Dissolution of Marriage: Court Involvement and Jurisprudential Reforms

Abstract

Islamic jurisprudence is a vast subject and the Hanafi school of thought has always dominated the legal realm in South Asia. From the Mughal period to British Raj and afterwards laws of Pakistan allow Muslims to seek the dissolution of marriage in light of the teachings of the Quran and the Sunnah. Traditionally, these marriage contracts and subsequent divorces have been conducted in an oral format, usually taken before witnesses and ancillary matters were settled according to Shariah law. In recent times, courts have stepped up to provide reliefs like divorce in matrimonial matters in accordance with the relevant statutes and legislations. Provisions of these statutes protect the parties, regulate the process of divorce and are in line with the Islamic principles as per the ratification of the Council of Islamic Ideology. Yet, the established procedures and the system is not that well-structured and arguably there is room for improvement for the purpose of being thorough and the convenience of the parties and ensuring the protection of rights across the board along with disposing matters of divorce equitably with the help of State involvement while keeping it all within the guidelines of Muslim personal law. One such structural reform could be declaring it mandatory or at least promoting it to seek dissolution of marriage through State institutions like the family courts so that State involvement can ensure better protection of rights (not only the right of divorce but associated matters like the dower, dowry, maintenance, custody etc are settled along with the divorce proceedings), oversee and conclude the process of divorce justly and fairly while providing cushion to the social institutions of family. This paper makes a case for such reforms and sheds light on some issues that hinder it, while elaborating with arguments of how we could direct ourselves in the future.

Introduction

Under Muslim personal law, marriage is a social contract; dissolution of this contract is called ‘divorce’ and a Muslim man can seek such dissolution of the marriage contract by simply pronouncing ‘talaq’ thrice orally or in written form, preferably in presence of witnesses. The literal meaning of the word ‘talaq’ is ‘to free’ or ‘to untie the knot’. It is significant to note here that divorce is seen as a last resort.

Historical Background

Historically, in the Mughal era, Qazis were appointed to dispose of disputes among Muslims based on Islamic legal principles. Quran and Sunnah were looked up for reference in this regard, while other jurisprudential techniques like ijtihad, qiyas, and Ahsaan were occasionally employed in certain cases. Nevertheless, the State law was not comprehensive and codified yet. With the pronouncement of ‘Fatwa-e-Alamgiri’ or ‘Al-Fatwa Al-Hindiya’ in the 17th century passed by Emperor Aurangzeb Alamgir, became a legal code on personal, property, family, economic, taxation, slaves, war laws etc with juristic rulings based on fiqh. Even the succeeding Anglo-Muhammadan Law borrowed heavily from it. Later on, when Pakistan came into existence, legislation passed under British rule was adopted after certain necessary amendments and after ratification from the Council of Islamic Ideology, now the following pieces of legislation regulate the dissolution of Muslim marriages in Pakistan;

• Dissolution of Muslim Marriages Act, 1939
• Muslim Family Laws Ordinance, 1961
• Muslim Family Laws Rules, 1961
• The West Pakistan Muslim Personal Law, Shariat Application Act, 1962
• West Pakistan Family Courts Act, 1964
• West Pakistan Family Courts Rules, 1965

Prevalent Processes in Pakistan

Following modes of dissolution of marriage or pronouncement of divorce are practically prevalent in the country at present;

1. Oral Divorce- Here, the husband (or wife if she possesses the right to divorce) pronounces divorce in presence of two witnesses. Also, the husband is responsible to intimate the Union Council and get the divorce registered.
2. Written Divorce- Here, Divorce Notice is issued from one party, stating in writing the absolute will and intention to end the marriage which is signed by two witnesses and a copy is sent to the receiving spouse. Union Council undertakes on intimation, to register the Divorce Deed.
3. Mutual Divorce- Here, all factors of the relationship like the dower, dowery, maintenance, child custody, and visitation rights are mutually agreed upon and settled at the time of divorce.
4. Khula- In the absence of the right to divorce (Talaq-e-Tafwiz), a woman can seek divorce through a family court on a number of grounds as enumerated in the Dissolution of Muslim Marriages Act, 1939. Consent of the husband is not mandatory but she would have to forego all or some part of her dower to seek the relief as is laid down in Khurshid Bibi versus Muhammad Amin.
5. Annulment- Here a spouse can seek to dissolve the marriage after the court’s intervention when the other is absent in person or incapable to perform marital obligations. It is revocation of marriage on certain grounds like impotency, abandonment, or non-providence of maintenance by the husband.

