..:: Divorce Laws in Pakistan…Interpretation

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Interpreting Divorce Laws in Pakistan: Introduction: Interpreting woman’s access to divorce in present day Islamic family laws is an extremely complex process. Not only because the impact of trans-national and cross-cultural developments in the laws of divorce in Europe problematize Islamic family laws in a new framework but also because Islamic law of divorce itself has reached an impasse with no way out.

Legal interpretation has never been a simple ‘semantic’ pursuit of determining the meaning of a legal text. It operates in a framework of normativity that defines the legal norm with reference to at least the following legal concepts and principles: 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.

Presently, scholars have studied divorce laws from such different perspectives as feminist  (Ziba Mir-Hosseini 1999), psychological (for example, Wallerstein 2000), anthropological  (for example, Mehdi 2001), comparative (e.g., Anwar 2009), and historical (e.g., Kecia Ali 2010). They have shown how these perspectives influence interpretational processes. They find strong patriarchal biases in divorce laws, unhealthy growth of children in divorced families, diverse normativity of divorce practices, and gender discrimination.

In 2008, the Council of Islamic Ideology advised the Government of Pakistan to reform and amend Divorce laws in Pakistan. 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 if they are repugnant to the injunctions of the Qur’an and Sunna. Recommending legislation reforms on women’s right of divorce, the Council referred to the Qur’an 2: 228-9, 231 and 4:35, and to the precedent of Sunna with reference to Thabit b. Qays’s wife. The Council suggested necessary amendment to this effect in the section 7 of the Muslim Family Laws Ordinance 1961.

The Council’s recommendations were opposed by the religious groups as soon as they became public. They termed these recommendations contrary to the Qur’an and Sunna and an interference in the Divine laws. The groups organised rallies and demanded removing the Chairman and immediate reconstitution of the Council.

The controversy triggered a heated debate in the press and electronic media. There was a mixed reaction on Council’s recommendations by the civil society, lawyers and jurists (Naz n.d.). Women’s associations and civil society at large welcomed the recommendations as a relief for women suffering under the present laws. Controversy arose about the way the Council interpreted women’s right of divorce.  There was a cautious reluctance to endorse complete equality between husband and wife in right of divorce. Disregarding the politics of the controversy and its rhetoric, the debate signified once again the ambiguities of the interpretational frameworks and the reluctance to question them.

The Government of Pakistan bowed down to the opposition by the religious and conservative groups and reconstituted the Council. The Ministers of religious affairs, Justice and Parliamentary Affairs denounced the recommendations and promised reconstitution of the Council. Under the pressure of the controversy in the media the government postponed further meetings of the Committees it has constituted to examine the recommendations and issued statements assuring no amendments to the existing laws.

Besides the fact that this episode illustrates the difficulties of democratic governments to introduce legal reforms in Islamic family laws, the debate quite significantly also reveals the weaknesses in the existing frameworks of legal interpretations to deal with women’s right to divorce.  This paper focuses on the question of interpretational framework and analyzes the two interpretational frameworks employed during the recent debates about divorce laws in Pakistan: Common Law framework and Fiqh Law framework.

Common Law Framework

The Common law framework is informed by the common law jurisprudence according to which normativity of law is defined by the constitution, codified law and judicial precedents. 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.

Pakistani courts have been generally sympathetic toward women. However, a benign patriarchal interpretation of the laws prevented the courts to address the discriminatory provisions of the laws. The judges interpreted women’s right of divorce essentially as a judicial dissolution of marriage and have been insisting on investigating the grounds of dissolution to the satisfaction of judge. In this vein, they interpreted Khul’ as a ground for dissolution of marriage.

It was in 1959 that Khul’ was recognised as wife’s right of divorce.  The court came to that conclusion by asking the question:  If a husband and the wife cannot live together in peace and harmony, does Islam allow them to separate or does it force them to con­tinue? 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, 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 Vs. 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,

Muslim Family Laws Ordinance 1961, an outcome of efforts by the women groups, liberal thinkers and Islamic modernists, introduced certain reforms and amendments to the existing Anglo Muhammadan Personal laws, especially with reference to the following matters: inheritance, registration of marriages, polygamous marriages, divorce, maintenance and dower. Regarding divorce, the Ordinance introduced a procedure that required a written notice, a specified period for reconciliation and involvement of arbitration Council. 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 pronounced irrevocable divorce.

