Wife-initiated divorce in Pakistan : an analysis from women right perspectives

Abstract

This research focuses on wife-initiated divorce in Islamic countries particularly in Pakistan. Numerous studies are undertaken to evaluate divorce laws in Muslim countries according to Islamic principles. The purpose of this work is to examine the existing laws on wife-initiated divorce in Pakistan inter alia khul‘, talaq al-tafwid, ta’liq and fasakh. The study analyses the concept of the right of women to dissolve their marriage in Islamic law from the Qur’an, hadith, the opinions of Islamic jurists and ijtihad in the area of family law. This study utilised the quantitative and qualitative methods of research to examine the family laws of wife-initiated divorce in Pakistan through the study of Islamic principles and comparison with selected Muslim countries. It also includes a detailed survey of relevant female litigants and interviews with experts working in the Pakistani judicial system at various levels. The study finds that the family laws in other Islamic countries, especially in Tunisia, Morocco, Egypt and Malaysia are quite updated regarding women initiating their divorce. It was discovered that many shortcomings exist in the Pakistani legislations which must be rectified. There is no provision of khul‘ and ta’liq, while substantial lacunas in fasakh laws are observed. With regard to procedural law, the study reveals that there is a shortage of family courts in the country, women do not enjoy easy access to the courts, court procedures are complex and lengthy, and the mechanism for family mediation does not exist in Pakistan. Thus, the idea of a singular consolidated family law may be developed addressing all family related issues including wife-initiated divorce. The marriage contract (nikah nama) shall be revised accordingly. Formation of family courts in each district is vital. Understanding the factors that laws shall be dynamic and constantly evolving to address the needs of the society for which ijtihad is a valid Islamic mechanism is necessary. There is a dire need to enable Pakistan’s Council of Islamic Ideology to act as a supportive platform in legislation and research. Major policy and procedural reforms might include a revised marriage contract, an e-portal and family mediation mechanism. It will enable the Pakistani society to progress in bringing humane, civilized and contemporary Islamic.