The divorce rights for women in Pakistan and the UK and India: A Comparative Study

This article is written by Mustafa Khan of Integral University, Lucknow, an intern under Legal Vidhiya

Abstract

This article examines the divorce rights for women in three different countries namely pakistan india and the UK. While women have the legal right to divorce their spouses in all three countries the legal and cultural context surrounding divorce varies widely. The article first provides a background on the legal frameworks and procedures involved in obtaining a divorce in each of these countries. It then compares the divorce rights for women in terms of the grounds on which a woman can seek a divorce, the procedures involved and the social and cultural attitudes towards divorce. The article highlights the key similarities and differences between the countries and discusses some landmark cases that have contributed to the evolution of divorce laws and women s rights. The comparison of divorce rights for women in these three countries is significant given their diverse cultural and legal contexts and provides insights into the broader legal and cultural factors that influence women’s rights and gender equality in different parts of the world.

Introduction:

The laws governing divorce vary widely across different countries and women s divorce rights are a matter of concern in many parts of the world. While women have the right to initiate divorce proceedings in many countries the legal and cultural context can make it challenging for them to exercise this right. In Pakistan, India and the UK women have the right to divorce their spouses but the laws and procedures involved vary widely in some cases obtaining a divorce can be complicated time consuming and expensive and women often face social stigma and family pressure when seeking a divorce. This article aims to compare the divorce rights for women in Pakistan India and the UK and highlight the legal social and cultural factors that shape women s experiences of divorce in these countries. The comparison of divorce rights for women in these three countries is particularly significant given their diverse cultural and legal contexts. Pakistan is a predominantly muslim country with a legal system based on Islamic principles while India is a secular country with diverse religious and cultural traditions. The UK on the other hand is a predominantly christian country with a common law legal system. By examining the similarities and differences in divorce rights for women in these countries we may learn about the larger legal and cultural aspects that impact women s rights and gender equality across the world.

The article will first provide a brief background on the divorce laws in each of these countries including the legal frameworks and procedures involved. It will then compare the divorce rights for women in each of these countries highlighting the key similarities and differences in terms of the grounds on which a woman can seek a divorce the procedures involved and the social and cultural attitudes towards divorce. finally, the article will discuss some landmark cases in each of these countries that have contributed to the evolution of divorce laws and women’s rights.

Background:

The laws governing divorce in different countries vary widely, and the legal rights and cultural attitudes towards divorce can significantly impact women’s experiences. In Pakistan, India, and the UK, women have the legal right to divorce their spouses, but the legal frameworks and procedures involved in obtaining a divorce differ widely.

The Muslim Family Laws Ordinance 1961 states that Muslim women in Pakistan have the right to divorce their spouses under clause 18 of their Nikah Naama, however most women are ignorant of this privilege. Although this is a right granted by Islamic law, the patriarchal attitude prevalent in Pakistan is the most significant impediment to women knowing about and using their rights. Clause 8 of the Muslim Family Laws Ordinance 1961 states:Dissolution of marriage without talaq.- The provisions of section 7 apply mutatis mutandis and to the degree applicable when a woman who has been legally given the right to divorce chooses to exercise that right or when any party to a marriage wishes to terminate the marriage without talaq. While the Ordinance is still in effect today, this section has been largely ignored for years, with families failing to even ask the bride and groom if they would want to discuss the clause’s application. Furthermore, according to one survey, more than 99% of Pakistani women indicate that they were not made aware of the availability for such a clause before their marriage, thinking the clause no longer applicable to them because it had already been signed. Furthermore, even in courthouse weddings in Pakistan, women are more likely than males to decline the right to divorce under clause 18 of the Nikahnama, which relates to Section 8 of the Muslim Family Laws Ordinance 1961.

