MUSLIM
PERSONAL LAW VS STATE LAW –MARRIAGE& DIVORCE
By
BARRISTER SULEMAN KHAN
Advocate
High Court
Partner, Khan & Muezzin –
There is a deep
concern growing in some quarters for the imploding moral fabric of our society.
The common man is fighting battles against the riggings of capitalism and
barely surviving. The affluent albeit a few, are unwittingly lured into an
arena where promiscuity, immorality and debauchery have strongholds and
continue to invade the population.
The institution of
marriage (for one) is not revered as demanded by the ideals of Islam and, in my
view, the lack of understanding or preservation of the institution is the core
contributor to the despicable vices that are hounding our society. Rights and
obligations are not shared by spouses in an optimal configuration.
This writing is
an attempt to generate some debate and understanding regarding some particular
aspects of the institution of marriage and divorce, the associated current
social problems from a purely legal perspective and the inadequacies of
national laws.
As a legal practitioner,
I have dealt with family disputes that primarily revolve around issues of
marriage, divorce, khula, judicial
separation and child custody. There is a plethora of Pakistani case law on the
subject and this writing is not intended at replicating the same, rather, it
seeks to amplify some of the complexities and sensitivities involved in such
cases that either remain unattended, unnoticed or simply ignored. Furthermore,
the insufficiencies of national laws that are adding fuel to the fire also need
to be revisited.
Often a legal
practitioner is faced with a situation where an oppressed wife wishes to seek
an instant dissolution of her marriage. A khula
petition to the family Court is usually advised for relatively speedier relief
particularly in a situation where the husband is unwilling to pronounce divorce
and no reasonable possibility of reconciliation exists. The critical question,
amongst others, that needs attention is whether such dissolution is legally
effective? If so, is the petitioner (wife) aware of the legal jurisprudence
involved when the family judge arrives at a decision based on the principle of khula? Whether such awareness matters?
Whether the current legal regime is in sync with traditional Islamic
scholarship?
Similarly, the legal
practitioner is also faced with an instance where the husband who has
pronounced triple talaq, or effected
a notice of talaq on his wife
(normally drafted by a stamp vendor or an insensitive lawyer) containing the
triple talaq formula, wishes to
either resile from his usually unmindful statement or seeks to revoke his
pronouncement in order to salvage the marriage; in most cases leaving the
innocent wife in a limbo concerning her marital status. Once again, questions
arise as to the legality of the dissolution; the knowledge base of the
proponent; the legal jurisprudence involved and the social fallout connected
with it.
In majority of
cases, parties who seek legal redress are not aware of the legal jurisprudence
involved and whether it is in sync with their belief system. Since the majority
in
Focusing on khula, the concept is widely recognised
as a valid method of nullifying the marital bond and traditional Islamic
scholarship substantiates the same by citing verse 2:229 of the Quran as the
basis for it.[1]
Verse 2:229states:
“Divorce
is twice. Then, either keep [her] in an acceptable manner or release [her] with
good treatment. And it is not lawful for you to take anything of what you have
given them unless both fear that they will not be able to keep [within] the
limits of Allah. But if you fear that they will not keep [within] the limits of
Allah, then there is no blame upon either of them concerning that by which she
ransoms herself. These are the limits of Allah, so do not transgress them. And
whoever transgresses the limits of Allah – it is those who are the wrongdoers.”[2]
The term “khula” as commonly understood entails
the giving of some monetary consideration by the wife to the husband in
exchange for her release from the martial bond. It is in effect akin to a civil
contract where the wife has purchased her release so that no revocation is
possible.
The majority of
traditional Sunni scholars i.e. Hanafi, Shafi and Hanbali (as
well as the Shia school) require and
recognise the consent of the husband for effecting dissolution of the marriage
by way of khula as a necessary condition[3]. In other words,
consent of both spouses is a necessary legal requirement and may be settled
between the partners with or without the intervention of state authority to
dissolve the marriage.
