A Tale of Two Countries

The Shoaib-Ayesha story exposes key differences in the code that governs marriage and divorce among Muslims in India and Pakistan

Mumbai: Never mind who ‘cheated’ whom in the Shoaib Malik-Ayesha Siddiqui story, the buck stops at the relevant provisions of the Muslim Personal Law (Shariat) Act, 1937. It has been rarely — and barely — amended in the 90 years since. This, largely because the ulema is opposed to change and regards a modern interpretation of the law as interference.

Mumbai-based scholar Asghar Ali Engineer is one of many who believe that “the cultural basis of the Muslim Personal Law actually lies in the customary laws of the Arab society”. He questions practices such as marrying and divorcing on the phone. These are not mentioned in the Muslim Personal Law and should be declared invalid, says Engineer. He laments Muslim trivialization of “marriage, meesaq-e-ghaliza (strong covenant between two adults)… a qazi can be bribed to distort the rules laid down for a valid nikah and talaq”.

The law’s most controversial elements include the triple talaq and polygamy.

TRIPLE TALAQ

Not mentioned in the Quran; an innovation. Most ulema agree that Allah considers talaq the most reprehensible of all that is allowed to man. However, they remain divided on the triple talaq. The Hanafi — one of Sunni Islam’s four schools of jurisprudence — allows the triple talaq. But this practice can lead to absurd scenarios, such as the Oriya man who informed his wife he had said ‘talaq’ three times in his dream the night before. The local maulvis promptly pronounced they were no longer man and wife. The man had to take his fight for the marriage to be restored all the way to the Supreme Court.

Other forms of divorce recognised under the Shariat Act, 1937 and applicable to all Muslims in India are: mubarra (divorce by mutual consent) and talaqe-tafweez (delegated divorce).

The subsequent Dissolution of Muslim Marriage Act, 1939 provided some equality as it granted Muslim women the right of khula — or the right to divorce their husbands. Its prime mover was a scholar, Maulana Ashraf Ali Thanvi, who lamented that many Muslim women were converting to Hinduism to get rid of their “cruel” husbands who would neither treat them well nor divorce them easily. While this Act is often called progressive, there have been calls for further change. Advocate Neelofar Akhtar, president of Mumbai’s Family Court Bar Association, wants urgent amendment of the 1939 Act. This would be in line with reform of other laws dealing with other communities, notably the Hindu Marriage Act, 1955 and Special Marriage Act, 1954. Both were amended in 2001 to allow women to file divorce petitions where they live. In contrast, the Dissolution of Muslim Marriage Act, 1939 insists a woman can file for divorce only where she was married or where her husband lives. Akhtar describes it as “a discriminatory provision”. She has raised the issue at three All-India Muslim Personal Law Board meetings, the last in Lucknow just days ago. But the mullah-dominated, patriarchal law board has stonewalled the issue. Many point out that the board tried to deny Shah Bano maintenance from the husband who had divorced her in 1978. Subsequently, Rajiv Gandhi’s government diluted the Supreme Court’s judgment that Shah Bano was entitled to alimony. Instead, the government introduced the Muslim Women (Protection of Rights on Divorce) Act, 1986. It is worth noting that the new Act is the only one that is enforceable in a criminal court, rather than in family courts (as are the Personal Law Act and Dissolution of Marriage Act). The 1986 Muslim Women Act admittedly instituted some reasonable provisions such as maintenance during the Iddat period, or three months from the day of divorce. But, it denied — at one stroke — the right to alimony even to destitute divorcees. Khula, or a woman filing for divorce, has had its share of controversy. Starlet Manyata married Sanjay Dutt after she filed for a khula from then husband Meraj. But Manyata’s first husband challenged the khula she secured from a qazi in Mumbai, saying only a man could give a khula. He was plain wrong, says lawyer Neelofar Akhtar, who fought and won Manyata’s case. “If the Quran allows men the right to pronounce talaq, it also grants women the right to khula.”

