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Women’ right to divorce: an under-employed provision

KARACHI, June 29: Although 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 Dawn 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 Dawn. “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