Although the institution of the family is accorded profound importance in Islam, the right to dissolution of marriage is given to both spouses. The Qur’an and Sunnah provide clear guidelines for dissolution of marriage that protect the rights of all stakeholders — the husband, the wife, the children, and society at large

Policy Perspectives, Vlm 4, No.1

Abstract

[Although the institution of the family is accorded profound importance in Islam, the right to dissolution of marriage is given to both spouses. The Qur’an and Sunnah provide clear guidelines for dissolution of marriage that protect the rights of all stakeholders — the husband, the wife, the children, and society at large. These Islamic teachings are, for the most part, the basis of the different family laws in Pakistan, although there are some conflicts and inconsistencies. However, there are certain practices in Pakistan, which are often in blatant violation of Islamic teachings, largely due to public ignorance of Islamic teachings and weak implementation of laws, and partly to weaknesses in the laws. To alleviate the additional suffering that this situation imposes on disintegrating families, the remaining inconsistencies and gaps between Islamic teachings and family laws need to be closed, public awareness needs to be built on a war footing, and the concerned stakeholders, especially legislators, lawyers, the judiciary and ulema, need to be facilitated in understanding one another’s perspective and working together. – Editors]

Marriage is highly revered and extolled in Islam and accorded a detailed treatment both in the Holy Qur’an and the Sunnah of the Prophet Muhammad (pbuh). It is, for instance, called the sign of God,^[1] a way of prophets^[2] and the Sunnah of Muhammad (pbuh).^[3] The Qur’an uses the simile of a garment^[4] to describe the mutually protective and beautifying relationship between spouses, and requires them to be very kind and considerate to each other. It also assigns different roles to each spouse to ensure smooth functioning of the family that emerges as a result of the marriage contract between husband and wife in a prescribed way.

Islam treats marriage as an everlasting institution with specific rights and responsibilities assigned to each partner. A Muslim marriage is a social contract between two independent persons who have attained puberty. Islam introduces checks and balances to protect and secure the rights of all stakeholders in this matter—the husband, the wife, the children, and society at large. It prohibits all forms of extramarital relations, both before and after marriage, treating them as a transgression.[5] Thus, Islam, with its provisions for establishing and maintaining the integrity of the family, is diametrically opposed to the viewpoint that stands for sexual laxity in the garb of “freedom of choice.”

In spite of its emphasis on marriage and its preservation, however, Islam does not rule out dissolution of marriage as a last resort for estranged couples. Describing divorce as the most detestable among the permissible acts,^[6] Islam gives both the partners the right to terminate their marriage contract if they fail to fulfill the primary objectives of marriage.

This article discusses the different ways of dissolution of marriage in the context of Islamic teachings, contemporary practices and prevalent laws in Pakistan. The different forms of marriage dissolution are discussed in detail, comparing the governing Islamic principles with the relevant laws of Pakistan and prevalent practices. This is followed by a discussion of the key issues that crop up immediately after the dissolution of marriage, again, comparing Islamic teachings with relevant laws and actual practices. In the end, recommendations are presented for addressing the key problems.

The Legal and Judicial Framework for Marriage Dissolution

In Pakistan, the establishment and dissolution of marriage takes place under different laws and ordinances promulgated on different occasions by different governments. Lack of awareness regarding the legal framework often creates problems for couples entangled in disputes, forcing them to struggle for their rights. With reference to dissolution of marriage, the following family laws are in practice in the country:[7]

· Guardian-Wards Act (GWA) 1890;

· Child Marriage Restraint Act (CMRA) 1929;

· Dissolution of Muslim Marriage Act (DMMA) 1939;

· Muslim Family Laws Ordinance (MFLO) 1961;

· Muslim Family Law Rules (MFLR) 1961;

· Reconciliation Courts Ordinance (RCO) 1961;

· The West Pakistan Muslim Personal Law, Shariah Application Act (WPMPLSAA) 1962;

· West Pakistan Family Courts Act (WPFCA) 1964;

· West Pakistan Family Courts Rules (WPFCR) 1965; and

· Hadd-e-Qazaf Ordinance (HQO) 1979.[8]

Although most of the articles and clauses of these laws are in conformity with the teachings of Islam, there are certain areas where conflict between them creates difficult situations, particularly for women.

