Triple Talaq: A case of madness that family laws are in Pakistan

Triple Talaq: A case of madness that family laws are in Pakistan
One of the most baffling things I encountered while practicing law in a Pakistani court is how the state responds to nuptial disputes and other matters relating to the subject. Every day, I came across numerous men and women seeking divorce or remarriage and once they filed for either of those, they stepped into the topsy-turvy world of family laws.

Conventional wisdom has it that talaq or divorce is executed when a husband repeats the word talaq thrice and that’s it, like bullets shot out of a gun, game over. The law, however, has a contrary opinion.

Justice Sajjad Ali Shah, while hearing a case in Karachi’s Supreme Court registry, remarked “verbal divorce has no legal value and a divorce is only finalized after completion of due process”. As per Muslim Family Laws of Pakistan, to terminate the contract of marriage, a husband is bound to send a written talaq naama bearing his signature and the signature of two witnesses, to his wife. Also, the husband is bound to utter the divorce in front of two witnesses. Moreover, the husband would then intimate the concerned union council about the divorce. The council would then approach the former wife and issue a certificate of divorce. Finally, divorce takes full effect after the completion of iddat.

The procedure is seldom followed and as often as not men blatantly fire the triple talaq gun. Dr. Qibla Ayaz (chairman of the CII) commented, in a recent session of the Council of Islamic Ideology (CII), “The way the men use triple talaq should be banned in the country”.

Triple talaq is considered illegal in most of the Muslim countries including Egypt, Bangladesh, Indonesia and Malaysia. However, a minority of Muslim countries allows triple talaq.

The reason behind such a major discrepancy is the difference of juristic opinion. According to the opinion of majority Sunni Ulema pronouncing the word talaq three times equates to three divorces. Contrarily, according to the opinion of Ibn-e-Taymiya and Ibn-e-Qayyim pronouncing the word Talaq multiple times in one session only equates to a single divorce. Most of the Muslim countries rely on the opinion of Ibn-e-Taymiya and Ibn-e-Qayyim.

The most remarkable legislation in this regard is Sri Lanka’s marriage and divorce act, 1951. According to that law a husband intending to divorce his wife shall give a notice of his intention to the Qauzi, who shall attempt reconciliation among spouses, with the help of the relatives of the parties along with elders and other influential Muslims of the area. However, if after 30 days of the submission of the notice the reconciliation remains fruitless, the husband shall pronounce the talaq in the presence of the Qauzi and two witnesses.

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Contrary to popular belief the Pakistani family law abolished triple talaq back in the 60’s. The procedure laid out in section 7 of the Muslim family law ordinance 1961 (MFLO) is largely applicable to one or two pronouncements of divorce. Some portions of section 7 of the MFLO lay in direct contradiction to the laws of Shariah, which is why the superior courts in Pakistan and Bangladesh have been inconsistent in the interpretation of laws on this subject.

As with several other key legislations, the MFLO also has an interesting origin story. On April 2, 1955 then Prime Minister Muhammad Ali Bogra clandestinely married another woman while already being married, to which the Pakistan Woman Association started agitating, making him the face of their organized campaign against polygamy.

The government then formed a commission and mandated it with the task of coming up with a report about divorce and proper registration of marriage.

The commission presented a report which recommended the enactment of laws whereby 3 divorces would amount to 1. Moreover, no person would be able to pronounce a talaq without obtaining an order to that effect from the family court. As expected, the report came under heavy criticism of the Ulema and the legislators ignored the recommendations.

Even after ignoring several of the commission’s recommendations, the MFLO remains a controversial piece of legislation due to its ‘Un-Islamic’ provisions. Under Islamic law third divorce becomes effective as soon as it is pronounced, whereas under MFLO the third divorce becomes effective after 90 days have elapsed from the date of receipt of notice by the chairman of the union council. In Allah Rakha V. The Federation of Pakistan, the Federal Shariat Court declared sub-sections 3 and 5 of section 7 of the MFLO repugnant to the injunctions of Shariah.

The judiciary has also played its role in furthering this enigma.

In Ali Nawaz Gardezi V. Col. M. Yusuf the court held that a divorce becomes ineffective if the notice is not communicated to the union council within 90 days. Whereas, in Noor Khan V. Haq Nawaz, Chuhar V. Ghulam Fatima & Mst. Kaneez Fatima V. Wali Muhammad the court revoked the Gardezi rule in its judgment, saying that the failure to give notice does not by itself amount to the revocation of Talaq. Finally in Mst. Farah Naz V. Judge Family Court the Supreme Court reinstated the Gardezi rule. What is perhaps the most disturbing aspect about this is that despite of major discrepancies no new legislation is being benched on this subject matter.

As a direct result of inconsistencies as such hideous monsters like halala rear their ugly heads. Jurists are clear on the matter that any intervening marriage with a precondition of divorce or with the aim to facilitate a former spouse would be deemed invalid and there are numerous Islamic texts to back that up.

However, despite of the matter being clear as day, it does not stop the judiciary from giving out bizarre judgments. In a recent judgment about a similar subject matter a trial court judge in Azad Kashmir remarked, “although Halala is a revolting practice but if committed, it would purify the woman for the former spouse”. Section 7(6) of the MFLO debars a wife from remarrying a former spouse, without intervening marriage, if a talaq has been pronounced for the third time. Similarly, in Saleem Ahmed V. The Govt. of Pakistan, the judge remarked that, “Halala not required if talaq affected by khula or mubarat as is required after triple talaq”. This would almost be a non-issue if the state would give out a clear and comprehensive definition about what constitutes a single talaq and what constitutes a triple talaq.

How the state reacts to a certain subject, reveals how the state views itself. The state should bring about fresh and unambiguous legislation regarding marriage & divorce laws to clarify its position on which juristic position does the law rely upon. If required, the CII can be asked to acquire a juristic consensus on the issue. Moreover, the laws of other Muslim States should also be considered as a framework. It is our duty to demand the resolution of this conundrum from the state. Only then this frenzy of family laws can be done away with and the problems which rear their ugly heads with it.

The author is a lawyer.