..::Women’s Right to Divorce in Islam

What I fail to understand   about most writings on the legal rights of Pakistani Muslim women is silence on   the right of divorcing one’s husband. No, I am not referring to Khula. I am   referring to the woman’s right to say to her husband, “I divorce you,” and annul   the marriage in the same manner as a man does. This  right had a precedent in the Hashimite clan, to which the Holy Prophet himself belonged. This   right was given authenticity by Allah afterwards.

And this is a legal right   granted by the government of Pakistan under the Muslim Family Law Ordinance,   1961. The only pre-requisite that ever was, and still is, for the woman to be   eligible for using this power is this: that it needs to be agreed upon by both   parties either at the time of nikah or later at any moment prior to the woman’s   actual exercising of this power. It is sad and surprising that most publications   on women’s rights in Pakistan are silent on this issue. It wasn’t mentioned in   Justice Dr Nasim Hasan Shah’s egalitarian article in this magazine on November   14, 1995. The renowned scholar Maulana Ihtram-ul-Haque has pointed it out in a   recent television broadcast (although he extends the woman’s right only up to   “one talaq”, which is something like a revocable divorce). Keeping in view   society’s general ignorance of this issue, one becomes quite convinced that   there is a need for speaking more about it.

An early evidence of this   right is found in the story of Hashim, the great grandfather of the Prophet   (peace be upon him). It is said that when he met Salma, a successful business   leader of Yathrab (later Madinah) he was so impressed by her virtues and   independent disposition that he proposed to her. She replied that she could   marry him if he agrees to accept that she has the same right of enacting   divorce, as he himself will have. Hashim agreed and they were married. She later   became the mother of Abd al Muttalib, the Beloved Prophet’s   grandfather.

When Islam came to Arabia,   this tradition was given validity by the Muslim law. It was called   Haqq-e-Tafweez or the right to delegate. However, as was likely, the patriarchal   institutions of the later centuries did nothing to encourage it. The law was   left dormant so that it was eventually forgotten by the majority of the   people.

In the Twentieth Century,   Allama Iqbal was perhaps the most enthusiastic advocate of this right. He would   always get it included in the nikahnama of any young people who were under his   influence. The nikahnama he drafted for Dr Taseer and his English wife   Christable George received some publicity in the 1930s because it was very   progressive and included the right of divorce for Christable. (It was this same   draft which was later used to seal the marriage between Christabel’s sister Alys   and a young professor, Faiz Ahmed Faiz.) In his numerous speeches on women’s   issues, Dr Iqbal emphasized the need for the revival of this ancient Muslim law,   usually going as far as to declare, “Marriage according to Muhammadan Law, is a   civil contract. The wife at the time of marriage is at liberty to ask for the   power of divorce delegated to her on stated conditions, and thus secure equality   of divorce with her husbands….. From the inequality of their legal shares (in   the rule of inheritance) it must not be supposed that the rule assumes the   superiority of males over females. Such an assumption is contrary to the spirit   of Islam.”

This extract comes from the   sixth lecture in his much celebrated collection, The Reconstruction of Religious   Thought in Islam (1929).

Again, it is surprising why   this aspect is never brought out by those who write volumes on Iqbal’s thought   and word. Fortunately, the issue was given importance by those who drafted The   Muslim Family Law Ordinance, 1961. Hence, question No. 18 in every Nikahnama   today asks explicitly: “Has the right of divorce been delegated to the woman? If   so, under what conditions?” If you are married, and if you were married after   1961, then you have probably seen this question in your own nikahnama. If not,   just look into it. It is there.

The irony is that most   people do not know about it, and those who do, are often intimidated by others.   In one of the ceremonies I witnessed (and one of the rare ones where the parties   wanted to validate this right), the nikahnama just stopped reading the   nikahnamah after the question about haq mehr, or wager, and asked the parties to   sign. When they told him they would first like him to write “Yes” to question   No. 18, he dropped the papers and tried to dissuade them! This he was doing for   the “future” happiness of the couple because his argument was that this right   will leave a dangerous power in the hands of the woman! Why is the power to   divorce dangerous when it is shared by a woman and not so when held exclusively   by the man, will someone please explain?

Perhaps many people would   try to explain that. But only after they become aware that such a power is   “imaginable” in the first place. When I started speaking about this in my own   circle some time back, I was first answered by discouraging looks as if I have   said something utterly obscene or blasphemous. Some people were shocked, others   disgusted. Then, after some were finally converted to a new belief in the old   tradition, I learnt about the strange kinds of problems they came across.   Different people were coming up to them with their own explanations of why it is   inappropriate to bestow this power on woman. “My father said it might be Islamic   but it is not in accordance with our custom.” “If I give this right to my   would-be wife she will stop showing me any respect.” “My would-be husband is an   understanding person and he is quite willing to concede but he says that his   father will never approve of this.” “My parents think it is improper. What will   other people say?” One should ask these parents how could something become   “improper” for their daughter if it was proper for the wife of their Prophet’s   great-grandfather?

Question No. 18 is in fact   a safety measure, and it should be valued for that. Nobody argues that fire   extinguishers are dangerous because you could be knocked down if someone blows   them in your face!

Lastly, we must remember   that this “right to delegate” is part of the overall Islamic point of view on   the issue of marriage, viz, marriage is essentially a type of contract. Like all   other contracts it can be annulled by the mutual consent of both the parties, or   by either of the parties on the conditions previously laid down in the contract   itself.

For that matter, as long as   the parties do not engage in any activity that is unlawful in its own right   (such as polyandry, divorce during pregnancy and so on), they should be   considered absolutely free to decide upon any terms and conditions that might be   agreeable to both.

By: Khuram Ali Shafique

DAWN Tuesday Review, Apr 23-29, 1996