The Reforms and the Grounds

Divorce has been as ancient as the institution of marriage itself. Over time, the law in this regard has evolved so much for the betterment of the parties and the changing requirements of the respective times. Such laws are even in place today but their limited scope along with the societal evils calls for revisiting the process to fill the gap holes that exist today like a man pronouncing divorce and not sending a notice to the wife or failing to get the divorce registered in the Union Council. This can leave the room open for further disputes and legal actions in the future regarding dower, inheritance, maintenance etc of the spouse as well as the children and many other disputes. Now, if the State oversees the process of dissolution of marriage from the beginning and facilitates or binds the parties to settle all related matters at the same time will ensure that neither the rights of any party are infringed nor the burden falls on the institutions to settle multiple disputes between the same parties spanning over a large chunk of time.

• Quranic References

In Surah Al-Baqarah [2:282] Muslims have been advised to pen down the transactions and dealings they make with each other for it would be beneficial and provide security. Over time, communities and governments have developed to incorporate record-keeping as well as its update into their systems where laws are codified and even judgements are written down.  In today’s time, from small things to significant transactions like property registration papers to a shopping list, almost everything is certain to be kept as part of the record. Rather, we have moved another step ahead in the increasingly popular usage of e-records where we have both soft copies and hard copies of the record at our disposal. 

Since divorce is a transaction whereby the contract of marriage is brought to an end, and obligations might lie whether, in the form of paying the unpaid Mahar or maintenance for children, such transaction can be penned down along with its respective terms for record-keeping and preventing future disputes, and State itself being the scribe is most reliable. Hence; shifting from oral to written divorce seems more logical and serves better. {Al-Quran 4:59}

The Holy scripture guides us to seek guidance and obey Allah Almighty, his Messenger Prophet Muhammad ﷺ and the ruler or the government. Hence, we cannot enact a law disobeying the Lord and his messenger, but our government is still in power to legislate and introduce reforms in the matters that have not been expressly mentioned in the primary sources of Islamic jurisprudence i.e., the Quran and the Sunnah. This is how our parliament legislates in the first place and the Council of Islamic Ideology oversees if any provision conflicts with the Islamic principles. Hence, based on the current need to put an end to the possibility of hijacking or misusing the divorce laws causing an unfair advantage to one or an unfair disadvantage to the other party, the government is competent to shape laws and principles of policy regarding declaring it mandatory or at least promoting the idea of mutual divorce or divorce through the institutions like the courts, rather than arbitrary action of one party in order to ensure the protection of all parties especially children and preventing further disruption in the family unit likely to be caused by disputes arising later like a dower, dowry, maintenance, custody etc which can burden the State functionaries and most likely be cumbersome for the parties.

Old Traditions and Present Circumstances

In the times of the prophethood of Hazrat Muhammad ﷺ, most people were illiterate i.e., not familiar with or able to read or write nor were they likely to access anybody who could. Nonetheless, no compromise was made when it came to the recording of Quranic verses, ahadith, evidence for legal purposes and otherwise executing contracts, gifts etc. Keeping in view the societal structure and dynamics, the way adopted to avoid and settle the disputes was by ensuring two competent witnesses i.e., Aqil, Baligh, Natiq, and Adil. This general principle was applied in contracting marriages and announcing divorces as well. 

