By Rafia Zakaria
January 28, 2015
DAMOCLES had his sword; the married women of Pakistan have the threat of divorce. Truth be told, the analogy is not perfectly accurate. The moral of the anecdote of Damocles, who was a courtier in the court of Dionysius, a Sicilian king, is that the powerful are not lucky as they seem, for they face the tremendous burden of great responsibility.
To teach his courtier the lesson, the king told Damocles that he could be in his shoes for a day. To ensure that he learned a lesson, he arranged for a giant sword to be suspended over the throne where Damocles would sit. Unsurprisingly, Damocles was eager to get out of the situation, and happy to conclude that being a king was not so lucky after all.
The married women of Pakistan are hardly kings, never even for a day, nor does the realm of the family offer them any particular position of relative power. They do, however, have a sword of Damocles hanging over their heads. As has been adequately chronicled in the histrionics of many a soap opera and in the family lore of nearly every community in the country, the vocal utterance of three Talaqs can destroy lives and families.
In arguments and fights and the tussle of personal relations, which are necessarily invoked by marital relationships, it represents a death knell, a repudiation of a woman as a wife, a consequent relegation of her to her parents’ home and often to the margins of social and communal existence. In the contested game of intimate relations, the divorce threat, one or two utterances of ‘I divorce you’, is the nuclear option; the pause after the second and before the third is the moment of reckoning for the woman, who must beg and plead and recant. The inequality is ingrained; only the men of Pakistan may avail themselves of the option of divorcing their spouses by uttering three sentences.
The Council of Islamic Ideology could simply have asked for the provisions of the family laws to be better enforced.
Into this unbalanced scale of marital power relations comes the Council of Islamic Ideology. Describing its duty as the Islamisation of Pakistan’s laws, the CII in recent months has issued pronouncements that have validated the marriage of female minors by their male guardians, declared the use of DNA evidence in rape cases impermissible, etc.
On Jan 21, 2014, Maulana Sheerani, chairman of the Council of Islamic Ideology, spoke to the media following the adjournment of the CII’s convening. He announced that the CII was recommending that the verbal pronouncement of triple talaq by husbands be made a criminal offence punishable by law. The chairman prefaced the announcement that this particular decision had been made because the Council of Islamic Ideology was concerned about the rising divorce rates in the country. According to Dr Tahir Ashrafi, another member of the CII, the divorce rate in Pakistan “has risen by 150 to 200pc”.
As various newspaper editorials and commentators have pointed out, the CII’s pronouncement further exacerbates the confusion regarding how marriages can be terminated.
First, according to the Muslim Family Laws Ordinance of 1961, vocal utterances of divorce are not legally valid. Following the utterance, the ordinance requires that the husband uttering the statements provide notice to the local union council or district registration office.
Following the provision of this notice, a copy is then provided to the wife. After this, a notice is provided from the authorities to both the husband and the wife, giving them the opportunity to attempt reconciliation. If there is no reconciliation for 90 days following the initial registration of the notice, then the divorce is confirmed and enacted.
Given these legal realities, instead of issuing a statement asking for the criminalisation of verbal pronouncements of divorce, the CII could simply have asked for the provisions of the family laws to be better enforced and practised. Such a move is necessitated by the problems that have arisen in recent years owing to men not registering divorces and women (who believe themselves divorced) being accused of adultery or fornication under the Zina and Hudood Ordinances of 1979.
In previous debates on the divorce registration issue, Pakistani clerics have been unwilling to ask for enforcement of the registration requirements because they do not want to abridge the unilateral male right of divorce. Undoubtedly, they hold this position because they know that the provisions of the ordinance are designed to create a balance of power in the marital relationship. This last point is somehow repugnant to them.
What feminist activism has been unable to accomplish in Pakistan, urbanisation and demographic changes may enable instead. While there is no verification of the cited statistic of an increase in divorce rates, it can be considered to represent (if true) the reality of a changing society where marriage is no longer as inviolable as it used to be.
The decimation of family and tribal structures from employment- and conflict-generated migration can easily be hypothesised as a contributor to this change. In the wake of this transformation, an institution like the CII is forced to choose between its implicit aversion to arguments for gender equality and the problem of rising divorce rates. If the family is to be protected as a unit, then those who can most easily destroy it (in this case Pakistani men) must be stopped from doing so.
As stated, this is in reality a vacuous turn; the legislative provisions of the Muslim Family Laws Ordinance of 1961 envisaged decades ago what the CII has thought of now. Perhaps, in light of this knowledge, the venerable members of the CII may consider the proposition that if the family is to be protected, one way to do it could be to ensure that its two pillars, the husband and the wife, have equal power to be in the relationship and hence twice the commitment to sustain it.
Rafia Zakaria is an attorney teaching constitutional law and political philosophy.