Women’ right to divorce: an under-employed provision
By Saleem Khan • Jun 30th, 2008 • Category: Misc • (3,418 views) • 12 CommentsAlthough Pakistan has in some areas moved slowly towards pro-female legislation, most women remain either unaware of their legally-recognised rights or are prevented from using them by a patriarchal society and a traditional mindset. Nowhere is this clearer than in the case of Section 18 of the nikahnama (Muslim marriage contract), which — subject to the groom’s agreement at the time of marriage – gives a wife the right to institute divorce proceedings.
Lawyers and women’s rights groups point out that although this clause allows women to file for divorce using the same legal procedures as are ordinarily followed by men, in 99 per cent of the cases Section 18 of the nikahnama is struck out at the time of marriage and rendered not applicable, thus stripping women of a right that is recognised under the law.
The right granted under Section 18 of the nikahnama refers to Section 8 of the Muslim Family Laws Ordinance 1961. When invoked, it allows a woman to divorce her husband using Section 7 of the Muslim Family Laws Ordinance 1961, which defines the procedure for talaq (divorce). Significantly, it allows a woman to institute divorce proceedings while retaining her rights over the dower amount, or haq meher, agreed upon by the contracting parties and recorded on the nikahnama.
The clause is of vital significance since a woman who does not have the right of divorce under Section 18 of the nikahnama must resort to pleading for khula (dissolution of marriage), a procedure during which she loses her claim over the dower, alimony or maintenance.
The usual procedure for divorce (as opposed to khula) is that under Section 7 of the Muslim Family Laws Ordinance 1961, the husband presents a notice to the nazim of the relevant union council. If the nazim’s efforts to bring about reconciliation fail, a certificate of divorce is issued within 90 days. Section 8 of the same ordinance dictates an identical procedure for women who have the right of divorce under Section 18 of the nikahnama.
Despite the advantages of this clause in the nikahnama, lawyers and clerics told that in actual practice, barely one per cent of women contracting marriages claim the right.
‘One of a thousand retain right’ Even though the law recognises a woman’s right to institute divorce proceedings under Section 18 of the nikahnama, the procedure nevertheless remains controversial.
University teacher Professor Abdul Ghafoor, for example, claimed that women cannot be granted the right of divorce. “Islam gives women the right to separation and men the right of divorce,” he maintained. “These rights cannot be reversed.” He added that in his long experience of conducting nikah ceremonies – over 600 – he had never come across a woman or family that asked for the right of divorce under Section 18 of the nikahnama.
This may appear to question the relevance of the law concerned, which states that “Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right […] the provisions of Section 7 shall […] so far as applicable, apply” (Section 8, Muslim Family Laws Ordinance 1961).
But lawyer Aftab Bano Rajput argued that since the provision has remained part of the law for decades, there is little point in continuing to debate whether or not it is appropriate for women to be granted the right of divorce. Nevertheless, she conceded, there is a great gap between theory and reality. “I think that perhaps one out of a thousand women would have been given the right,” she commented. “About ten years ago, I came across one case where the woman had the right under Section 18 of the nikahnama, and that too because her sister was a lawyer.” Refuting the suggestion that retaining the right paved the way for a troubled marriage, she added that she knew a couple of women who had the right to divorce but remained happily married. “When a woman is granted the right of divorce, she is given a terra firma,” she opined. “The husband subsequently remains somewhat cautious since he knows that if she is tested beyond endurance, she could simply leave him.” The fact that Section 18 of the nikahnama is rarely invoked is confirmed by Noor Naz Agha of the Women Lawyers’ Association. “Less than one per cent of the women or their families demand the right of divorce,” she told. “First, few people know what the right means or entails and secondly, many feel that it is inauspicious to ask for this particular right at the time of marriage.” Nevertheless, she pointed out, there is a stark contradiction since no one gives a second thought to the man’s right to divorce, but the same thing becomes objectionable when it refers to a woman.
Saeed Ghani, who has served as a nazim for Union Council 4 for over four years, said that among the few cases of divorce that come to him, hardly any are filed by women.
Nevertheless, there have been instances where the right to divorce has been granted as a matter of course.
Irfan Aziz, for example, is a professor who gave his wife the right under Section 18 of the nikahnama, although he admits that neither his family nor that of his bride gave the provision a thought – or even knew about it. “The fact is, however, that the days are long past when women were considered irrational. Today, they are educated and logical and compete with men in every field,” he commented.
Mr Aziz said that he came to know about the clause through debates on TV, and resolved to give his wife the right to divorce. However, he did not tell his family what Section 18 of the nikahnama pertained to, since he believed that they would have trouble accepting it.
The fact that few women or their families retain the fundamental right to divorce is a sad indictment on citizens’ level of familiarity with their legal rights and obligations. In most cases, a number of sections of the nikahnama are struck out at the time of marriage, and Section 8 is one of the most common casualties.
