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Not western media, Imran Khan should blame the clergy for Pakistan’s rising divorce rate

The injustice to one half of the population, dependent upon the goodwill of the other half, is the most glaring example of social inequality.

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Recently, our prime minister attracted wide criticism for blaming the rising divorce rate on the influence of foreign media. Pakistanis usually pride themselves on their traditional family values and the respect they have for the sanctity of marriage. Yet Pakistan is one of the easiest countries in which to obtain a divorce, especially for men. Breaking up a marriage has minimal consequences as there is no concept of joint or marital ownership or income; maintenance awarded to children is usually paltry and a wife, even after a lifetime of service to her family, has no right to claim a share in the assets or income of her husband.

The clergy in Pakistan has had a big influence on the formulation of laws governing marital relationships. The Rashid Commission that was set up to formulate Pakistan’s family laws merely recommended that a talaq should be registered but even this was unpalatable! Maulana Thanvi, representing the clergy, stated that the registration of divorce or any intervention of the courts was “ridiculous and repugnant to Sharia”. He reasoned that if a man’s right to divorce was fettered in any way including through registration, it would prompt couples to resort to “vice and adultery” to obtain a divorce, following which “Muslim society would sink to the lowest depths of disgrace”. On this point only he was overruled.

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Some 60 years later, we are at the same juncture. Judges rule according to their individual perceptions of religious rules and some believe that under Islam a man has an unfettered right to divorce. Despite judicial precedents, high courts have made inconsistent decisions, some holding that for an effective divorce the talaq has to be notified to the Union Council and the 90 days waiting period has to expire, while others say that a talaq is effective even if it is not notified.

The injustice to one half of the population, many of whom are dependent upon the goodwill of the other half, is the most glaring example of social inequality but receives no attention. Each commission set up to recommend changes to the law made known their concern about the lack of any recognition of matrimonial assets or income. The Zahid Commission in 1993 stated that “at the very heart of the vulnerability to which women are exposed is the lack of sharing of assets and property upon termination of marriage”. The Zahid Commission went on to state that this principle of sharing is in accordance with the principle of mata’a or kindness to a divorced woman. Mata’a is also part of Islamic principles and is mentioned in the Holy Quran.

In some Muslim countries such as Jordan, Morocco, Algeria, Egypt, Syria, Libya and Tunisia, mata’a is paid to the wife in addition to dower and maintenance. In Pakistan, there is no concept of mata’a. Similarly, in many Middle Eastern countries, there is a strong tradition of adding conditions for financial maintenance and capital awards in the nikahnama as haq meher, yet in an overwhelming majority of marriages in Pakistan the sum remains paltry as people consider it a bad omen to speculate on a breakdown of marital ties at the time of marriage.

Pakistan is a signatory to Convention on the Elimination of all Forms of Discrimination Against Women and other international standards which stipulate that women’s non-financial contributions to a marriage must be recognised to enable an equal standing between spouses. The fact that women are entirely dependent either upon their fathers or husbands for financial maintenance in exchange for their obedience is unworkable. Therefore, in several Muslim countries more progress has been made to recognise women’s non-financial contributions to a marriage. In accepting women’s right to resources acquired through the joint efforts of parties to a marriage, these Muslim countries do not believe they are acting contrary to Islamic principles.

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In Malaysia, the court can order a division of matrimonial assets after assessing each party’s contributions. Where a wife has not made financial contributions she would still be entitled to a third share of the assets depending on the length of the marriage. In Singapore, Sharia courts have the discretion to take into account the wife’s contributions to the family, such as caring for the home and the children. Where a wife has made no direct financial contribution, she is usually still entitled to about 35 per cent of the assets. In Turkey, revisions to the Civil Code stipulate that the equal division of property and assets acquired during the marriage is the default property regime. In Indonesia, women’s non-financial contributions are recognised and the court has the discretion to split the matrimonial property upon divorce.

Ironically, while the concept of the family is usually touted as sacred, laws regulating family relationships are the last to be brought in line with the changing global trends. In England, divorce is still fault-based as the state is too worried to tread on a sensitive subject. In India, in 1985 the Congress government almost fell when the Muslim community were up in arms over a supreme court judgement granting a 62-year-old divorced woman, Shah Bano, maintenance of Rs 179.20 per month from her well-to-do husband who had thrown her out of the house after 46 years of marriage. The Indian government quickly introduced a new law to override the judgement and keep its voters happy.

Reforms empowering women within their homes become an emotive issue but until a woman does not have some semblance of security within her home, it is difficult for her to make any contribution to society or the economy. Many women stay in abusive marriages for fear of finding themselves on the street. Regulations regarding violence, harassment and polygamy are of course beneficial, but a man will only appreciate the sanctity of marriage and the value of good behaviour at home when he has to share his assets and income fairly.

The writer is a board member, AGHS Legal Aid Cell, an advocate of the high courts, Pakistan, and a solicitor of the senior courts of England and Wales. This article was first published in the Dawn.

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  1. There is division of wealth, the amount is just agreed up front. Of course there is a general issue of law being enforced in Pakistan, but that does not mean that the law does not exist. The concept is fair, much better than say the United States where a woman can cheat on a man and still keep most of his wealth, depending on the ability of the lawyer and jury. In my opinion we should work towards real issue instead of sacrificing them for the sake of sensationalism and trendy news. The rule exists per the religion and it’s quite easy to agree a big amount up front at the time of Nikkah. If the husband is going out and making all the money why shouldn’t he have a right to keep his money?

    • Well i dont agree. If the man earns then the women give to there children bearing the brunt for 9months and the pain thereafter. The women gives her whole life to these men and there children, cook clean feed but still the man wants to be a crocodile and eat everything up. Im sorry to say but in life there after questions will asked about your wife anr kids but then men think we will think about that bit when we die. What a shame as Islam is not bad but men have made it bad. I always heard the quote too many women in hell but by looking at society today i think its going to be more men then women. Such a SHAME

      • Your argument is emotional and pathetic. IF you wanna make such arguments then you are simly ignoring the the work that the man has put in to support the family and the wife while she was in labor. And there is nothing special in woman carrying a child since the woman is biologically designed to do so and will recover in less then a few months, we respect it but lets not get carried away. The woman benefits more from the chidren since the children are biased 90% of the time, also its a mutual investment she had every right not to do so while the man has to support her financially regardless. And the man has to work and support the same child for the next 18-20 years of the child’s life. And no the reason there are more women in the hell because of how manipulative they are. And what the hell do you even by “their children” those are her children as well. She gave her OWN children her life. And the life she gave to the man was the “payback” for the work that he did for her.

  2. The Shah Bano case was an eye opener for middle-class Hindus of India to how much power Muslims have over the Congress Party and ultimately led to the electoral success of BJP.

  3. Yeah Right. Stupid, useless and page filler news about Pakistan for the day.Need one news at least, per day. Shi*.

  4. All religions favour men as men made those religions. Women had no role in them. But Islam is the most liberal religion for men of all religions in the world. Four wives at a time and disposing them at will, is a blessing from heaven. I wish all religions allowed this privilege to their men. Men will enjoy everlasting youth till death.

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