Legislated within the Common Law framework, the ordinance addresses some of the issues about divorce. The phrase in Section 8  ‘where any of the parties to a marriage wishes to dissolve the marriage otherwise than by Talaq’ recognises wife as one of the parties and her right to dissolve marriage. This Ordinance suggests a distinction between Talaq and Dissolution although it does not clarify it further.  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 dissolutions other than Talaq, but subjects them to the provisions of sections 7 relating to the procedure for Talaq, the husband’s right of unilateral divorce.

Section 5 of the West Pakistan Family Courts Act, 1964 clarified that Khul’ was to be included among the grounds for dissolution of marriage.  Consequently, the courts interpreted Khul’ as a women’s right to dissolve marriage parallel to Talaq which was considered the exclusive right of the husband (PLD 1967 SC 97). However, gender equality has not been the regulating principle in the common law framework of interpreting divorce laws.

Mst. Khurshid Bibi Vs. Baboo Muhammad Amin (PLD 1967 Supreme Court 97) is a good example of bringing Fiqh into the Common law framework. 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’. The judgment adopted a framework of interpretation that stressed consistency with the letter and spirit of the Qur’an.

This new framework “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 [Khul’] even if the husband disagrees. 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’.

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 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 must the wife pay for her relief must rest with the Court.

Khul’ was recognised as 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. Despite clarifying that Khul’ was comparable with Talaq as right to divorce, a procedural distinction was maintained; while Khul’ was subject to judicial procedure and investigation similar procedure was not required for Talaq.

Family Courts Amendment Act 2002 addressed some of these discriminations (Naz n.d.). The Act distinguished Khul’ from dissolution 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 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’.

As illustrated in Khalid Mahmood Versus Anees Bibi (PLD 2007 Lahore 626), Khul’ came to be distinguished from other dissolution cases after 2002. It is significant to note that in the Khalid Mahmood case, even though the 2002 Ordinance absolved ‘the Court from following normal procedure of trial and to empower it pass a decree, on failure of reconciliation, without framing of issues and recording of evidence’, the court observed that “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 Versus 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 dower if the husband insisted.

Obviously, since Khurshid Bibi 1967 the judicial interpretation has been oscillating between Common law and Fiqh Law frameworks. Judges recognised Khul’ as wife’s right to divorce interpreted Khul’ as dissolution of marriage while insisting on court’s right to investigate women about the causes of divorce ‘to the satisfaction of the court’. It is important to observe that they did not feel obliged to question husbands about the causes of divorce ‘to the satisfaction of the judge’ in Talaq cases.

Analysis

Common Law framework for interpreting divorce laws has been continually changing in accordance with the evolution of divorce laws in Britain.  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. 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).

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 recognising divorce but subjected it to the concept of judicial dissolution.  It took common law system some time to allow rights of divorce provided in Fiqh. Fiqh doctrines were used only to fill the gaps. Largely, English legal concepts and principles such as equity and good conscience overruled such considerations. Khul’ was conveniently simplified as judicial separation allowing judges to investigate the causes of divorce to their satisfaction.   Consequently, Khul’, which in Fiqh law did not require a wife to explain the grounds for divorce, the judges instituted investigation into the causes of divorce.

Not being a comprehensive codification, the Muslim Family Law Ordinance 1961 was essentially legislation for reform in the specific areas of succession, registration of marriages, polygamy, Talaq, dissolution of marriage, maintenance and dower. It introduced amendments to the prevailing Anglo Muhammadan law in family matters, as for instance compiled by F. D. Mulla (1977). It also amended certain provisions in relevant acts, for instance, Child marriage Restraint Act 1929 and Dissolution of Muslim Marriages 1939. Consequently, in substantive judicial practice, details were drawn from Fiqh doctrines and the precedents from Anglo-Mohammedan Law. It is in the nature of such legislation to require continuous reviews by jurists and judiciary and to amend laws accordingly. In order to appreciate such legislative requirement one must keep revisiting the evolution of this framework.