In today’s world, most people are either literate themselves or have access to adequate or reasonable resources in this regard. The State itself is completely able to create and amend any written record at any given moment. Hence, as a principle of public policy, just like registration of written nikahnama has become the accepted norm (though Prophet ﷺ nor his disciples ever wrote a marriage contract), talaq to be announced in written form through Court/State/Official channel ought not to be seen as odd. After all, who could be a better witness than the State itself which happens to be capable of ensuring the protection of all rights of each party? Even as a principle of policy, it would also help to reduce the burden on family courts to adjudge so many matters ancillary to divorce like maintenance, child custody etc one after the other in subsequent multiple litigations, which could have otherwise been resolved along with the divorce proceedings taking place simultaneously. Also, there would be an end to the confusion and differences of opinion involved in the pronouncement of oral talaq, availability and competency of witnesses etc.

• Commission’s Report

After the inception of Pakistan, as the need for introducing family laws in light of Islamic principles was felt, the Commission on Marriages and Family Laws presented its report in 1956, recommending certain reforms in Muslim Personal Law relating to marriage and divorce. Here, it was recommended that;

Triple talaq should be declared as single talaq & talaq-e-sunnah should become obligatory. The counter-narrative poses that the abolition of triple talaq is baseless on the ground that Islamic law allows it and opined that considering triple talaq as one is an innovation into the religion and right away against the tenants of Islam. However, arguably the State in order to rid itself of certain evils ravaging society can deviate from the general law as a principle of policy to shield its citizens from injustice. Maulana Thanvi’s dissenting report accepted the need for control over the unfettered powers of the husband. Supporting this perspective is crucial as power corrupts and absolute power corrupts absolutely especially in our patriarchal society where husbands pronounce divorce arbitrarily out of nowhere at their whims and absolve themselves of all other responsibilities associated with family. Hence, considering in case the husband decides to use his right to divorce, it ought not to be arbitrary, but due consideration to the welfare of the wife and children ought to be ensured by the State. Moreover, the State is responsible for promoting Talaq-e-Sunnah and taking steps to deter Talaq-e-Biddah. In this regard, the State still needs to envision a compatible and suitable path that is acceptable to all.

The main report also argued for the compulsory registration of divorces supporting this by evidence that in cases of the alleged abduction, husbands often claim that they had not divorced their wives while this so-called abductor claimed to be the lawful husband of a divorced woman (many times, the husband would demand the restoration of conjugal rights from his orally divorced wife or such wife would come forward to claim maintenance). Considering this, the Commission recommended a standard divorce mechanism which is to contain all the necessary information to ascertain the status of a divorced person. Just like Nikahnama, standardized divorce papers which would have to be mandatorily registered likewise can serve better because primary evidence in the form of documentary evidence tends to be more reliable than any secondary form of evidence. Like only registered Sale Deeds, Gift Deeds are recognized under law, and not the unregistered ones, only registered divorces are recognizable under the law and if State is made obligated to announce the divorce, its simultaneous registration without variation or forgery will bring the much-needed certainty and surety. State ensuring even slight delays not taking place in registration and ancillary matters being settled and noted down in the registration papers can also prove to be helpful as no party would be able to escape the operation of law.

• Constitution

The Constitution is the Supreme law of the land that operates as the grundnorm. Under Part 2, Chapter 1, Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 relating to fundamental rights and their protection, allows the State to enact laws that benefit all, treats everyone the same and in case of any necessity, laws can be made inclining in favour of the vulnerable and marginalized sections of the society for the greater good and tranquillity in the society. Hence, the proposed reforms are not in deviation from the Constitution, rather; it facilitates and supports the government to go another step ahead in securing better lives and legal protection for the weak of the society. The Article is reproduced below for reference; 

Article 25 Equality of Citizens- (1) All Citizens are equal before the law and are entitled to equal protection of the law.

(2) There shall be no discrimination on the basis of sex.

(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children. 

