8/7/2019 The Muslim Woman's Right to Divorce

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No.38NUMBER THIRTY EIGHT, 1987

THE Dissolution Of Muslim MarriagesAct, 1939 a law which, it may be noted,

has been on the statute books of theterritory now com-prising the states of India, Pakistan, and Bangladesh for nearlyhalf a centuryentitles a Muslim womanto divorce on several specified grounds,including :

that the husband has neglected or hasfailed to provide for her maintenance for aperiod of two years;

that the husband has failed to perform,without reasonable cause, his maritalobligations for a period of three years

that the husbandhabitually assaultsher or makes her life miserable by crueltyof conduct even if such conduct does notamount to physical ill treatment.

The grounds available under theDissolution Of Muslim Marriages Act maybe placed in some historical perspectiveby remembering that until 1938 divorce wasavailable to an English wife only ongrounds of adultery, rape, or an unnaturaloffence. The (English) Matrimonial CausesAct of 1937 extended these grounds byadding cruelty, desertion for three years,

and incurable insanity. Even today, the lawof divorce applicable to a Muslim womanin South Asia does not compareunfavourably with that applicable to anEnglish wife. The Muslim wife in SouthAsia can obtain a divorce by mutualconsent extrajudicially and without thetwo; years separation required under the(English) Matrimonial Causes Act, 1937.

On the other hand, the ground mostcommonly relied upon to establish

irretrievable breakdown of marriage underthe English Act is unreasonablebehaviour. The import of the Englishexpression has behaved in such a waythat the petitioner cannot reasonably beexpected to live with the respondent ismuch the same as the comparable clausein the Dissolution Of Muslim MarriagesAct, makes her life miserable by crueltyof conduct even if such conduct does notamount to physical ill treatment.

In Pakistan and Bangladesh, theMuslim wifes right to divorce has beenconsiderably expanded by judicialinterpretation of certain Quranic provisionsand enunciation of the principle that it isnot the policy of Islam to force a woman toremain bound in a union which she findshateful : Islam does not force on thespouses a life devoid of harmony andhappiness and if the parties cannot livetogether as they should, it permits aseparation. (Balqis Fatima vs Najm-ullkram Qureshi, PLD 1959, Lahore HC56b).

Despite the fact that many of theserights are not fully realised in practice asyet, the Quran conferred on women rightsthat were, in their time and for manycenturies afterwards, quite revolutionary.In the course of a leading decision on

judicial khul, the supreme court of Pakistanquoted the Quranic verse which states :Women have rights against men, similar

to those that the men have against them,according to the well known rules of

equity. (Khurshid Bibi vs MuhammadAmin, PLD 1967, Pakistan SC 97). It doesnot seem reasonable that while to one of the two contracting parties (i.e., thehusband) has been granted a plenarypower to put an end to the contract, thereshould be no power given to the otherparty and the wife must, in order to get arelease, prove some misconduct on the partof the husband as will disentitle him to thecontinuance of the marriage. The wifeought, in reason, to have a right similar tothat of the husband subject only to theorder of the court. The rights of thecontracting parties should, as far as thecircumstances permit, be at par. (BalqisFatima).

The Pakistani courts have concludedthat the letter and the spirit of the Quranconferred on the wife the right whichreason dictated should be hers. The mostrecent case is Abdul Rahim vs Mst ShahidaKhan, PLD 1984 Pakistan SC 329. Theseprecedents are followed by courts inBangladesh.

In effect, a judicial khul is a judicialdivorce granted in the face of thehusbands opposition in circumstanceswhere the wife cannot establish any oneof the specific fault based groundsavailable to her under the Dissolution Of Muslim Marriages Act, 1939, and pleadsonly incompatibility of temperament oraversion. She need only establish that

The Muslim Womans RightTo Divorce

LAWLUCY CARROLL

This is an analysis of the interpretation in Pakistani law of the Quranic provision for a womans right todivorce a man with whom she does not wish to live. We do not, however, know how the law generally works

in practice, and would like readers in Pakistan to send reports on this.

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38 MANUSHI

serious disharmony exists between thespouses; she need not establish anygrounds as such : The judge will considerwhether the rift between the parties is aserious one, though he may not considerthe reasons for the rift. (Balqis Fatima).

