Pakistani Muslim Legal Pluralism

2.3 Polygamy

Under traditional Muslim laws, women are subject to strict monogamy, yet men may be married to four women at a time. The right of males to plural marriages was entrenched in the Pakistani official law. While the Qur'anic pur­pose underlying the polygamy license was to establish social justice and pro­tect widows and orphans, this moral duty has turned into a matter of sexual adventure in today's Pakistan^³

Section 6 of the MFLO tried to restrict the male's right of polygamy. Under section 6 of the MFLO, polygamy is restricted to the extent that a man who is planning to marry a second or subsequent wife must submit an application for permission to the chairman of the Union Council stating the reasons that jus­tify the proposed marriage and also whether the consent of the existing wife or wives has been obtained. The council may then grant permission if it is satis­fied that the proposed marriage is necessary and just.

However, the MFLO does not specifically state that a polygamous marriage entered into without the permission of the Council is illegal, void or voidable.5⁴ Thus subsequent marriages contracted in contravention of section 6 of MFLO remain valid. This makes the official law less effective against arbitrary and unjustified polygamy.55

As case law5⁶ shows, almost all Muslim polygamists in the country remain unpunished and the second or subsequent marriage is still considered valid. Thus, the official law cannot guarantee a woman that her husband will not bring a co-wife into the house. These regulations appear to be mere formali­ties rather than effective deterrents. Whatever the official law commands, the practice of polygamy is socially accepted and practiced.

The state's attempt to regulate polygamy faced strong opposition by the anti­Reformists on account of the conditions they place on polygamy. It has been argued that section 6 “must be deleted in toto, for, in its present form, it is total­ly repugnant and foreign to the words and spirit of the Holy Qur’an and Sunna and the fundamental principles of Islamicjurisprudence".^[399] Nevertheless, in the Allah Rakha v. Federation of Pakistan (pld 2000 FSC 1) case, the FSC un­derlined that polygamy is not mandatory or even recommended in Islam. It is only tolerated. It may be restricted or even prohibited if it leads to unlawful consequences or injustice. Accordingly, the FSC advised that authorities must adopt suitable measures to end or at least to minimise the instances of injus­tice. By upholding the mflo's limitations on the male polygamy license, and by recommending the enactment of further necessary checks and balances to prevent polygamy's abuse, the FSC took a progressive, anti-Salafist stance with its equitable interpretation of Muslim laws consonant with women's rights.5^[400]

On the other hand, in 2014, the state's official advisory body, The Council of Islamic Ideology (cιι), criticised the mflo's restrictions on polygamy and also the Child Marriage Restraint Act 1929, which prohibits child marriages.5^[401]

2.4 Divorce

The right of talaq is the unilateral right of a/the husband to divorce his wife. In Hanafi law, neither the wife nor any witnesses are required to be present at the time and place when a husband is unilaterally divorcing his wife. It is effec­tive orally or in writing. However, Section 7 of the mflo 1961 has attempted to convert the talaq al-bid’a (irrevocable divorce unilaterally declared by the hus­band) into a revocable divorce. The objective of section 7 is to prevent the hasty dissolution of marriage by talaq pronounced unilaterally by the husband. The mflo mainly relates to procedural aspects of the family laws. It does not touch upon what the substantive laws are, thus leaving it to the courts to rely on the uncodified Muslim personal law. For instance, it does not list the grounds for divorce, its forms and when a wife can ask for it.^[402] Although the official law aims to reform the traditional Muslim laws to protect women, it fails in practice to restrict the man's right of divorce. As in the case of polygamy, the divorce procedure provided in the official law has become a mere formality in­stead of deterring and regulating the unilateral use of divorce by the husband.^[403]

Divorce in Pakistan is very easy for men. They can divorce their wives, either orally or in writing. They may speak, write, fax, email, or even SMS the word talaq three times and get rid of their marital ties. All the mflo did to restrict this power was to require the divorcing husband to register the divorce with the Union Council and withhold its validity for a period of ninety days. The mflo threatened an offender with imprisonment and fines but it remained silent as to the validity of unregistered divorce. Some courts have preferred un­codified Islamic legal rules over the express provision of the ordinance. Some others have followed both the ordinance and the unofficial laws: laying down that violation of the ordinance is a punishable act but anything done accord­ing to Shari^ta would not be invalid. Thus, non-registration of a marriage and notice of divorce to a wife are punishable under the mflo but, according to un-codified Muslim laws, non-registration will not invalidate the marriage^[404] Some other courts held that compliance with Section 7's registration require­ment is a prerequisite to the validity of a divorce^[405]

