Pakistan: Circumstances under which a woman has the legal right to get a divorce through the courts (judicial divorce) through her own initiative; circumstances under which single women can live alone
|Publisher||Canada: Immigration and Refugee Board of Canada|
|Publication Date||17 November 2010|
|Citation / Document Symbol||PAK103608.E|
|Related Document||Pakistan : information sur les circonstances dans lesquelles une femme a le droit légal d'obtenir un divorce devant les tribunaux (divorce judiciaire) de sa propre initiative; information sur les circonstances où une célibataire peut vivre seule|
|Cite as||Canada: Immigration and Refugee Board of Canada, Pakistan: Circumstances under which a woman has the legal right to get a divorce through the courts (judicial divorce) through her own initiative; circumstances under which single women can live alone, 17 November 2010, PAK103608.E , available at: http://www.refworld.org/docid/4dd1015f17.html [accessed 30 April 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Divorce rights of Muslim women
A Muslim marriage, says the Sustainable Development Policy Institute (SDPI), a Pakistan-based independent non-profit organization founded in 1992 "to serve as a source of expertise for policy analysis and development" (SDPI n.d.a), is "a contract and can be dissolved like any other contract" (ibid. n.d.b). Marriage among Muslims is similarly described as "a civil contract" that "can be the subject of dissolution for good cause" by Mian Muhibullah Kakakhel, the founder of Kakakhel Law Associates and a senior advocate of Pakistan's Supreme Court (23 Sept. 2008). As a contract, explains the SDPI, "both wife and husband have legal and religious rights to dissolve a marriage" (n.d.b).
According to the SDPI, while a man has the "unilateral right of talaq" (n.d.b)-the "absolute and inherent power to repudiate his wife" without offering any reason (Daily Star 3 July 2010)-women legally dissolve their marriage under the following three circumstances (SDPI n.d.b):
If the husband has "unconditionally delegated" the right of divorce in the nikahnama or marriage contract (SDPI n.d.b).
If the wife files suit in family court for khula, which means "untying the knot'" (ibid.) or "to put off as a man is said to khula his garment when he puts it off" (Kakakhel Law Associates 23 Sept. 2008).
If, under the Dissolution of Muslim Marriages Act, 1939, she files suit for judicial divorce in family court (SDPI n.d.b).
In spite of these "pronounced, guaranteed and statutory rights," the Kakakhel lawyer reported that it is "extremely difficult" for a woman to ask for her right to divorce, not only because Pakistan is "a male-oriented and male-dominated society," but also because the woman is "psychologically debarred from having access" to the laws governing her right to divorce (23 Sept. 2008). For an assistant professor of political science at the Metropolitan State College of Denver corresponding with the Research Directorate, the degree of difficulty depends on the woman's social class, education and financial independence, as well as the level of support she can expect from her family (15 Oct. 2010). But in the case of divorce through khula, the main difficulty would be the attack on her moral character that would come under a cross-examining lawyer's questions (Assistant Professor 15 Oct. 2010).
Under the Dissolution of Muslim Marriages Act, 1939, a woman who "regards the husband [as] at fault" can initiate a judicial divorce through a family court (SDPI n.d.b), which were established under the West Pakistan Family Courts Act, 1964, to "adjudicate upon ... matters relating to the dissolution of marriage" (Kakakhel Law Associates 23 Sept. 2008). According to the SDPI, unless the couple reconciles, the family court issues a decree dissolving the marriage and sends it to a union council (SDPI n.d.b), an elected local government body of 13 councillors headed by a nazim, or mayor, and a naib nazim, or deputy mayor (UN HABITANT et al.). The divorce does not come into effect until the end of iddat (SDPI n.d.b), a prescribed waiting period during which a woman cannot remarry (Omar July 2007); iddat can last either 90 days after the union council has received the dissolution decree or, if the wife is pregnant, until the birth of a child (SDPI n.d.b). If the divorce is granted, the union council issues a divorce certificate and the woman keeps her mehr (ibid.), or mahr (Shahid Sept. 2009), a dower given to the wife by the husband (Omar July 2007).