The emotions of love and hatred maynot invariably have a rational basis...If...the court comes to the conclusion that themarriage has irretrievably broken downand there is no hope of the parties everliving together to perform their maritalobligations, a case for the invocation of the doc-trine of khul is made out. (ShahidaKhan, 1984).

It must be stressed that irretrievablebreakdown in the context of a judicialkhulin contrast to the terms of the(English) Matrimonial Causes Act, 1937,and to proceedings under the DissolutionOf Muslim Marriages Act, 1939 need notbe based on specified grounds alleged andestablished. It is enough that the wifestrongly feels that continuation of themarriage is impossible for her. In a recentcase the wife stated in her testimony thatshe would rather be shot than live withher husband. The high court judge,presently the chief justice of the Punjab,Pakistan, observed : If a woman hasstated that she would rather prefer to beshot dead than to go and live with her

husband, it obviously means that she isdetermined not to live with her husbandand the hatred was so deep that not todissolve such a marriage would amount tocompelling her or rather pushing her in ahateful union with the husband whichcertainly is not contemplated by the lawapplicable to the present case, i.e.dissolution of marriage on the basis of khul. (Rashida Bibi vs Bashir Ahmad,PLD 1983, Lahore 549)

The learned judge further ex-poundedthe principle of judicial khul as follows:The principle of khul is based on the factthat if a woman has decided not to livewith her husband for any reason and thisdecision is firm, then the court, aftersatisfying its conscience that not todissolve the marriage would mean forcingthe woman to a hateful union with the man,(will dissolve the marriage) and it is notnecessary on the part of the woman to

produce evidence of facts andcircumstances to show the extent of hatred...

It should be reiterated that there is, of course, no necessity for the husbandsconsent or his pronouncement of talaq inorder that a divorce obtained by the wifeunder the Dissolution Of MuslimMarriages Act or on the basis of judicialkhul be valid and effective. Theextrajudicial khul is a divorce by mutualconsent, one of the incidents of which isthat the wife agrees to make some financialrestitution to the husband, usuallyrepaying any mahr she has received and/

deferred mahr is set at a sufficiently highamount, it may be of real benefit to thewife, should she be divorced or widowed.

Mahr is, however, frequently set at anominal amount.

A divorce obtained by the wife underthe Dissolution Of Muslim Marriages Act

on any of the fault based grounds doesnot affect her right to claim any mahr thathas not yet been paid to her.

However, if the wife obtains a judicialkhul, she may be ordered by the court torepay any mahr already paid to her and/orto forgo any mahr owed her. Basically, thiswould seem to reflect an assumption thatsince the wife could not prove groundsfor divorce under the Dissolution Of Muslim Marriages Act, the husband is aninnocent party : If the dissolution is dueto some default on the part of the husband,there is no need of any restitution. If thehusband is not in any way at fault, therehas to be restoration of property receivedby the wife and ordinarily it will be of thewhole of the property, but the judge maytake into consideration reciprocal benefitsreceived by the husband and continuousliving together may be a benefit. (BalqisFatima).

It must be emphasised that recourseto judicial khul is only necessary whenthe wife cannot establish any of thespecific grounds available under theDissolution Of Muslim Marriages Act.

While the Muslim husband in SouthAsia has the right unilaterally to dissolvethe marriage extra judicially for any reasonor for no reason at all, the Pakistani orBangladeshi Muslim wife has a veryextensive right to judical divorce, eitheron grounds specified in the DissolutionOf Muslim Marriages Act or, withoutestablising any particular matrimonial faulton the parl of the husband or any ground

as such, simply on the basis of incompatibility, discord, or aversion,sufficiently strongly felt to render theharmonious married state as envisagedby Islam impossible. The Indian Muslimwife has a right to judicial divorce on anyone or more of the grounds set out in theDissolution Of Muslim Marriages Act,1939.

Islam does not force awoman to remain bound in

a union which shefinds hateful

or renouncing her claim to any unpaidmahr.

In practical terms, the differencebetween a divorce obtained under theDissolution Of Muslim Marri-ages Act onone of the specified fault based groundsand a judicial khul is in regard to the wifesright to her mahr.

Mahr is an amount settled on the wifeby the husband and is an essentialcomponent of a Muslim marriage contract.Although all of the mahr may be payableat or immediately after the marriage(prompt mahr), some portion is oftendeferred, becoming payable ondissolution of the marriage by the deathof either spouse or by divorce. If the

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