By Maham Javaid
March 07, 2019
Six weeks after her husband threw her out, Amber* filed for divorce in Islamabad. She was nervous when she arrived at the first of three divorce hearings.
The chairman of the Islamabad Arbitration Council, set up by the Union Council, which is responsible for signing off on divorce, attempted to dissuade her.
"Don't get emotional and end your marriage," said the chairman, a complete stranger to her. "I am sure your husband is on his way and will convince you to return home with him."
Amber's then-husband did not attend the hearing.
Instead, he tried to force her to return to the marital home by employing the restitution of conjugal rights (RCR), a legal mechanism under Pakistan's Muslim Family Law Ordinance.
Aside from the cultural taboo surrounding divorce in Pakistan, women seeking to end their marriages face legal hurdles that men do not encounter as frequently.
Amber was stunned.
"Why would he want a court to force me back home when he himself kicked me out?" said the 26-year-old.
The law her ex-husband used was originally designed to provide an opportunity to reconcile, but is today used to intimidate.
"The moment women file for divorce, maintenance, or a dissolution of marriage, men's first response is to file an RCR," said Hadiya Aziz, an Islamabad-based civil lawyer and prosecutor. "About 80 percent of the time, an RCR is a method of getting back at the woman."
Although they can be filed by husbands and wives, RCRs are overwhelmingly used by men.
"Out of the 100 odd divorce cases I have handled in my career, restitution was filed 30 times, and only two of the complainants were women," says Chaudhry Muhammad Umar, a barrister experienced in family law.
Aziz explained: "Divorce proceedings initiated by men are concluded so fast that women hardly get a chance to file RCRs."
She said that those brought by women tend to drag on for months - and in some cases years.
For instance, it took Laaleen Sukhera, a Lahore-based author, more than two years to be granted a divorce.
After 18 months of legal proceedings that seemed to be leading nowhere, Sukhera withdrew her divorce petition.
"At this point, I was buried in litigation. My ex-husband did his best to intimidate me in court, from accusing me of insanity to filing an RCR against me," said Sukhera. "My lawyer told me the RCR is an antiquated law that may soon be outlawed."
Other lawyers agree, and say although the RCR is used frequently, is rarely decreed in favour of men.
Courts are hesitant to issue solutions that require constant supervision.
Additionally, there is no constitutional definition of a spouse's conjugal rights.
So why are men so prepared to use it?
"Essentially, husbands file restitution cases for three reasons: to demonstrate to the court that they never wanted this divorce and hence shouldn't have to pay a hefty maintenance; to put legal pressure on the woman and bury her in litigation; and/or to add to her financial burden," says Umar, the barrister.
Daanika Kamal, a lawyer working with legal aid centres across Punjab, said the RCR is used to delay divorce proceedings, further intimidating women.
Fearing further distress, Sukhera, the author, opted for a "khula", a dissolution of marriage that is meant to be faster and less harrowing than divorce.
But it took six months of cross-questioning in various family courts before being granted the separation.
The khula forces women to forfeit much of her "Haq Meher" - a mandatory payment in Islamic marriages from the husband seen as insurance in the case of divorce and her dower.
Sukhera is now fighting to claim her Haq Meher in another case.
In 2000, the family of a 13-year-old girl from Pakpattan, in Punjab, reported to police that she had been abducted and gang-raped.
One of the accused responded with an RCR, claiming that since they were married, the assault could not be considered abduction or rape.
The RCR was decreed in his favour and the girl was sent to live with her alleged rapist.
In 2004, he divorced the teenager during a hearing of the rape case against him. In 2014, the man walked free.
"Abduction and rape [are] extreme and rare ways in which the RCR can be misused," said Zubair Abbasi, a law professor and author.
"But frequently the RCR is misused as a pressure tactic."
He believes that the RCR can be challenged in court.
Lawyer and teacher Abira Ashfaq went a step further, saying the RCR could be declared as "unconstitutional because it is against a person's dignity and privacy, and is discriminatory toward women."
The law has been challenged twice in Pakistan, unsuccessfully.
"Although the law is currently proving to be more of a burden than a benefit, in spirit it is meant to provide an opportunity for reconciliation between two parties," said Fauzia Waqar, head of the government-backed Provincial Commission on the Status of Women.
The British, who introduced the law of restitution in the subcontinent, dropped the RCR about 50 years ago.
Today it is thought of as a Muslim law, but the concept came to Asia from English Ecclesiastical courts in 1857.
"It was meant to force back husbands who had settled with other women," said Abbasi. "[Now] as women are growing more economically empowered, they are at the risk of losing their assets due to this law."
Recently, Pakistan's media regulator warned broadcasters not to air "indecent content that includes divorce and infidelity", which highlighted the sociocultural barriers in even discussing divorce.
Speaking outside a civil court in Lahore, after her divorce was finalised, Sukhera said: "People say getting married is difficult, but in this country, getting divorced with dignity is much tougher."