Although the Muslim Family Laws Ordinance is still in effect today, it is rarely ever used in Pakistani society. While we do not support the addition of this clause merely to make it simpler for women to get divorces, the reality is that women are not being informed about their legal rights, essentially preventing them from making their own decisions. Women who choose not to use their right to divorce under Nikahnama clause 18 must go through a drawn-out and tiresome process in order to divorce officially. The option of requesting a Khula, or judicial divorce, is available.  The wife petitions the court for the dissolution of the marriage, which is approved. Her claim to the dower and, in some cases, the preservation is also lost during the three to five month judicial process that precedes the filing of the Khula. It takes 90 days in both circumstances for the lady to attend the Union/Arbitration Council to obtain the final divorce certificates. Despite the advantages of the Khula and a few alternative nikahnama stipulations, in most situations, the legal divorce process unnecessarily prolongs the marriage, which might have been avoided if the woman had the option to divorce. A Muslim in India is subject to personal laws recognised under the Muslim Personal Law (Shariat) Application Act, 1937, as well as the Muslim Dissolution of Marriage Act, 1939. The law relating to marriage and divorce for a Hindu, Sikh, Jain, or Buddhist is codified and governed under the Hindu Marriage Act, 1955. According to the Divorce Act of 1869 and the Indian Christian Marriage Act of 1872, respectively, marriage and divorce are controlled for Christians. In addition to personal laws, these issues are governed in connection to those parties by the Special Marriage Act, 1954, a secular legislation that permits parties of all religions and castes to be married. Section 13 of the Hindu Marriage Act of 1995 permits women to lawfully obtain a divorce without the husband’s approval in cases of adultery, cruelty, physical and emotional abuse, and more. According to Section 125 of the Indian Penal Code, women may also be entitled to maintenance payments for themselves and their children, particularly if the husband earns more. Wife’s Special Ground for Divorce under Section 13(2): Husband’s Pre-Act Polygamous Marriage [Section 13(2)(i)], Husband’s Acts of Rape, Sodomy, or Bestiality [Section 13(2)(ii)], and Wife’s Failure to Recommend Cohabitation Following Decree or Order of Maintenance [Section 13(2)(iii)]. The wife decided to end her marriage after becoming 15 but before turning 18 years old. She had been married before she was 15 years old. The Muslim Personal Law (Shariat) Application Act, passed in 1937, recognises a Muslim wife’s right to divorce under personal law. The first type of divorce a wife can obtain is known as a Khula divorce, which she must purchase from her husband by paying him a sum of money from her property in exchange for the divorce.  The second type of divorce is called ila, which literally translates to “oath.” When a husband swears under oath that he won’t engage in sexual activity with his wife for a period of four months or more, the law states that the marriage will be dissolved if the husband hasn’t engaged in any during that time. Zihar is the third divorce option that is accessible. When the husband contrasts his wife with his female relatives who are in relationships that are not allowed, such his mother, it is possible. The Shariat Act recognises this and gives the wife the option to file for divorce in such circumstances. Fourthly, if the husband accuses the wife of infidelity, the she may file for divorce. She has the right to petition for divorce from the spouse if the claim he made against her is found to be untrue.   The Divorce Act of 1869 permits divorce for those who identify as Christians. If one of the parties to the marriage is a Christian and the marriage can be dissolved without a court order under the Act, the Act is applicable. Section 10 of the Act provides the following reasons for dissolution of a marriage:

1. In cases when the spouse committed adultery.

2. The responder became a Christian after converting.

3. Where the responder has been suffering from incurable unsound mind for at least two years.

4. Where the responder has been suffering from a virulent and incurable type of leprosy for at least two years.

5. Where the responder has been suffering from contagious venereal disease for at least two years.

6. If the responder has not been heard alive for seven years or more.

7. When the responder refuses to complete the marriage willingly.

8. Where a decision of restitution of marital rights was issued, the respondent failed to comply.

9. The respondent abandoned the respondent for at least two years.

10. Where living with the spouse is damaging to the petitioner due to cruelty perpetrated against him/her.

11. A wife may file for divorce if her husband is convicted of rape, sodomy, or bestiality.

The Special Marriage Act of 1954 allows for the marriage of parties regardless of religion, creed, caste, or other factors. Similarly, the divorce of parties who married under the act is controlled by the same legislation. The reasons for divorce are basically the same as those outlined in the Hindu Marriage Act of 1955. Another statute, the Foreign Marriage statute, 1969, is available to parties when at least one person is an Indian citizen and the marriage takes place in a foreign nation while following to the restrictions specified in this Act. Divorce between such individuals is managed by the rules of the Special Marriage Act of 1954, subject to the restrictions of the Foreign Marriage Act of 1969.

