The Divorces As per Holy Quran, Sunnah And Pakistan Made Family Laws
THE DIVORCES AS PER HOLY QURAN, SUNNAH AND PAKISTAN MADE FAMILY LAWS
By Aisha Saeed, Lecturer in Law @ Karachi University
Marriage may be dissolved in the life time of the spouses; by the act of husband or wife, or by mutual agreement or by operation of law or by a judicial order of separation. The term divorce is meant 'talaq' as defined by the renowned jurist of their time under the Muhammadan Laws.
According to Sunni and Shiah schools when the married parties have reached the degree of hatred or aversion due to inconsistency of temper, want of sympathy etc., they can dissolve the marriage tie by mutual agreement. When the husband is found guilty of conduct which makes the matrimonial life intolerable to the wife; when he neglects to perform the duties which the law imposes on him as obligations or when he fails to fulfill the engagements, voluntarily entered into at the time of matrimonial contract, she has the right of preferring a complaint before the Qazi or Judge and demanding a divorce from the court.
1 ++Procedure of divorces in family courts++
The jurisdiction of family courts is defined in Muslim Family Law Ordinance, 1961. The grounds on which the dissolution is sought by the wife are provided under Section 2 of the Dissolution of the Marriages Act, 1939. The procedure for enforcement of the dissolution is contemplated under Family Courts Act, 1964. The procedure of trial before the family judge as laid down in the family laws is much less in the light of injunctions of Holy Quran and precepts of holy Prophet. It is in the duties of the judge to pass divorce decree if such suit is filed before him / her or decide the validity of divorce if already made by the husband. The family judge has to exercise the jurisdiction in two ways (1) if the divorce is pronounced by the husband and the wife denies the fact, the Judge will decide as to validity of talaq in the light of any of the four grounds of talaq viz. Al-Ahsan, Al-Hasan, Al-Bain and Al-Rajai. If the husband is reluctant to dissolve the marriage, the wife will invoke the jurisdiction of family court either seeking dissolution on the grounds as contained under section 2 of Dissolution of Marriages Act, 1939, or exercising her right of Khula.
The Khula is that mode of divorce by which the wife herself dissolves the marriage and seeks certificate from the family court. Before the court she demonstrates the degree of aversion against her husband, which is being developed in her on account of his conduct and returns some, received or agreed benefits in lieu of Khula. The family court examines the case of wife towards `talaq' in the process of Pakistan made family laws. The judge will attempt to reconcile the dispute between the parties either in laws. The judge will attempt to reconcile the dispute between the parties either in presence or behalf of two arbiters (the counsel of parties) for two occasions, which is called in the legal terminology as pre-trial and post-trial. If the family judge and arbiters do not succeed then he will call upon the wife to state in writing the reason of her intend object of talaq and after going satisfied with the case of wife, will dissolve the marriage. The wife will go to her iddat period and then she will be freed legally and religiously to contract second marriage, if so desired by her.
- ++Leqal obstacle in the way of divorce decree++
The law has created certain obstacles in the way of decree of talaq irrespective of the fact the wife happens to be in the iddat period:
(1) The decree of talaq if impugns in a writ jurisdiction and the injunctive order is passed by that court to stay the decree;
(2) The procedure of Section 7 of the Muslim Family Laws Ordinance, 1961 imperatively providing for arbitration through chairman of local council, also impedes the decree from its operation;
(3) Section 21(2) of the Family Courts Act, 1964 requires the family court to pass on the certified true copy of the decree to the chairman of council within 7 days time of passing of such decree for compliance of section 7 of the ibid Ordinance, 1961. Those legal provisions, before making the decree of talaq effective are mandatorily to be complied with; lest the dissolution even if passed by the husband in al-hasan or al-bain mode; or passed by the effective decree of the court under its normal legal procedure, will nullify the decree in such a way as if the decree was never passed.
Is it permissible under the injunctions of Holy Quran? We shall try to sort out the answer with reference to the dictates and commandments of Holy Quran and religious authorities in the below mentioned headings.
3 ++Quranic procedure of talaq followed by religious schools++
A judicial divorce through family judge contains very marginal scope in the Holy Quran. Under the religious dictates the right of talaq is conferred upon the husband to make and the wife is made subject to that delegation. The commandments of Holy Quran put strict restrains upon the husband to maintain and vindicate the religious dictates when making dissolution. Holy Quran provides the terms of divorce in three categories with a commandment that first and second pronouncement of the divorce are revocable while third category/ pronouncement is absolute and irrevocable and the wife is made prohibited for the same husband in nikah as his wife unless she contracts another marriage with full performance of conjugal rights. The categories of these pronouncements have been interpreted and commented to by all the four religious schools mostly distinguished as Shia school and Sunni school. Four forms of talaq have been provided in all the books of Muhammadan Law authored by the renowned jurists namely Mr. Ameer Ali, D.F. Mulla, Mr. Bailee, Faiz Ali Tayab Jee and many others. The Hanafi and Shiah jurists are unanimous for the four kinds of talaq namely Al-ahsan, Al-hasan, Al-bain and AI-rajai. Of them two modes namely Al-hasan and Al-bain are provided with theory of irrevocable divorce and rest two modes of Al-Ahsan and Al-Rajai as revocable.
