Family Laws and Judicial
Perceptions By Mrs. Rashida Mohammad Hussain Patel
In
this paper, I shall deal with three judgments passed by the superior courts,
which reflect the judicial perceptions. Family laws like all other laws are
applied by the courts in consonance with the existing circumstances of the
prevalent living conditions. One thing that strikes me time and again, at the
Legal Aid Center run by PAWLA, is the level of poverty prevailing in Pakistan
and in particular, that of women. A recent newspaper headline read “Labourer
Kills Three Daughters”. The responsible father surrendered and confessed to the
Police saying “I picked up my daughters one by one from their cots to the
courtyard of my house and slaughtered them. I had learnt overtime that I would
never be able to generate enough resources to give honourable lives tomy
daughters”. Poverty in Pakistan is rampant. According to the World Bank
estimates, twenty five to twenty eight percent of the people live below the
poverty line. Women are the poorest of the poor. No doubt, the government is
making all efforts to reduce poverty through development, especially industrialization.
In addition to the present scenario regarding excessive riches and abject
poverty, there exists in practice, a seriously misguided, misunderstood and a
misapplied concept of Honour of Women. Cases of Honour are a regular
constituent of family life. Quite often, one witnesses newspaper headings such
as “Court allows wife to live with her husband”. To join in marriage of their
own free will is a basic right of men and women. Nevertheless, it is disputed
time and again in Pakistani Society. The Zina Ordinance brought into existence
by a dictator, General Zia-ul-Haq, declared sex without marriage to be a
criminal offence. In many cases, where a woman married without the consent of
her parents, she was subjected to accusations along with her husband and
consequently was prosecuted for Zina. It is considered as a personal insult by
a father that his daughter, whom he presumed to be his property, marries of her
own choice against his wishes. Zina cases emanating from complaints through
parents, ex-husbands and even relatives, are filed by the Police in our courts,
against married couples accusing them of illicit sex. A large number of such
cases are decided by the lower courts, mostly in favour of the couple and at
times, against them. Some cases end up in appeals before the High Court, the
Shariat Court and the Supreme Court, more so when the factum of the marriage is
disputed.
CONSENT OF WALI
In
some cases that negated the right of women to marry in accordance to with their
freewill, the Lahore High Court, for the first time, held that even an adult
woman required the permission of her father or a guardian (Wali) in order
contract a valid marriage (PLD1995 Lah. 364). This was contrary to the previous
decisions of the superior courts, which had previously upheld that a woman is
free to choose her own husband. This ruling caused quite uproar. An appeal was
subsequently filed in the Honourable Supreme Court. The court unequivocally
supported the right of women to marry according to their own choice without any
intervention of the father / guardian. The Honourable Supreme Court of Pakistan
held that as per the judgment of the Federal Shariat Court, noted in Para
6,“consent of wali is not required and a sui juries Muslim female can enter a
valid Nikah/Marriage by her own free will.” This has finalized the question on
the legal field, yet complaints and cases continue to pour in this matter. MUSLIM FAMILY LAWS
Due to Pakistan being a Muslim state, laws
relating to family issues which include marriage, divorce, inheritance, custody
and guardianship of children are governed by Islamic Law in conjunction with
other statutes. Most of these laws are not codified. There are a number of
rulings of the Superior Courts on several issues, which highlight the judicial
perception of Family Laws.
MARRIAGE
Marriage
is advocated in the Holy Quran. It is the basis of a family life. An important
innovation under the Muslim Family Laws Ordinance 1961 was the mandatory
requirement of registration of marriages. For the first time, it became
obligatory for parties to use the prescribed standard form of Nikahnama.
Unfortunately, few people have taken note of the importance and contents of the
prescribed Nikahnama. I have with me some pamphlets published by PAWLA
explaining its importance so that woman 3can achieve equal rights in marriage
through the proper use of the standard Nikahnama. In the Pakistan of today, Quran
verses are not only misinterpreted but are manipulated to the extent of denying
women their Quranic Rights.
DISSOLUTION OF MARRIAGE - THE FATAL PRONOUNCEMENT
Misinterpretations
of Islam have made it possible to unilaterally pronounce talaq three times
resulting in the commonly accepted and valid form of Talaq / Divorce. All was lotto
the wife; her home, husband and children just because of a fatal pronouncement
of talaq. The husband seldom fulfills his obligations in complying with the
wife’s needs and the granting of her rights of maintenance, her share in
property or the custody of the children. For such basic rights, the wife has to
repeatedly knock the doors of courts and yet, redressal of her grievance could
take indefinite time. The 1961 Muslim Family Laws Ordinance lays down the
procedure to be adopted by the husband after the pronouncement of Talaq. It is
obligatory for the husband to give notice of the pronouncement of Talaq to the
Chairman and a copy thereof to the wife. Talaq does not become effective before
the expiry of 90 days starting from the day of the receipt of the Talaq by the
Chairman. The Chairman is required to try and bring reconciliation between the
parties. He is not empowered to put a stop to the Talaq from becoming
effective, nor can he ensure that the divorced wife receives her due share in
the property, her Haq mehar, dowry, her due role in her children’s life and sufficient
means for her maintenance as well as her children.
