Saturday, October 18, 2008

Rights in A Muslim Marriage (Pakistan)

The following text has been taken from Sustainable Policy Development Institute's (SDPI) website (Link) Please check the link and website because it contains very valuable information for spouses - especially women. They have to know their rights. I have divided the document in sections for easy navigation.

1. Haq Mehr: An Essential Right
2. Inheritance
a) What to do if your rights have been violated in Inheritance.
3. Other Rights in Marriage
4. Maintenance
a) What to do if your rights have been violated in Maintenance
5. Dissolution of Marriage
6. The Importance of Following Divorce Procedure
7. Talaq
a) The importance of Judicial Notice in Talaq
8. Khula
9. Judicial Divorce - Dissolution of Muslim Marriages Act 1939
10. Option of Puberty

Haq Mehr: An Essential Right



As an essential requisite of marriage, haq mehr is always due to the wife, no matter whether it has been written and specified in the marriage contract nor not (clauses 13-16). Mehr is one of the most basic rights of a married woman and therefore the custom of writing the purely symbolic amount of Rs 32.50 effectively denies women the benefit of their marriage rights.

If it has not been fixed in the nikahnama, it is known as ‘mehr ul misl’ or proper dower and the court will then set it by taking into account her status and the mehr given to her close female relatives. If the mehr has been fixed it can be prompt (mehr moajjal) or deferred (ghair moajjal or mu’wajjal) or split into parts some of which is prompt and some of which is deferred. If it is not specified which form the mehr is, it is assumed to be prompt.

Mehr can be in the shape of land, jewellery, cash or gold. Gold is preferable and its weight should be written in the nikahnama, which offers the wife some protection against inflation, whereas written cash amounts can become worthless after a few years.

Type of Mehr When it can be Claimed Rights
prompt
  • whenever the wife demands
Wife can refuse to consummate the marriage or to continue living with husband until it is paid. She can go to court to seek payment up to three years after husband refuses to pay. This is the best form of mehr as it gives the wife the greatest flexibility and control over her mehr.
deferred
  • on death of husband
  • on talaq or dissolution of marriage
  • at an agreed date specified in the nikahnama or any written agreement with the husband
On husband’s death, mehr is a debt that has to be paid before his property is divided among his heirs. Can be claimed in a court within three years of divorce or death of husband.
mehr ul misl
  • whenever the wife demands
as for prompt mehr
all forms of
mehr
  • the amount can be raised at any time during the marriage on a written declaration by the husband
  • a wife cannot be deprived of her mehr unless she has made a written agreement, signed by witnesses and the courts is satisfied she did this voluntarily, out of natural love and affection
  • waiving off of mehr under pressure - e.g., at the husband’s qul or on his death-bed will not be held as valid by the courts
  • when paying mehr, husband has to declare that this is part of mehr
  • unless specified as part of mehr, things given to the wife by the husband during the marriage (e.g.,, jewellery, cash) are not considered part
  • of her mehr





Inheritance


Inheritance is the only area of family law where there are different provisions for different sects, the major difference being over the share given to daughters when there is no male heir.

As Daughter
  • woman has brothers: gets half of brother’s share
  • woman has no other siblings: Hanafi: gets total 1/2 of inheritance; Jaifria: inherits entire property
  • woman has sisters: Hanafi: share 2/3 of total inheritance equally among themselves; remaining 1/3 goes to other relatives; Jaffria: share total inheritance equally among themselves
  • if parent predeceased: Sec. 4 MFLO: woman can inherit (along with any other siblings) her share of her parent’s share of her grandparent’s property
As Wife
  • 1/8th if she has children; 1/4th if she does not have children
  • a wife can inherit during her iddat period, i.e., when her divorce has not yet become final
  • a wife cannot be denied her inheritance by a death-bed talaq
  • there is no time limit for a wife to claim inheritance
As Mother
  • 1/6th



Inheritance: What to do if your rights have been violated

By taking a firm stand against customary practices, the courts strongly uphold women’s right to inherit moveable and immovable property such as agricultural land. The courts do not accept a brother’s claim that they are maintaining their sister and therefore do not need to give them their share of inheritance. Any agreement surrendering inheritance rights which does not fulfill the following conditions is illegal under the Contract Act of 1872:

  • the agreement must be in writing;
  • the agreement must be witnesses and registered;
  • the agreement must be voluntary and made out of natural love and affection.

Other Rights in Marriage

Courts do not enforce customary practices: There are many issues related to marriage where the law has taken a firm stand in favour of women rights. For example an agreement between families regarding an exchange marriage (e.g., watta satta, addo baddo and pait likkhi) cannot be enforced through a court of law if one of the parties breaks the agreement. Similarly, engagement agreements and have no force in law.

The Dowry and Bridal Gifts (Restriction) Act 1976 means that giving a jehez of more than Rs 5,000 carries a penalty - for the bride’s family but not for the bride. The courts insist that jehez and bridal gifts (e.g. salami) are the property of the wife alone and in the event of divorce or separation will not allow husbands to keep any jehez valued over Rs 5,000 just because this jehez is in excess of the legal limit.