Grounds for judicial divorce
Section 2 of the Dissolution of Muslim Marriages Act, 1939 permits divorce on any one of the following grounds:
(i) that the whereabouts of the husband have not been known for a period of four years;
(ii) that the husband has neglected or has filed [sic] to provide for her maintenance for a period of two years;
(ii-A) that the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961;
(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;
(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
(v) that the husband was impotent at the time of the marriage and continues to be so;
(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease; ...
(viii) that the husband treats her with cruelty, that is to say,
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
(b) associates with women of evil repute of leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her exercising her legal rights over it, or
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran,
(ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law .... (Pakistan 1939)
Section 2 also allows a woman to repudiate a marriage that was contracted by her parents or guardians while she was still a minor, provided that the marriage was not consummated (Kakakhel Law Associates 23 Sept. 2008; SDPI n.d.b) or consummated before she was 16 years old (ibid.).
Female scholar Shagufta Omar, writing in 2007 in Policy Perspectives, a biannual journal published by the Institute of Policy Studies, Islamabad, defines khula as "divorce on the wife's demand," the basis of which is the Quran (July 2007). In Islamic or Sharia law a Muslim woman has the right to initiate divorce when she feels she can no longer live with her husband (Kakakhel Law Associates 23 Sept. 2008; SDPI n.d.b) because of what the SDPI calls "an irretrievable breakdown of the marriage" (ibid.).
According to Omar, the process for dissolving a marriage on the basis of khula is through an agreement between the woman and her husband (July 2007). This marriage dissolution, Omar says, is obtained "only through court since out-of-court khula settlements are not so common" (Omar July 2007). The SDPI also indicates that the wife files suit for khula in a family court (SDPI n.d.b). On the other hand, the Kakakhel lawyer says that khula may be obtained either through mutual agreement or by court order (23 Sept. 2008).
Although a woman can dissolve her marriage through khula, she does so "by surrendering certain rights given to her," such as dower (Omar July 2007). A law professor at the University of Warwick who specializes in Islamic law and Pakistani women's rights also indicated in correspondence with the Research Directorate that, if a woman asks for khula, she must relinquish her mehr or marriage gift (17 Oct. 2010). The SDPI similarly states that, in a case of khula, the wife "usually" has to return the mehr, as well as "other benefits" obtained from the husband (n.d.b). However, Ayesha Shahid, a lecturer at the University of Hull in the United Kingdom, summarizes Pakistan Superior Court decisions on the payment of dower to divorced women in a 2009 conference paper in which she notes that
the courts have taken a positive and liberal approach in interpreting Islamic principles relating to dissolution of marriage by khula and payment/repayment of dower. The courts have refused to accept the plea of the husband for recovery of dower in cases where khula was obtained because of the cruelty or any other fault of the husband. (Sept. 2009)
Christian, Hindu and Parsi women
The SDPI indicates that
unlike the reforms such as the Muslim Family Laws Ordinance of 1961 which have benefited Muslim women, there has been no development since colonial times of the personal laws relating to [Christian, Hindu and Parsi] communities. The Hindu community in particular do[es] not have any specific codified laws relating to family matters which are instead governed by custom. (SDPI n.d.c)
However, reports the SDPI, "[m]embers of minority communities can and do approach the country's regular Family Courts since the Family Courts Act of 1964 does not restrict its jurisdiction to Muslims alone" (ibid.).
More specifically, the SDPI indicates that Christian marriages, unlike Muslim marriages, are "regarded as a holy union" (ibid.). Dissolution of a Christian marriage occurs primarily through the death of one of the spouses; divorce is "permitted only on very restricted grounds for both husband and wife" (ibid.). However, The Divorce Act 1869 does provide grounds for divorce, which include offences such as adultery, rape, and "adultery coupled with cruelty" (ibid.). Parsi marriage, on the other hand, is governed by The Parsi Marriage and Divorce Act 1936. The marriage can be dissolved by the husband or the wife through a family court if, for example, a spouse is of unsound mind (although only after three years of marriage), has deserted the marriage, has been jailed for seven or more years or has committed adultery or rape (ibid.). As for Hindu marriages, the SDPI says that, "[i]n general, there is no concept of divorce among Hindus, although some file divorce suits in the Family Courts pleading the existence of the custom in their community" (ibid.).