Two decades after the pro-women, progressive mflo was enacted, this chaotic situation on the procedural requirement was combined with the Zina Ordinance and became a deadly weapon in the hands of vindictive for­mer husbands^{[406] [407] [408] The criminalisation of adultery and fornication as a result of the Zina Ordinance 1979 had an unintended effect on the mflo procedures that were designed to protect women's rights. After the passing of the Zina Ordinance, abandoned wives who had since remarried were unexpectedly accused of adultery by their former husbands, the latter claiming that they had not followed the procedures contained in Section 7 of the mflo. Thus, they had never validly been divorced and their (former) wives were guilty of adultery.65 Because of jealousy, they denied ever having pronounced talaq and charged them with zina (adultery), an offence that until very recently could carry the death penalty.66 In order to protect the women, judges dealing with these cases often decided that the divorce had been valid, despite non­compliance with the mflo. But this has weakened the obligatory character of the mandatory notification. On the other hand, the notification require­ment was upheld in cases concerning purely family, not criminal law matters.[409] Later, the FSC invalidated the registration requirement in the Allah Rakka v Federation of Pakistan (pld 2000 FSC 1) case and severed the dangerous tie between the MFLO and the Zina Ordinance[410] The Protection of Women Act, 2006 has finally ended this chaos. The law now states that it is sufficient for a woman to believe herself to be validly married to avoid a charge of adultery[411] [412] [413] [414] Even if the divorce preceding her re-marriage turns out to be invalid, she will not face charges if she can convince the court that she had reasons to believe that her divorce and subsequent marriage were valid?0}

Besides divorce by the husband, the mflo recognises other forms of dis­solution of marriage: mutual release which may either take the form of khul^c or mubdra’a and the “option of puberty” (if a girl is married in her minority she may dissolve such a marriage on attaining puberty), and delegating the power of divorce to the wife (section 8).71 Unlike a husband's no-fault based right to divorce (taldq) which is not based on the consent of the wife, khul^c requires the consent of the husband. Under traditional Muslim laws, a Muslim wife does not have a no-fault based right to dissolve her marriage equivalent to a Muslim husband's absolute right to divorce his wife without assigning any reason. A Muslim wife could get a divorce only through a court presided over by a Muslim judge after establishing ‘fault' on the part of her husband under very limited circumstances?²

However, in a remarkable case (Saleem Ahmad v Government of Pakistan PLD 2014 FSC 43), a wife's unilateral right to no-fault based divorce under Muslim laws attained the sanction of the Federal Shariat Court (fsc). In 2002, the legislature amended section 10(4) of the Family Courts Act, 1964, authoris­ing family courts to dissolve a marriage on the basis of khul^c if reconciliation between the spouses fails. This amendment was challenged before the FSC on the ground that it was against the injunctions of Islam. In this case, the FSC did not take into account the strict principles of Hanafi jurisprudence and in­stead resorted to ijtihdd by directly referring to the primary sources of Muslim law (Qur'an and Sunnah). As a result, the Court extended to wives the right of khula without the consent of their husbands. After reviewing various juristic opinions (fatawd), which unanimously held that a judge does not have any authority to order the dissolution of a marriage on the basis of khula with­out the consent of the husband, the FSC held that it was not bound by these unofficial juristic opinions. The Court observed that the injunctions of Islam regarding gender are based on equality without any discrimination. Thus, the Court held that Islam does not intend to force a wife to live a miserable life, in a hateful unhappy union, forever. If she is unhappy and reconciliation fails, she should be entitled to get relief.^[415] The FSC argued that in the primary sources, there is no express prohibition of granting a woman a divorce without the consent of her husband. The Court also emphasised that marriage in Islam is dependent on (reconciliation, thus if the wife expresses her unwillingness to continue the marriage, then the conciliation does not exist. The FSC also held that the rights and responsibilities of husband and wife are similar in Muslim laws and that there is no room for discrimination. If men could unilaterally divorce their wives, women could also ask for their release from the same mar­riage bond.7^[416]

Despite this development, another state organ, the CII (The Council of Islamic Ideology) declared in 2014 that the Dissolution of Muslim Marriages Act 1939 (dmma) was not Islamic because it allowed the dissolution of mar­riage by a wife on grounds of her/the husband entering into another mar­riage without following the provisions given in the law. Its chairman argued that a woman could not demand divorce if her husband married a second, third or fourth time. Thus, the CII claimed that the relevant provision of the Dissolution of Muslim Marriages Act (dmma) 1939 was against Shari^ta and it wanted the government to repeal it?^[417]

It seems that a Kulturkampf over women and Muslim laws between reform­ists and Salafists not only in Pakistani society but also within the state institu­tions will continue in the foreseeable future. All in all, the Pakistani legal system has failed to decisively respond to the socio-cultural bias against women in Pakistan resulting from deep-rooted and problematic hegemonic masculinity and has, willingly or not, enabled masculinist and patriarchal interpretations of Islam at the expense of the women.^{[418] [419] The FSC's new progressive and reform­ist pro-women Ijtihadsn and most of the abovementioned recent legislation are promising to tackle this problem that is an unfortunate result of strong legal pluralism in Pakistan.}

3