Maintenance

Rights What Counts as Maintenance
Under Sec.9 MFLO:
  • husband obliged to maintain wife ‘adequately’ and, in the event of polygamy, ‘equitably’
  • maintenance is payable throughout the marriage, during separation (as long as it is not unilateral separation by the wife) and during iddat period after pronouncement of divorce
  • in the event of husband’s death, his heirs are bound to maintain the wife during iddat
  • a wife cannot be denied maintenance if she owns property, or does not live with in-laws or misbehaves’
All necessary expenses for mental and physical well-being, including but not limited to food, clothing, lodging; expenses for delivery of child are also included in maintenance.
Post-divorce maintenance is only recognised by Pakistani law if a provision is written into the nikahnama (clause 20) or any agreement is made in this regard. Can be in the form of a lump sum payment or monthly payment.





Maintenance: What to do if your rights have been violated


Failure to provide maintenance is one of the most common violations of women’s rights within marriage. To secure maintenance, the wife can either apply to the Union Council or to the Family Courts.

Forum Procedure Appeal Advantages Problems
Union Council Arbitration Council formed (Union Council Chairman + representative of each wife and husband)decides by majority, (Chairman has deciding vote) & issues certificate specifying amount taking into account family’s status and husband’s income wife or husband can apply to the Collector (who is the D.C.) within 30 days on payment of small fee for maintenance amount to be revised upwards or downwardsthere can be no further appeal no lawyer needed easily accessible, close to wife’s homeusually decided within 2-3 months Arbitration Council usually pressures wife to reconcilehusband caninfluence proceedingsmaintenance amount often very lowweak enforcement mechanism
Family Court
  • civil suit filed in Family Court; wife and husband called to hearings
  • judge issues certificate
  • specifying amount taking into account family’s status and husband’s income
  • wife or husband can approach the court which issued the order for maintenance amount to be revised upwards or downwards
  • maintenance case can go up to Supreme court
  • wife gets proper legal represen-tation and her arguments are properly heard
  • court can order the husband’s salary to be ‘attached’, i.e. maintenance is automatically deducted
  • proceedings lengthy and expensive as go before Court and require a lawyer
  • the need to attend court hearings may be problematic for purdah-observing women




Dissolution of Marriage

A Muslim Marriage is a contract and can be dissolved like any other contract. It is automatically dissolved on the death of one of the spouses. Other than this, both wife and husband have legal and religious rights to dissolve a marriage. A husband has the unilateral right of talaq, which can never be taken away but can be restricted through the nikahnama (clause 19). A wife can dissolve her marriage unilaterally only if the right of divorce has been unconditionally delegated to her by the husband in the nikahnama (clause 18).

Other forms of dissolution of marriage which the wife can use are khula and judicial divorce (including option of puberty). These both have to be sought through the Family Courts.

The Importance of Following Divorce Procedures

No matter whether the marriage has been dissolved through talaq, khula or judicial divorce, it is vital that legal procedures be properly followed. Failure to do so can raise doubts about the effectiveness of the divorce and lead to serious legal problems, such as a case of bigamy and zina against a woman who later remarries, or difficulties in settling issues related to the divorce such as past maintenance or claiming deferred haq mehr. The paternity of children can also be disputed.

In addition to any court decree, the woman must make sure she collects her talaqnama certificate from the Union Council and keep it somewhere safe.

Talaq

Procedure Role of Union Council When Effective Penalty for Violation of Procedure

By husband under
Sec. 7 MFLO:

husband pronounces talaq and sends written notice by registered post to the Union Council, mentioning address where wife

  • sends copy of notice to wife by
    registered post.
  • constitutes Arbitration Council within 30 days of receipt of notice.
  • once iddat is over, issues certificate of Talaq being effective to husband and wife.
  • talaq is not effective until the
    expiry of iddat.
  • iddat is 90 days from when the Union Council received the notice of Talaq, or after the delivery of child if wife pregnant (whichever is later).
  • if reconciliation has failed and notice has not been withdrawn
simple imprisonment
for up to one year
and/or a fine of up to As 5,000

The Importance of Registered notice of Talaq

A verbal talaq is not recognised by law and the husband’s failure to send written notice to the Union Council makes the talaq ineffective. Even if the Union Council issues a certificate of talaq, if notice was not properly served on the wife, the talaq can be challenged. This law was originally designed to protect women from a instant and unrecorded divorce. Before 1979 and the introduction of the Zina Ordinance, a woman who was not properly divorced and who later remarried could be punished for bigamy and sentenced up to 7 years (or up to 10 years if she concealed the previous marriage) and only on the complaint of her first husband. However, since 1979, bigamy makes a woman liable to charges of zina which can carry very severe penalty such as death. Therefore, it is vital for a woman to be absolutely clear about her marital status and to have documentary proof that she is properly divorced.

Notice of talaq can be served on a wife (with the Union Council’s permission) through her father, mother, adult brother or sister – but no other relatives. If this is not possible because her whereabouts are not known and notice cannot be served on her through her immediate family, the husband can still serve notice through a newspaper approved by the Union Council.