Divorce is permitted in England and Wales under the Divorce, Dissolution, and Separation Act 2020 on the grounds that the marriage has irretrievably broken down, without the need to establish blame or separation. There were five ‘facts’ that may have made up this terrain. Adultery, unreasonable behaviour (the most prevalent basis for divorce prior to no-fault divorce), two years separation (if both couples accepted), two years desertion, and five years separation (if only one party consented) were among them. The procedure of seeking a divorce in the United Kingdom is quite simple, and women have access to legal assistance if they cannot afford to pay for legal representation. However, the United Kingdom confronts difficulties in tackling the social and cultural hurdles that make it difficult for women to exercise their right to divorce.

Comparison

Grounds for Divorce:

In Pakistan, women can seek divorce on several grounds, including cruelty, desertion, impotence, and the husband’s failure to provide maintenance for more than two years. A woman can also seek khula, a form of divorce initiated by the wife, in which she agrees to give up her right to maintenance and property in exchange for a divorce.

In India, the grounds for divorce vary depending on the religion of the parties involved. Under the Hindu Marriage Act, a woman can seek divorce on several grounds, including cruelty, desertion, adultery, and incurable insanity. In addition, women can seek divorce under the Special Marriage Act of 1954, which allows couples of different religions to marry and obtain a divorce under a common law. However, the grounds for divorce under Muslim Personal Law (Shariat) are more restrictive for women, as they can only seek divorce on limited grounds, including cruelty, desertion, and husband’s inability to provide maintenance for at least two years.

In the UK, the grounds for divorce are relatively straightforward, and a woman can seek a divorce on several grounds, including adultery, unreasonable behavior, desertion, and separation for at least two years with the consent of the spouse or five years without consent.

Legal Framework:

In Pakistan, the legal system is based on Islamic principles, and divorce laws are primarily governed by the Muslim Family Laws Ordinance of 1961. In addition to the ordinance, family courts also deal with divorce cases in Pakistan.

In India, different laws govern divorce depending on the religion of the parties involved. For Hindus, the Hindu Marriage Act of 1955 governs divorce, while the Muslim Personal Law (Shariat) Application Act of 1937 governs divorce for Muslims. For other religions, such as Christians, Sikhs, and Buddhists, the laws governing divorce vary widely. Family courts and district courts handle divorce cases in India.

In the UK, the Matrimonial Causes Act of 1973 governs divorce laws, and now  divorce is allowed under the Divorce, Dissolution and Separation Act 2020.  the family court deals with divorce cases. The process of obtaining a divorce in the UK is relatively straightforward, and couples can obtain a divorce by submitting a petition to the court.

Social and Cultural Factors:

In Pakistan and India, women face significant social and cultural barriers when seeking a divorce. Women who seek a divorce are often stigmatized, and their families may pressure them to remain in the marriage. In some cases, women who seek divorce may face violence or other forms of abuse. These social and cultural factors can make it challenging for women to exercise their legal rights and obtain a divorce.

In the UK, social and cultural attitudes towards divorce are generally more accepting, and women face fewer barriers when seeking a divorce. However, social and cultural attitudes towards divorce can still pose challenges, particularly for women from more conservative backgrounds.

Legal Aid:

In the UK, women who cannot afford to pay for legal representation can receive legal aid to help them navigate the divorce process. However, this is not always the case in Pakistan and India, where women from marginalized communities may struggle to access legal aid.

Cases

Mst. Balqis Fatima v Najm-ul-Ikram Qureshi

In the case of Ms. Balqis Fatima v. Najm-ul-Ikram Qureshi, the Lahore High Court interpreted Quranic verse 2:229 to hold that a wife could be given khula without the husband’s permission and that the state (represented by the judges) was given the authority to control the annulment of the marriage. By granting women the same advantages as males, it promotes gender equality while keeping in mind the idea of khula. Khula is a religious right that women may use as a method of escape if and when required, in addition to being a legal right.

Saleem Ahmed v Government of Pakistan

The Federal Shariat Court (the “FSC”) resolved the debate over whether a husband must consent to a wife’s (khula) request to dissolve the marriage in Saleem Ahmed v. Government of Pakistan, a significant case. By directly referring to the Qur’an and Sunnah in this instance, the Court deviated from the rigorous rules of Hanafi jurisprudence and granted wives the privilege of khula without their husbands’ permission.

Khurshid Bibi v Baboo Muhammad Amin

This 1967 ruling by the Pakistani Supreme Court is significant because it upholds a Muslim wife’s right to divorce through the khul process. Muslim women’s rights have been considerably improved by this ruling since they can now file for divorce even if they have no other valid basis because they detest or resent their spouses.