The only
exception to the majority view is taken by the Maliki school, according to which, if the
spouses are unable to resolve their differences and the wife seeks redress from
the Court, the Court can issue a decree of talaq
or khula without consent of the
husband and wife.[4] The Court shall
order khula if it determines that the
husband was the cause of the discord and will order the wife to return the
dower given to her by her husband.[5]If the Court does
not know which one of the two is to blame for the dispute, it has to appoint
two arbitrators: one to represent each the husband and the wife, relying
primarily on verse 4:35 of the Quran
which states:
“And if you fear
dissension between the two, send an arbitrator from his people and an
arbitrator from her people. If they both desire reconciliation, Allah will
cause it between them. Indeed Allah is ever Knowing
and Acquainted [with all things].”[6]
The Maliki jurists insist that the
arbitrators have a role above and beyond simply being mediators for
reconciliation and have the authority to dissolve the marriage without seeking
approval from any or both the parties. It is, however, unclear whether the Maliki school
allows the wife to obtain khula
without any justifiable reason.
Keeping in view
the majority opinion on the one hand and the exception taken by the Maliki school, the women followers of
the Hanafi school
may find themselves in a quandary. Under classical Islamic jurisprudence, on
the one hand, they recognise and are bound by the principle of following and
sticking to one school of thought[7]and on the other
hand, may desire to subscribe to the Maliki
school vis-à-vis khula in order to
seek a way out and dissolve the marriage where the husband is unwilling to give
consent.
It is also
unclear whether a Hanafi husband
would recognise the validity of such an annulment? It would seem that the wife
would, in such a circumstance, need to explicitly identify which school of
thought she is subscribing to (or has decided to subscribe to)so that not only
is the Hanafi husband pacified but
also obliged by his own school to respect that view. In other words, the
personal law that the litigant is subscribing to needs to be clearly
identified.
In the absence of
such explicit subscription or identification, a Hanafi husband is likely to consider the wife (assumed to be Hanafi) as having invalidly released
herself from the marital bond without his consent and, as a consequence, will
refuse to recognise such an annulment. Therefore, from a Hanafi standpoint, a subsequent marriage by the wife would also be
a considered a nullity and any offspring as illegitimate.
A society which
is predominantly Hanafi would condemn
such khula obtained by women or by
ignoring the issue due to state law backing/approval, inadvertently allow
promiscuity to permeate society, at least in the eyes of the common man. This
can be evidenced from the various fat was given by Hanafi jurists, including the Council of Islamic Ideology,
declaring khula obtained via
Pakistani Court as improper and invalid in the context of Shariah law.
However, the
position of classical Hanafi scholars
is not strictly held by later Hanafi
jurists and some give dispensation to follow the Maliki school opinion in time of need. The question of need,
although contentious, is understood as resulting in immense difficulty and/or
hardship or making an action virtually impossible to act upon.[8]
In
the Pakistan law context, an important piece of legislation that preserves the
application of classical Islamic law in family matters is the West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962whereby Muslim Personal Law (understood as classical
Islamic law) is the governing law in determining questions regarding inter alia marriage and divorce where
the concerned parties are Muslims. The only qualification to its application is
the existence of any legislative enactments such as the Muslim Family Laws Ordinance, 1961 (MFLO) or the Dissolution of
Muslim Marriages Act, 1939 (DMMA),
which will override the Shariah Application Act to the extent applicable on the
subject matter.[9]
The
result of the application of Muslim Personal Law is that the Courts applied
classical Islamic law in accordance with the particular school of fiqh or sect that the Muslim litigant
belonged or subscribed to. However, the qualification of making Muslim Personal
Law subject to any legal enactments has led to serious complications.
Firstly, it has
stripped away the right of the Muslim litigant to be judged as per his or her
own personal belief system. Secondly, state enactments such as the MFLO read
with Pakistani case law have distorted the established and widely recognised
principles of traditional Islamic jurisprudence that the majority subscribe to
and follow.
In matters of
divorce, the governing statutory law is the MFLO which does not recognise a talaq as valid until expiration of
ninety (90) days from the day the notice of talaq
is delivered to the Chairman of concerned Union Council.[10]This position is
not endorsed or validated by any school of classical Islamic jurisprudence.