Sometimes families make the mistake of refusing to receive a registered notification, fearing that it is notice of talaq. This is dangerous because notice can then be served through a newspaper and the talaq will be effective, but the woman will be unaware of her status.

Talaq-i-Tafweez and Mubarat

In both of these forms of divorce, there is no need to approach the courts, meaning that the marriage can be dissolved rapidly, cheaply and with few procedural problems.

Form Procedure
Mubarat By wife & husband mutually under Sec.8 MFLO:couple sends written notification of mubarat to Union Council, which then proceeds as if has received notice of talaq(see table above)once iddat is over, Union Council issues certificate of divorce to husband and wife
Talaq-i-Tafweez by wife under Sec.8 MFLO, only if she has delegated right of divorce (talaq-i-tafweez) specified in nikahnama (clause 18)wife sends written notice (in the same manner as the husband, if he was to dissolve the marriage through talaq) to Union Council, which then proceeds as if it has received notice of talaq (see table above)once iddat is over, Union Council issues certificate of divorce to husband and wife
Comments:
  • wife’s right to mehr is not affected
  • if right of delegated divorce is conditional (e.g., it is operational only if husband has failed to maintain wife), husband can challenge fulfillment of conditions in Family Court


Khula

Khula, which literally means ‘untying the knot’, is the dissolution of marriage initiated by the wife and is granted by the court.

Procedure Grounds & Proof When Effective

By wife under Sec. 8 MFLO:

wife files suit for khula in Family Court

Family Court issues decree and sends notification to Union Council

Union Council proceeds as if has received notice of talaq (see table above)

once iddat is over, Union Council issues certificate of divorce to husband and wife

  • wife feels she can no longer live with her husband ‘within the limits prescribed by Allah’, i.e., an irretrievable breakdown ‘of the marriage has occurred
  • husband’s permission is not required
  • grounds are to be substantiated but not proved
  • khula is not effective until the expiry of iddat. Iddat is 90 days from when the Union Council received the decree for khula, or after the delivery of child if wife pregnant (whichever is later).
  • if reconciliation has failed khula becomes effective on expiry of iddat.
Comments:
  • wife usually has to return haq mehr and other benefits received from husband as zar-ikhula
  • gifts received from husband’s family do not have to be returned
  • court decides how much & what is to be returned on the facts of the case
  • wife’s failure to pay zar-i-khula does not render khula ineffective; husband has to file separate suit for recovery of zar-i-khula

Judicial Divorce - Dissolution of Muslim Marriages Act, 1939

Where the woman initiates the dissolution of marriage but regards the husband at fault, she approach the court for a judicial divorce.

Procedure
Grounds & Proof
When Effective

Cruelty General

By wife under
DMMA

wife files suit for judicial divorce in Family Court

Family Courtissues decree and sends notification to Union Council

Union Council proceeds as if has received notice of talaq (see table above)

once iddat is over, Union Council issues certificate of divorce to husband and wife

  • mental abuse
  • habitual assault
  • husband of bad character, in particular, a womanizer
  • forces wife to lead
    immoral life
    disposes of wife's property or stops her from controlling/managing her property
  • prohibits her from practicing her religious duties/obligations
  • unequal treatment of more than one wife
  • desertion for 4 years and
    whereabouts of husband and
    not known
  • non-maintenance for a continuous period of 2 years
  • husband contracts another
    marriage in violation of procedures given in MFLO
  • Husband imprisoned for 7 years of more
  • husband has not performed marital duties for 3 years without reasonable cause
  • husband impotent at time of marriage and still so
  • husband insane for 2 years, or suffers from leprosy or any venereal disease
  • grounds, i.e., husband's fault is to be proved
  • dissolutions not effective until the expiry of iddat. Iddat is 90 days from when the Union council received the notice of decree for dissolution, or after the delivery of child if wife pregnant (whichever is later).
  • if reconciliation has failed dissolution becomes effective on expiry of iddat.
Comments :
  • wife retains right to mehr and other benefits received from husband

Option of Puberty

Child marriages are restricted and those responsible can be punished for violation, although a marriage contracted by a minor’s parents/guardian is not invalid. However, on becoming adult, the spouses have the right to repudiate the marriage and for a woman the procedure is through the courts.

Procedure Conditions

by wife under Sec.8 MFLO and Dissolution of Muslim Marriages Act:

woman aged between 16-18 files suit for option of puberty under DMMA in Family Court

Family Court issues decree and notifies procedure to be followed

available provided marriage not consummated

NOTE: if marriage consummated before wife aged16, courts consider this forced consummation and grant dissolution on grounds of option of puberty

Comments: wife retains right to mehr and other benefits received from husband


Check Related Post

- Divorce In Islam - The Quranic Perspective

3 comments:

Al said...
This comment has been removed by the author.
Al said...

is this based on current or past laws? This was interesting, thanks!

PostMan said...

Based on current laws. I hope it is updated.