Under Section 5 of the West Pakistan Family Courts Act 1964, the Family Courts have been empowered to deal with cases of dissolution of marriage, including khula (divorce on the wife’s demand), and the allied issues of dower, maintenance, restitution of conjugal rights, custody of children, guardianship, dowry, personal property and belongings of the wife.

Although separate Family Courts have been established, the existing Civil Courts are given additional powers of the Family Courts. Amendment 2002 in WPFCA provides the facility of seeking relief through combining different sections, clauses and articles taken from related laws in a single suit.

Section 6 of the West Pakistan Family Courts Rules 1965 provides that suits for dissolution of marriage or recovery of dower may be filed in a court that has jurisdiction in the area where the litigant wife ordinarily resides. Moreover, according to Section 19 of WPFCR, the court fee for any plaint or appeal is only Rs. 15, as opposed to Rs. 15,000 for ordinary civil suits. These provisions are intended to facilitate plaintiff women.

Marriage Dissolution: A Comparison of Practices, Laws and Islam

Dissolution of marriage in Pakistan takes different forms, including separation without divorce pronouncement; talaq (divorce by the husband); khula; talaq-e-mubarat (mutually negotiated divorce as part of the khula process); talaq by the wife through delegated right of divorce; and dissolution of marriage through court.

Three other forms, which are permissible in Islam but not common in Pakistan, include eila, an oath of abstinence from conjugal relations by the husband; liaan, in which permanent separation is awarded by a court after a man accuses his wife of adultery; and khiyar-al-buloogh, in which either spouse, in a child marriage contracted through the respective guardians, is given the right to repudiate the marriage upon attaining puberty.

The following discussion presents a comparison of prevalent practices, Islamic teachings and laws concerning marriage dissolution in Pakistan.

Separation through Divorce

Divorce is the breaking of the spousal relationship with express or implied words, directly or through representation, by the husband, effective instantaneously or consequentially. As far its effects are concerned, it is of three kinds: 1) Revocable divorce (talaq-i-rajaee), in which the husband pronounces divorce once and at some later stage realizes that he made a mistake and decides to rescind the pronouncement unconditionally and resumes the normal spousal relationship; 2) Irrevocable divorce of minor degree (talaq-i-bain sughra), in which the parties, if they both agree, can re-enter into the marriage contract; 3) Irrevocable divorce of major degree (talaq-i-bain kubra) in which the husband cannot re-enter the marriage contract with his divorced wife unless she, after having married and establishing conjugal relations with her new husband, is divorced for some reason and is willing to re-enter into a marriage contract with her former husband.

Separation without Divorce

There are cases when couples who are separated but not divorced live separately with their respective families, while the formal termination of marriage is withheld. This practice basically stems from the desire to avoid the stigma of divorce or seek escape from spousal torture. It is also considered a symptomatic remedy until better sense prevails and the differences are resolved amicably.

However, in such situations, the woman often has to undergo considerable mental stress and humiliation. Although she is deprived of spousal companionship, she cannot legally enter into a new marriage prior to the termination of the first one. The husband, however, can avail this option. Children in such situations usually suffer unnecessarily, especially if they are residing with the mothers who cannot afford to maintain them adequately or are so distressed that they cannot perform the dual-parent role effectively.

This practice goes against the teachings of Islam, which does not permit the husband to be unjust or selfish.[9] Instead, he is required to either reconcile affably, or divorce her without compromising her honor, dignity and security, or withholding her personal property and belongings.[10] Islam gives concrete rights to women in this regard, unlike the pre-Islamic practices. It even allows a woman to remarry if her husband has gone missing.[11]

The prevalent family laws in Pakistan also do not approve of the unfair nature of separation occurring under any process whether eila or zihar[12]. For instance, Section 2 of the Dissolution of Muslim Marriage Act 1939 facilitates a woman to annul her marriage through providing detailed subtle grounds of contemporary nature in addition to the grounds formally recognized by the Shari’ah. The intent of existing laws clearly favors women towards the annulment of marriage in case they cannot get along with their husbands.