• Precedence of Previous Deviation

It is established knowledge under Islamic jurisprudence that grandchildren do not inherit from the estate of their grandfather when their predecessor in interest has already passed away within the lifetime of the grandfather especially when other children of the grandfather exist. However, considering the unfortunate realities of our society where the existing uncles or other family members could try to confiscate from the orphans all property, can misuse it and unfairly deprive them of even what they inherit from their own father, or what they get as gift from the grandfather, the legislature saw the wisdom in enacting under the Muslim Family Laws Ordinance, 1961 the provision that allows orphans to inherit from their grandfather’s estate. The respective provision is reproduced below;

4. Succession– In the event of the death of any son or daughter of the propositus before the opening of the succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stirpes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.

Decisions from the apex court like Fazeelat Jan versus Sikandar and Mst. Kaneezan Bibi versus Muhammad Ramzan reflect and support the provision which though does not strictly align with Islamic principles, was passed as a principle of policy for the greater good. Hence, the same can be done in order to legislate to ensure State involvement at the time of divorce so it can make the parties settle all related matters and if they fail to do so, then the State can make a decision for them considering equity and fairness. 

• Notice

Moreover, notice (the word ‘notice’ itself means intimation before happening of something so that the preparations can be made accordingly) of talaq and reconciliation efforts, marriage counselling ought to be offered and utilized before the pronouncement of divorce i.e., when the institution of marriage is still intact rather than at a later stage when it is in tatters and there is no room for it anymore. The Supreme Court in its judgment titled Syed Ali Nawaz Gardezi versus Lt. Co. M. Yusuf extends the sphere of attempted reconciliation to Talaq-e-Tafwiz and even other forms of divorce. Also, the Supreme Courts in Ghulam Fatima versus Abdul Qayyum, held that talaq did not become effective but stood revoked for the reason that no notice had been given by the husband under Section 7(1) of the Muslim Family Laws Ordinance, 1961. In case of the man failing to give notice of divorce, the maximum punishment is imprisonment for one year and/or a fine of five thousand rupees which is neither sufficient nor is in effect as no cases of such punishments are found and; a wife who has been divorced without knowing the fact cannot even seek this punishment for the husband. Moreover, her subsequent marriage, if any and the children from it would end up in hot waters in case the divorce is not legally proper. 

This means that a pro-active approach rather than a re-active approach if adopted can be more promising as there is no point in fighting a battle (initiation of reconciliation) when you have already reached a conclusion (divorce has already been pronounced for the Family Laws Ordinance prescribes reconciliation efforts after divorce has been pronounced by the husband and the wife after when the Union Council has been notified thereof). Fighting back at this stage puts you at an inherent disadvantage as it becomes more difficult to take back the actions that have already been taken and levels of disregard, disrespect, indifference or even hatred have soared to sky-high levels. Lastly, reconciliation by the union council after the pronouncement of divorce might prove to be fruitful in some cases, things like couple therapy still need to be promoted so that couples can redirect their marriage in the right direction soon after things go rough rather than later when a reversal becomes more and more difficult.

Moreover, in courts, we comply with the principle that the opposite party is not to be taken by surprise. This principle obliges us to provide some cushion to the wife from the husband’s arbitrary use of his right to divorce and lower risks of unforeseen abandonment and financial crisis. 

Another problem with oral talaq is that the husband can later sue for restoration of conjugal rights while the wife can move the court to claim maintenance especially when the witnesses are not available. Also, under circumstances when the husband neglects to issue notices under Section 7 of The Muslim Family Law Ordinance, when not doing so renders him minimal penalty or liability, enables him to go forward with the intention to divorce the wife without inhibitions. This is a blatant deficiency on part of the legislature. Hence, a new approach and involvement of the state become ever more necessary.