Source: Dawn News, Muslim Family Laws Ordinance 1961,
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July 1st, 2008
Excellent post Mr. Khan, and we need to address these issues. Women need to know that they clearly have a lot of rights, even if they do not exercise them.
I just wish to correct some words that you used:
Woman have the right for khula (separation) and men the right to exercise talaaq (divorce). When a woman does initiate the right for separation, she must give back the mahr or any other gifts given by the man. Though in “our” culture in Pakistan, it is typically the woman giving the dowry and most men never give the mahr (which is placed as on demand by the wife in the marriage contract). This has been set by sharia.
One issue not addressed in the article is, if the divorce by the man, or separation by the woman; who takes responsibility of paying support for the children? From my understanding in either case, it is the man that becomes responsible. I hope others with knowledge can shed light on this subject.
July 1st, 2008
Before coming to your answer about financial responsibility of children, let me share rights of divorced woman.
A woman is required to stay for a waiting period (`iddah) that extends to as long as three menstrual cycles or, if she’s already passed the age of menstruation, extends for three months. During this period, she cannot get married to anyone else; rather, they are both given some more time so that they may retract the decision.
While in her waiting period, a woman has the right to stay in her husband’s house and never be kicked out into the street. Beside, she has the right of financial support paid by her husband, who is required by Shari`ah to cater for all her needs and to not allow his decision to affect the good treatment due to her.
He should not forget the fact that she is still the mother of his children and was his life mate for some time. With this mentality, he will qualify to offer her everything with kindness, honor and respect.
If the woman is pregnant, then her waiting period extends till she delivers the baby, which means she will continue to enjoy all these benefits of lodging, financial support and everything till the day of delivery.
The Qur’an states that in clear words in words that mean
…and if they are pregnant, spend on them until they lay down their burden.(At-Talaq 65: 6)
Furthermore, if she is breastfeeding their child while she is divorced, he should pay her for that. We read in the Qur’an what means:
…Then, if they breastfeed your child for you give them their due payment and consult together in kindness; but if ye make difficulties for one another, then let some other woman give breastfeed your child. (At-Talaq 65: 6)
All these payments are made to the woman during her waiting period to cover her own expenses, not those of the child, because the child is another issue.
As for the children who are taken care of by the mother, it is the father’s responsibility to bear the full cost of the care. He alone is responsible for their housing, clothing, food, school fees, etc., even though the children are in the mother’s custody or home.
Islamically speaking, he is not to pay half of the expenses; he has to pay full expenses, and that is not considered like a gift or a favor from him, simply because it is his responsibility. He should pay for all the needs in a considerable and moderate way that suits the standards of an honorable life without exaggeration or stinginess.
Actually, this opens the venues of reconciliation and dialogue between them and lets the children at least see their father and mother dealing with each other with mutual respect. This can secure the minimal level of family sense for them even with their father and mother not living together.
July 1st, 2008
Saleem Khan
Good issue put forward, actually the only religion is ‘ISLAM’ which talks loudly about women rights, but actual issue is implemention of rule of law. Islam doesn’t allow so called women rights as western concept and the bill which government had recently passed.
The issue of divorce is very sensitive one and had never been addressed properly. The issues after divorce are to be addressed on equal grounds and justicely.
July 1st, 2008
During the waiting period (`iddah), you cannot propose directly to the waiting women for next marriage
July 1st, 2008
Saleem Khan,
Good issues that are being brought to attention. The reality is that, people are not fair and will take advantage of the weaker party. Women end up suffering, along with the children, through these separations and divorces. Mediation and family intervention is very important so all parties are protected and their rights are not denied.
By the way, this marriage law is for the Muslims in Pakistan or all citizens?
July 1st, 2008
Dear farid,
thanks for ur comments. Yes, most of times we avoids to discuss these sensitive issues by saying ” Hum Kaun cee Talaq Dainay lagay hain etc etc”. Do you know, why the time of iddah is fixed as 3 months/periods. Because, woman can get pregnant in 3 month after sex. If three periods are gone then there is no change of conceiving. If any body have reservation then he can consult any qualified doctor for it.
Farid, our holy Prophet said that ” If you are doing any financial agreement then its better to write and signed it in presence of 3 persons”. Today, we are having so many conflicts in society just because we do trust on each others and not ensures to write it. later on, one of them violates verbal agreement and fight starts.
We have to consider each word of Quran and our Prophet for making our lives comfortable and conflict free.
July 1st, 2008
Dr alshaer,
This law applies on Muslim Families only.
Dear, woman in any society is always weak. Only law and regulating authorities of that country ensures their rights. If you ever discuss with any Arabic man, he will tell you that how much women in Arab world are strong. Even most of times, men becomes victim of them. Their women take heavy money,gold and land on marriage day. Then if man simply shouts on his spouse, she can complain in police station and immediately police comes and takes man to jail.
