http://www.dailytimes.com.pk/default.asp?page=2013\03\15\story_15-3-2013_pg3_2
Friday, March 15, 2013
COMMENT : Till death do them part — Hina Hafeezullah Ishaq
The right of khula is a right guaranteed to women in Islam and all they are
required to state is their inability to live with the husband
A marriage in Christianity, especially the Catholics, is traditionally seen as
a holy union, which no man should put asunder, hence the vows “...to have and
to hold from this day forward, for better or for worse, for richer, for poorer,
in sickness and in health, to love and to cherish; from this day forward until
death do us part.” Mercifully, the advent of Islam brought with it the concept
of marriage not as a sacred bond but as a civil contract, with considerations
and mutual rights and obligations of both the husband and the wife.
Islam, while making divorce permissible, held it to be one of the most
reprehensible acts. A Muslim man enjoys an absolute, unfettered right of talaq
(divorce) and a woman has the right to khula — a form of dissolution of
marriage — which operates as a bargain. The Family Courts (FC) have
jurisdiction by virtue of the Family Courts Act 1964 (FCA) to adjudicate upon
matters pertaining to dissolution of marriage (including khula), dower,
maintenance, restitution of conjugal rights, custody of children (and the
visitation rights of parents), guardianship, jactitation of marriage, dowry and
personal property and belongings of a wife. The FCA envisages two stages of
‘reconciliation’: the first at the ‘pre-trial proceedings’ where the judges are
required to ascertain points at issue between the parties and to effect a
compromise or reconciliation between them if possible; the second at the
‘conclusion of trial’, which requires that another effort for compromise or
reconciliation be made, after the recording of evidence, and only if it is not
possible then the court has to announce the judgement and pass a decree.
The Muslim Family Laws Ordinance 1961 (MFLO) is the law that governs, among
others, the procedure of divorce — whether talaq or a delegated right of talaq
or any other form of dissolution of marriage. The law requires that after a
divorce is communicated to the concerned party, a notice has to be given to the
chairman of the Union Council (UC) where the wife resides, who is then under a
legal duty to call upon the husband and wife to appoint their
representatives/arbitrators. After the arbitrators are nominated, the chairman
constitutes an arbitration council, comprising of both the nominees and
himself, and reconciliation is attempted between the husband and the wife. If
after a lapse of 90 days there is no reconciliation, a certificate for the
effectiveness of talaq has to be issued.
While the notice of talaq or a delegated exercise of the right by the wife or a
mubarat (a mutual consensual divorce) can be sent directly to the UC, a decree
for khula or any other kind of dissolution of marriage by the wife has to be
obtained from the FC. The provisions of the FCA do not affect those of the MFLO
or its Rules. In 2002, the legislature, cognizant of the miseries faced by
women in obtaining khula, amended the FCA, providing that if pre-trial
reconciliations fail, the court shall pass a decree of khula immediately and
restore to the husband the dower received at the time of marriage as
consideration by the wife. No appeal lies from a decree of khula and neither is
a FC empowered to issue an injunction to stay any proceeding pending before a
chairman or an arbitration council. The FCA directs the FC to send a certified
copy of decree of dissolution of marriage passed by it to the chairman UC
within seven days of passing it through registered post, so that appropriate
procedure may be initiated for issuance of a talaq certificate. However,
neglect of fulfilment of this essential and mandatory provision of law by the
FC lands illiterate women into massive troubles, as they think there is no
proceeding regarding their khula/dissolution after the court decree and the
same has attained finality.
Both these laws were promulgated in order to provide speedy remedies to
litigants and to put an end to their miseries. Unfortunately, in spite of the
specific amendments, a decree for khula can still take three to four months to
be issued. The procedure involves issuing notices to the husband and the court
calls upon him to furnish his written statement. The right of khula is a right
guaranteed to women in Islam and all they are required to state is their
inability to live with the husband within the limits prescribed by Allah; a
right that is unfettered by any desire of the husband. The application of the
pre-trial proceeding to cases of khula in the FC appears to be pointless in
view of the mandatory proceedings of the arbitration council at the UC, spread
over a period of 90 days. So, then the question arises, why subject women to
two separate reconciliation proceedings — one at the court, the other at the UC
— when clearly only one at the UC will suffice as in cases of talaq by the
husband? Another question would be why waste time in issuing notice to the
husband in cases of khula and call upon him to file a written statement when
the judge has to issue a decree without recording evidence and regardless of
what the husband says or desires?
The FCA needs to be amended to give effect to a speedier procedure for khula;
ideally, a wife should file an application before the FC and record her
statement on the same day that she cannot live with her husband within the
limits prescribed by Allah and is prepared to return the dower she received at
the time of marriage. The court should immediately pass the decree and send a
copy to the relevant UC and the husband or in the alternate all modes of
summons to the husband should be fulfilled on the first date of hearing, he
should appear before the court within a week, the statement of the wife should
be recorded without the written statement and pre-trial proceeding and a decree
should be passed. The reconciliation proceedings, as mandated by the MFLO
should take place at the UC and not at the family court.
At this point, it would not be out of place to mention that in all matters in
which the family court has jurisdiction, as detailed earlier, none go to the UC
after a decree is passed; so any reconciliation connected therewith has to take
place in the court. In cases of dissolution of marriage on other grounds, apart
from khula, evidence has to be recorded, so compromise or reconciliation can be
attempted by the family court in order to avoid mud-slinging and hardship; this
is not the case in khula.
The miseries of a wife do not end at the courts. Staff at the UC refuse to give
a formal receiving to decrees tendered; do not maintain files properly,
conveniently manipulating dates, stretching out the prescribed 90 day period —
the reason why the family court should send a copy of the decree; and are often
unavailable being ‘out’ on mysterious pressing engagements. The legislature and
the executive need to step in to release women quickly instead of waiting for
‘till death do them part’.
The writer is an advocate of the High Court
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