• Evolvement of Law

In the legal realm, it is argued that law is not static but ever-evolving, even Muslim Law. It needs to change and adapt to the evolving new times and social circumstances for its principles are subject to interpretation and adaptation over time. Like in times of drought, Khalifa Hazrat Umar (R.A) legalized theft so that people would not die of hunger. By adopting a similar principle of policy, we can deter the pronouncement of arbitrary or verbal/oral divorce by declaring Talaq-e-Sunnah and documentary divorce mandatory or at least promoting it.

Islamic scholars continue to analyse the primary and secondary sources of Islamic Law in order to develop new legal principles and modify existing ones to address current issues as the social and political landscape shifts. This is precisely why we have institutions like the Council of Islamic Ideology to enable us to ponder and the parliament for ijtihad to pass laws that are in line with Islamic teachings and so, we should not shy away from enacting laws for the greater benefit of the society. 

• Recission of the Contract of Marriage

Under Islamic law, marriage is a civil and social contract. This makes divorce not just a legal remedy, but also a rescission of the existing marriage contract, which terminates the moral and legal obligations of the parties involved. According to Markham and Gray, divorce is a complex legal process that involves the dissolution of marriage and the resolution of other issues such as child custody and maintenance. Here, the finalization of the divorce and termination of the marriage concludes after negotiating and settling the terms of the divorce, just like at the time of contracting the marriage, certain terms are negotiated and settled. Moreover, Scot Altman argues that marriage is a contractual agreement, enforceable by law. In his view, the fundamental purpose of the marriage contract is to provide a framework of rights and duties of the spouses including childcare. Therefore, divorce is the termination or rescission of that contract.

Now that we have established that divorce is simply put the consequential termination of a marriage contract, we can assume that similar levels of legal standards ought to be followed in both cases. The Pakistani laws under the Muslim Family Law Ordinance, 1961 provide for written and documented nikahnama wherein all the columns are to be filled mandatorily according to a recent precedent of the Apex Court while verbal talaq is recognized under the same statute. A formal path to divorce is as necessary as the path to nikahnama because the divorce instrument will terminate the rights and obligations under the same nikkahnama in the prior instrument.

• State Intervention through Courts

Now in relation to the perspective that divorce (especially oral) is a matter of personal law and the State ought not to interfere in the private affairs of its citizens, it is to be brought to light that the private affairs of individuals need to be regulated just like public affairs of people do as individuals combine to form families which in turn form the society and the polity. Moreover, marriage also falls under Muslim personal law which is conducted in a proper legal way as prescribed by the State i.e., a written marriage contract with all the columns to be filled mandatorily along with signatures of not only the parties but their respective witnesses as well.  Now, more importantly, individuals are free to get out of mutual agreements, contracts etc with each other under personal law, but the effect of their dealings and repercussions is always there and is felt by the society and the burden falls on the state and its institutions like courts in matters of ascertaining marital status, custody, maintenance of the parties etc. Therefore, the proposed reforms need to be seriously considered. 

From a variety of philosophical and legal vantage points, it is possible to comprehend the state’s power to oversee, regulate and intervene in citizens’ personal laws. The state is often thought to be responsible for protecting the rights and welfare of all of its people, including their individual, communal and cultural identities, rights, ideals and beliefs. Personal laws, nevertheless, could conflict with the state’s overarching objectives, such as promoting justice, equality, and social peace. Hence, the State while establishing and maintaining an egalitarian society, is free to direct or provide ease, equal protection, treatment. safety and cushion by participating and intervening in personal law. Under certain circumstances, the government may step in to control or amend private laws for the benefit of the general welfare.

One of the main academic justifications for state intervention in personal laws is the idea of a ‘social contract’. As per the theory, individuals agree to live together to form society and voluntarily give up some of their individual liberties in exchange for protection and benefits provided by the State. In other words, the State is legitimately authorized to regulate the behaviour of its citizens, including their personal laws, in order to maintain social order and ensure the common good. This regulation brings in a pattern of certainty and predictability which ensures public tranquillity. Moreover, state regulation and intervention in personal laws may be necessary to prevent social harm and maintain public order. The aim is to ensure the exercise of equity and support for disadvantaged or marginalized groups, especially women and children. The state through courts can ensure sufficient and satisfactory relief even in severe cases of issues relating to forced marriages and child marriages. 