DIVORCE BY WIFE
There
was a misconception that Muslim women had no rights to obtain a divorce through
the courts. As a remedy to this situation, the Dissolution of Muslim Marriages
Act of1939 brought sweeping changes in the law. Section 2 of the Act specified
a number of grounds on which a woman married under Muslim Law could sue for
divorce, including cruelty, non-maintenance and impotence as well as any other
ground that could be recognized as valid for the dissolution of marriage under
Muslim Law.
KHULA
One of the recognized forms under the Muslim
Law for Dissolution of Marriage through which a woman can obtain divorce is
that of ‘Khula’. In pre-partition India, Khula was only accepted as a ground
for divorce by the British Indian Courts subject to the husband’s agreement to
the dissolution of marriage via Khula. The law has undergone considerable
change thereafter. The first case bringing in changes in the concept of Khula
was that of Bilqis Fatima, in which it was argued before the High Court that Khula,
is a right of the wife. The judge ought to grant Khula if he finds that the
husband and wife will not observe the limits of God otherwise. In a leading
case decided by the Honourable Supreme Court of Pakistan, Khurshid Bibi versus
Baboo Mohammad Amin (PLD 1967, SC 97, P 112), it was held that: “The Husband is
given the right of divorce to his wife, though, of course, arbitrary divorces
are discountenanced. Similarly, wife is given the right to ask for Khula in
case of extreme incompatibility ……”This ruling changed the concept of the right
of Khula by the wife. In a large number of cases concerning dissolution of
marriage, Khula is the main ground and often resorted to as an alternate plea.
A large number of Ulema even today, refuse to recognize Khula granted by courts
without the consent of the husband as a valid divorce. Confusion is caused by two
parallel and conflicting interpretations of the Islamic Law. On one hand, there
is the statutory law and interpretation by the Superior Courts of Pakistan and
on the other, is the archaic interpretation as preached by the Ulema and
supported by their fatwa’s (opinion).
PROCEDURE FOR KHULA
Formerly in the case of Khula, women had to
face the same stress delay and difficulties as in cases for dissolution of
marriage on other grounds such as cruelty or non-maintenance. The husband
usually refused to grant Khula to the wife and in order to defeat this right,
the husband claimed huge compensation for Khula, often making false allegations
of having given the wife huge sums in the shape of jewelry and property and
even claiming the property in the name of the wife as belonging to him. This
placed a lot of strain on the judges for such cases required heavy sifting of
evidence thus leading to lengthy procedures.President General Musharraf has
tried to curb this through amendments to the FamilyLaw Courts Act dated 1stof
October, 2002. Presently in cases of Khula, the procedure has been shortened
and simplified. When the wife files a case for dissolution of marriage, the
court issues notice to the opposite party being the husband. If he fails to
appear after the due process of posting and publication, the court can proceed
with thecae ex-parte. In case where the husband or his representative appears,
he is required toile a written statement following which the court has to fix a
date for pre-trial proceedings for reconciliation. The amendments require that
“the family court in a suit for dissolution of marriage, if reconciliation
fails, shall pass Decree for dissolution of marriage forthwith and shall
restore to the husband the mehar received byte wife in consideration of the
marriage at the time of marriage.”This change in the procedural law has brought
much needed relief to suffering wives who had to bear insurmountable delays or
long drawn out legal battles for the enforcement of their right of Khula. The
consequences of Khula differ from that of Talaq by the husband since following
a Khula, the ex-husband and the ex-wife can remarry without the necessity of any
intervening marriage to another person by the wife, as required for under the
doctrine of Halala which is recognized by most jurists. Khula has become an
easy and a quick form of relief to many women suffering from miseries of
violence in circumstances where they were unable to sustain a happy marriage
within the limits prescribed by God.
FEDERAL SHARIAT COURT
Article
3A, Federal Shariat Court (FSC) was inserted in the Constitution in 1980. Apart
from appellate powers, the FSC was granted legislative powers. The Federal
Shariat Court has jurisdiction to determine whether any law or provision of law
is repugnant to the injunctions of Islam.
CHANGE IN LAW OF CRIME
The
Judgment of the Shariat Appellate Bench of the Honourable Supreme Court
reported at PLD 1989 SC 633, recommended amendments to certain sections of the Criminal
Procedure Code 1898 and the Pakistan Penal Code 1860. The court considered that
in Islam “the individual victim or his heirs retain from the beginning to the
end entire control over the matter including the crime and the criminal”. Sweeping
changes were ordered which were made in the areas concerning the law of crimes.
