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DAWN Tuesday Review, Apr 23-29, 1996

Women's Right to Divorce in Islam

What I fail to understand about most writings on the legal rights of Pakistani Muslim women is silence on the right of divorcing one’s husband. No, I am not referring to Khula. I am referring to the woman’s right to say to her husband, “I divorce you,” and annul the marriage in the same manner as a man does. This right had a precedent in the Hashimite clan, to which the Holy Prophet himself belonged. This right was given authenticity by Allah afterwards.

And this is a legal right granted by the government of Pakistan under the Muslim Family Law Ordinance, 1961. The only pre-requisite that ever was, and still is, for the woman to be eligible for using this power is this: that it needs to be agreed upon by both parties either at the time of nikah or later at any moment prior to the woman’s actual exercising of this power. It is sad and surprising that most publications on women’s rights in Pakistan are silent on this issue. It wasn't mentioned in Justice Dr Nasim Hasan Shah’s egalitarian article in this magazine on November 14, 1995. The renowned scholar Maulana Ihtram-ul-Haque has pointed it out in a recent television broadcast (although he extends the woman’s right only up to “one talaq”, which is something like a revocable divorce). Keeping in view society’s general ignorance of this issue, one becomes quite convinced that there is a need for speaking more about it.

An early evidence of this right is found in the story of Hashim, the great grandfather of the Prophet (peace be upon him). It is said that when he met Salma, a successful business leader of Yathrab (later Madinah) he was so impressed by her virtues and independent disposition that he proposed to her. She replied that she could marry him if he agrees to accept that she has the same right of enacting divorce, as he himself will have. Hashim agreed and they were married. She later became the mother of Abd al Muttalib, the Beloved Prophet’s grandfather.

When Islam came to Arabia, this tradition was given validity by the Muslim law. It was called Haqq-e-Tafweez or the right to delegate. However, as was likely, the patriarchal institutions of the later centuries did nothing to encourage it. The law was left dormant so that it was eventually forgotten by the majority of the people.

In the Twentieth Century, Allama Iqbal was perhaps the most enthusiastic advocate of this right. He would always get it included in the nikahnama of any young people who were under his influence. The nikahnama he drafted for Dr Taseer and his English wife Christable George received some publicity in the 1930s because it was very progressive and included the right of divorce for Christable. (It was this same draft which was later used to seal the marriage between Christabel’s sister Alys and a young professor, Faiz Ahmed Faiz.) In his numerous speeches on women’s issues, Dr Iqbal emphasized the need for the revival of this ancient Muslim law, usually going as far as to declare, “Marriage according to Muhammadan Law, is a civil contract. The wife at the time of marriage is at liberty to ask for the power of divorce delegated to her on stated conditions, and thus secure equality of divorce with her husbands….. From the inequality of their legal shares (in the rule of inheritance) it must not be supposed that the rule assumes the superiority of males over females. Such an assumption is contrary to the spirit of Islam.”

This extract comes from the sixth lecture in his much celebrated collection, The Reconstruction of Religious Thought in Islam (1929).

Again, it is surprising why this aspect is never brought out by those who write volumes on Iqbal’s thought and word. Fortunately, the issue was given importance by those who drafted The Muslim Family Law Ordinance, 1961. Hence, question No. 18 in every Nikahnama today asks explicitly: “Has the right of divorce been delegated to the woman? If so, under what conditions?” If you are married, and if you were married after 1961, then you have probably seen this question in your own nikahnama. If not, just look into it. It is there.

The irony is that most people do not know about it, and those who do, are often intimidated by others. In one of the ceremonies I witnessed (and one of the rare ones where the parties wanted to validate this right), the nikahnama just stopped reading the nikahnamah after the question about haq mehr, or wager, and asked the parties to sign. When they told him they would first like him to write “Yes” to question No. 18, he dropped the papers and tried to dissuade them! This he was doing for the “future” happiness of the couple because his argument was that this right will leave a dangerous power in the hands of the woman! Why is the power to divorce dangerous when it is shared by a woman and not so when held exclusively by the man, will someone please explain?

Perhaps many people would try to explain that. But only after they become aware that such a power is “imaginable” in the first place. When I started speaking about this in my own circle some time back, I was first answered by discouraging looks as if I have said something utterly obscene or blasphemous. Some people were shocked, others disgusted. Then, after some were finally converted to a new belief in the old tradition, I learnt about the strange kinds of problems they came across. Different people were coming up to them with their own explanations of why it is inappropriate to bestow this power on woman. “My father said it might be Islamic but it is not in accordance with our custom.” “If I give this right to my would-be wife she will stop showing me any respect.” “My would-be husband is an understanding person and he is quite willing to concede but he says that his father will never approve of this.” “My parents think it is improper. What will other people say?” One should ask these parents how could something become “improper” for their daughter if it was proper for the wife of their Prophet’s great-grandfather?

Question No. 18 is in fact a safety measure, and it should be valued for that. Nobody argues that fire extinguishers are dangerous because you could be knocked down if someone blows them in your face!

Lastly, we must remember that this “right to delegate” is part of the overall Islamic point of view on the issue of marriage, viz, marriage is essentially a type of contract. Like all other contracts it can be annulled by the mutual consent of both the parties, or by either of the parties on the conditions previously laid down in the contract itself.

For that matter, as long as the parties do not engage in any activity that is unlawful in its own right (such as polyandry, divorce during pregnancy and so on), they should be considered absolutely free to decide upon any terms and conditions that might be agreeable to both.


It is sad and surprising that most publications on women’s rights in Pakistan are silent on this issue.

 
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