Dissolution of Marriage: Islamic Teachings, Laws, and Practices
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Dissolution of Marriage: Islamic Teachings, Laws, and Practices
Marriage is regarded as an institution of profound importance in Islam, but both spouses have the right to dissolve their union. There are clear guidelines in the Qur’an and in the Sunnah regarding the dissolution of marriages that protect everyone involved – the spouse, the children, and society as a whole. There are several options available in Pakistan for dissolving a marriage.
Overview:
According to the Qur’an and the Sunnah, the dissolution of marriage is defined in clear terms that protect the rights of husband, wife, children, and society at large. Family laws in Pakistan are largely based on Islamic teachings, though there are some inconsistencies and overlaps. Nevertheless, there are a number of practices in Pakistan that are clearly contrary to Islamic teachings, partly because of ignorance of Islamic teachings, and partly because of the weakness of the law enforcement system. It is imperative that, to highlight these families’ additional suffering caused by disintegrating families, any previous gaps between Islamic teachings and family laws are filled, public awareness is raised, and those affected, including lawmakers, lawyers, the Judiciary, and the Ulema, are enabled to develop a mutual understanding and work together.
In Islam, marriage is an institution in which each partner has specific rights and responsibilities. Muslim marriages are social contracts between two independent adults who have reached puberty. Checks and balances are introduced in Islam to ensure the rights of all stakeholders, the husband, the wife, the children, and society at large, are protected and secured. The law forbids all extramarital relations, whether they take place before or after marriage, and treats them as transgressions. Thus, Islam, with its provisions for establishing and maintaining the integrity of the family, on the other hand, is in stark contrast to that which advocates sexual laxity with the guise of “freedom of choice.”
Dissolution of Marriage: Legal and Judicial Framework
There are different laws and ordinances governing the establishment and dissolution of marriage in Pakistan, each promulgated by a different government at different times. Couples entangled in disputes often struggle for their rights due to a lack of understanding of the legal framework. With reference to the dissolution of marriage, the following family laws are in practice in the country:
- The Guardian-Wards Act (GWA) of 1890;
- Children’s Marriage Restraint Act of 1929 (CMRA);
- The Dissolution of Muslim Marriage Act (DMMA) of 1939;
- Islamic Family Laws Ordinance of 1961 (MFLO);
- Islamic Family Law Rules (MFLR) of 1961;
- Ordinance of 1961 establishing Reconciliation Courts;
- The West Pakistan Muslim Personal Law and Shariah Application Act of 1962 (WPMPLSAA);
- The West Pakistan Family Courts Act of 1964 (WPFCA);
- Rules of West Pakistan Family Court (WPFCR) of 1965;
- Had-e-Qazaf Ordinance (HQO) 1979.
Comparison of Practices, Laws, and Islam on Dissolution of Marriage
Separation without divorce pronouncement is one form of dissolution of marriage in Pakistan, as are talaqs (divorces by the husband), khula, talaq-e-mubarat (mutually negotiated divorces as part of a khula); talaqs by the wife under delegated rights of divorce; and dissolution through the court process. The three other forms, which are acceptable in Islam but not common in Pakistan, are eila, in which the husband swears abstinence from conjugal relations; liaan, the process by which a court grants permanent separation to a man who accuses his wife of adultery; and khiyar-al-buloogh, in which either spouse, following a child marriage through the guardians, has the right to renounce the marriage upon reaching maturity. An analysis of prevalent practices, Islamic teachings, and laws regarding marriage dissolution in Pakistan is presented below.
Separation through Divorce
The divorce is the breaking of the spousal relationship by the husband, through express or implied words, directly or through representation, effective immediately or in some other way. There are three kinds of divorce effects:
1) Revocable divorce (talaq-i-rajaee), whereby the husband pronounces divorce one time, but then realizes he made a mistake and rescinds the pronouncement unconditionally and resumes a normal marital relationship;
2) Irrevocable divorce of minor degree (talaq-i-bain sughra), which allows its parties to remarry if they so desire;
3) Irrevocable divorce of major degree (talaq-i-bain kubra) a divorced husband is barred from re-entering the marriage contract with his divorced ex-wife unless she is divorced following marriage and establishes conjugal relations with her new husband, and chooses to re-engage in marriage with her former husband.
