Above: A Muslim marriage/Photo: UNI
In a path-breaking move, Pakistan has proposed major amendments in the marriage document which will help in empowering women by giving them the right to divorce without going to courts
By Asif Ullah Khan
At a time when we are still stuck discussing the pros and cons of the controversial triple talaq bill, our neighbour, Pakistan, an Islamic country, has prepared a draft which will go a long way in empowering women by giving them the right to divorce without going to courts.
Although Pakistan is among 21 countries which have banned “instant triple talaq”, the practice is still prevalent in the subcontinent. The Council of Islamic Ideology, a constitutional body responsible for giving legal advice on Islamic issues to the Pakistan government and its parliament, has proposed major amendments in the nikahnama (marriage document). Like the Indian triple talaq bill, it has also suggested making triple talaq a punishable offence but said that the punishment will be decided after consulting Islamic scholars of different schools of fiqh (jurisprudence). What makes the proposal revolutionary is that it makes it mandatory for the nikahkhawan (the person who performs the nikah or marriage) to inform the woman of her right to dissolve the marriage.
It does not end here. Under current Pakistani law, the only option a woman has is to go to court to seek divorce. This process is called Khula, and is not only a costly and tedious affair, but has become a means for men to exploit and harass women wanting separation. But now the Council of Islamic Ideology has drafted a proper talaqnama (divorce document) to ensure the protection of divorced women. The new draft has proposed major changes in the language of the nikahnama to specifically mention the rights of women. The clause can only be deleted with the consent of the woman. The nikahkhawan will be legally bound to consult the woman on whether she wants to relinquish this right and give her husband the right to dissolve the marriage.
Dr Qibla Ayaz, chairperson of the Council of Islamic Ideology, reportedly said that for Khula, the husband’s consent was necessary, but under the new rule, this is not required as he would have already surrendered this right to his wife at the time of marriage. Ayaz said that “on-the-spot” divorce (instant triple talaq) had become a widespread social problem adversely affecting women and children, and the new provision is in line with the requirements of the 21st century. He said that though there was a provision for women to dissolve their marriage in the old nikahnama drafted in the 1960s, it was not elaborate and they were often given the document with this provision deleted by nikahkhawans.
On the issue of talaqnama, Ayaz said in the absence of a clearly worded document, divorced women had to face many questions and accusations while going in for a new marriage. “The common practice was that a woman was given pre-filled marriage documents. There was no discussion with her first about the conditions, which is a mandatory practice under Islamic teachings,” he reportedly said. The new talaqnama will act as a proof of divorce and will include all the terms and conditions of divorce in clear words, he said. The most blatant abuse of instant triple talaq was seen during Gen Zia-ul Haq’s regime, who as part of his Islamisation programme, had introduced the Hudood Ordinance. Under this law, many innocent women were flogged and even jailed on charges of adultery as the husbands used to deny them talaq.
Ayaz said this move came after the Supreme Court of India had, in August 2018, imposed a ban on the practice of instant talaq. However, no headway has been made in India. The contentious triple talaq ordinance was allowed to lapse in the Rajya Sabha on the last day of the budget session.
The All India Muslim Personal Law Board (AIMPLB), which opposed the triple talaq bill tooth and nail, proposes to introduce a model nikahnama, but unlike the Pakistani draft, the husband has a major say. According to AIMPLB spokesman, Maulana Khalil-ur-Rehman Sajjad Nomani, in the model nikahnama there will be a column saying, “I will not give instant triple talaq” and the husband will have to tick it.
Talking about the new Pakistani draft, Yasmin Farooqi, a Jaipur-based women’s rights activist, told India Legal: “The provisions in Pakistan’s draft were already present in the nikahnama in India. However, over the years, these have been changed by the so-called guardians of Islam in India who want to keep Muslim women in shackles.”
Farooqi, who worked as a counsellor in the family court for more than 10 years, said that Indian Muslim women had suffered a lot due to ignorance about their rights. “Not only the right to dissolve the marriage, many other things such as the provision of monthly allowance (called kharcha-i-pandan), were mentioned in the nikahnama and were legally binding on the man,” she said. “Many people may not know that the granddaughter of Sir Syed Ahmed Khan, the founder of Aligarh Muslim University, had clearly mentioned in her nikahnama that only she has the exclusive right to dissolve the marriage.” She said that, sadly, in many states in India, there was no provision for a registered nikahnama. “Only three or four states, including Rajasthan, have registered nikahnama. In many cases, women don’t even have proof of their marriage.”
Mehrunnisa Khan, national president of Women India Movement, which works for empowering women, told India Legal that she welcomed any move which safeguards the rights of Muslims and empowers them. She gave the example of the Constitution, which has taken the best from other constitutions of the world. “I see no harm if any Shariah-compliant provisions are added in the nikahnama,” she asserted.
More than 20 countries, she said, had not only banned instant triple talaq, but also taken measures to curb the menace. She said that in Sri Lanka, a Buddhist country, instant triple talaq was not recognised under Sri Lanka’s Marriage and Divorce (Muslim) Act, 1951. Under this law, a husband wishing to divorce his wife needs to give notice of his intention to a qazi (Islamic judge), who should attempt reconciliation between the couple over the next 30 days. It is only then that the husband can give talaq and that too in the presence of the qazi and two witnesses.
Khan said: “Even countries such as Tunisia, Algeria, Syria, and Sudan have taken steps to curb the misuse of instant triple talaq. The best way forward is for Islamic scholars from different fiqh to develop a consensus by taking the best practices and preparing a consolidated draft which adheres to the basic tenets of Islam and protects the rights of Muslim women.”
—The writer is a former deputy managing editor of The Brunei Times