By Sahar Bandial
January 27, 2015
The Council of Islamic Ideology (CII) decided last week to once again deliberate upon on what appears to be a favourite topic: women and marriage. Apart from the arbitrary statement regarding the appropriate age and acceptable dress of female judges, the CII opined that the practice of triple Talaq or Talaq-e-Salasa, whereby a husband pronounces the requisite three declarations of divorce upon his wife at one time, be declared a crime. The former claim may invite (and probably already has) a host of critics. But surely the latter recommendation can be applauded as driven by the ‘right’ intentions.
Triple Talaq, Maulana Sherani argued, is against the Sunnah of our Holy Prophet (peace be upon him) and ought to be treated as a sin. Criminalising the act would “save families from destruction”, protect the institution of marriage and tame the unilateral prerogative permitted to a man to end a marital union. Whatever the underlying objectives of the CII’s declaration, one may draw two important observations from it: first, the council’s preoccupation with the subject of marriage; second, the fundamental disconnect between the council’s declarations and existing laws governing Muslim marriage in Pakistan.
Just this past year, the council issued two edicts declaring un-Islamic legislative provisions that prescribe a minimum age for marriage of girls and curtail a Muslim man’s right to enter into polygamous unions. Not nearly as progressive as its most recent declaration, one could argue!
Why such focus on the marriage question? Surely, in the midst of the security crisis confronting the country and the ensuing vilification of our religion, the CII would have more pressing matters to concern itself with. However, it appears not.
At the same time, the value of the CII’s prescriptions on marriage remains questionable. For instance, section seven of the Muslim Family Laws Ordinance, 1961 (MFLO) and judicial interpretations accorded to it, recognise the legal validity of Talaq-e-Salasa. Would criminalisation of such pronouncement of divorce, along the lines recommended by the CII, then render triple Talaq unlawful and invalid? Scholars disagree on the Islamic impermissibility of the practice (often depending on the school of Fiqh they associate with). To then criminalise triple Talaq, even as a deterrent measure against what is undoubtedly a despised practice, whilst acknowledging its legal effectiveness would only add contradiction and inconsistencies to the law.
Such contradictions however, are not unknown to the legal regime governing family laws in Pakistan: arranging and solemnising the marriage of a girl child under16 years of age (a practice endorsed by the council) is, as highlighted in an earlier column, a crime under Pakistani law. Yet, the law will not question the legal validity of such union, particularly where it has been consummated. Likewise, the failure to fulfil the mandatory requirement of registration of a Nikah with designated Nikah registrars under section five of the MFLO, does not derogate from the legitimacy of the marriage contract and instead is treated by the courts as a mere ‘irregularity’ punishable with imprisonment or a fine. The procedure surrounding divorce is as complex. Talaq pronounced in violation of the mandatory provision of notice to the chairman of the Arbitration Council under section seven of the MFLO, though subject to a penalty, does not necessarily invalidate the divorce proceedings.
Our family law regime then poses an interesting conundrum: conduct designated by it as criminal is nonetheless accorded legal recognition. The justification: To prescribe otherwise would amount to a direct violation of ‘accepted’ injunctions of Islam, for which procedural niceties legislated into law are of no relevance.
Such complexity is actually symptomatic of a larger problem. Muslim family law is burdened by dualistic and conflicting loyalties, of adherence to accepted religious norms and the need to progressively reform and regulate social practices. It is this dualism that (in addition to other factors) permits the CII continued room to comment on questions of marriage, in both (ostensibly) progressive and more conservative tones. Though its commentary is entirely advisory in nature and carries limited legal force, the articulation by the CII of an alternative narrative that undermines the legitimacy of the family law regime is problematic. Until such dualism in the law governing Muslim marriage is reconciled, legally incongruous edicts passed by the CII shall persist and will also continue to claim an audience.
Sahar Bandial is a practising lawyer and teaches law at two colleges in Lahore