Types of Talaq / Divorce in Islam:
1. Divorce by the Husband – Talaq:
A talaq that allows the husband to return to the wife after a certain period of time is called talaq-e-rajee (revocable divorce). Although the iddah period has ended, the husband has the option of taking his wife back during the re-solemnization process, even after the first or second divorce is pronounced. Talaq-e-bain sughra is the name for this type of divorce. After the third proclamation, a divorce is irrevocable and final – it is then called talaq-e-bain kubra (the third divorce). Couples that divorce a third time cannot reunite without the extraordinary condition of halala being met.
According to the Sunnah, a proper divorce can also be granted by talaq-e-Hasan (the second form of divorce). This method entails a three-step divorce procedure, with a break of at least one tohar of the wife in between each ruling, allowing each party ample time to examine its position on the case. Until the divorce is final, the husband has the absolute right to ruju.
In places with weak or ineffective laws, practice is often in blatant violation of Islamic teachings. As a result, triple divorce pronouncements are commonplace. When men fail to inform the CAC of their divorces, their wives are left in limbo, unable to remarry unless they are ready to face charges of adultery. It will be discussed later in this section that dissolution of marriage, including divorce, is a highly contentious process that often involves disputes over maintenance and custody, resulting in mudslinging, acrimony, and even blood feuds between the parties concerned.
2. Judicial Khula &Talaq-e-Mubarat – Divorce at the Wife’s Request
Khula is a legal process during which a woman can end her marriage by giving up certain rights, such as dower (jewelry, ornaments, fixed amount given or to be given by the husband), dowry (gifts given by the bride when she meets her husband) and bari (the gift given to her by the groom when they meet), etc. Her freedom from a non-functional marriage is not secured by her paying from her own pocket. Additionally, it is generally believed that khula settlements can only be obtained via court proceedings since settlements outside of court are rare. Due to her limited legal standing, most Pakistani women have to give up jewelry that was given to them by their husbands in situations of khula. It is also possible for her parents to pressure her into giving up tangible items that she received as a child.
Khula is triggered by the wife’s offer to compensate the husband for the responsibilities of marriage. Through talaq-e-mubarat, she can be released with mutual consent. The court has ruled that it is not necessary for a woman to prove that she can no longer live with her husband by presenting evidence.
3. Dissolution of Marriage through Court
In Pakistani society, women do not want to separate from their husbands and go to any length to resolve their differences within the family. Her close relatives or elders may intervene in extreme cases to end the marriage. Generally, a woman goes to court for dissolution of marriage only when she faces unmanageable difficulties in her marriage and her husband refuses to release her. As a result of the enforcement of the decision by the courts to resolve every family case within six months, the number of cases reaching courts has increased recently.
Muslim jurists believe that a judge may end a marriage, in certain circumstances, even without the consent of a husband, such as when a husband goes missing, loses his sanity, is impotent, or fails to pay maintenance. In the same vein, if the husband refuses to fulfill his marital obligations, the court can however separate him from his wife. The effect of dissolution of marriage through court is the same as talaq-e-bain, i.e. the two may remarry.
Women have the right to dissolve their marriage under Section 2 of the Dissolution of Muslim Marriage Act 1939 if their husband:
- Is not present,
- Fails to provide maintenance,
- Sentenced to seven years’ imprisonment,
- Has failed to fulfill marital obligations,
- Is sterile,
- Has a mental illness,
- If a person has leprosy or venereal disease,
- Is cruel,
- Poor reputation among women
- Tries to force her into living an immoral lifestyle,
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