Another compelling reason for State regulation of personal laws is rooted in the principles of justice, fair play, and equality to ensure the absence of any discrimination based on colour, gender, religion, caste, ethnicity or any other factor. On the contrary, the State can provide disposal of issues based on the personal law of every citizen. Therefore, the State may intervene to reform personal laws; ensure that all citizens are treated equally under their respective personal laws and that every citizen’s issues are resolved after recourse to his/her respective law i.e., Dissolution of Muslim Marriages Act, 1939 applies to Muslims and the Divorce Act, 1869 applies to Christians respectively in the instance of a spouse seeking dissolution of marriage.

• State Responsible for Preserving the Institution of Family

Marriage is a social institution that has been recognized and regulated by societies throughout history. It is generally comprehended as a legally and socially sanctioned union between two individuals, typically involving many rights and obligations. While an elaborative list of various ingredients of marriage may vary across cultures and time, still it is considered a crucial institution for maintaining social stability and regulating personal relationships.

The state plays a significant role in preserving and protecting the institution of marriage. In many societies, marriage is seen as a fundamental block of society as individuals form families, which in turn form a society or a nation. It is also seen as a unit providing a stable foundation for determining parentage, raising children, the transmission of cultural values, and regulation of sexual behaviour. In an instance where a marriage fails, it can have a range of negative social and economic consequences where dependent or marginalized individuals like women and children are likely to suffer more. These consequences include poverty, mental agony, emotional suffering, social instability etc, all of which culminate in an increased demand for State support and intervention. Given these considerations, the State is often thought to be responsible to protect, preserve and promote the institution of marriage. This could include a number of policies and practices such as legal recognition and protection by the State, facilitating family formation, offering to counsel, rendering resources for couples to maintain their relationships and even offering suitable paths or options to dissolve an unwanted marriage and absolve oneself of its responsibilities through specialized institutions like the courts operating under the laws of the people. Moreover, through the institution of marriage, the State ensures child welfare which leads to the healthy development of young minds and the future generation. 

• Good Gesture –It is generally good for divorces to conclude on a good note for a number of reasons:

• Emotional Well-Being- Divorce can be a stressful and highly emotional endeavour for everyone including the couple, the near ones and especially the children. Ending the marriage on a positive note, with a gesture of mutual respect and goodwill, can help reduce some of the emotional damage or trauma and especially the stigma that some individuals especially women have to face in our society associated with the split.
• Co-Parenting- As co-parents, it is crucial that the parents who have parted ways, maintain a respectful and cooperative relationship. This ensures the absence of unnecessary arguments, tensions and conflicts that can badly affect the well-being and personality development of the kids in the times to come.
• Financial Well-Being- Divorce can be a costly process from legal fees to court fees and much more like payment of Mahar, maintenance, interim arrangements etc. Ending the marriage on a good note can help to minimize some of these costs and preserve some resources for the future of the family.
• Social Support- The divorce can be an isolating experience as the couple may lose friends or social connections as a result of the divorce. Ending the marriage with a good gesture can help to preserve social connections and support networks, as well as promote a sense of mutual respect, dignity and understanding.

Advantages of Dissolution of Marriage through Court

Although, a number of paths are available to people to seek divorce and get it registered, seeking it through Court has many advantages over other means of dissolution of marriage e.g., the oral pronouncement of Talaq. These advantages are given below;

