The right to divorce

Published August 28, 2012

THE decision was issued on Aug 14, 2012, Pakistan’s 65th birthday. The court of appeals in Virginia, hearing an appeal from the circuit court in Fairfax County in the same state, decided that an annulment of marriage claim by plaintiff Hamid Mughal be granted.

Underlying the claim was Mr Mughal’s accusation that his wife, Tahira Naseer, was guilty of bigamy.

The story began years ago in Pakistan on Aug 1, 2000, when Tahira Naseer married Naseer Mehmood Khan. Less than a year later, on June 12, 2001, Naseer Mehmood Khan told his wife three times that he had divorced her pursuant to Islamic law.

Believing herself divorced, Tahira Naseer returned to her parents’ home and broke off all contact with the man she believed was now her ex-husband.

About two years later, on Jan 26, 2003, Tahira Naseer married Hamid Mughal, the marriage ceremony also taking place in Pakistan. On July 4 the following year, another marriage ceremony was held in Fairfax County, Virginia.

According to the court’s statement of facts, Tahira Naseer did not tell her new husband that she had been previously married. On the marriage certificate she signed that day, she stated that her marriage to Hamid Mughal was her first.

Several years passed, filled with growing differences between the married couple. On Nov 18, 2009, matters came to a head and Tahira Naseer and Hamid Mughal separated. No divorce was filed and no legal proceedings were at that time initiated.

In the days subsequent to their separation, Hamid Mughal took a trip to Pakistan, where presumably during a belated background investigation about his now estranged wife he discovered a marriage certificate from her previous marriage.

Toting this choice piece of ammunition, he returned to the US and filed a suit against his wife for bigamy, or the charge of contracting a marriage with a person while being married to another.

As the facts of the case present, Tahira Naseer’s mistake was not a new one and happened under the auspices of a law that ironically was meant to protect women in such situations.

According to the stipulations of the Muslim Family Law Ordinance (MFLO) of 1961, which remains in effect in Pakistan today, the vocalisation of ‘I divorce you’ repeated three times does not itself constitute a valid legal divorce.

After the words have been said, the MFLO requires that the husband must follow a procedure involving the courts or the local government and provide a notice to the union council or district registration office. When this notice is provided, a copy of it is then delivered to the wife. After this a notice is to be given to both the husband and the wife encouraging them to reconcile. If there is no reconciliation between the parties for 90 days, a certificate is issued confirming the divorce.

In Tahira Naseer’s case, her ex-husband failed to provide notice of the divorce, no further notices were served and no final confirmation of divorce issued. Her story, undoubtedly like scores of others, illustrates the disastrous chasm between the intent of the law and its actual consequences.

The impetus to require registration of divorce was to allow suddenly repudiated women to avail themselves of governmental authorities prior to being divorced. If divorces are registered, it was argued, then threats of divorce or enraged pronouncements cannot destroy families.

The snag in the plan was that the husband making the pronouncement was left in charge of initiating the proceedings that would legalise the divorce. The thought may have been that unless the husband took matters to that level, a wife could ignore the vocal utterance and consider the husband’s failure to register an indication of regret and of a desire to keep the marriage intact.

Tahira Naseer’s case is not the only one that reveals the flaw in this plan; divorcing husbands refusing to register divorces condemn partially divorced wives to legal limbo. In 1988, the case of Shahida Parveen and Mohammad Sarwar revealed how a similar set of facts — a woman who believed she was divorced and married again — could lead to a women being accused of adultery in Pakistan and sentenced under the Zina Ordinance of 1979.

In Virginia, it was again the husband who won. Tahira Naseer’s second husband was able to use the overlooked registration requirement in Pakistani law to argue that he should be permitted an annulment instead of an actual divorce. His intent for this was probably and simply to avoid the distribution of assets that would occur if the court decided that his wife of five years had indeed been divorced from her first husband when he married her in 2003.

With an annulment, he would not have to share any of the assets the couple may have purchased in five years — cars, homes, couches, pots and pans all comfortably falling into his lap through the ingenious tactic of insisting that he had been duped five years ago.

Tahira Naseer’s story is an instructive one of multiple jurisdictions, embarrassed families and social stigmas all colluding to disenfranchise women and leave them solely culpable for the breakdown of relationships and ignored legalities.

The details of the case reveal all the culprits: a Virginia court looking solely at the letter of the law, a lazy first husband unmotivated to fulfil legal obligations that imposed no cost on himself, a scheming second husband intent on not parting with a penny and a flawed if well-intentioned piece of legislation. All these combined to leave a woman stuck between two court systems, without justice from either.

The writer is an attorney teaching constitutional law and political philosophy. rafia.zakaria@gmail.com

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