The ordinance and judicial practice of reliance on Fiqh without changing the interpretational framework created further problems.  Judicial precedent does not constitute a source of law or its clarification. The doctrines such as Khul’ and delegated divorce, for instance, had evolved differently in Fiqh; they were not considered judicial dissolution in Fiqh laws. The Common law framework regarded them as judicial divorce. The judicial practice became extremely disadvantageous to women, as not only the petitioner wife had to undergo a painful investigation about the causes of disliking their husbands, but this dissolution also required women compensating the husband.

The Council of Islamic Ideology proposed registration of divorce, definitive procedure for delegated divorce and for distinguishing Khul’ from judicial separation.

Fiqh Law framework

Fiqh Law framework defines normativity in terms of revelation. This framework identifies Fiqh with Shari’a, which is defined as Divine law revealed by Almighty God and preserved in the Qur’an and Sunna.  As revealed law, Shari’a, and hence Fiqh, is final and immutable. Fiqh is informed by the traditional Islamic jurisprudence that requires adherence to a particular school of law. Fiqh is available as a written text.

This framework, therefore, regards Fiqh laws as Shari’a and thus superior to all other laws, which are human and changeable. Consequently, it limits the function of state and judiciary to the implementation of Fiqh, disallowing the state the right to legislate or reform.

Difference in the Fiqh and Common Law frameworks can be best illustrated with reference to the laws of Khul’. The evolution of this form of divorce in Common Law Framework has been discussed above. Contrary to that conception and practice, Fiqh law regards this type of divorce neither a women’s right nor a judicial divorce. It is a form of divorce which is pronounced either with a condition for compensation to the husband or repudiation by the husband with the words of Khul’ or words in the same meaning. It is not necessarily initiated by the wife, nor is it always conditional on compensation. Maliki, Shafi’i, Hanbali jurists regard compensation by the wife as a necessary condition for divorce.  According to the Hanafis, wife’s obligation to pay compensation is subject to her agreement; if she does not agree khul’ would be interpreted as simple repudiation. None among the five schools require Khul’ to be adjudicated in a court (Zuhayli 7: 480-5). The Shi’i jurists discuss this form of divorce as nushuz (expression of disobedience) on the part of wife and in that case husband is entitled to take back everything that he gave to his wife and even more For instance, Al-Shaykh al-Tusi (1388, Vol. 4, pp. 342-4) recognizes nushuz as the cause of Khul’ but clarifies that al-Khul’ may take three forms: one is forbidden the other two are permissible. The forbidden is the case when husband forces his wife to ask him for Khul’. One of the two permissible cases is when husband and wife both agree on Khul’ and fear that they might trespass God’s limits if they continue the marriage. The third case is when the wife alone fears that she might trespass these limits and initiates khul’. In both cases Khul’ is permissible.  However, he also mentions a fourth case when the wife commits fahisha (adultery). In that case the husband is entitled to force her to opt for khul’ and it is permissible for him to ask her to pay an amount equal to proper dower (mahr mithl) or even more. He mentions that this case refers to the Qur’anic verse that other jurists claim as abrogated. He disagrees with their claim. He further explains that Khul’ is valid only if the husband pronounces divorce, although they do not need to go to the court. These discussions in the Shi’i fiqh texts point to the fact that Khul’ was not considered wife’s right of divorce; it depended on husband’s agreement and his pronouncing divorce. [1]

The idea of judicial divorce was not totally alien to Hanafi jurisprudence but it was allowed only on one or two grounds. A Hanafi wife could apply for judicial divorce on other grounds. She was entitled to judicial divorce even when the husband refused to pay her maintenance, hurt her or absented himself without information. During 1920-25 several women declared apostasy and applied to the courts for dissolution of marriage. This situation startled the Muslim community (Masud 1996, 195-6). Mawlana Ashraf Ali Thanawi and others after due deliberation proposed in 1931 amendments in the Hanafi divorce law to allow dissolution of marriage in the courts on a number of grounds recognized in the Maliki school (Thanawi 1931).   These proposals eventually produced Dissolution of Muslim Marriages Act 1939.