1. Legal Protection- Filing for divorce in court gives both parties legal protection since it assures that the divorce proceedings are carried out and concluded legally and that each party is adequately informed of their rights and obligations. Hence, the State recognizes the legal dissolution of marriage and there is no room for fraud, forgery or procedural irregularity.
2. Formal Documentation- When divorce is sought through courts, there is formal documentation of the divorce decree and conduct as well as the stance of the parties is in sight, which can be helpful in future legal proceedings 
3. Maintenance- Under the Family Courts Act, 1964 the courts are obliged to determine interim maintenance especially of children during the time of court proceedings and settle some amount at the conclusion with an annual increase of ten percent. The same statute elaborates that a plaint for dissolution of marriage before the family court may contain all claims relating to dowry, maintenance, dower, personal property and belongings of wife, custody of children, visitation rights for the non-custodial parent to meet the children.
4. Child Custody and Support- in case there are children involved in the divorce, child custody and support arrangements can be agreed upon or decided by the Judge by filing for divorce in court and seeking custody as an ancillary relief. Assuming the jurisdiction, the courts can decide on custody and visitation rights and can even prescribe a schedule as well as adjudicate to impose child support obligations on one side.
5. Protection against Abuse- In certain cases of domestic violence, distress or emotional abuse, courts provide protection by issuing restraining orders, arrest warrants, directing a change of custody, transferring victims to shelter homes, or associate N.G.O.s and other resources for help.
6. Timely Decisions- In a scenario of divorce, negative feelings and distrust amongst the parties are at their peak. This does not allow them to sit together, negotiate respectfully and settle on the terms of the divorce. This makes the issue linger on for longer than it has to. Sometimes, one party is able to induce pressure on the other as well, which results in a disadvantageous, unreasonable and non-satisfactory settlement for the other. While in court proceedings, it takes a reasonable and predictable time to resolve all disputes as the Family Courts Act, 1964 requires cases under the Act to be disposed of within six months.
7. Enforcement of Decisions- Under Section 13 of the Family Courts Act, 1964 and other provisions, institutions, systems and procedures are already in place to get the court’s decisions executed even in cases of non-compliant parties. This protects the decree-holder, ensures compliance with court orders and that he/she is not alone at the mercy of others. 
8. Dispute Resolution- Before commencing the trial and framing issues, the courts give time to parties for reconciliation efforts. A formal and structured process of mediation and counselling is also available to help couples resolve their differences and save their marriage. It really proves fruitful in some cases where couples reconcile. However, arbitration at Union Counsel after the pronouncement of divorce leaves a smaller chance of talking and reconciling as already the environment is extremely tense and hostile.

Overall, dissolution of marriage sought in Pakistan through the courts provides legal protection, ensures timely decision and fairness within it, and allows for matters of child custody and maintenance to be settled at the very beginning so that there is no compromise on the welfare of the child. 

Issues

Some hindrances to State involvement in the process of divorce are as below;

1. Time-Consuming Process- With the aspect of parties pursuing their stance to appellate courts and even the High Court, the case getting remanded, the parties causing the proceedings to linger, to seek benefit or avoid liability etc. This makes the whole legal process hectic and time-consuming.
2. Lack of Privacy- Divorce proceedings in the country are typically public, which means the personal and private matters of the parties may be shared in court. This can be bothersome for couples who want to keep their personal lives private. But in certain cases, they can request a closed hearing especially if it concerns the welfare of the minor children.
3. Religious and Cultural Restraints- Traditionally, divorce has been an easy and quick process and the ordinary folks consider it unnecessarily restraining for the process to take months through courts. Regulations already in place like the requirement to give notice to the wife and the Union Council and reconciliation efforts at the Union Council till the divorce is finalized and stands effective, are thought to be adequate enough to protect the vulnerable individuals. Since the verbal pronouncement of divorce is accepted as Sunnah of the Prophet ﷺ and the conduct of the Sahaba and Tabeyen, deviation from it is seen as unnecessary and against Islamic principles and there is still time for the mindset to shift where people build a consensus after realizing the upside of State involvement and place the trust in national institutions to provide necessary services.
4. Legal Costs- Obtaining a divorce decree through courts can be expensive, particularly if there are complex financial and legal issues involved. This can put a strain on the couples who are already experiencing a financial crisis and bounds them to allocate legal costs which could otherwise be allocated for family expenditure.
5. Low institutional capacity and Limited Access- Pakistan is a country of 22 crore people where thousands of marriages and divorces take place a day. The current economic state of the country and the low capacity of the institutions in place hinder the idealization of the State facilitating every divorce and overseeing the process in each case to ensure the protection of the rights of all involved.

