Family Laws in Pakistan is an excellent treatise for legal practitioners. It describes statutes and court decisions relevant to all areas of family law –marriage, dower, dissolution of marriage, child custody and inheritance – in a methodical manner. It also provides insight into landmark cases on such subjects as inheritance rights of orphans.
The book begins with a solid backgrounder on the evolution of Muslim personal law in the Indian subcontinent from its original Islamic sources or Fiqh. While keeping commercial law secular, British colonial rulers preferred that Muslims and Hindus use their religious jurisprudence in personal matters pertaining to marriage, children and inheritance. To bring these personal laws within the judicial management of the state, though, the British first translated classical religious treatises (such as Hidaya and Fatawa al-Alamgiriyya), then interpreted them through decisions and finally enacted a series of statutes including the Guardians and Ward Act (1890), Restraint of Child Marriage Act (1929) and the Dissolution of Muslim Marriages Act (1939). These are still applicable in Pakistan and have been supplemented by a series of other laws.
The authors of Family Laws in Pakistan opine that personal laws governing the lives of non-Muslims in Pakistan are out of date and anachronistic but they do not see the Muslim personal law through the same lens. They also do not go far enough to probe gender inequity in Muslim personal law and the response of feminist scholarship to it. Another area that they do not explore is the way in which provincial statutes prohibiting marriage of those under 18 come into conflict with the settled precedent.
A reading of the book suggests that Muslim personal law has been drafted with the male legal subject in mind. He is treated as the sole provider of resources to run a household and possesses the prerogative to divorce his wife. Women are seen as non-autonomous and dependent. The law, thus, essentialises man’s superior status at home, his reckless lust and impulsive nature — things that must be regulated to maintain stability within a heteronormative family.
What also becomes apparent while reading the book is that Pakistan’s judiciary has been consistently liberal in providing relief to women. The authors refer to this judicial tendency as the “women protection principle”. Even if the black letter of the law does not mandate it, judges have found creative ways to protect the weak. The book cites an obiter dictum made by a woman judge on how men abuse law and judicial process to evade supporting their wives. To avoid the payment of maintenance money, the judge said, husbands claim their conjugal rights have been infringed by their aggrieved wives and ask courts to declare the women as nashizas (disobedient).
In response to such contentions, many judges have made conspicuous effort to rein in men and hold them financially accountable to their dependents. Courts of all tiers have consistently reminded men that providing maintenance money to their children (and their wives) is their fundamental responsibility which cannot be dodged. Fathers must provide maintenance to their unmarried and divorced daughters – regardless of age – and, in some cases, even to their adult sons. Women are also not required to prove their husband’s income in lawsuits for maintenance.
Courts have similarly invented the equitable doctrine of constructive guardianship to ensure that an adopted child is provided for. In some cases, they have denied requests for DNA tests by fathers to avoid stigmatising mothers.
The book critically examines some not so benevolent decisions too. For example, the then chief justice of Pakistan Iftikhar Chaudhry ruled in 2009 that a dower (mahar) deferred to an unspecified date becomes payable only upon the death of either the wife or the husband or with the dissolution of marriage. The authors lament that the judge did not take a position already taken by other courts and substantiated by Jamaat-e-Islami founder Maulana Abul A’ala Maududi in his book Huqooq e Zaujain — that a deferred mahar is payable on demand.
Family Laws in Pakistan, however, does not question the very premise of women’s economic dependence and how polygamy and unfettered divorce rights enjoyed by men contribute to impoverishing and destabilising families. It does describe cases in which judges have ruled that an intervening marriage is not necessary for a woman to remarry a former husband but it does not analyse the social, psychological and emotional costs borne by women entering intervening marriages – such as the risk of marital rape (since consummation is essential for such intervening marriages) – just to be able to remarry their former husbands.
Where the authors do a good job is in showcasing how women have comparable, if weaker, divorce rights. They may seek the dissolution of a marriage on grounds of cruelty and non-payment of maintenance money. A man can also charitably delegate this right to divorce to his wife at their nikah. Even otherwise, a woman always has the option of khula which gives her the legal right to demand an end to her marriage without having to cite lack of financial support from her husband or physical abuse as a reason. Courts can simply dissolve a marriage by applying the principle that the parties can no longer live [together] within the limits prescribed by Allah.
But a woman does risk losing her dower/mahar if she seeks khula. The rationale behind this is that she has not upheld her end of the bargain and is thus ineligible for dower payment even though dower is not a contractual consideration per se. Here, too, many judges have made positive interventions, ruling that women filing for khula do not automatically lose their dower.
The fundamental question of inequity in divorce law – that it privileges male sexual autonomy and personhood over those of a woman – remains unexplored by the authors though. Men can end marriages at will and with hubris. Women seeking to exit a marriage, on the other hand, must cite a legitimate ground or risk losing their dower if there isn’t one. Courts are also free to turn marriage dissolution requests into khula — a practice prejudicial to the rights of women.
This article was published in the Herald's January 2019 issue. To read more subscribe to the Herald in print.