Section 8 of the Muslim Family Laws Ordinance 1961 addresses divorce and allied issues unambiguously. Section 6 declares that contracting a second marriage without the prior permission of the first wife (or earlier wives, if there is more than one) is a crime punishable with imprisonment or fine or both. The same section implies the payment of the entire dower, whether prompt or deferred, to the first wife immediately. The first wife can also claim her maintenance if the husband falls short of fulfilling his responsibilities. In case the wife herself opts to leave her husband’s house without any solid reason, such as cruelty or irresponsible behavior on her husband’s part, she is not entitled to seek maintenance.

It has to be concluded that, notwithstanding the clear provisions of family laws and Islamic teachings, the prevalent practice in the country is unfair and, in some cases, abusive towards women. For most women in such cases, the options are quite limited and they are generally forced to live in very unfavorable conditions, hoping that things may eventually take a positive turn.

Divorce by the Husband – Talaq

Unfortunately, divorce seldom proceeds smoothly. It usually results from an aggressive behavior, mostly caused by a moment of rage, against the manner prescribed by the Qur’an and Sunnah. The pronouncement of three divorces in one breath is a common practice, in addition to abuse and character assassination. Women are generally denied their Islamic right to accommodation and maintenance during the iddah, i.e. the prescribed waiting period before a woman may remarry after divorce.

During the iddah of a revocable divorce, the parents of the divorced wife usually do not let her remain in her husband’s house, ignoring the Qur’anic teachings according to which the couple should remain under the same roof so that there is maximum likelihood of resumption of the marital relationship.

The withholding of dowry and other belongings of the divorcee is also a common practice in society. Custody and maintenance of children are the two most contentious issues between separating couples. Commonly, such matters are taken to the courts.

The common practices are quite contrary to the Islamic teachings. The Qur’anic injunctions related to talaq clearly and forcefully forbid the exploitation of women. They do not allow men to keep women in a constant fix or coercion on the face of obvious incompatibility. The essence of the Qur’anic commandments in this regard can be summed up as follows:

· Men are generally vested with the responsibility of taking care of important matters pertaining to the family, including the dissolution of marriage.[13]

· Divorce should always be a thoroughly deliberated decision and delivered in a period of tohar (i.e. when the menstrual cycle is completely over).[14]

· It should be pronounced in such a way that the iddah is not compromised, as happens through the pronouncement of three verbal divorces in one go, so that the possibility of reconciliation and the provision of rejoining can be utilized.[15]

· The husband has the right to pronounce talaq twice only, with iddah in between, and then either the couple is reunited or separated amicably.[16]

· In the case of revocable divorce, the wife should spend the iddah at her husband’s home,[17] because it might help them reconcile with each other.

· It is obligatory upon the husband to provide maintenance and accommodation for his wife during the iddah.[18]

· It is obligatory upon the husband to provide maintenance for a pregnant or breastfeeding divorcee, until the pregnancy or breastfeeding is over, both in the case of revocable and irrevocable divorces.[19]

Based on the Qur’anic teachings, the Prophet Muhammad (pbuh) explained the procedure and mode of divorce clearly. In the light of these guidelines, Muslim jurists set out the detailed rules for all matters related to divorce. The key points relevant to this discussion are outlined below:

· Any talaq given for the period during which the husband can revert back to his wife is called talaq-e-rujaee (revocable divorce). After the first or second pronouncement of divorce, even if the iddah period is completed, the husband, prior to the pronouncement of the third divorce, has the option of taking his wife back by re-solemnization, with her consent. This type of divorce is called talaq-e-bain sughra. The third pronouncement makes divorce final and irrevocable — it is then called talaq-e-bain kubra or mughallaza (the third, irrevocable divorce). The third divorce means that the couple can never rejoin, unless the extraordinary condition of halala is fulfilled.