International Scenario

In present times, many common law countries like the U.K. itself as well as many Muslim countries like Turkey have sanctioned divorce through courts. And in today’s global scenario. Around 10 million Pakistanis are spread across the globe as expats, millions travel abroad for studies, business, tourism, to marry foreigners etc. This calls for more streamlined, smooth and internationally acceptable practices. And the proposed reforms can help us achieve that.

Conclusion

Divorce laws in Pakistan have been in place since even before the inception of the country and were formed in compliance with the Shariah laws as has been ratified by the Council of Islamic Ideology, the institution formed under the Constitution of the Islamic Republic of Pakistan, 1973 itself to bring laws in conformity with the Islamic principles. However, vulnerable sections of the society like women and children have been at an inherent disadvantage in situations where a man is empowered to arbitrarily resort to divorce and exercise the right single-handedly without having to consider or concern himself with the well-being and security of the other individuals involved. This renders the institution of family to be conceived as fragile, unstable, unpredictable and unreliable. If State involvement is employed to ensure the rights of all parties concerned especially vulnerable individuals and children, it can solve a number of our social and societal issues like the stigma associated with divorce, and; more importantly when all issues associated with divorce are settled at the time of divorce like dower, dowry, maintenance, custody etc, a better society can be built by bringing more certainty and stability to the institution of marriage and family. However, this approach has its own constraints and a shift of mindset from the people along with the policy shift at the government and institutional level can pave the road forward.

Bibliography

Primary Sources

Quranic Verses

• Verse 2:282
• Verse 4:59

Hadith

• Sunan-e-Abi Dawud Book 6 Hadith No. 2173

Legislations

• Dissolution of Muslim Marriages Act, 1939
• Muslim Family Laws Ordinance, 1961
• Muslim Family Laws Rules, 1961
• The West Pakistan Muslim Personal Law, Shariat Application Act, 1962
• West Pakistan Family Courts Act, 1964
• West Pakistan Family Courts Rules, 1965
• Code of Civil Procedure, 1908

Case Laws

• Fazeelat Jan versus Sikandar 2003 PLD 475 SC
• Mst. Kaneezan Bibi versus Muhammad Ramzan 2005 SCMR 1534 SC
• Syed Ali Nawaz Gardezi versus Lt. Co. M. Yusuf 1963 PLD 51 SC
• Khurshid Bibi versus Muhammad Amin 1967 PLD 97
• Ghulam Fatima versus Abdul Qayyum 1981 PLD 460 SC

Secondary Sources

Books and Journal Articles

• Imam Raghib on Sahih Muslim Book 9: The Book of Divorce
• https://24justice.pk/divorce-in-pakistan-talaq/
• Al-Tahqeeqaat Al-Mardiyyah Fi’l Mabaahith Al-Fardiyyah by Sheikh Saleh Al- Fawzaan , P 65, 125.
• Markham, K, and Gray P. (2018), Family Law in Canada. Toronto: Emond Publishing. 
• Altman, S. (2011). Marriage as Contract Indiana Law Journal 86(3), 775, -823John Locke, “Two Treaties of Government” (1689)
• Amartya Sen, “Identity and Violence: The Illusion of Destiny” 2006
• John Rawls, “A Theory of Justice” 1971
• Cherlin, A.J. (2004). The Deinstitutionalization of American Marriage. Journal of Marriage and Family 66(4, 848-861)
• Popenoe, D. (1996) Why Marriage Matters: Twenty-Six Conclusions from the Social Sciences Institute for American Values
• Wilcox, W.B. (2010) The Evolution of Divorce. National Affairs, 2, 3-33