s right of divorce is a very complex issue mainly due to the fact that
religious tradition does not distinguish between Shari’a and customs, and there are
various traditional reservations against allowing women the right to divorce. Since
social customs do not allow [can we be totally sure about that?, so should this not
be: tend not to allow…..?] ] a woman the right of divorce, it is commonly believed
that this prohibition is based on Shari’a injunctions. In fact there is no clear Qur’anic
text forbidding this right to woman. On the contrary, the general trend in the Qur’an,
Sunnah and Fiqh is to treat men and women equally and to urge them both to settle
their disputes amicably with mutual agreement.
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Opposition to reform in divorce laws fails to take into consideration the suffering of
young wives in a growing number of forced marriages, mostly arranged against their
consent. [Forced marriage is an issue also for men in Pakistan, I see a lot of cases of
that!] It disregards also a large number of unhappy marriages in which wives undergo
serious emotional problems and complexes, often due to uneducated husbands of
more educated wives. It causes frictions mostly to the disadvantage of the wives. In
most of these unhappy marriages parents and family members do not really appreciate
the severity of tension between the couple when they advise the young wives to
be patient and to try adjusting. Unhappy marriages are partly? responsible for the
increasing domestic violence in society, which borders on criminal offences like acid
throwing, burning and murder.
Unfortunately, the traditional family system is no longer helpful in addressing the
problems of failing marriages. [one must of course ask whether they ever were?]
Families tend to be either a source or part of the conflict as they insist on traditional
methods of reconciliation, namely, obliging the wife to be patient and obedient.
Patience and obedience may prolong an unhappy marriage but cannot reduce the
sufferings of partners in marriage unless reconciliation addresses the root causes of
unhappiness. Divorce laws often do not recognise the most basic root cause of an
unhappy marriage, i.e., inequality in the rights of divorce. The wife’s right of divorce
can be an effective deterrent against whimsical and irresponsible divorces by the
husbands. This inequality is rooted in the ancient notion that marriage is a sacred
bond, which cannot be dissolved. Islam reformed that taboo a long time ago, but
prevailing social norms still regard it as a stigma. It is only recently that the legal
systems in the world have begun to treat marriage as a civil contract, which could
be terminated when it fails to serve its objectives. Basic rights like owning property
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and voting were allowed to European women as recently as in the twentieth century.
Gender equality is an idea introduced in the world by Human Rights declaration.
In Pakistan, these are the local conservative social prejudices, and foreign legal
constructs that militate against the rights of women given in the Qur’an.
Recent debate on the Council of Islamic Ideology’s recommendations to reform
divorce laws in Pakistan has drawn attention to the lack of gender equality in these
laws (Council 2009). It has also exposed the contradictions in the frequently made
claims about the rights of women in Islam and their equality before law. It is not only
legal but also social norms. Norm is not defined by law only but also by society. [In
other words, there are different types of law here that interact and partly conflict].
A critical analysis of the subject requires a multidisciplinary approach employing
methodologies in the legal and social sciences, jurisprudence, law, Islamic law,
Usul, Fiqh, history, theology, text. Family law is often reformative, not substantive
and complete. As such, family laws both in Muslim and European societies Islamic
legal raise similar, if not the same issues. [That is a rather flat ending! Of course the
problems are the same everywhere – but what are the reservations in Pakistani society
about allowing women to seek and claim divorce? Are they not still a combination of
traditional religious and modern more secular reservatiosn? And what about the state
plciy or policies on this? Would states be happy with loads of people divorcing and
then maybe remarrying, or not marrying at all? So many issues are left open here –
but this article is not about social policy and extent of state intervention, it is about the
presumed conflict of Islamic law and common law and the lack of clarity in current
Pakistani divorce law. Some key points can be made much clearer, I think, but this
is a good article. I do think, though, that the Allah Rakha case is the elephant in the
room that is not even referred to, and I wonder why!
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Works CitedAgnes, Flavia (October 1996) “Economic Rights of Women in Islamic Law.” Economic and Political Weekly 31, no. 41-42: 2832- 2838.
Al-'Ati, 'Abd. (1982) Family Structure in Islam. Lagos: Islamic Publications Bureau,
al-Jassas, Abu Bakr. (1999) Al-Fusul fi 'l Usul. Cairo: Ministry of Awqaf.
al-Khudri, Muhammad. (1981) Tarikh al-Tashri' al-Islami. Beirut: Dar al-Fikr.
Al-Marghinani, Burhan al-Din Abu'l Hasan Ali. Al-Hidaya fi sharh Bidayat al-mubtadi. 2 vols. Beirut: Dar Ihya al-turath al-Arabi, [1995].Anwar, Zainah. (2009) Wanted Equality and Justice in the Muslim Family. Selangore: Musawah.
Fawzi, Ibrahim. (1983) Ahkam al-usra fi'l jahiliyya wa'l-Islam,. second edition. Beirut: Dar al-kalima l'il-nashr.
Ideology, Council of Islamic. (2009) Muslim 'Aili Qawanin Ordinance 1961, Nazr Thani awr Sifarishat. Islamabad: Council of Islamic Ideology, Government of Pakistan.
Judith S. Wallerstein, Julia M. Lewis, Sandra Blakeslee. (2000) The Unexpected Legacy of Divorce. New York: Hyperion.
Law and Justice Commission of Pakistan. Report 73. 2005. www.jicp.gov.pk/Menu%20Items/Publications/...reports/...doc (accessed October 30, 2010).
Macnaghten, W. H. (1870) Principles and Precedents of Moohummudan Law, Aselection of Legal Opinions involving those points, delivered in the Several Courts of judicature. original edition 1870. Lahore, N.d.
Mahmassani, Subhi. (1952) Al-Awda' al-tashri'iyya fi duwal al-'Arabiyya. Beirut.
Mahmood, Tahir. (1972) Family Law reform in the Muslim World. Bombay.
Masud, Muhammad Khalid. (1996) “Apostasy and Judicial Separation in British India.” In Islamic Legal Interpretation: Muftis and their Fatwas, by Messick and Powers Masud, 193-203. Cambridge MA: Harvard University Press.
—. “Gender Equality and the Doctrine of Wilaya. (2010) ” Islamic Family Law Workshop Cairo Oslo, Cairo Jan 2010.Masud, Muhammad Khalid. (2009) “Ikhtilaf al-Fuqaha: Diversity in Fiqh as a Social Construction.” In wanted Equality and Justice in the Muslim family, by Zainah Anwar, 65-93. Selangore: Musawah.
24
Masud, Muhammad Khalid, (2005) Powers, David S., Peters, Rudolph. Dispensing Justice in Islam, Qadis and Their Judgments. Leiden: Brill.
Mehdi, Rubya. (2001) Gender and Property Law in Pakistan, Resources and Discourses. Copenhagen: Jurist -og Økonomforbundets Forlag DJØf Publishing.
Mir-Hosseini, (1999) Ziba. Islam and Gender. Princeton: Princeton University Press.
Mulla, Dinshah Faridunji. (1977) Principles of Mahomedan Law. Pakistan Edition, First edition 1906. Edited by M. A. Mannan. Lahore: Law Publishing Company.
Naz, Rukhshanda, Zia, Maliha. (2010) Muslim Family Laws in Pakistan. http://www.musawah.org/docs/research/country../pakistan.report.pdf (accessed October 30, 2010).
Rushd, Ibn. (1931) Bidayat al-Mujtahid. Cairo: Maktaba Tijariya, N.D. .Thanawi, Ashraf Ali. Al-Hilat al-najiza li'l-halilat al-'ajiza. Deoband: Dar al-Isha'at.
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