Sections 299 to 338 of the Pakistan Penal Code were replaced and the Criminal
Procedure Code was amended. These are commonly known as the Qisas and Diyat Amendments.
Following these amendments, abortion was allowed in the early stages of
pregnancy not only to save the life of the woman, but also for the provision of
necessary treatment other. The relevant amended section 338 of the Pakistan
Penal Code pertaining to the law on abortion provides as follows:
Section 338. Isqat-i-Haml
Whoever
causes a woman with child whose organs have not been formed, to miscarry, if
such miscarriage is not caused in good faith for the purpose of saving the life
of the woman, or providing necessary treatment to her, is said to cause
‘Isqat-I-Haml’. Explanation: A woman who causes herself to miscarry is within the
meaning of this section.
Isqat-I-Haml
concerns abortion before the child’s organs have been formed, which can be
within eight weeks and according to some authorities, within twelve weeks of the
pregnancy. The change in law permits abortion within eight / twelve weeks of pregnancy,
not only to save the life of the woman but also to provide the woman with
necessary treatment.
With
the changes in law, especially the inclusion of the provision ‘providing necessary
treatment to the woman in good faith’ makes conviction for Isqat-I-Haml
(abortion before the limbs are formed) quite difficult. In cases of complaint
or prosecution, several defenses would become available, where the consent of
the woman is also available. The scope of legal abortion for family planning
purposes has expanded considerably. ‘Providing necessary treatment’ can include
several reasons for abortion.
The
Qisas and Dyad amendments brought in a sweeping change in the laws of abortion
in Pakistan. The one thing that should be a topmost priority on the agenda of
the Government of Pakistan is Family Planning or Population Welfare as it is
often referred to by the government. In many Muslim countries, the efforts made
for family planning are supported by the Ulema and religious scholars.
Unfortunately, in Pakistan such efforts are often met with objections raised by
the so- called religious scholars who condemn family planning. In either case,
sufficient funds are not allocated to the cause of family planning services in
Pakistan... According to reports, nearly one-third of married women in the
reproductive age group do not have access to family planning services. In
Pakistan, an extremely high number of abortions are carried out by untrained people
who inevitably lead to added suffering and often death for women. Attitudes harboured
by husbands to family planning are at times negative which acts as another impediment.
The status of women in Pakistan is often reduced to just that of the child
bearer. This along with a lack of education and training, especially in
circumstances of poverty, is one of the main reasons for the dependent status
of women leading to their exploitation. The economic well being of families and
the progress of Pakistan as a nation is being severely hindered by an ever
increasing population. Cruelty to women, unfortunately has gained momentum,
especially in cases of Karo-Kari. A high number of judges have to deal with
cases of honour killings which have given rise to the need to provide special
training to judges at the trial court level. The High Court and the Honourable
Supreme Court have at times exercised their suo motu jurisdiction and taken up
cases, through press reports, of gross violation and cruelty to women. Courts
must encourage people to come directly with their complaints in cases
concerning violation of Human Rights. There must also be a network of propone
lawyers and paid lawyers through the aegis of government to protect the inherent
human rights of women. The pronouncements and judgments of cases decided by the
Superior Courts do not always reach the judges or the police officers in
several parts of the country. They continue to be guided by obscure traditions
and practices and often interpret laws in manner detrimental to women. The lack
of knowledge and biased attitudes needs to be addressed. It is strongly
recommended that the Honourable Supreme Court of Pakistan directly, or through
any collaboration, publish the special judgments of the last 50 years which
have brought about a landmark change in the laws; in all local languages and distribute
those to all courts, judges, bar associations with strict instructions to
adhere to these judgments. There must be a cell where the public can lodge a
complaint when a trial judge fails to apply the judgments of Superior Courts
following which an enquiry must be carried outland the erring judge punished.
Life is a changing process and it is essential that changes in law be part of
the legal system in Pakistan. There must be an end to distress and delays in
litigation. The environment in courts must improve. We all need to work to
realize Justice for All.* the writer is a prominent lawyer and activist. She is
Advocate of theHonourable Supreme Court of Pakistan and President of the Pakistan
Women Lawyers’ Association. She has authored four books: Women and Law in
Pakistan, Islamisation of Laws in Pakistan, Socio-Economic Political Status of
Women and, Woman Versus Man, Socio Legal Gender Inequality in Pakistan,
published in 2003.Address:F-21/1/A, Block-8, Clifton, Karachi, Pakistan.
Keywords: Family Law, Islamic Law, LLB Part 2, Divorce, Khula, Marriage, Federal Shariat Court, Crime
