Divorce. A term so taboo, almost every desi household trembles before its mention. You would think that it’s something sinister but in reality, it is a right given to women by God and the Law. Even still, the stigma surrounding divorce and khula is so unbearable that countless women in Pakistan choose to survive in an unhappy marriage rather than try for their freedom. Because even though the Law gives them the right to obtain Khula through the Dissolution of Muslim Marriage Act 1939 along with section 5 of the West Pakistan Family Courts Act 1964 giving family courts the responsibility to deal with khula related cases. However, at the end of the day it is a man’s world. This article explores the loopholes within the legal system which had existed for a long time, the court system and the social stigmas which surround divorce in Pakistan.
Divorce in Pakistan: how does it work?
Marriage, like any other contract, can be dissolved, broken and executed with mutual agreement from both partners. The concept of marriage in Islam transcends the barriers of legal contracts. It is seen as sacred, something favoured by God. Perhaps why there are so many barriers and technicalities to obtain divorce. However, both spouses have a right to divorce in Islam. The husband has a firm legal right of divorce while the wife can get a divorce if she had signed the clause in her Nikkahnama or Islamic Marriage Contract. On the contrary, if the wife has not signed the clause in her Nikkahnama – which is the case for almost everybody in Pakistan – she has to appear before the honourable courts in order to exit a marriage [2].
Legal reforms regarding Khula:
The most basic law regarding khula: the Dissolution of Muslim Marriage Act 1939, provides women the right to Khula given that they give up their Haq-Meher, covered under clause (ix) of the DMMA, 1939. However, in the past khula was not an absolute right. Rather it was
a walking liability for Muslim women. The wife had to give up her dower as well as her claim of maintenance allowance. But the Rule of Law is an important concept, and as pushed by A.V Dicey: the Supremacy of Ordinary Laws. The courts have played a crucial role in khula related decisions. If a divorce case based upon the grounds described in section 2 of the DMMA failed, the wife can still pursue khula. The wife only has to say that she dislikes her husband and there is no chance of reconciliation whatsoever, the court can grant her khula.
The Problems in The System:
Even though the paragraph above might give you some hope, let’s jump back into reality. Women in Pakistan not only face extreme social stigma when trying for khula but also delays from the very legal system. There are excessive delays within the khula procedure itself. Family Courts must conduct prolonged reconciliation hearings that can last weeks or months. This is not only mentally and physically exhausting for the women, but also financially draining. Moreover, if the divorce or khula is not legally recognised, there can be a case of bigamy or zina filed against the woman in case of future marriages.