· Halala is the situation where a divorced woman marries another man in a regular manner with the solemn intention of living with him, but again unfortunately separates from him due to his death or divorce. She is then allowed under Islamic law to remarry her former husband, if she so wishes.[20] Notably, the ugly custom of preplanned halala, in which the former husband manipulates someone to marry his former wife and then divorce her immediately without even consummation for enabling him to remarry the woman, is a mockery of the divine law and is cursed by the Prophet Muhammad (pbuh).[21] The Caliph Omar and Abdullah bin Omar regarded such marriages as adultery.[22]

· The Sunnah also permits a second form of divorce, which jurists call talaq-e-hasan (proper form of divorce). In this, divorce is pronounced three times, with a gap of one tohar period of the wife between each pronouncement,[24] so that each party has ample time for reviewing its standpoint regarding the dispute. Again, the husband has the absolute right of ruju until the divorce becomes final.

· The practice of pronouncing three divorces at the same time is against the Sunnah and has been termed as talaq-e-bidah (the innovated divorce) by Muslim jurists. However, two opinions prevail among Muslim jurists regarding the effect of this practice. One group considers such a pronouncement as one divorce, while the other takes it as three divorces and declares the outcome to be the final talaq-e-mughallaza.[25] Notably, it is unanimously agreed that such divorce is against Sunnah and highly disliked. Once the Prophet Muhammad (pbuh) was informed that a man had pronounced a ‘triple divorce’ to his wife. The Prophet rose in anger and exclaimed, “Is the book of Allah being played with while I am still present among you?”[26]

· The wife has the right to take all her belongings with her, including the things given to her by her husband.[28]

· God-fearing men are asked to give muta-e-talaq (a monetary parting gift) to their ex-wives on such occasions, which is in keeping with their own financial status.[29]

· The iddah is different for women who are pregnant, not pregnant and above the reproductive age. For women in the last two categories, it is three months.[30] However, for pregnant women, the iddah continues until the birth of the child.[31] There is no waiting period for a woman who had no conjugal relations with her husband.[32] The iddah after khula is one menstrual cycle, as described by the Prophet Muhammad (pbuh) and practiced by his companions.[33]

· In case of separation based on any type of dissolution of marriage, the mother has the right to custody of the children[34] while the father is obliged to provide financial support for the children.[35]

· Mudslinging and character assassination is strictly forbidden for the parting couples.[36]

Divorce cases taken to the courts are settled under Section 7 of MFLO 1961. The detail of this procedure is as follows:

· The original divorce deed is required to be filed along with the suit.

· The notices of divorce along with photocopies of the divorce deed are to be submitted by the husband to the Chairman Arbitration Council (CAC)/Nazim Union Council (NUC)[37] soon after the pronouncement of the divorce.

· Within 30 days of receiving the divorce notice, the CAC constitutes an Arbitration Council (AC) to facilitate reconciliation between the parties, taking all necessary steps in this regard. Section 2 (a) of MFLO specifies that the CAC and a representative each of the husband and wife constitute the AC.

· Ninety days after the divorce notice is delivered to the CAC, the talaq becomes effective if it has not been revoked during the period.

· If at the time divorce is pronounced, the wife is pregnant, the divorce does not become effective until the baby is born or the 90-day period ends, whichever occurs later.

· Upon the expiry of 90 days, a copy of the decision of the AC, i.e. reconciliation or divorce, duly attested by the CAC, is furnished to each party.

· Failure to provide a notice of divorce to the CAC is punishable by imprisonment for a maximum period of one year or with a fine of up to Rs. 5,000.

· In most parts of the country, a complaint against the husband’s failure to provide the divorce notice can only be filed by the CAC. However, in the province of Punjab, the law has been amended to enable the wife to also file such a complaint.

Many clauses of Section 7 of MFLO are contrary to the teachings of Islam, which creates confusions and exacerbates problems. The following are among the most significant issues:

· After an irrevocable divorce is pronounced, there is no room for reconciliation in Islam; divorce becomes effective forthwith. However, MFLO makes no distinction between revocable and irrevocable divorces.