It is clear that it is this Fiqh Law framework that informed opposition to women’s right to divorce in 2008 debate, The main arguments by the religious groups appearing in the press and electronic media may be summed up as follows:

1.          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.

2.          There is no clear text in the Qur’an and Hadith providing a wife the right to divorce her husband.

3.          Fiqh allowed Khul’ as a form of divorce that was initiated by wife but was subject to husband’s consent and conditioned by return of dower or property given to the wife by her husband. Khul’ was justified with reference to the Qur’an 2: 229 and a number of Sunna precedents, especially the case of Thabit’s wife.

4.          The Qur’an is clear that men have authority over women (4:34) and the right of divorce belongs only to men as the right to contract marriage belongs to men (2: 237).

An analysis of these arguments is offered in the following section.

Analysis

The basic ambiguity in the Fiqh Law framework is that it does not distinguish between Fiqh and Shari’a and believes that both are divine and equally immutable. It explains the divine origin of Fiqh doctrines because they are based on the interpretations of the Qur’an and Sunna. This ambiguity is essentially caused by the method of Qiyas, analogical reasoning, that assigns the same status to inferences as it does to the sources from which they are deduced. To counter the Tqalid approach in the Fiqh Law framework several further methods of interpretation frameworks have emerged: Maqasid framework that refers to the objectives of Shari’a in addition to the textual interpretation of Shari’a in cases where analogies are not available and critical approaches that revisit the traditions of Tafsir, Hadith and Fiqh with new epistemology and hermeneutics in order to clear ambiguities.

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). The Fiqh framework disregards the social and cultural context in which Fiqh doctrines developed and produced divergent interpretations. The concept of obligatory adherence to one of these schools (Taqlid) further confirms the finality of the school doctrines.

Ambiguities in the method of Qiyas inferring from one verse or part of the verse, it is necessary to study verses in the broader context of all other verses on the subject and the historical context of their revelation. An inductive reasoning on these bases will provide clearer rules. Read together, the verses about dissolution of marriage reveal that dissolution is not unilateral; it is both by the husband and wife. The verses characterize marriage and dissolution in terms of fairness (ma’ruf) and proper 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. 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 the two 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 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, and refusing intimate relations. 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 wife’s reconciliation with the disagreeable conditions. The jurists generally rationalise husband’s ill-treatment or turning away n grounds of wife’s getting old, ugliness, poverty and misconduct and suggest the wife to 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 husband refuses to fulfil his duties.

As mentioned earlier, the jurists interpret the Qur’anic verses within the legal frameworks of their 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.           Wife has 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 requires two witnesses for divorce (65:2).

6.          Husband should not harass, harm or coerce his wife  during the waiting period after divorce (33: 49, 65: 4, 6).

7.          Divorced wives have right to maintenance, alimony, and shelter (2: 241, 65:1, 6).

Historically speaking, the concept of divorce in Pakistani legal thought and culture has a trajectory of several social influences, local, customary and foreign. The conception that only men have the right of divorce is largely 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.

Let us now review the four arguments presented against women’s right to divorce in 2008 debate.

Claim 1: As emotional beings women would misuse the right to divorce. Frequency of fatwas requested by husbands pleading that they had pronounced divorce in a fit of passion and that they wanted to revoke the divorce sufficiently demonstrates the fact that men are more emotional than women in his regard. Further, in a society where divorce is a stigma for a woman she opts for divorce only as a last resort.

Claim 2: There is no clear text supporting women’s right to divorce.

Absence of law does not constitute clear prohibition. Nor does it constitute a bar on legal recognition of the woman’s right to divorce. A woman should not be compelled to suffer an unwanted marriage due to absence of a proper legislation.  The teachings of the Qur’an and Sunna do not condone a forced marriage.

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 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 that they are also available to women is sufficient to question the above assumption.

