Women’s Right to Divorce under Islamic Law in Pakistan and India

Summary

This Note explores the issue of the reform of Islamic divorce law in India and Pakistan. In both countries, judges of the superior courts led the reform efforts. Indian and Pakistani judges tried to ensure gender equality under Islamic divorce law, but adopted entirely different approaches. Whereas the Pakistani judges extended women’s limited right to divorce (khul‘), Indian judges restricted husband’s unlimited right to divorce (talaq).

Women’s Right to Divorce under Islamic Law in Pakistan and India

A post-graduate in sociology, Shayara Bano has taken up the cause of Muslim women in India by filing a petition before the Supreme Court asking for a declaration for the invalidity of triple talaq. She contends that a Muslim husband’s unilateral right to no-fault divorce violates the constitutionally protected right of women against gender discrimination. While her petition is pending adjudication, in a judgment the Allahabad High Court described triple talaq as “cruel” and “most demeaning”.[1]

Shayara Bano represents the hapless Indian Muslim wives who live their lives always dreading divorce as a Muslim husband can divorce his wife unilaterally and without assigning any reason. Ms Bano had been married for the past 15 years when one day her worst fears became a reality as her husband sent her a divorce deed at her parents’ home address while she was visiting them.

Not surprisingly, the issue of gender discrimination under Islamic divorce law has been raised before the Supreme Court of India. In 2002, while deciding Shamim Ara’s petition, the Supreme Court held that a Muslim husband must have a reasonable cause to divorce his wife. In this way, the Supreme Court tried to equalize the spousal right of divorce by restricting a husband’s unilateral right to divorce under Islamic law.[2] The genesis of this principle can be traced back to the judgment of Justice Krishna Iyer in Yousuf Rawther v Sowramma.[3] After referring to verse 4:35 of the Qur’an, which prohibits husbands from seeking a way against their obedient wives, Justice Iyer held that under Islamic law a man could divorce his wife only when there was a justification for doing so. A decade later, Justice Baharul Islam of the Gauhati High Court endorsed this view in Rukia Khatun v Abdul Khalique Lascar.[4] Subsequently, the Supreme Court affirmed the Shamim Ara case in Iqbal Bano v State of UP.[5]

The above-mentioned precedents illustrate that the Indian Supreme Court has already removed gender discrimination under Islamic divorce law. Shayara Bano’s husband cannot unilaterally divorce her without establishing that he has a “reasonable cause”. The divorce by her husband must also be preceded by reconciliation efforts by two arbiters from the side of either spouse and must also be properly evidenced in the form of formal declaration by the husband. This is the Indian model of gender equality under Islamic divorce law.

In contrast to the Indian model of gender equality, Pakistani judges did not limit a husband’s unilateral right to no-fault based divorce by requiring a “reasonable cause” for divorce. Instead, they recognised a similar right for a Muslim wife.[6] As early as 1959 in the Balqis Fatima case, the Lahore High Court acknowledged that a Muslim wife had a right to obtain a judicial khula without the consent of her husband.[7] In this judgment, the court observed that it does not seem reasonable that only a husband should be given a right to divorce in a marriage contract. The court held that the words in verse Al-Baqara: 229 “if you fear that they will not observe limits of God” are addressed to the state or a judge and permit them to dissolve a marriage when a wife is willing to return her dower, even if the husband does not provide his consent. The court endorsed this view with reference to verse Al-Nisa: 35 which deals with shiqaq (irretrievable breakdown of marriage) and has been relied upon by the Maliki school to authorise arbiters (Hakam) to dissolve a marriage without the consent of the husband.[8] Eight years later, the Supreme Court of Pakistan confirmed this principle in the Khurshid Bibi case by observing that the Qur’an has placed both the husband and wife on an equal footing with regard to their mutual rights and obligations.[9]

A majority of religious scholars (ulama) criticised the Supreme Court judgment. However, the Federal Shariat Court sanctioned this principle in its decision in the Saleem Ahmad case in 2014.[10] Justice Fida Muhammad observed that the injunctions of Islam regarding gender are based on “equality without any discrimination”. He supported this view by referring to various Qur’anic verses: 2:228-229, 2:237 and 4:34. Pakistani judges have been consistently following this principle since the 1960s and superior courts have developed new principles to ensure gender equality in Islamic divorce law.

The judiciaries in India and Pakistan have performed a remarkable job by organically reforming Islamic divorce law within their respective socio-political and communal contexts. If the Supreme Court of India rules in Shayara Bano’s favour by declaring her talaq invalid, the question remains whether the courts will force Rizwan Ahmed, Ms Bano’s husband, to take her to their matrimonial home?[11] Will the couple live happily thereafter? Ms. Bano is willing to give her husband another chance for reforming himself and she is willing to live with him for the sake of her two children. For the past 15 years, her married life has not been a pleasant experience. Soon after her marriage, her husband, a property dealer, demanded a car and money from her parents. He forced her to undergo several abortions, which led to her mental breakdown. It is the plight of women like her that persuaded the Pakistani judges to extended wives right to unilateral no-fault divorce under Islamic law. Had she been in Pakistan, she could have obtained judicial khula years ago. It is this aspect of Islamic divorce law that is missing from all the media coverage that her case has attracted ever since she filed her petition before the Supreme Court of India.

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[1] Namita Bajpai, Allahaba High Court terms ‘triple talaq’ as Unconstitutional, Indian Express, 8 December 2016 http://www.newindianexpress.com/nation/2016/dec/08/triple-talaq-unconstitutional-rules-allahabad-high-court-1546965--1.html

[2] The Dissolution of Muslim Marriages Act 1939 provides a fault-based right to divorce to Muslim wives who can prove any of the listed grounds to get a decree of dissolution of marriage. These grounds include: cruel treatment, disappearance of husband for four years, husband’s failure to perform marital obligations for three years, husband’s failure to provide maintenance for two years; husband’s imprisonment for seven years; and impotency and insanity of husband. This Act was passed during the colonial period and still applies upon Muslims in India and Pakistan. In Pakistan under the Muslim Family Law Ordinance 1961, second marriage of a husband was added as an additional ground for the dissolution of marriage. This Ordinance also required mandatory reconciliation in cases of no-fault based divorce.

[3] AIR 1971 Ker 261.

[4] (1981) 1 GLR 375.

[5] AIR 2007 SC 2215.

[6] In her study of the Family Laws of the Arab States, Welchman describes wives’ equal access to judicial khula as balancing husbands’ unilateral right to talaq. Lynn Welchman, Women and Muslim Family Laws in Arab States (Amsterdam: Amsterdam University Press, 2007) 113. Pakistan is the first Muslim country which recognised women’s unilateral right to no-fault based divorce. Other Muslim countries followed Pakistan in the beginning of this century, starting from Egypt in 2000, Jordan in 2001 and UAE in 2005. Karin C. Yefet, “The Constitution and Female-Initiated Divorce in Pakistan: Western Liberalism in Islamic Garb,” Harvard Journal of Law & Gender 34 (2011): 553.

[7] Balqis Fatima v Najam ul-Ikram Chaudhry PLD 1959 Lahore 566.

[8] Ibid.

[9] Khurshid Bibi v Baboo Muhammad Amin PLD 1967 SC 97.

[10] Saleem Ahmad v Government of Pakistan PLD 2014 FSC 43.

[11] Under the Indian law, Ms Bano is entitled to maintenance from her husband and can also file a petition for restitution of conjugal rights.