· MFLO accepts the validity of a divorce only if the concerned CAC is properly notified of the occurrence of divorce, following which he issues divorce certificates to the divorcees. On the contrary, the Islamic law holds that the divorce is effective the moment it is pronounced, whether it revocable or irrevocable.[38] The Shari’ah Appellate Bench of the Supreme Court (SABSC) of Pakistan, in one of its decisions, has upheld this Islamic principle, and it is being used as a precedent.[39]

· Furthermore, the Ordinance does not accept the divorce as effective until the stipulated 90-day period following notification to the CAC has expired. However, in the Islamic law, the iddah is not same in all situations. For instance, as mentioned above, there is no iddah for a divorced woman who has had no conjugal relations with her husband.[40] The Ordinance, however, debars her from a second marriage until the expiry of 90 days. Furthermore, it allows and advises reconciliation through the Arbitration Council and allows the husband to take her back without nikah (formal marital contract), whereas the Islamic law requires re-solemnization through a fresh nikah.[41] Likewise, for an expecting mother, the delivery of the child ends the iddah period, be it a few days or many months. According to the Ordinance, however, she must observe a waiting period of 90 days, even if the child is delivered earlier.

· According to MFLO, the iddah commences from the day the CAC receives notice of divorce. Yet, ironically, there is no time limit set for the husband to give this notice to the CAC. The words used in the relevant section are “as soon as possible,” and this loophole enables the divorcing person to play tricks and prolong the iddah, and thereby the agony of the divorcee, if he so wishes.

Prevalent practices are frequently in blatant violation of Islamic teachings, especially where the laws are weak or ineffective. Thus, the abhorrent practice of triple divorce pronouncements is common. Husbands fail to notify the CAC about their divorces leaving their wives in limbo, with no option of remarriage unless they are ready to face possible charges of adultery. As discussed later in this section, dissolution of marriage, including divorce, is frequently burdened with issues of maintenance rights and custody of children, creating a host of problems for the concerned parties and leading to acrimony, mudslinging and sometimes even blood feuds.

Divorce at the Wife’s Demand – Khula and Talaq-e-Mubarat

Khula is a process through which a woman can dissolve the marriage by surrendering certain rights given to her, such as dower (jewelry, ornaments and any fixed amount given or to be given by the husband), dowry (gifts brought by the bride at the time of marriage) and bari (the gift given by the groom to the bride on the occasion of marriage), etc. In no event is she required to pay from her own pocket to secure her freedom from a non-functional marriage. It is also widely believed that it can be obtained only through court since out-of-court khula settlements are not so common.

With not much to her name legally, the average Pakistani woman normally has to surrender jewelry gifted to her by her husband in cases of khula. There are also cases when she is pressurized to surrender the rights to the tangible items or property given to her by her own parents.

There is a widespread misconception that, in Islam, men alone are empowered with the right to dissolve their marriages. In reality, Islam also gives the woman the right to dissolve her marriage, through an agreement between herself and her husband, which may take the form of either khula or talaq-e-mubarat. In khula, the wife dissolves the marriage by paying for dissolution or surrendering certain rights.[42] In talaq-e-mubarat, both spouses are desirous of separation and reach a mutual settlement that makes this possible.[43] This divinely granted right of khula is stated in the Qur’an as follows:

“If you (the judge) do indeed fear that they would be unable to keep the limit ordained by Allah, there is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah, so do not transgress them.”[44]

There is a consensus among jurists that it is unjust[45] for a husband to receive some kind of payment from his wife if he has been the oppressor. However, if a woman is the guilty party and seeks divorce, the husband can receive something from her the worth of which should not be more than what he had given to her or was supposed to give her as the dower.[46]

The effect of dissolution of marriage through khula is similar to talaq-e-bain: the two cannot rejoin each other without a remarriage through a new matrimonial contract.[47] Jurists of all four major schools in the Muslim world hold that khula can be decided at bilateral level; however, some hold that it can only be obtained through a competent court.[48]

Using the right of khula without reasonable grounds is disapproved of in Islam: according to a saying of the Prophet Muhammad (pbuh), such women will not be able to get even the fragrance of Jannah (paradise).[49]

The family laws of Pakistan are very clear about khula, and it is dealt with under Section 8 of the MFLO. Khula comes into effect by an offer from the wife to compensate the husband to release her from marital responsibilities. With mutual consent, she can be released through talaq-e-mubarat.[50] In the light of a judgment of the court, the production of evidence by a woman is not necessary to establish that she cannot live with her husband anymore.[51]

Notwithstanding these rights and laws, the right of khula is seldom exercised by a woman out of court and in many cases she has to surrender, not only the dower given to her by her husband, but also the belongings and property gifted to her by her own parents to avoid lengthy litigation and character assassination, even where her husband has been an oppressor.