The Quranic injunctions in the wake of religious dictates provide that the Qazi should meddle between the parties to bring reconciliation and compromise even by appointing arbiters and then alone dissolve the marriage if found by him that husband is reluctant to dissolve the marriage and wife has justifiably proved her case against the husband. The Fatwa Alimgiri refers to a divorce given under compulsion by the Sultan. In one case the District Judge suggested that it would be best for the husband to divorce a wife who had by the suing for dissolution of marriage on the ground of his impotence, and by the alleging cruelty on his part, shown her determined aversion to him. The husband having reluctantly consented to a divorce (in the form of Khula), the High Court in a case of Vadaka Vitil Ismail vs Odakal Bey Okutli Umah (1881) 3 Mad 347 upheld the divorce holding that the husband has freely consented to the District Judges suggestion, though they add in the next sentence "under the Muhammadan Law a Khula divorce is valid even though it may be given under compulsion".
- ++Pakistan made family courts procedure of talaq++
The process and procedure of religious schools followed by the Quranic verses is taken away under section 7 of the Muslim Family Laws Ordinance, 1961, which inter alia provides for the validity of talaq through recourse of the Arbitration Council, whom the notice in writing for the divorce of the wife is to be supplied. This provision is provided in a mandatory form and violation thereof has been shown punitive under the law.
The mandatory bar as is contained under section 7 of the Muslim Family Laws Ordinance, 1961 is clear impediment in the way of court proceedings and ultimate decree passed by the court. In other words the decree of court is held in nullity in contemplation of section 21 (2)(3) of the Family Courts Act, 1964, as if the entire decree of court is being set-aside by the Arbitration Council. It thus obviates that the courts entire exercise leading to the termination of evidence with two attempts of re-conciliation made in the guise of pre and post trial or the dissolution granted on the ground of Khula, could be set-aside by the Arbitration Council. Thereby the arbitration council runs as a court of parallel jurisdiction to the family court, much less a forum of the upper jurisdiction as the family court is made bounden to send a copy of decree to the chairman of the council within seven days, who will attempt for reconciliation between the spouses and in the event of positive results shall bring the decree of court in nullity.
Needless to mention that such attempt of reconciliation had already been attempted to by the family court in the process of pre-trial and post-trial proceedings. It is really a controversial question that what nexus do these two provisions viz. Section 7 of the Muslim Family Laws Ordinance, 1961 and Section 21(2)(3) of the Family Courts Act, 1964 bring upon the decree of family court, which is made after termination of the trial and hearing of the parties? Can these provisions declare the final decree of court in nullity? What had been the intent of legislature to enact those two provisions, which are enacted in two enactments at different altars and intervals? Before enactment of those two provisions, what the other material was hitting the court decree? All are those questions, which require elucidation. In the first place it would be advantageous to reproduce the language of said two provisions to know their significance and applicability.
++Section 7 of the Muslim Family Laws Ordinance, 1961++
Talaq: (1) 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.
(2) Whoever, contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.
(3) Save as provided in subsection (5) a talaq, unless revoked earlier expressly or otherwise shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under subsection (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in subsection (3) or the pregnancy, whichever later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.
++Section 21 of Family Courts Act, 1964++
(1) Nothing in this Act shall be deemed to affect any of the provisions of the Muslim Family Laws Ordinance, 1961, or the rules framed there under and the provisions of sections 7, 8, 9 and 10 of the said Ordinance shall be applicable to any decree for the dissolution of marriage solemnized under the Muslim Law, maintenance or dower, by a Family Court.
- When a Family Court passes a decree for the dissolution of a marriage solemnized under the Muslim Law, the Court shall send by registered post, within seven days of passing such decree, a certified copy of the same to the appropriate Chairman referred to in Section 7 of the Muslim Family Laws Ordinance, 1961, and upon receipt of such copy, the Chairman shall proceed as if he had received an intimation of talaq, required to be given under the said Ordinance.
(3) Notwithstanding anything to the contrary in any other law decree for dissolution of a marriage solemnized under the Muslim Law shall:-
(a) not be effective until the expiration of ninety days from the day on which a copy thereof has been sent under subsection (2) to the Chairman; and
(b) be of no effect if within the period specified in clause (a) reconciliation has been effected between the parties in accordance with provisions of the Muslim Family Laws Ordinance, 1961.