In Pakistan, most of divorces happens just because of both spouse parents and extreme involvement in couple’s personal life. Who will ensure that woman can live 3 months in same home? Husband’s parents,sibling or Police? Off course, when most of divorces happens due to parents and his/her siblings… how they can keep her in home. they will internally feel more happy to kick her out even at mid night.
Same kind of event happened near our home once. our family took that lady and 3 month daughter to our home after she was immediately kicked out of her in laws/hubby home at 10:00 p.m. We kept her for 2 days in our home till her parents came from Multan and took her back to home. Most of times, in laws or hubby put allegation of fornication/adultery etc etc of ladies to show in society that we are innocent and she was culprit. Bad situation and I as a man have to raise voice for Women. After all they are our sisters, mothers, daughters of us.
July 1st, 2008
Masha’Allah Saleem, thank you for sharing. May Allah reward you for your efforts.
July 1st, 2008
Saleem
technically and morally you are right but ground realites are quite different. I have practically demonstrated this law in my nikkah nama and my husabnd at that moment fully supported me on my this right of divorce, completely revealed his broadmindedness on this issue.But its hardly any case around my cirlce who excercised this law.Even I also found some divorcee mothers in my family who over ruled this prinicple at the time of their childern marriages.I also noticed in my system that people mostly lied about their married lives or denied the ground realites.Even some seems to educated and modern married couples have typical orthodox disputes that ultimitly ends on divorce forms filled with abusive language.If some body is abusing or blaming his/her partener then its moral duty of that person and his/ her family either to struck that person with principles or leave him/her at the early stage rather then preferring to stick together even failing in basic principles of humanity.
.In most of cases around us, the women and her family is on wrong side as they never followed the true principles of Islam regarding married life and always keep their daughters in dream life before their marriages.For Judging each other mental level its best tip to apply this vaild islamic law on your marriage contract .If man happliy allows this then women should feel proud that she is empowered on symbolic basis by her life partener at the start of their married life.
July 1st, 2008
Saleem Khan
Technically you are very right,but in western culture they do hardly understand this thing and so a father gives his name to a child who is actually not his/her father.
waiting period of 4.5 months is for such physical apearance if a woman has conceived before divorce, you are very right.
And You know on the day of Judgement people will be asked to raise with the name of mothers not fathers, Allah Almighty know everything before it happens.
July 1st, 2008
Nazia,
I am the one among those who gave this legal right to their spouse. I not felt any harm in this and living very happy life. If your spouse don’t want to live with you then you can not bound her in any way. She will leave you in one way or an other. So its better to feel her comfortable that my man trust me so much that he is not trying to tie me with any legal compulsions, which our religion not allows us.
Thanks again for your comments.
November 18th, 2008
The right to divorce.
Source The news
The Council for Islamic Ideology (CII) has come forward with a proposal for radical changes in family laws, under which divorce will come into effect 90 days after a woman has filed for separation. Till now, even though family courts have over the past few years granted women seeking divorce their right to annul a marriage more often than before, the long drawn-out procedure for ‘khula’ has meant repeated visits to courts and the airing of all kinds of messy matters in public. In some cases, women have been pressurized by judges to return to husbands they wish to leave. The CII’s suggestion will make the matter a much simpler one for women. The landmark step also goes a long way towards granting rights set down for them in the Holy Quran, but denied due to the patriarchal traditions that bind our society. As they have done before, religious parties are likely to oppose the CII’s recommendations. A storm will be stirred up. In an environment where ‘opposition for the sake of opposition’ is the norm, other groups may join the clerics. This is especially so as the Council has also proposed amendments in others areas, including recommendations that an application for divorce be registered the same way as a ‘nikahnama’, that a husband register the ‘first divorce’ rather than sending his wife three simultaneous notices of ‘talaq’ and that he declare his assets at the time of marriage avoiding controversy over what a wife can claim if she files for divorce. The inclusion of a clause in the nikahnama granting women the right to divorce has also been recommended. At present, even the clause that allows a man to grant this right to his wife is in practice often struck out by ‘nikah khawans’.
As it has done before, the CII has suggested measures that promise progressive change. On the recommendation of the body, the president has also set up a committee to review laws repugnant to Islam. It seems likely that, in the true sense of the word, an ‘enlightened’ attitude may be taken to this. The CII has indicated it may give its view regarding suicide bombings, ‘jihad’ and madressahs. Perhaps these proposals can help usher in changes in thinking necessary to eradicate the evils extremism has brought to our society and to offer women, who of course form 50 per cent of the population, rights that have repeatedly been denied to them. One must hope the Council, under the leadership of a chairman who has a reputation as a true scholar of Islam, receives the governmental support it needs. The CII and the law ministry must work together to achieve the vision laid out.