Then, there is the issue of recognition of triple pronouncement of talaq as a single pronouncement or three
pronouncements. The majority of classical Islamic scholars are in favour of the
latter whereas MFLO adopts the former.[11]
The result is
that the society at large does not recognise such a law as good or, in some
cases, valid law and in good wisdom should be struck down. From a scholastic
perspective, any enactments which are not in sync with traditional Islamic
schools of jurisprudence or adopt a minority juristic opinion would not gain
much support from mainstream Islamic scholars and, consequently, the public at
large.
The state law
proponents may argue and validate the enactments through the instrument of “ijtihad” and “istihsan” in light of contemporary needs, however, the competency
of our legislators, judiciary or their eligibility to do so, in my view, is a
serious and big question mark. In any case, what would be the point of any such
ijtihad when the majority of people
subscribe to the Hanafi school and laws are enacted without such school’s specific
endorsement? Likewise, what is the point of appeasing the minority at the
expense of the majority? Perhaps the proponents of social justice perceive law
to be an instrument of social change towards norms that are specifically in
line with the latest moral discoveries of the West.
Reverting to the
issue of khula, the MFLO is silent on
its substantive aspects; however, Section
8of MFLO in simple terms provides that the same procedure as followed for talaq will be applied – notice to
Chairman, Union Council[12]. Section 2 of the DMMA simply provides
dissolution on any ground recognized as valid for dissolution of marriages
under Muslim Law. Therefore, it could be safely concluded that as far as khula is concerned, the qualification of
legal enactment only applies to its procedural aspects, whereas the substantive
law governing khula would be the
Muslim Personal Law of the litigant.
This position,
however, has been further complicated with the insertion of proviso to section 10(4)of the W.P Family Courts Act, 1964 (FCA) and subsequent case law reveals
that litigants are allowed to obtain khula
without the husband’s consent regardless of whether the litigants are Hanafi, Shafi, Hanbali or Maliki school followers (or any other
school for that matter). In fact, the language of the statute mandates the
family judge to pass a decree for dissolution of marriage where reconciliation
fails. In my view, such case law and determinations thereunder are in violation
and utter disregard of the Shariah Application Act, unless section 10(4) is
considered substantive law.
Even if we assume
that the substantive law governing khula
is covered by the FCA and the exception to the general requirement of husband’s
consent for khula is imported from
the Maliki school,
the same is misunderstood and misapplied. The practice of the family judge
ordering divorce by way of khula at
the first instance, without leading any evidence of just cause, is not a
practice endorsed by the Maliki school. Furthermore, where evidence is not required to be
led, the Maliki judge will refer the
case to two arbitrators for a finding. Such practice is also not in vogue in
the local Courts nor is there any legislative authority backing the decision of
such arbitrators.
In fact, there is
very little focus on the reconciliatory process. On most occasions, the legal
representatives of the spouses appear before the Court and no serious attempt
at reconciliation is ever made; rather the absence of either of the parties in
person is considered sufficient grounds to hold that the reconciliatory process
has failed.
Recently, the
Punjab Government has further amended section 10 of FCA so that women in Punjab
will now only need to return up-to fifty percent (50%) of her deferred dower or
up-to twenty five (25%) percent of her admitted prompt dower to the husband
when seeking dissolution of marriage by way of khula. Once again it is unclear whether this position is endorsed
by classical Islamic scholarship or is it aimed at further eroding the concept
of khula and making it much easier
for women to walk away from failing marriages.
At
present, Pakistani law (a) allows dissolution by way of khula to be obtained by the wife regardless of the husband’s
consent at the pre-trial stage, (b) does not apply the Muslim Personal Law of
the litigants as mandated by the Shariah Application Act and (c) is contrary to
the majority opinion of classical Islamic scholarship in cases of khula and talaq. In some instances, family laws even violate the opinions of
all established schools of Islamic jurisprudence. The Pakistani judiciary’s own
construction of Islamic jurisprudence with all classical scholars’ opinions
only acting as amicus curiae is a
position that does not settle well with many.