- ++Interpretation of a Section 7 of Muslim Family Laws Ordinance, 1961 and Section 21 of Family Courts Act, 1964++
A close scrutiny and analogy of these two provisions bring a common thing together that all the forms of talaq are revocable and could be re-conciliated even if these are either "Al-hasan" or "bain". The two divorces are shown revocable even if the period of "iddat" is elapsed and the husband has not revoked during the successive tuhurs. The validity of talaq has been fixed subsequent to expiry of 90 days and those days are exclusively meant for the Chairman, Arbitration Council to effect compromise, so that whatever mode of talaq under any sect could be revoked easily. There is no distinction shown under section 7 of Ibid Ordinance, 1961, towards Hanafi or Shiah Law, much less provision is meant as a common provision, applicable to all the religious schools. Clause 6 mandatorily authorizes the wife to re-marry the same husband unless such termination is for the third time so effective. Under the scheme of this provision it matters nothing if the husband himself does not revoke in a particular form as provided in Islam or if the wife completes the iddat period without revocation from the husband side.
- ++Impact of Section 7 of Ordinance, 1961 and Section 21 of Act++
All the clauses of Section 7 bring close nexus to Section 21(2)(3) of Act, 1964 to make the decree of family court redundant even if the dissolution is granted on Khula or even after returning back the benefits by the wife to seek optional decree in lieu of Khula. After grant of decree by the Court, the wife is required to observe "iddat" even then she is to attend before the Chairman within 90 days. If the wife attends before Chairman after decree by the Court and face the proceedings there for 90 days; the question would be when her iddat period starts? If her iddat period starts after dissolution by the court decree then how Islam will allow her to ruin or wreck the sanctity of "iddat", in appearing before the strangers leaving the house" if the iddat period starts after conclusion of the proceedings by the arbitration council then it would be amounting as if the second decree has been effected by the Chairman which is to be followed by the compliance of iddat.
The procedure of Section 7 of the Ordinance, 1961 has restored the same situation as it had been before revelation of verse 229 of surah Al-Baqra. Mr. Abdul Rahim from Tafsir of the Quran by Allama Abdul Majid Daryabandi has given the background of verse 229 as under:
"If was customary for the pre-Islamic Arabs to divorce their wives any number of times and then to re-unite with them before expiry of the period of waiting. This was naturally very harassing to the wives concerned. On one hand harmonious relations between the couple were not maintained; and on the other hand the wives were denied the chances to contract a second marriage. The verse stopped this nefarious custom".
Obviously, the provision of arbitration is provided in the injunctions of Holy Quran and similarly under the family laws of Pakistan. In the family courts, the Qazi or Judge has been made equipped to effect reconciliation between the spouses for two times in the shape of pre-trial and post-trial. The Qazi also reminds the spouses that the Prophet said "of all things that have been permitted by the Law, the worst is divorce" and further that the injunctions of Holy Quran re-enjoin for justly compromise between the spouses. The conduct and demeanor of the parties is also being watched by the qazi / family judge, who attempt twice for reconciliation; the exchange of articles/ benefits in lieu of dissolution also takes effect before the family judge during proceedings. The failure of all these attempts results in a decree of court which otherwise becomes conclusive in all respects. Notwithstanding that the reconciliation starts before Arbitration Council in subsistence of decree of court. That decree results in nullity if the parties enter into compromise before the arbitration council. It is thus clear that there are two parallel forums to pass, implement or reject the divorce decree. No doubt, the process of compromise and reconciliation is contemplated in the Holy Quran but that is earlier to dissolution affected by the husband or Qazi. Once the dissolution is affected by either mode the reconciliation results in futility.
- ++Juristic view on Pakistan enacted family laws++
The verse and commentary of verse (IV 35) of Holy Quran made by Agha Muhammad Yaqoob, Volume 1 of page 403 reads as under:
Verse: "And if you apprehend a schism between the two, then appoint an arbiter from his family and an arbiter from her family. If they the arbiters wish for peace, Allah will affect their (couple's) re-conciliation. Verily Allah is the knowing the aware" .
"In this verse is mentioned the case of a couple who are aggrieved against each other and are unable to settle their differences by themselves, and separation is apprehended, in such a case the person in authority when approached, should appoint two arbiters, suitably competent to settle the points of difference, one from the husband's family and the other from the wife's family, to hear the parties, investigate the matter and if possible to bring about an amicable rapprochement between them. They should make a really sincere effort to achieve it and Allah will crown it with success. But in case reconciliation is impossible, the arbiters may decide in favour of divorce. Any way they will be competent to award any decision in the matter and it will be binding on both the parties. This view is supported by the Great Imam also".
