Revisiting The Muslim Family Laws Ordinance 1961
The Muslim Family Laws Ordinance (MFLO), 1961 was promulgated to, inter alia, safeguard matrimonial rights of women. To this extent, the law has failed to achieve the proclaimed objective. Instead of providing a level playing field to women, it has disincentivized the very right it had set out to protect!
In section 7, the law prescribes procedure for dissolution of marriage by talaq (husband’s right to dissolve marriage). It envisages that the husband after pronouncement of talaq must send a mandatory notice to the “Chairman”, appointed by the government, along with a copy to the wife. The Chairman then forms an “Arbitration Council”, with one representative each, of the husband and wife, and that has 90 days from the receipt of notice to amicably resolve the differences between the couple. In case of failure thereof, talaq becomes effective and marriage is dissolved. However, despite legislative intent to the contrary, courts have enforced talaq and dissolved marriages without mandatory notice to the Chairman.
Section 8 of the law provides for dissolution of marriage other than by talaq which mainly includes three ways; mubaraat (mutual consent), talaq delegated by husbands or by khula (woman’s right to dissolve marriage). The law is ambiguous in case of the woman exercising delegated power of talaq to dissolve her marriage with regards to who has to send the mandatory notice, husband or wife. The problem which flows from this is that the clock of 90 days only starts to run on receipt of notice. This has led to a confusion as courts have resorted to varied interpretations of law to fill the legislative gaps. The procedure is even more cumbersome for a woman who chooses to dissolve her marriage by khula. For khula, a woman has to invariably enforce her right to dissolve her marriage from the courts.
The law is inherently discriminatory for women. The husband can dissolve the marriage by simply sending a mandatory notice and on its receipt, the clock starts ticking before divorce is effective. On the other hand, a woman exercising her right to dissolve the marriage has to approach the courts. Matters are inevitably delayed in family courts. The experience of divorce, painful as it is, only gets compounded further by backlogs and delays in the courts. There are no guidelines available to the judges of the family courts nor is there any special training provided to them. Family courts, rather inconsistently, adopt a reconciliatory approach and as matter of jurisdiction probe into all kinds of unnecessary details. And when the decree for dissolution of marriage is successfully obtained from the court, the woman then needs to inform the Chairman who, on receipt of information, forms the Arbitration Council with a reconciliatory period of 90 days. The reconciliation in the husband’s case is done only by the Arbitration Council. In woman’s case, it is done first by the family court and then by the Arbitration Council. There is no plausible explanation for a different yardstick to justify why there are two reconciliatory forums for woman and only one for man.
The 90-day period of reconciliation before divorce becoming effective has been a riddle for people. People generally, and women in particular, are not comfortable with the idea that once talaq has been pronounced (in any form) it remains ineffective until the lapse of 90 days. They usually consult maulanas rather than lawyers on this issue and they invariably advise them in accordance with their school of thought or varied understanding of sharyah (personal laws). In effect, both sharyah with multifarious interpretations and MFLO are governing the dissolution of marriage in the country. The purpose of this particular law was to withdraw the procedure of divorce from the vicissitudes of different sects and schools of thought. Any piece of legislation becomes a paper tiger if the state does not prepare people by raising awareness for laws it enacts so that rather than being averse to, they readily accept those laws.
At any rate, the law, as it is, needs to be revisited as it places 52% of the country’s population at a disadvantage. It should clearly spell out the consequences of failure to send the mandatory notice (apart from penal consequences) and its effect on the dissolution of marriage. More importantly, the procedure for women exercising the right to dissolve their marriage needs to be made less complicated. The provision for mandatory notice and the procedure for dissolution of marriage stipulated in section 7 should be mutatis mutandis added in section 8 for women; either exercising delegated power of talaq or exercising their right of khula. This will dispense with the need to have an additional reconciliatory forum. On receipt of notice, as provided under section 7 for husbands, there should be 90 days of reconciliatory period before divorce becomes effective. Conferring powers on the Chairman to take cognizance of matter will also humanize the traumatic experience for women without putting them through the ordeal of open court hearings.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.