Conclusion:
The
Shariah Application Act is a positive yet flexible legislation. There is no
need for legal enactments such as MFLO or DMMA as the Muslim Personal law
provides sufficient legal recourse and in line with each litigant’s personal
belief system vis-à-vis marriage and divorce matters. The legal enactments such
as the MFLO or various provisions thereof are not in sync with traditional
Islamic scholarship and, even if assumed to be so, the majority view of
classical Islamic schools is not followed and worse yet, the minority opinions
of classical scholars are distorted to appease, in particular, the feminists
and the so-called proponents of social justice. The qualification of legal
enactments contained in the Shariah Application Act needs to be removed.
Family
laws must not be applied without regard to Muslim Personal Law as there are
individual and social sensitivities involved and uniformity of application is
unlikely to be achieved by promoting the interests of minorities or minority
opinion holders. Pakistani society is not free from varying religious and
jurisprudential demographics. Litigants who are benefiting from current family
laws need to be aware of the legal jurisprudence involved.
Allowing an
unqualified right to the wife to dissolve the marriage is as open to abuse as
is a husband’s right to withhold consent where it should not be unreasonably
withheld. Creating or shifting balance of power is not the solution; optimal
configuration of rights and obligations is the key.
Women
should be made aware of their contractual rights at the time of marriage as
opposed to finding escapes for them in post-marriage situations where the
social fallout is likely to be much worse. Marriages should be contracted with
substantial amounts of dower which will act as a deterrent in cases of talaq and khula for both husband and wife, thereby preserving the institution
of marriage. Prevention is better than cure. Drafting good contracts is smarter
and better than litigating on ambiguous terms. Sensitivities of the spouses can
be fully addressed via stipulations in the marriage contract.
As
for the oppressed or distressed wives, the legislature and judiciary should,
instead of hiding behind its own inefficiencies, come forth with mechanisms for
swift trials and justice. Women should prove their hardship/claims instead of
seeking dissolution of marriage at the pre-trial stage. The doors of justice
are open to all, however, the doors of convenience
come at a price. Let us not promote exercise of the most detestable of
permissible actions[13]
without just cause.
[1]. The Law of Khul’ in Islamic Law and the Legal
System of
[2]. Verse translated by Sahih International.
[3]. Ibid fn 1.
[4]. Ibid fn 1.
[5]. Ibid fn 1.
[6]. Verse translated by Sahih International.
[7]. Concept of Taqleed – A person who has not reached the rank of Mujtahid
or a non-scholar must follow the rulings of one particular recognised school.
The emphasis on following one particular school is to prevent hand-picking of
dispensations given by the various schools and also to avoid problems
associated with Talfeeq. In Islamic jurisprudence, Talfeeq refer to the process
of mixing opinions selected from the various schools so as to compose a new
juristic decision which is approved by none in any of the four established
school of Islamic jurisprudence.
[8]. Imam Ibn Abidin (later Hanafi imam) relates from al-Quhustani in his
Radd al-Muhtar as saying: “If the fatwa is given according to the
[9]. Section 2 of W.P. Muslim Personal Law (Shariat) Application Act,
1962.-Application of the Muslim Personal Law.- Notwithstanding any custom or
usage, in all questions regarding succession (whether testate or intestate),
special property of females, betrothal, marriage, divorce, dower, adoption,
guardianship, minority, legitimacy or bastardy, family relations, wills,
legacies, gifts, religious usages or institutions, including waqfs, trusts and
trust properties, the rule of decision, subject to the provisions of any
enactment for the time being in force, shall be the Muslim Personal Law
(Shariat) in case where the parties are Muslims.
[10]. Section 7(3) of MFLO 1961.
[11]. Section 7(6) of MFLO 1961.
[12]. Section 8 of MFLO 1961 states: Where the right to divorce has been duly
delegated to the wife and she wishes to exercise that right, or where any of
the parties to a marriage wishes to dissolve the marriage otherwise than by
talaq, the provisions of section 7 shall, mutatis mutandis, and so far as
applicable, apply.
[13]. “Divorce is the most hated of all lawful (halal) things in the sight of
Allah” (Sunan Abu Dawud, No. 2178).