POLYGAMY

A provision enshrined in the Quran, though hedged around by many conditions; upheld by the 1937 Muslim Personal Law but grossly misinterpreted and misused. Those partial to the practice quote a Quranic verse as justification but forget that it was revealed during a great and bloody battle, which left many men dead and large numbers of destitute widows and orphans. The flipside is another verse in the same Quranic chapter, which stresses that no man is ever “able to be fair and just between women even if it is your ardent desire.” Senior cleric Maulana Shoeb Koti says it “proves the Quran lays emphasis on monogamy”. India, unlike Pakistan, does not have legislation such as the Muslim Family Laws Ordinance, 1961, which proscribes marrying a second time without the first wife’s consent. Supreme Court advocate Saif Mahmood admits the lacunae: “An avowedly secular country like India has failed to give Muslim women what many less secular countries have.”

Islamabad: What do Pakistan prime minister Yousuf Raza Gilani and Punjab chief minister Mian Shahbaz Sharif have in common? Both are believed to have more than one wife. PPP lawmaker Nabeel Gabol recently told parliament that roughly 80% of the country’s MNAs (Members of the National Assembly) and senators were muchmarried men. This, despite Pakistan’s Muslim Family Laws Ordinance, 1961.

Supreme Court barrister Gohar Ali says there has to be a valid reason in order for a Pakistani man to marry a second time. For instance, “suppose a woman cannot become a mother due to medical reasons”. The law requires an arbitration council, headed by a local councillor, to identify the ‘reason’, Ali adds. But nearly half a century later, polygamy is still practised by isolated tribal communities and the feudal classes, which dominate parliament.

Parliamentary sources have given TOI a list of prominent politicians and public figures with more than one wife. The list is long. It names Gilani and Sharif, Pakistan Peoples Party (PPP) heavyweight Makhdoom Amin Fahim, Sindh chief minister Syed Qaim Ali Shah, and former federal ministers Yar Muhammed Rindh and Azam Khan Hoti.

It is interesting to note that Samina Khawar Hayat of the PML-N supported the practice of polygamy in the Punjab assembly just a few weeks ago. It was subsequently debated in the National Assembly. Are Pakistan’s politicians soft on polygamy?

The 1961 law empowered women by giving them the rights to seek a divorce. In practice, qazis follow the old ways. Most Pakistani nikah certificates do not mention this specific clause. The law makes it a crime punishable by prison and a fine for a married Pakistani man to take another wife without the consent of his first wife, says Gohar Ali. “If Shoaib Malik and Sania Mirza had tied the knot before he divorced Ayesha, then, under section 5 of the family laws, he would have been liable for punishment,” he adds.

The divorce meant Ayesha entered the threemonth Iddat period, during which Shoaib has to pay her maintenance. There is a simple, scientific and socially responsible reason for this. If a divorced woman menstruates during the Iddat, she is clearly not pregnant and Iddat lasts just three months. If she is pregnant, Iddat continues till the baby is born. Pakistani legal experts say that in Ayesha’s case, she claimed a physical relationship with Shoaib and must therefore remain in seclusion during the Iddat period. Under the West Pakistan XXXV Act, which came into force in 1964, a woman can sue her husband if he refuses to maintain her without lawful cause. Barrister Gohar says that maintenance varies from case to case under the family law. Citing Shahbaz Sharif ’s divorce from his second wife Aaliya Honey, with whom he lived for just one year from 1993, he says: “The CM had to pay more than $1500 per month, during her period of Idaat.” Interestingly, Sharif took Tehmina Durrani as his third wife soon after divorcing Aaliya.

Hudood horror

The Hudood Ordinances were enacted in 1979 as part of General Zia’s Islamization process. They cover five areas: zina (non-marital sex) and rape; theft and armed robbery; qazf (or false accusation of zina); prohibited use of alcohol and narcotics, and the procedure for whipping. The ordinances made adultery and rape punishable by stoning. But it became difficult to prove rape because a woman was required to provide four adult male witnesses. Failure to provide proof of the alleged rape placed the woman at risk of prosecution for adultery.

The Women’s Protection Act of 2006, brought by the Pervez Musharraf regime, placed rape laws under the Pakistan Penal Code, based on civil law, rather than Sharia. Police no longer had the right to detain people suspected of having sex outside marriage. Adultery and non-marital consensual sex was still an offence but judges were henceforth allowed to try rape cases in criminal rather than Islamic courts. It did away with the need for four witnesses to prove rape and allowed conviction on the basis of forensic and circumstantial evidence. However, the Hudood Ordinances continue to be a part of Sharia law in Pakistan.