Muslim Personal Law vs State Law – Marriage & Divorce
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 Pakistan follow, either by choice or custom, the traditional Sunni Hanafi school of Islamic jurisprudence, the aforementioned issues need to be examined in light of such jurisprudence.
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 2:229 states:
“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 fatwas 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, 1962 whereby 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 8 of 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 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 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.
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References:
[1] The Law of Khul’ in Islamic Law and the Legal System of Pakistan by Dr. Muhammad Munir
[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 Maliki School in the time of need, then there is nothing wrong in doing so.” (Radd al-Muhtar, 4/296)
[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)
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.
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