Reviewing the views
Tradition versus reforms
The gender power-play in Sharia divorce
Shahmuddin Ahmed Siddiky
EVEN on paper, divorce is a messy business. This is particularly a problematic area in most Muslim-majority States, where family matters are governed by personal law. There is an inherent tension between the traditional approach (marked by very literal- and often misconceived- interpretation of sharia law) and the modernist approach (tinged with feminism, human rights, custody issues and so on).
Legally speaking, marriage is a contract; but it is one in which the husband is clearly the stronger party, specifically when it comes to terminating it. A husband's power being inherently vested by the sharia, permitting even unilateral dissolution of marriage without offering any reason whatsoever, clearly overshadows that of the wife. By contrast she has no right to declare a divorce unilaterally. Moreover, unlike the husband, she cannot exercise any form of extra-judicial repudiation, save where the power has been delegated to her by the man. Even with the court as her last resort, her right to dissolve the marital tie is conditional- i.e. she must provide reasonable grounds for seeking the divorce.
In the light of such limited power, however, many reforms have been proposed and incorporated. The thrust for these reforms have primarily been to expand the women's rights and to safeguard their interests, all the while harnessing the husband's otherwise unfettered power.
Egypt has been one of the reform pioneers. Law No.5 of 1929 codified the law regarding the husband's power of divorce. Article 1 began by invalidating any talaq pronounced by the husband under intoxication or compulsion, which was traditionally accepted by Hanafi law. Article 4 suggested that any talaq pronounced using vague or ambiguous expressions was unacceptable. In general, greater emphasis was placed on the intention of the speaker. Similar provisions have been made in Iraq, Morocco and Sudan.
Unfortunately, the Muslim Family Law Ordinance 1961 that is effective in Pakistan and Bangladesh does not deal with any such academic aspect concerning the nature of the pronouncement. It merely prescribes a procedure for the registration of a talaq that has already been pronounced. It appears that unlike Egyptian law, Bangladeshi law accepts any divorce prima facie and the only condition is as regards its notification towards an authority. Thus if a person pronounces talaq under intoxication, such a pronouncement is void ab initio in Egypt, but can be effective in Bangladesh if the procedural requirements of notification under section 7 MFLO 1961 are observed.
As regards the husband's absolute and inherent power to repudiate his wife, the first reform took place in Syria. If it appears before the qadi (judge) that the husband has repudiated the wife without reasonable cause, and consequently she suffers material damage the qadi may order the husband to pay compensation that is equivalent up to one year's maintenance. This could discourage men to unilaterally and unjustly repudiate their wives. Nonetheless, it is pertinent to note that it merely compels the husband to pay compensation and does not invalidate the divorce itself.
There are also many indirect restraints on the husband's power. Iran devised a novel concept of post-divorce compensation payable to the wife irrespective of the justifiability of the talaq. A wife may ask for remuneration for her household activities done during the course of their marriage. This is the wage for the work she has done which she was not bound to do as the legal consequence of their marriage. Again, while this does not nullify the husband's right, it provides a husband a scope to think twice, because he may have to pay a large sum in compensation.
Reforms have also touched the issue of extra-judicial divorce. Many legal systems have rejected such forms of repudiation altogether, such that the husband can now exercise his power through the court only. Indonesia, for instance, requires the husband to send a written notification to the court, stating the reasons for seeking dissolution. It makes the same grounds available to both men and women, which goes further to remove gender inequality.
Malaysia, a modern Muslim state, has brought some significant changes in this regard. Following an application filed by the husband, the court would call upon the wife to know whether she consents to the divorce or not. If not, it will call for reconciliation. If the court is then satisfied that the marriage in no way would continue, it will advise the husband to pronounce a single revocable talaq that is to be registered, which will be effective after the expiry of the iddat (ie, a period of three menstrual cycle and if pregnant, until the delivery of the child). This appears to be a fine measure, in that it strikes a balance between the classical sharia position and the needs of the modern society. While it does not reject extra-judicial divorce, it emphasizes the wife's consent, and the penalty acts as an indirect check on the husband's exercise of power. Thus, what has been the impact of similar legislation in other countries, has been directly incorporated in Malaysia. Similar provisions have been made in Morocco by virtue of the 2004 Code of Family Law that allows divorce on the ground of “discord” between the parties.
All in all, some positive steps have been taken in connection to sharia divorce law. Nonetheless, it is unfortunate that her rights remain secondary- i.e., she still has no right of unilateral pronouncement of talaq without judicial assistance. Moreover, her powers remain conditional, although the grounds for seeking dissolution have increased considerably. On the other hand, it can be refuted that under the present laws and modern developments, the grounds are being drafted using broad terms to encourage liberal interpretation. This could offer much relief to women, especially in Hanafi-majority countries where strict interpretation of the sharia provisions can lead to disregard to their basic human rights (such as freedom from torture, right to free movement, etc.). A relaxed construction of the words such as “cruelty” and “ill-treatment' would thus harmonise the law with the modern codes of human rights such as the Universal Declaration of Human Rights and the Convention Against Torture.
The author is a Barrister-at-Law.