LAHORE, Nov 4: A majority of women are not aware of their conjugal and marital rights with regard to the provisions in the Quran.
This was stated by former Lahore High Court judge Nasira Javed while speaking at an interactive discussion on the impact of the Muslim Family Laws organized here on Thursday by Aurat Foundation, a non-governmental organization (NGO). Participants of the discussion included legal experts, media persons, rights activists and parliamentarians.
According to Nasira Javed, most women forgo their right to divorce at the time of the Nikah, either under family pressure or sheer ignorance, which is against the contractual nature of marriage.
"Every woman has the right to divorce under Khula and it is incumbent upon a family court's judge to decide the case within six months. A lack of knowledge in this regard makes a woman vulnerable and deeply dependent upon the whims of her husband."
The retired judge said Islam had given leverage to a woman to such an extent that if she wanted a khula, the qazi was not allowed under law to refuse her. "Sunnah is replete with such instances where women have sought divorce. The most famous and an often quoted instance is that of a woman who went to the Prophet (PBUH) to ask to be divorced from her husband. Her only reason was that she no longer wanted to live with her husband and on those grounds alone she was given the right to divorce," she said.
She asserted that if only women knew how much protection and security Islam had given them, most of the problems they faced as wives, daughters and sisters would not rise. "A reference to the Quran and teachings of the Prophet (PBUH) will automatically entitle them to equality and justice. A woman has the right to divorce if the husband has been impotent for a year, has sexually transmitted disease (STD), does not provide her with maintenance, is unable to fulfil his conjugal rights and leaves home without returning for more than a year. In all these instances, Islam gives her the right to divorce, but unfortunately social sanctions and pressures prevent women from exercising that right," she stated.
Discussing various reforms required in making the Muslim Family Laws more effective, she specified a strict code of laws which would enable a husband to abide by them. "For instance, if a man decides to take a second wife in marriage without the consent of the first one, we don't have any legal provision to prosecute him. He should be required to appear before area union council and attach proof of his first marriage. In case the first wife does not give consent, then it should be left to the union council's authorities to arbitrate according to the situation. This needs to be included in our family laws," she said.
Elaborating on the Guardian and Wards Act of 1890, PML-N MPA and lawyer Saba Sadiq simplified the definitions of a "child" and "wali". "According to law, the age of majority is 18 and a wali is any such person who is given the right by law to look after a minor and till he or she reaches the age of majority and to take care of his or her property," she said.
"One of the problems arising from appointing a wali is the absence of guarantee of the legal guardian's intentions. I have seen many cases in which the wali has a change of heart towards his ward in order to take complete control of that minor's property. We are still following a law which is more than 100 years old and at the same time following various laws prescribed by different fiqahs," Ms Sadiq said.
Deeply regretting the unequal basis on which the same law is applied in one way to a man and another to a woman, Ms Sadiq said that for years women had been blackmailed through their children. "If a woman wants to end her marriage her biggest concern is that she will not be allowed custody of her children.
A small allegation from her husband or in-laws can cost her children. That's why many women decide to spend their lives in a miserable state instead of walking out on a failed marriage," lamented Ms Sadiq. "Our law needs to keep a balanced view of both the parties without giving an edge to anyone."
The history of the Muslim Family Laws dates back to the time of partition in 1947. After partition the legislation relating to Muslim family laws, introduced in British India, remained applicable. A seven-member Commission on Marriage and Family Laws was established in 1955 to consider the personal status laws applicable in the new state and determine the areas needing reform.
The commission submitted its report in 1956, suggesting a number of reforms, including, for example, the consideration of all-triple 'talaq'. The report led to much debate, with many leading Islamic scholars, including Maulana Maududi, leader of the Jamaat-i-Islami, opposing its recommendations. The Muslim Family Laws Ordinance of 1961 adopted some of the provisions of the Report of the Marriage and Family Laws Commission, aiming to reform divorce law and inheritance law relating to orphaned grandchildren, introduce compulsory marriage registration, place restrictions on the practice of polygamy, and reform the law relating to dower and maintenance in marriage and divorce, as well as to amend existing legislation with relation to age of marriage.
When the first Constitution of Pakistan was finally promulgated in 1956, it included a provision that came to be referred to as the repugnancy clause. This clause stated that no law repugnant to Islamic injunctions would be enacted and that all existing laws would be considered in light of this provision, in order to institute appropriate amendments.
This repugnancy provision has been retained and actually strengthened in the succeeding constitutions. After a military takeover in 1999, the constitution was again suspended and discussions continued all through the year 2000 about possible amendments to the constitution.