NJ Coulson, a well known English writer on Islamic law has also dealt with this aspect of Pakistan Family Laws Ordinance. The relevant portion of his observation is reproduced herein with reference to case law reported in PLD 1988 Karachi 169. He writes.
"Under the Pakistan Muslim Family Laws Ordinance, 1961, a husband is required to give written notice of his having pronounced a Talaq both to his wife and to the Chairman of the Arbitration Council set up under the ordinance. A talaq pronounced "in any form whatsoever" will not be absolute until ninety days after delivery of written notice to the Chairman or where the repudiated wife is pregnant, until delivery of the child, whichever period is longer. It seems, therefore, that even if a husband gives notice of a third repudiation, this will no longer constitute an immediate and final divorce. Furthermore the same procedure will apply "where any of the parties to a marriage wishes to dissolve the marriage otherwise then by Talaq". This clearly covers the case of extra judicial divorce by mutual agreement, which will accordingly no longer constitute a final and irrevocable divorce, as it does under traditional shariah law, since the sanction for failure to comply with the provisions of the ordinance is purely punitive the offender being liable to imprisonment for a term of upto one year, or a fine of upto 5,000/- rupees or both (Coulson: Succession in the Muslim Family, Cambridge 1971, page 21").
- ++Pakistan Family Laws in the light of Quranic commandments++
Verse 230 of Surah Al-Bagra provides Talaq of two kinds. The commentary in the light of said Surah has been given by Agha Muhammad Yaqoob under his work at Volume 1 page 209 of Holy Quran. (Text Translation and Tafsir) as follows:
"Talak (divorce) is of two kinds, rajai or that which permits of the husband resuming conjugal relations, and "bain" or that which separates. The former is generally translated as revocable and the latter as irrevocable in inception, becomes irrevocable or absolute if the iddat or period of probation is allowed to elapse without the husband having revoked it either by express word or conduct". The following are the controversial questions:
Can we maintain the procedure and applicability of those two provisions of Ordinance and Act ipso-facto in the judicial process of talaq?
What should be the system to normalize said process if these two provisions are taken to apply in divorce decree? Or,
What should be the consequences upon divorce decree, if these provisions are not applied?
There is a marked level controversy even by the superior courts that section 7 is derogatory and even contrary to the injunctions of Islam, then question would be what are the attending or compelling circumstances to make this provision available or continued in our judicial system? Still it is an un-resolved controversy that what kind of re-conciliation is to be stepped into before the Arbitration Council setup under Ordinance, 1961. Can those proceedings over ride the reconciliation process of family court launched in the guise of pre-trial and post-trail? What is the impact of Section 21(2) of the Act, 1964 for sending of the decree to the Arbitration Council for reconciliation? Whether Arbitration Council will act as executing court to implement the decree in the terms as are embodied there in or extra judicial process will be adopted by the council? All those are perplexed questions without answers. The judicial system of divorce decree followed by injunctions of Holy Quran and percepts of Ahadith clearly shows that the arbitration proceedings are to be commenced before passing of the divorce decree and not thereafter; whereas, the process of Section 7 of Ordinance, 1961 and Section 21(2) of the Act, 1964 commences in de novo structure as if the divorce decree is conditionally passed subject to finalization of arbitration proceedings.
Court decree is alike certification of a divorce validly effected between the spouses and make them free from the clutches of marriage bond. They lead free life as if the marriage never took place between them. But subsequent process of arbitration makes the court decree almost ridiculed. In our legal system the process of arbitration is emphatically provided during trial only. The injunctions of Holy Quran also re-enjoin for arbitration before finality of divorce by appointment of two arbiters, each one from the spouses. In the trial there is a provision of some received/ agreed articles/benefits to be exchanged in lieu of separation, if mutually arrived at between the spouses. There is also compromise and consent decree arising out of a party's mutual understanding. All that emanate out of arbitration process, which is to be taken impliedly before termination of the trial. In that event what is the logic of subsequent arbitration before arbitration council, which is headed by a non-juristic/ scholar and conducted in an extra judicial manner? Enactment of section 7 in the Ordinance, 1961 followed by the recourse of Section 21(2) of the Act, 1964 opens new disclosure of de novo proceedings for a divorced woman before the stranger arbitrator. In that event do we maintain the implication of Section 7 of Ordinance followed by recourse of Section 21 of the Act for that divorce which has already been concluded in its entirety? There is obviously no provision of appeal against the decree of divorce even then proceedings are opened in denovo shape before arbitration council headed by Chairman of Union Council, who is rather a non-juristic person. In the attending circumstances may we say that such provision envisages a significant role of parallel jurisdiction of two forums? The answer is patently vague and perplexed. An enactment of this provision makes a link in such a way as that without recourse of it the decree passed is null and void unless cleared by the Arbitration. The legislature may look into its said enactment from that prospect whether the provision is facilitative or encumbered on the statute?