Narayan Ganesh Dastane vs. Sucheta Narayan Dastane,

The appellant’s claim that his wife was mentally ill was found to be false, according to the Supreme Court of India. According to Section 10(1)(b) of the Hindu Marriage Act of 1955, it has been established that the respondent did, in fact, treat the appellant cruelly, yet the act of the appellant having sex with the respondent constitutes “condonation of cruelty” in the eyes of the law. After realising her errors, the responder was ready to go back into the joint residence. After the respondent’s behaviour was excused by the appellant, it was evident that she had changed from how she had behaved earlier. Therefore, the petition for divorce will not be granted and the responder won’t be held accountable for cruelty.

Sureshta Devi vs. Om Prakash

In the Sureshta Devi v. Om Prakash case, the Hindu Marriage Act’s Section 13-B was construed, and it was decided that it was clear that the filing of a petition with mutual consent did not entitle the court to grant a divorce. The 6 to 18 month statutory waiting period gives the parties time to reflect and a second chance to come to an agreement.

Abdurahiman V. Khairunnessa,

In this case, the first wife requested a divorce under the grounds of cruelty since the husband had not treated her fairly in accordance with the Quran’s edicts, but she did not offer any convincing proof of this.

Islamic law does not need a spouse to live with someone without their full agreement, the court ruled in the wife’s favour. The court rules that she must determine if she is satisfied that her husband is treating her fairly and in accordance with the Quran’s edicts.

The woman has the right not to expose or discuss the specifics of how her husband lost interest in her, according to the court. This was because the husband also has the authority to divorce the woman on his own.

White v White

The landmark White v. White case in 2000 changed the rules and made the idea of equal sharing the foundation for divorce financial settlements. Over the course of their 33-year marriage, Martin White and his wife Pamela ran an agricultural operation that was worth roughly £4.5 million. Mrs. White was initially given £800,000, but she appealed the decision in 2000 to the Court of Appeal and House of Lords, where she ultimately won £1.5 million.  Lord Nicholls stated that the principle of equitable sharing would not only apply where the husband and wife contributed equally to the couple’s income. Four other Law Lords agreed with him in White v. White.

Conclusion:

In conclusion, the divorce rights for women in Pakistan, UK, and India differ significantly. While the UK has taken significant steps to provide women with equal rights in marriage and divorce, Pakistan and India still have a long way to go. Pakistan’s laws still heavily favor men in divorce proceedings, and women often face societal pressure and stigma for seeking a divorce. In India, although recent amendments have been made to improve women’s rights in divorce proceedings, the implementation of these laws remains a challenge due to social and cultural attitudes towards women. Overall, it is clear that there is a need for continued efforts to improve the legal framework and social attitudes towards women’s divorce rights in all three countries. Women should be granted equal rights to initiate and contest divorce proceedings, and there should be provisions in place to protect women’s financial and property rights during and after divorce. By promoting gender equality and protecting women’s rights, these countries can create a more just and equitable society for all.

Furthermore, it is important to recognize that divorce can be a complex and emotionally charged process, particularly for women who may face significant social and economic challenges after divorce. In this context, legal frameworks alone are not sufficient to ensure gender equality in divorce proceedings. It is also essential to address broader social and cultural attitudes towards women and their role in society. Education and awareness campaigns can help to challenge stereotypes and promote gender equality, and legal aid and counseling services can provide much-needed support to women navigating the divorce process. Governments and civil society organizations must work together to create a supportive and enabling environment for women seeking divorce and to address the underlying social and cultural barriers that prevent women from exercising their legal rights.

In conclusion, while the UK has made significant progress in promoting women’s divorce rights, there is still much work to be done in Pakistan and India. By adopting a holistic approach that combines legal reforms with broader social and cultural changes, these countries can create a more just and equitable society for all. By empowering women and ensuring their full participation in all aspects of society, we can build a more equal and just world for all.

Reference

Divorce under different personal laws in india : a comparative study – iPleaders

Legal rights for women in England | Maguire Family Law (family-law.co.uk)

Women’s Right to Divorce under Islamic Law in Pakistan and India – Islamic Law Blog

DIVORCE LAW OF PAKISTAN: FAVOURING A PARTICULAR GENDER OR A PERCEPTION. THE INTRODUCTION TO DIVORCE LAW AND ITS APPLIATION IN PAKISTAN (pakistanlawyer.com)