The injunctions of Islam regarding gender are based on equality without any discrimination whatsoever. However, women in Pakistan have been struggling to obtain these rights guaranteed under Islam, specifically the right to khula to end marriage without the husband’s consent.
Previously, Hanafi, Shafi, Hanbali and Shia Ithna Ashari law, along with the Judicial Committee of the Privy Council 1867 required the husband’s permission for the dissolution of marriage. It was stated that the matrimonial law of Mohamedans favoured the ‘more vigorous’ sex, so a woman could not dissolve marital ties, except under an arrangement called khula made upon terms to which both parties’ consented. Due to this stance and court judgments like Umar Bibi v Muhammad Din, women were forced to stay married despite mutual disliking or incompatibility. They were required to rely on the birth of children to fill their marriage with love, satisfaction and blessing.
It is for these reasons that the decision of superior court judges in Pakistan to give women the right to no-fault based unilateral divorce has been revolutionary. This article will focus on the methods and methodological tools used by Pakistani courts in extending a woman’s right to dissolve a marriage, while taking into account the position of classical jurists and critical case judgments.
A key methodology which aided the judges in creating a more inclusive and holistic approach when reinterpreting the primary sources of Islamic law regarding women’s right to khula was ijtihad. Before a landmark judgment in 1959, obtaining consent had been necessary for the dissolution of marriage, otherwise it was feared that the institution of marriage would be destabilized. Progress in the area was a slow one and began with the Dissolution of Muslim Marriages Act in 1939 which granted Muslim wives the right to obtain divorce on any grounds recognized as valid for the dissolution of marriage under Muslim law. In 1955, the Muslim and Family Commission was created to reform family laws and further protect women’s rights. Unfortunately, it was met with a lot of criticism and there were even protests claiming that it was trying to westernize the society by increasing the legal age of marriage and requiring the registration of marriages and divorces, among other things.
However, these developments paved way for the 1959 judgment of the Lahore High Court, which, by reinterpreting the Quran and Sunnah instead of relying on earlier jurists, held that under Quran 2:229, consent of the husband was not required for khul.[9] The reliance on judicial ijtihad instead of taqlid (conformity) was reaffirmed in Khurshid Jan v Fazal Dad which stated that even though judges respected the opinions of old jurists, they were not bound by them, while taqlid could still be employed in circumstances which would extend women’s right to khul. An example was highlighted through Syed Al-Maududi’s writings in which he had recognized the right to khul without the husband’s consent.
The 1959 judgment was reaffirmed in 1967 by the Supreme Court in Khurshid Bibi v Baboo Muhammad Amin which held that the Quran put both husband and wife on an equal footing regarding their mutual rights and obligations. It further held that the primary sources of Islamic law did indeed allow a person in authority to order a marriage to be dissolved even if the husband had not consented, resulting in a binding judicial precedent for all courts in Pakistan to follow.
In addition to Quranic sources, legislation, case-law and Sunnah were also relied upon to support the lack of requirement for consent. For instance, when a woman named Barira approached the Holy Prophet (peace be upon him) because her husband had withheld his consent to dissolve their marriage, the Prophet merely asked and did not order her to return to her husband. While some interpret this as requiring the husband to consent to khul, the Supreme Court ruled that since the Prophet was acting in an advisory and not legal or judicial capacity, the incident was not legally binding.
Several methodological tools were also used by judges to create a more holistic approach promoting gender equality. Firstly, qiyas and landmark judgments such as Saleem Ahmad, Balqis Fatima and Khurshid Bibi were used to demonstrate the requirement of khula without consent to promote gender equality as provided by Islam and to also free the judges of the opinions of jurists so that they could give effect to the Quranic meaning of words instead.
If gender equality was being recognized in Islamic law and if marriage was a contract and not a sacrament, why should only the husband have had the right to dissolve a marriage? To promote the principles of equity, fairness and justice, the Khurshid Bibi judgment introduced new legal rules to incorporate the concept of khul without consent. Furthermore, the Balqis Fatima judgment ruled that if the parties could not live together, they should have been separated and the marriage should have been dissolved, as the only limitation upon the power of the qazi was his conscience.
Moreover, elements of takhayyur (eclecticism) and talfiq (piecing together) were introduced to promote the idea that jurists were not bound by the opinions of a single school of thought, as long as the outcome reconciled with the teachings of the Quran.
Lastly, Pakistani judges rationalized the move towards no-fault based unilateral khula under the doctrine of ijma by referring to state legislation in Arab countries where the right to obtain divorce had been recognized on the grounds of darar. The same was extended to allow for the dissolution of marriage in Pakistan. Judges also invoked logic and reason to state that if marriages could be dissolved without the husband’s consent in cases of li’an (mutual imprecation), ila’ (vow of continence), or missing husband, the same could be done in cases of khul’.
To sum up, judicial ijtihad, extensive case-law and various methodological tools like qiyas, ijma, takhayyur and talfiq paved way for the revolutionary movement towards no-fault based unilateral khula. In a country where women are often victims of terrible violence, this has been a landmark decision to keep women safe and award them the rights that they are entitled to under Islam itself.
— Amna Imtiaz
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