Pakistan’s Council of Islamic Ideology (CII) is drafting a revised marriage document to give Muslim women the right to a divorce. The move, a part of the religious body’s efforts to update marriage documentation, could give brides the same legal rights to divorce as the groom at the time of the wedding.
While women technically have the legal right to divorce in the existing nikahnama (Islamic marriage document), the granting of that right depends on the groom ‘conceding’ that right. However, the nikahkhwan (cleric performing the marriage ceremony) rarely informs the bride or her family of this.
“[As per the new document] the nikahkhwan will be legally bound to inform the bride of her right to ask for dissolution of marriage,” said CII chairman Qibla Ayaz. “[Once enforced], consent [to divorce] would not be required as husbands would have already surrendered their right to their wives,” he added.
However, the CII spokesman Ikram-ul-Haq has clarified that the clauses in the new nikaahnama would still have to be enforced by the bride in order for her to get the same rights to divorce as the groom. However he also confirmed that the document would legally bar the nikahkhwan from scratching the clause without the bride’s consent.
As things stand, women who seek divorce after having had their right to divorce denied in the nikaahnama have had to opt for khula as per the Muslim Family Law Ordinance 1961, which requires that she gives up up everything she received from the husband as part of the marriage. In addition, she must forego rights to maintenance and alimony.
The CII’s move to update the nikahnama comes alongside its revision of the talaqnama (Islamic divorce document). The council has already announced its support for declaring ‘triple talaq‘ (instantaneous divorce) as an illegal, punishable offence, with the updated talaqnama including punishments for men guilty of dissolving their marriage on the spot.
The Council of Islamic Ideology is a statutory constitutional body that gives the Parliament advice on Islamic matters and Sharia law. While the CII depicts its latest efforts as a bid to make the family system stronger while simultaneously protecting women’s rights, activists and lawyers are skeptical about the move bringing about meaningful change.
“Perhaps the CII is looking to throw women a bone, but the fact remains that for centuries women were denied the right to divorce by cultural subtext and social stigma against divorce initiated by women,” says Aisha Sarwari, cofounder Women’s Advancement Hub and author of Navigating Pakistani Feminism: Fight by Fight.
“It is unlikely that the person in charge of conducting the nikah [marriage] would explain (to) any young woman her rights. There is no monitoring mechanism because the beneficiaries of (the) status quo are wife-beaters, cheaters, drunks and toxic men who prefer the option of getting away with minor or major crimes against women.”
Lawyer and activist Nighat Dad points out that the CII is not bringing forth any revolutionary change in terms of women’s rights in marriage.
“The clause giving the right to divorce has always been there, but quite often the biggest stumbling blocks are the nikahkhwans themselves who often choose to scratch the clause without even sharing it with the bride,” she says.
While Dad sees the benefits of making it mandatory for the clerics to convey the clause to the brides, she calls for an overhaul in mindset surrounding divorce to make it easier for women to be granted their rights.
“When even talking about the right to divorce is considered taboo at the time of the nikah, the new clause’s implementation won’t be as straightforward. For instance, the Protection against Harassment of Women at Workplace Act [passed in March 2010] required offices to form committees on harassment; there are countless workplaces that still don’t have them,” she adds.
Referring to her own divorce, Dad says that her family’s refusal to enforce the needed clause in the documentation made things difficult for her.
“None of what I had given the groom as dowry was mentioned in the nikahnama, but everything that I received was clearly mentioned – which I then had to give up. I urge women to keep receipts and records of everything that they give their husband’s family at the time of marriage, and let go of the societal pressures surrounding divorce.”
Speaking to Asia Times, Elham Manea, an expert on Sharia law and author of Islamic Law in the West: the Essentialists, calls for religious reform to address the question marks over women’s rights in the Muslim world.
“[Pakistan’s] Shafite Jurisprudence [on divorce]… does not provide justice or equality to women in issues of division of property, maintenance, child custody etc,” she says, adding that Islamic clergy are reactionary in the manner in which they perceive women, family structures and relationships.
“They believe the differences in rights given to men and women are justified and determined by biological differences and hence a woman cannot be trusted with the right to divorce, because she is perceived by them as ‘emotional’. Men on the other hand are considered ‘rational’. Never mind that the record of husbands’ misuse of this ‘right’ is well documented.”
Manea calls for reform in the interpretation of Islamic law in the Muslim world. “I see [Sharia] as a selection from the corpus of legal opinions of jurists developed over the course of Islamic history, especially between the seventh and tenth centuries,” she says. “Looking at shari’a from this perspective will highlight its problematic nature, for we are not considering its theoretical potential to provide justice. What we are in fact looking at is its actual implementation and hence its obvious limitations and how it contravenes modern concepts of human rights.”
She warns against religion’s use to construct theocracies. “The time has come for a civil law that respects the equal dignity and rights of both spouses. It is important to bring Islam to the spiritual sphere, hence a religion is a spiritual relationship between an individual and a higher power, and should not turn into a social and political order – a theocracy.”