Claim 3: Khul’ requires husband’s consent.

The Fiqh Law framework derives justification for the doctrine of Khul’ from the following Qur’anic verse:

“…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, then, transgress them: for they who transgress the bounds set by God-it is they, they who are evildoers” (Qur’an 2:229)

This verse, or for that matter, 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’.

An analysis of the social practices in pre-Islamic and Medinese societies reveals that Khul’ was practiced 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 extant that he would offer her divorce for return of dower. Second, the wife initiated it soon after the marriage when she developed aversion against him. 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) 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 husband’s fault and because probably that property was all that he had.

Not only that the unjust elements of that practice were also assimilated into Islamic law. The Qur’an refers to this unjust practice in the following verse:

“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 4:20).

The Fiqh doctrine of Khul’ disregards the Qur’anic aversion against the practice of husband’s reclaiming dower from the wife. The Qur’an is very explicit on this point as it reiterates, “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).

Read carefully, the verse does not make the return of dower obligatory, it allows only in exceptional circumstance and only by mutual agreement. As far as compensation is concerned, the Qur’an subjects it to wife’s voluntary consent, not to husband’s wishes.

The Fiqhi doctrine of Khul’ refers to the report of Thabit b. Qays’s wife who came to the Prophet telling him that she had no complaint against her husband but she does not find him attractive and cannot live with him. Thabit mentioned that he had given to her a garden as a gift. The Prophet asked Thabit’s wife if she agreed to return that garden to her husband. She agreed and the Prophet asked Thabit to divorce her. The episode is reported with some variation in the Hadith collections. The reports mention more than one name of Thabit’s wife. Bukhari does not name her. The Hadith scholars have offered several explanations for these different names. The reports also differ about the complaint; some reports mention beating her. They also differ on the Prophet’s ruling; some report the Prophet separating them, others narrate Prophet asking the husband to divorce her. The jurists interpret these reports according to the doctrines of the schools (Ideology 2008, 43-7).

4.  Claim 4: The Qur’an gave the right of divorce only to the husband.

During the debates, reference was frequently made to the following Qur’anic verse. Argument was based on analogical reasoning: since right to contract marriage belongs to the husband, the right to divorce belongs only to him. 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 be that they forgo their claims or he in whose hand is the marriage tie ( bi yadihi ‘uqdat al-nikah)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” (Qur’an 2: 237).

Since the phrase “ he in whose hand is the marriage tie” (bi yadihi ‘uqdat al-nikah) uses masculine gender form of pronoun, the argument claimed that the right to divorce belongs only to men because the Qur’an confers the authority of marriage contract to them. This inference is questionable. First, the context of the verse refers to the situation when 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 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 the question of interpreting the verse as it was the social practice that informed this interpretation.

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 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.

These examples sufficiently illustrate that divorce law as developed by the jurists is neither Divine nor immutable. These doctrines also confirm 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.

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. Since social customs do not allow a woman 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.

Legal reasoning is informed by interpretational frameworks that a legal system or tradition develops. The paper has described in detail how debates on divorce laws were informed by two frameworks of interpretation.  Family laws intersect on both legal and social norms. The Qur’anic laws introduced reforms in the social practices. The Qur’anic reform introduced changes in the then existing social practices; the unjust practices were reformed and the just practices were allowed to continue. The jurists dealing with these Qur’anic laws were also working within the framework of social norms existing in their times. They also adopted what they considered just and rejected what in their eyes were unjust and harmful to the family life.

Opposition to reform in divorce laws today fails to take into consideration the social changes in contemporary family settings. They do not take into account the suffering of young wives in growing number of forced marriages mostly arranged against their consent.  They disregard 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 adjusting. Unhappy marriages are responsible for the increasing domestic violence in our society, which borders on criminal offences like acid throwing, burning and murder.

Unfortunately, our family system is no longer helpful in addressing the problems of failing marriages. 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 unhappy marriage, i.e., inequality in the rights of divorce. Wife’s right of divorce can be an effective deterrent against the 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 long time ago, but the 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 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 the Qur’an.

By: Muhammad Khalid Masud

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