The Constitution makes it mandatory for all laws of Pakistan to be in conformity with Islamic laws. This approach is evident in Pakistani family laws. The resistance to the introduction of laws in Pakistan to empower women is motivated by the traditional, not Islamic, belief that women should be restricted to a domestic environment while men should enjoy all kinds of freedom. Reinterpretation of the Shariah is of utmost importance in this regard in accordance with the present situation.
The inclination of our legislators is to control the woman through law. Therefore, procedures in family laws have deliberately been made complicated for women. If a woman approaches the courts to secure her rights, she gets entangled in the mesh of Pakistan’s family laws. Women victims of domestic violence often face bias in the judicial system, an example of which is the assumption that domestic violence is a family matter.
The Muslim Family Law Ordinance, 1961, a major breakthrough for Pakistani women, did usher in a degree of freedom from oppression. It restricted polygamy and provided more rights and protection for women. But there are many aspects in the family laws that need to be looked into urgently. For example, the procedure for khula (whereby the wife divorces her husband) entails the applicant’s entanglement in a harassing legal procedure. Even if she is successful in getting a decree in her favour in the family court where she filed for khula, she has to approach another court, the arbitration council, to receive the divorce certificate. Here she goes through the same reconciliation procedure she had undergone in the family court, before the divorce certificate is issued ninety days after the new reconciliation bid. It is beyond comprehension why the certificate cannot be issued by the same court which handed down the decision.
In 2002, the Family Courts Amendment Ordinance inserted a regressive stipulation in Section 10 of the West Pakistan Family Courts Act, 1964. Under this amendment, as a rule, it becomes mandatory for a woman to forego her haq mehr (the husband’s pledged dowry money) if the reconciliation effort fails in the new round of arbitration.
Not only is the stipulation against the basic concept of marriage in Islam, even the courts generally do not approve of it. In the Munawar Iqbal Satti vs Mst Uzma Satti Case (2003 YLR 599 Lahore), the court ruled that haq mehr is “a sine qua non of a valid marriage, without which union between the spouses could not be legal but would rather lead to self-destroying and hazardous legal consequences.” Haq mehr is “in its essence not a benefit returnable to the husband in consideration of a grant of khula. A gift or a benefit was always something which was gratuitous and voluntary in nature, bestowed by one upon another without any consideration. Haq mehr could not be regarded as a benefit or gift which could be restored to the husband in consideration of khula divorce.”
The Supreme Court held in 2006 that a woman is entitled to her haq mehr if she files for khula on the grounds of habitual cruelty and non-payment of alimony. But the ground reality is that the amendment is still there and is being misused. It is high time this proviso is struck down, since even the Superior Court does not approve of the khula-seeking wife having to forego the haq mehr.
The insertion of this proviso nearly four decades after the passage of the West Pakistan Family Courts Act is the display of a mindset that favours the husband. The effect of the insertion of this proviso is that men refuse to divorce their estranged wives, who are left with the choice of filing for khula. They must run in vain from court to court and in the end have to forgo all their rights and benefits.
The other problem faced by wives is the return of their dowry articles to them when the marriage fails. As a rule, the husband’s stance in the court is that his wife did not bring anything with her, or that she took all her belongings back when she left his home–even when, in fact, she had been thrown out of the house without her belongings.
The court inevitably demands a list of dowry articles assumed to have been prepared at the time of the marriage. But in the majority of cases such a list has not been prepared in advance, and in the absence of proof a woman is usually deprived of everything she had brought with her from her parents’ home.
In 2008, in the case titled Mohammad Habib vs Mst Safia Bibi and Others, the Supreme Court favoured the woman complainant. In that case, the contention of the husband was that no such list of dowry articles had been prepared at the time of the marriage and the list shown in the court was fabricated. But the Supreme Court held the list valid because the articles contained in it were those ordinarily given to a bride.
An effective way of dealing with this particular problem is a legislation which makes it compulsory for the preparation of a list of dowry articles at the time of the wedding, with the bridegroom required to sign the list. This important issue, which has been left unaddressed by the country’s legislatures, needs to be attended to urgently.
The Dowry and Bridal Gifts (Restriction) Act, 1976, is a law that was promulgated to help wives, but instead it is being misused by husbands because of a loophole in it.
Inheritance is another matter in which there is clear discrimination against women. A woman is entitled to half the inheritance to which a male is entitled. Few women receive even this share, which is usurped by the male members of her family through pressure and social taboos. In many cases a woman is forced to forego her share.
As to domestic violence, to which so many women are subjected, there is no specific legislation in Pakistan against the abuse. With violence against women increasingly coming to light, it is high time for strict laws to be enacted to put an end to it. Similarly, there is no specific law against women’s abduction for rape. Here, a fake nikah-nama comes in handy for the abductor, since “marriage” is the most effective defense against charges of rape because of legal grey areas. Authorities have to stop accepting such “marriages” as a defense.
Pakistan’s development will remain a mirage unless its women, who make up more than fifty per cent of the country’s population, are truly empowered. The effort should be twofold: while women are given greater representation at all levels of government, effective efforts should be made to promote equal opportunity for employment and discourage discrimination at the workplace.
This article has previously been published in The News.