ON Aug 29, I wrote an article discussing a case in which an appeals court in Virginia decided that a Pakistani American woman had not fulfilled all the requirements of divorce because her husband’s oral pronunciation of divorce had not been registered with the local union council/district registration office.

The woman’s first husband had divorced her verbally and sent her back home to her parents. She believed herself divorced. When she remarried she did not disclose the earlier marriage to her new husband and they moved to the United States.

A few years later, she and her second husband also chose to divorce. According to the court record, while on a visit to Pakistan the second husband found out about the previous divorce. He now alleged to the court in Virginia that since his wife had never registered the divorce, she was still married to her first husband under Pakistani law.

He insisted that oral pronouncements of talaq or divorce had to be registered with the local union council or district registration office within 90 days. To prove his case, he provided the text of the Muslim Family Law Ordinance, 1961.

The court in Virginia believed the man and his assertions regarding Pakistani law and he was awarded an immediate annulment. On this basis, he managed to sidestep divorce proceedings, thus avoiding the division of marital property with his wife or any support etc that may have been due to her under US law.

Pakistani law, the Virginia court stated, based on a literal reading of the statute provided to them, was clear, saying in Section 7 that “Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife”. No notice means no divorce.

After the publication of the article I received many letters regarding the issue of whether or not a notice to the council is required for the endorsement of an oral pronunciation of talaq in Pakistan. In several cases, wives were unsure of whether the lack of registration was in itself a revocation of the oral pronunciation; in other cases women and their families wondered how to effectively register a divorce when the husband himself had failed to do so.

It seems the issue of notice as a requirement fell squarely, as it were, on the fault line between what is required for the state to adjudicate on marital disputes and the bare minimum required for validating religious pronouncements in civil courts.

Unsurprisingly, much of the legal confusion dates back to the Objectives Resolution that, appended to the constitution of Pakistan, directs explicit conformity with the doctrine of the Quran and Sunnah without explaining the consequences this would have in cases where form and intent were not easily aligned.

In this case, the court in Virginia was simply wrong. According to Dr Parvez Hassan, a legal scholar and practitioner who has worked on the issue for several years, the issue of whether notice of an oral pronouncement of divorce further requires registration with local authorities is one that has long confounded as to the effects of the registration requirements, their intent and implication on the rights otherwise provided to men.

The conflict centres on those who argue that the registration requirement can itself be considered a violation of Islam because it adds an additional requirement (registration) that is not otherwise necessary to the act of repudiating a marriage. Others insist that the issue be judged on the basis of the ‘intent’ of the registration requirement which would be to deter the treatment of divorce as a light matter, maintaining the sanctity and seriousness of the marital relationship.

The second position was upheld by the Pakistan Supreme Court in 1963 Nawaz Gardezi v Yousuf Ali where Section 7 and the registration requirement of the Muslim Family Law Ordinance of 1961 was found to enact a “machinery of conciliation whereby a husband wishing to divorce his wife unilaterally may be enabled to think better of it, if the mediation of others can resolve the differences between the spouses”.

Later courts changed their minds, and the intention of the registration provision has since been brought into question by both the Shariat Appellate Bench of the Pakistan Supreme Court and the Federal Shariat Court. The latter pronounced in Allah Rakha v Federation of Pakistan PLD 2000 that “subsection (3) and subsection (5) of Section 7 of the Muslim Family Laws Ordinance, 1961, are repugnant to the injunctions of Islam”.

While that case is currently pending appeal by the Shariat Bench of the Pakistan Supreme Court, the latter has followed the same track, saying in Zahida Shaheen v The State (1994) that “failure to send a notice to chairman of the local council does not render the divorce ineffective”.

As it exists today, then, failure to register a verbal divorce with the council does not invalidate the act. The confusion over the notice, however, reveals a deep conflict between the intent of the law and the acceptability of its sources.

Most religious clerics in Pakistan would agree that within Islam’s legal and ethical constructions divorce is a matter to be taken seriously and reconciliation between estranged spouses is a worthy aim. Despite these assertions, though, their insistence against the validity of the registration requirement of the Muslim Family Law Ordinance, 1961, and its attempt to position the state as a buffer between the couple, stubbornly prioritise form over function, protecting the marriage and family by making divorce more than an act of three vocalised sentences.

