By: Mian Muhibullah Kakakhel
Senior Advocate, Supreme Court of Pakistan
It is well settled that marriage amongst Muslims is not a sacrament, but in the nature of a civil contract. Such a contract undoubtedly has spiritual and moral overtones and undertones but legally, in essence, it remains a contract between the parties which can be the subject of dissolution for good cause.
Matrimonial laws being the product of civilization of mankind are of paramount importance both to society and the individual. Equally important is the need to know the rules governing the legal wedlock called marriage. It is well settled that marriage amongst Muslims is not a sacrament, but in the nature of a civil contract. Such a contract undoubtedly has spiritual and moral overtones and undertones but legally, in essence, it remains a contract between the parties which can be the subject of dissolution for good cause. In this respect, Islam, the dinul-fitrat, conforms to the dictates of the human nature and does not prescribe the binding together of man and a woman to what has been described as a holy wedlock.
As a result of the report of the Commission of Marriage and Family laws published in the Gazette of Pakistan, extraordinary, dated 20-06-1959, Muslims Family Laws Ordinance 1961 was promulgated, the policy of which seems to be to provide some curbs on too facile pronouncements of divorce and unnecessary or unjustified plural marriages.
Under the West Pakistan Family Courts Act, 1964, Family Courts were established and were conferred with exclusive jurisdiction for expeditious settlement and disposal of disputes relating to marriage and other family affairs connected therewith. These Family Courts have also been conferred with the powers of magistrate first class for the purposes of awarding maintenance to a wife due to her husband. These courts are legally bound to adjudicate upon, as quickly and urgently as possible, the matters relating to the dissolution of marriage, dower, maintenance of wives and children, restitution of conjugal rights, custody of children, guardianship and the jactitation of marriages.
A wife who unluckily could not find herself to be in a peaceful wedlock with her husband and is desirous of getting a divorce has a statutory right to get divorce as the law does not believe in hateful unions although it does not admit impediments in the marriage of true minds. However, in our society it becomes extremely difficult for a wife to ask for her pronounced, guaranteed and statutory rights. Besides being a male-oriented and male-dominated society she is psychologically debarred from having access to the statutes enumerating and ensuring the right of getting divorce under certain eventualities. Section 2 of the Dissolution of Muslim Marriages Act permits divorce on any one or more of the following grounds viz:
(i) That the whereabouts of the husband have not been known for a period of four years;
(ii) That the husband has neglected or has failed to provide for her maintenance for a period of two year;
(iii) That the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961;
(iv) That the husband has been sentenced to imprisonment for a period of seven years or upwards;
(v) That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
(vi) That the husband was impotent at the time of the marriage and continues to be so;
(vii) That the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
(viii) That she having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years; provided that the marriage has not been consummated;
(ix) That the husband treats her with cruelty, that is to say;
a. Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment; or
b. Associates with women of evil repute or leads an infamous life; or
c. Attempts to force her to lead an immoral life; or
d. Disposes of her property or prevents her exercising her legal rights over it; or
e. Obstructs her in the observance of her religious profession or practice; or
f. If he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.
On the other hand hasty divorces have been controlled by Section 7 of Muslim Family Laws which says that:
1. Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.
2. Whoever contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand, rupees or with both.
3. Save as provided in sub-section (5) talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the chairman.
4. Within thirty days of the receipt of notice under sub-section (1), the chairman shall constitute an arbitration council for the purpose of bringing about a reconciliation between the parties, and the arbitration council shall take all steps necessary to bring about such reconciliation.
5. If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) of the pregnancy, whichever later, ends.
6. Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from re-marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.
To the same end Section 6 of the same ordinance enunciates that a man contracting another marriage during the life time of his first wife without her consent shall be punishable with imprisonment for one year of fine up to Rs. 5,000/- should the first wife lodge a complaint feeling aggrieved of the second marriage of the husband. Moreover, the husband will also be bound to pay the entire amount of dower to his wife in such an eventuality. This section of law permits a wife to remarry her husband after pronouncement of talaq by him without an intervening marriage.
The law recognizes the right of a wife to repudiate her marriage on attaining puberty if she was married by her parents on guardians when she was a minor. This right in Islam is called khayar-i-baloogh.
The wife also has a statutory right to get the marriage dissolved on the grounds of Khula if she cannot live with the husband she does not like. The word khula literally means to put off as a man is said to khula his garment when he puts it off. Khula therefore means the putting of or doffing of the clock of marriage. There are two classes of khula.
(i) By mutual agreement;
(ii) By order of the court Qazi and dissolution of marriage taking place by the husbands pronouncing talaq in the first class of cases and by the order of the Qazi or the court in the second class of cases.
The Quran( Holy Book of Muslims) declares Women have rights against men similar to those them.
According to well-known rules of equity it should therefore be surprising if the Quran did not provide for the separation of the spouses at the instance of the wife in any circumstances. The Quran expressly says that the husband should either retain the wife according to the well-recognized custom or release her with grace. The word of God rejoined the husband not to cling to the woman in order to cause her injury. Another Hadith declares let no harm be done, nor harm be suffered in Islam.
Such divorce may be pronounced thrice, either retains them in a becoming manner or sends them away with kindness and it is not lawful for you that you take anything of what you have given them, unless both fear that they cannot observe the limits prescribed by Allah. And if you fear that they cannot observe the limits prescribed by Allah then it shall be no sin for either of them in what she gives to get her freedom. These are the limits prescribed by Allah; it is they that are wrong doers.
Islam does not force on the spouses a life devoid of harmony and happiness and if the parties cannot live together as they should, it permits a separation. If the dissolution is due to some fault on the part of the husband, there is no need of any restitution. If the husband is not in any way at fault then there has to be restoration of the property received by the wife and ordinarily it will be of the whole of the property but the judge may take into consideration reciprocal benefits received by the husband and the continuous living together may also be a benefit received.
According to the latest Judgments of the Superior Courts of Pakistan the wife is not bound to return to the husband anything/Dower in the case of dissolution of marriage on any ground including khulla. Moreover the women has not only been given a right to get divorce but she can also claim the return of her dowery articles, custody of her children bridal gifts and dower through the family courts.
ABOUT THE AUTHOR: Mian Muhibullah Kakakhel, Senior Advocate Supreme Court of Pakistan
Author of more than two hundred research articles on Constitutional and International matters and of the following books on Constitutional and other branches of Law.
1-Constitution of Islamic Republic of Pakistan (Four Volumes) consisting of 3964 page. Published by Excellent Publishers, Lahore.
2-Words and Phrases (Three Volumes) consisting of more than six Thousand Pages. Published by Kashmir Law Times, Lahore.
3-Commentary on the Customs Laws in one Volume consisting of more than 800 pages.
4-Companies Laws in one Volume consisting of more than 2000 Pages Published by Khyber Law Publishers, Lahore.
5-The Banking Laws in one Volume consisting of 626 pages.
6-Laws relating to Maintenance of Public Order.
7-Expert on Shahadat in one volume.
8-Law relating to cross examination in the trail courts