By Leena Nishtar
July 14, 2018
During an apprenticeship with a family law specialist, I encountered numerous married women, seeking divorce, most of them having heart-wrenching stories. It was at this time that I realised the importance of legal awareness about the right to divorce, entitlements, maintenance and avenues for legal redress and more broadly, the importance of girls’ education, empowerment and rights, as these have far reaching implications.
A Nikahnama is a legally binding civil contract that lays out rights and obligations agreed upon by both parties. It plays a pivotal role in upholding the rights of women after marriage. However, seldom do we treat this agreement with the importance and vigilance that it deserves. Most brides simply sign their names without so much as reading it first and most families remain oblivious to the implications it holds for the future. There is a dire need to spread awareness about the clauses that exist within this document.
Muslim law knows various forms of dissolution of marriage. Talaq refers to the husband’s unilateral right to terminate the marital tie. The common perception is that Islam does not allow women the right to divorce. However, Section 18 of the Nikahnama allows the wife the right to divorce if she wishes to, known as the Talaq-e-Tafweez.
A woman will often seek a Khula which is not the same thing as divorce, it allows a woman to retain her rights over the dower amount, maintenance or alimony. However, Section 18 is rarely invoked and a woman’s right to divorce is simply dismissed, viewed as taboo and contrary to tradition. The clause is often struck out by the individual solemnising the Nikah and sometimes by the bride’s own relatives.
Clause 13 pertains to dower or Mehr, which is a sum of money or other property which becomes payable by the husband to the wife as an effect of marriage. It may consist of anything that can be valued in money, is useful and ritually clean. Mehr can be classified into “prompt” or “deferred” dower. The former is payable immediately on marriage whereas the latter is payable on the dissolution of the marriage by death or divorce, or under specific circumstances. Mehr is wholly and solely the wife’s right and must be paid, even if she waives her right to receive it because under Islamic law, a pre-nuptial agreement releasing the husband from his obligation to provide the wife with dower is regarded as a void contract.
Clause 17 allows both parties to stipulate any special terms or conditions they deem necessary such as the right to work or study, allowance, progeny custody, alimony, pocket money, house work, divorce conditions and so on. It gives the parties complete freedom to tailor their marriage as per their wishes. Unfortunately, this section is often left unfilled.
The last of these crucial sections pertains to polygamy. Clauses 21-22 clearly articulate that the husband may only marry a second woman after getting permission from the first wife. The Pakistani law on Muslim polygamy was subjected to reform in the Muslim Family Laws Ordinance 1961. A man must obtain the permission of his local Union Council stating his reasons for seeking to marry another wife and whether or not the existing wife has consented. However, the provision seems to be futile, and totally ineffective. The restriction appears to be a formality whose violation carries almost no legal sanctions. There is a need for stricter laws with regard to husbands who violate this covenant of the law with impunity.
The Quran gives specific instructions in matters of inheritance, marriage, divorce, etc. There is no lack of laws regarding women’s right to divorce, but a lack of awareness and will to implement. There is a need to educate society so that women get legal protection under the law. In a country so charged with human suffering, there exists the need for people to stand in solidarity and fight for the marginalised communities.
Leena Nishtar is a lawyer with special interest in human rights issues and violence and criminal practices against women and girls