Corroborating information on the circumstances under which Christian, Hindu and Parsi women have the right to get a divorce through the courts could not be found among the sources consulted by the Research Directorate.
Whether single women can live alone
For women to live alone and unmarried in Pakistan, it will depend on which province and in what context they are living, reported the Metropolitan State College of Denver Assistant Professor (15 Oct. 2010). The Assistant Professor explained that, socio-economically, "Pakistan has [a] very sharp rural and urban divide" (15 Oct. 2010).
Rural is collectivist, community/village based, agrarian, traditional, more illiterate and poor. Women are not recognized as an individual member of the community, they are members of their male-dominated family. Woman's life in the village context is a matter of concern for every man of the neighborhood community. There is no concept of an unattached' woman. She has to live with her family. What do widows, divorced or spinsters do? They live with their parental or in-laws family. Older women with grown up children normally depend on their sons or daughters. There are always exceptions to their situations in the rural context but generally it is not socially safe and acceptable for women to live in the rural context.
Urban is semi-collectivist and individualistic, more literate, with better infrastructure and transportation facilities and plenty of job opportunities i.e. skilled or unskilled. Urban is different but still there are difficulties for single women. Here, class is the main determinant of woman's choices for her life style. In big cities educated women with jobs or some property income would not have much difficulty to live alone. (ibid.)
The Law Professor also said that "[i]t all depends on who you are, what resources you have, which part of the country you come from, [and] what your own educational and economic, professional status is" (17 Oct. 2010).
Degree of independence experienced by women
Both the Assistant Professor and the Law Professor said that the ability of women to act independently differs depending on their level of education (Assistant Professor 15 Oct. 2010; Professor 17 Oct. 2010). For example, the Assistant Professor said that
[e]ducated urban, upper/middle class working women or housewives do not find it difficult to rent an apartment or to open a bank account or travel domestically or internationally. Women in the rural areas normally do not rent a house or any other place. Due to lack of education, they are normally accompanie[d] by a male member to open an account or to do other things in public sphere. (15 Oct. 2010)
The Law Professor also indicated that, although there are no laws preventing a woman to open her own bank account, "it depends [on] who that woman is," whether she's literate, has her own identification, and can travel alone (17 Oct. 2010). As the Professor explained,
This is more to do with access rather than the law or society. If a professional woman, earning good money went to rent an apartment, no one would bat an eyelid. [B]ut that is because her sense of autonomy and authority would make her able to do so. (17 Oct. 2010)
Treatment of single women
The Assistant Professor reported that a woman living alone in a rural area is an "exceptional situation" that "is not liked by her family or community" (15 Oct. 2010). However, the Assistant Professor allowed that the woman's age should be taken into consideration (15 Oct. 2010).
If she is an older woman, in her 70s or 80s, it would not be a big problem in both contexts, rural and urban or in any class. A young or a middle age woman finds it hard to live alone in all of these contexts. All kind [of] gossips surround her and she is watched by everyone for every move she makes. (Assistant Professor 15 Oct. 2010)
The Law Professor stated that the absence of a male relative may make a woman "vulnerable" and added that "the worsening law and order situation" has made Pakistan "a generally unsafe place to be" (17 Oct. 2010). Younger women risk attracting "unwanted attention from men"; older women may find themselves taken advantage of by their helpers (Professor 17 Oct. 2010). The Assistant Professor also said that a woman "[l]iving alone in majority of the contexts such as rural (which is about 70% of Pakistan) and lower/middle class urban" would put herself at "risk for her safety and security" (15 Oct. 2010). The Law Professor likewise said that any attempt to break away from her family "might pose a danger" to the safety of even "a resourceful woman" (17 Oct. 2010).