The right of a man to divorce without any checks is thus deemed more important than the state or society’s interest in ensuring the longevity and stability of marriage.

The writer is an attorney teaching constitutional law and political philosophy.

rafia.zakaria@gmail.com

 

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Comments (18)

fika77
September 26, 2012 1:38 pm
Agreed
Agha Ata
September 26, 2012 12:58 pm
Woman must also be given the right to divorce her husband verbally with one witness present. That would bring some people into senses.
Sue Sturgess
September 26, 2012 5:40 am
How does one prove or disprove a verbal divorce? Are witnesses required? Why can a man divorce a woman so easily with 3 verbal statements, yet a woman can only divorce a man if he agrees, or with approval of the court? Surely it should be equally easy for a woman to obtain a divorce.
Tanvir
September 26, 2012 3:04 pm
The Quran provides guidance for living a good life by resolving issues peacefully. It is upto a community on how to implement the guidance. To follow this guidance, if the Pakistani community registers a marriage in a paper, it must also register a divorce in a paper. It's simple common sense. Otherwise, remove the paper form of marriage certificate and keep both the marriage and the divorce process as "verbal" declarations among two persons. If one really wants to follow the Quran literally, it simply requires a man to give a "demanded" mehr to the woman to marry her, and later, simply declaring his intent of divorcing her three times. Reading the literal guidance, all these dealings are conducted directly between a man and a woman. There is no restriction in Quran to apply your God given intellectual powers to improve on the GUIDANCE to make more agreeable laws for living a peaceful life.
Nasir
September 26, 2012 10:27 am
what a confusing law of a religion
naushad
September 26, 2012 10:42 am
As per my knowledge ... Divorce is always acceptable only with witnesses. for other questions, please consult the Holy Book QURAN which has very clearly given details.
Manoj
September 26, 2012 4:37 pm
That will be insulting the judgement of Allah, All knowing all merciful.
Atta
September 26, 2012 5:12 pm
Only an Islamic scholar can explain better. After 1st and 2nd divorce (Talaq) there is a period of reconciliation and after 3rd Talaq no reconciliation. If a man insists on a relationship after the divorce then it is haraam and sinful act. Both men and women need to learn and get themselves educated about this very important topic of divorce before marriage. As far as registration is concerned, I think this is very important for legal purposes, both for Talaq or Khula equally. Quran teaches us to do things/contracts in writing so no problem is created in future. Any dealing can start verbally initially but it has to in writing ultimately for legal reasons.
pathanoo
September 26, 2012 10:15 pm
I don't care what the instructions are. If the woman does not have the same rights then it is unfair.
pathanoo
September 26, 2012 10:18 pm
Why is this allowed in Islamic law that a man can divorce the woman by verbally saying Talaq, Talaq, Talaq and the woman has no rights to fight it or object to it. But the woman does NOT have the same right. Seems wrong to me. Change the law.
jmasih
September 27, 2012 3:26 am
I say Amen to that!
Sal Cordeira
September 26, 2012 11:30 am
A Muslim man can divorce his wife by pronouncing "talaaq" three times. It is much more difficult for the wife to divorce her husband. how can this be fair?
suneel
September 26, 2012 12:45 pm
Absolutely right, unfortunately there are not many sane people left in this country
Manoj
September 27, 2012 7:04 am
Your knowledge is faulty.
malik
September 26, 2012 3:56 am
We seem to be bent upon living in dark ages. What is wrong with registering the divorce so as to make it formal and legal?
M zaki
September 27, 2012 8:19 am
what do u meant by "DARK AGES"???? Islam is a perfect religion we just need to understand it !
aaa
September 26, 2012 7:31 pm
Im unable to understand a problem here. When one gets married one gets a written document. That is not necessary either but everyone has it. When one gets divorced one needs a written document. Same goes for different degrees and anything of importance. If the man after uttering it verbally did not bother to get a document woman should have done it herself. Why was she waiting?
peddarowdy
September 26, 2012 1:57 pm
Isn't it ludicrous to allow only one sex the power to end marriages? What if a Woman is stuck in a loveless marriage? Or, a violent one? Does she have no right? What if the man has an affair and utters Talaq 3 times to get rid of the pain in the back. Is that consider fair?
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