Dissolution of Marriage through Court

In Pakistani society, a woman normally does not seek separation from her husband and goes to every possible extent to resolve her differences with her husband within the family. In extreme cases, she may seek to terminate her marriage through the intervention of elders or close relatives. She approaches a court for dissolution of marriage only when her matrimonial life is filled with unbearable troubles but the husband is not willing to free her from wedlock. Recently, however, there has been a noticeable increase in the number of cases reaching courts, which is attributed to the enforcement of the decision by courts to resolve each family case within a period of six months.

Muslim jurists believe that, under certain circumstances, a judge can terminate a marriage even without the consent of a husband, for instance, if the husband has gone missing, lost his sanity, or is impotent, or even if he fails to provide maintenance. Similarly, if the husband is unwilling to fulfill marital obligations, the court can intervene and, despite his unwillingness, separate him from his wife.[52] The effect of dissolution of marriage through court is similar to talaq-e-bain, i.e. the two may rejoin through remarriage.

Section 2 of the Dissolution of Muslim Marriage Act 1939 provides a woman the right to terminate her marriage if her husband:

· is missing,

· has failed to provide maintenance,

· is sentenced to imprisonment for seven years,

· has failed to perform marital obligations,

· is impotent,

· is insane,

· is suffering from leprosy or venereal disease,

· is cruel,

· is associated with women of evil repute,

· attempts to force her to lead an immoral life,

· dispossesses her of her property, or

· obstructs her from practicing religion.

She can also dissolve her marriage if it was arranged before she reached the age of puberty, whether with consent or without her consent, solely by declaring that she has now become an adult and does not recognize the marriage. (This right is discussed further below in the discussion of khiyar-al-buloogh.)

It needs to be underlined that both Islam and the laws of the land allow a woman to approach the judiciary for the dissolution of her marriage. In reality, however, the stumbling blocks are so many and so insurmountable that only a small portion of suffering women dare to seek relief and justice through courts. Society’s overall disapproval, lengthy litigation processes, high costs, lack of support from parents, and mental and physical stress are some of the difficulties that keep most suffering women away from the courts.

Delegation of the Right of Divorce to Women – Haq-e-Tafweez-e-Talaq

Haq-e-Tafweez-e-Talaq is another option for dissolution of marriage under which a woman is granted the right to annul her marriage. A broad consensus exists among Muslim jurists that Islam gives a woman the right to seek this power from her husband, and it can be delegated by him to her both verbally as well as in writing, at the occasion of marriage solemnization or afterwards, with different forms and conditions.[53] If she has this right, she can divorce herself and dissolve the marriage. Once this right is delegated, it cannot be repudiated. The husband’s right of divorce remains intact even after he delegates it to his wife.

MFLO also acknowledges this right. Accordingly, in Column 18 of the current nikahnama (standard marriage contract form), the husband may delegate the power of divorce to his wife with conditions arrived at by the parties. In the event that the wife subsequently exercises this right, she is required to send the divorce notice to the Chairman of the Arbitration Council, who issues a divorce certificate if reconciliation efforts from the platform of the Arbitration Council fail.

This option is rarely availed by women in Pakistani society, mostly because of ignorance about this provision in the nikahnama. The parents of a bride also do not seek this right for their daughter considering it a bad omen for the beginning of her marital life. Although the option is there on the official nikahnama, people normally cross it out, often without even consulting the bride. Notably, however, in the literate class in urban areas in general and in the aristocracy in particular, an increasing number of women are seeking this right, especially on the occasion of marriage.

In sum, though there is no religious or legal dispute on this issue, owing to lack of awareness and superstitious thinking, few women avail this option while men normally do not support it.

Dissolution of Marriage after Charges of Adultery – Liaan

Liaan, though rare, is another procedure of dissolving marriage. When a husband levels adultery charges against his wife but is unable to produce four witnesses to prove his claim. In such cases, he may either accept that his allegation was false and face the punishment for committing qazaf—in which 80 stripes are inflicted on him for a false allegation of zina (a