In a follow-up to initial correspondence with the Research Directorate, the Assistant Professor explained that of Pakistan's four provinces-Sindh, Punjab, Balochistan and Khayber Pakhtunkhah (KP) (formerly the North-West Frontier Province [NWFP])-the urban centres in Punjab and Sindh are "more educated and liberal" while cities in Balochistan and KP have a "very conservative culture. It would be easier for an educated single woman to live alone in Karachi or Lahore but not in Peshawar or Quetta" (18 Oct. 2010). The Assistant Professor added that
[s]ocial and physical mobility of single women in Pakistan is not an easy thing. An educated woman working in a multinational may move easily from Karachi to Lahore or Islamabad (capital city) [but] not to the rural areas or to the smaller cities. If she is hiding from her family or her husband, it would be much difficult for her do that. (18 Oct. 2010)
Similarly, the Law Professor said that "maybe" an "educated, professional woman," with "resources," could relocate and live alone in a city (17 Oct. 2010). But, the Law Professor cautioned, if she is young and does not have a male relative, it would be "difficult" (17 Oct. 2010).
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
Assistant Professor of Political Science, Metropolitan State College of Denver, California. 18 October 2010. Correspondence.
_____. 15 October 2010. Correspondence.
Daily Star [Dhaka, Bangladesh]. 3 July 2010. Shahmuddin Ahmed Siddiky. "Tradition versus Reforms: The Gender Power-Play in Sharia Divorce."
Kakakhel Law Associates [Peshawar]. 23 September 2008. Mian Muhibullah Kakakhel. "The Law of Divorce in Pakistan." (HG.org)
Omar, Shagufta. July 2007. "Dissolution of Marriage: Practices, Laws and Islamic Teachings." Policy Perspectives. Vol. 4, No. 1.
Pakistan. 1939. The Dissolution Of Muslim Marriages Act, 1939.
Professor, School of Law, University of Warwick, Coventry, United Kingdom. 17 October 2010. Correspondence.
Shahid, Ayesha. September 2009. "For the Sake of Justice: Protecting Divorced Women's Rights in Pakistan by Re-examining the Sharia principle of Mutat (Post-Divorce Maintenance)." Paper presented at Re-imagining Shari'a: Theory, Practice and Muslim Pluralism at Play, Venice, 13-16 September 2009.
Sustainable Development Policy Institute (SDPI). N.d.a. "About SDPI."
_____. N.d.b. "Rights in a Muslim Marriage."
_____ N.d.c "Christian, Hindu and Parsi Marriages."
UN HABITAT, UN Economic and Social Commission for Asia and the Pacific, UN Environment Programme, and Social Commission for Asia and United Cities and Local Governments - Asia Pacific Regional Section. N.d. "Case Studies - Urban Governance: Good Participatory Practice from Karachi." State of Asian Cities Report 2010/2011.
Additional Sources Consulted
Oral sources: Representatives of the Canadian High Commission in Islamabad and the Social Policy and Development Centre (SPDC) [Karachi] did not provide information within the time constraints of this Response. Attempts to contact representatives of the Alliance Against Sexual Harassment (AASHA) [Islamabad], the Aurat Foundation [Pakistan], the Human Rights Commission of Pakistan (HRCP), the National Commission on the Status of Women (NCSW) - Pakistan and the Simorgh Women's Resource & Publication Centre [Lahore] as well as two academics were unsuccessful.
Internet sites, including: Alliance Against Sexual Harassment (AASHA) [Islamabad], Amnesty International (AI), Asia Society, Asian Development Bank (ADB), Asian Forum for Human Rights and Development, Aurat Foundation [Pakistan], Australia - Refugee Review Tribunal (RRT), European Country of Origin Information Network (ecoi.net), Human Rights Commission of Pakistan (HRCP), Human Rights Watch, Law and Justice Commission of Pakistan, Office of the United Nations (UN) High Commissioner for Refugees (UNHCR) - Refworld, Pakistan - Ministry of Women Development, Shirkat Gah - Women's Resource Centre [Pakistan], Simorgh Women's Resource & Publication Centre [Lahore], Social Policy and Development Centre (SPDC) [Karachi], South Asia Human Rights Documentation Centre (SAHRDC), United Nations (UN) Integrated Regional Information Networks (IRIN), United States - Department of State, Women Living Under Muslim Laws (WLUML).