November 2016

By | Special Report | Published 4 months ago

 

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It’s been three years since Jamila, a resident of Orangi Town, Karachi, walked out of an abusive relationship and returned to her parents’ house. She believes that her marriage is over because her husband was in the habit of using the word talaq (divorce) each time they had an argument. Narrating her story of abuse to a female acquaintance, Jamila recalled, “It would start with verbal abuse on trivial issues, lead to severe beatings, and eventually end with him uttering the word talaq multiple times. But no member of his family would pay heed to this pronouncement, which was repeated every week.

“There were instances when, late night, my husband would call up my father on his mobile phone, and after he came on the line, would hand his mobile to me and ask me to abuse my father. Upon my refusal, he would hit me and my cries could be heard by my father, who would then implore me to obey my husband, much to the delight of my husband who would then start to laugh in a hysterical manner. This went on for more than a year. During this period, he must have uttered the word talaq hundreds of times. Whenever I pointed this out to my in-laws, they would defend him by saying, ‘If divorces could take place just because enraged men abuse their wives, then most of the women would have already been divorced and living in sin with their husbands.’”

Despite threats and intimidation by her husband and in-laws, Jamila says, “I refused to go back. Fortunately, my father supported my decision. I approached a religious seminary and got a decree declaring that the marriage stood dissolved.”

There the matter should have ended – but not so. Jamila’s husband insists that he has not divorced his wife, refuses to return her dowry and has been threatening to kill her if she tries to remarry, to save his honour.

Why doesn’t she approach the family courts to obtain khula (a woman’s petition for divorce)? “A khula decree from the court is unacceptable according to our traditions, as it does not take a husband’s consent into consideration. And our Sharia does not allow it,” one of Jamila’s relatives tells Newsline.

Advocate Abdul Hadi, president of Madadgar helpline, a project of the Lawyers for Human Rights and Legal Aid (LHRLA) Karachi, says, “Laws pertaining to dissolution of marriage, other than talaq, have clearly described the procedure to be followed if a woman approaches a court for a separation. If the court fails in its attempts at reconciliation between the spouses, and if the woman insists on a separation, she is granted khula, whether the husband consents to it or not.

“The very concept of khula is based on a woman’s right to walk out of a relationship,” says Hadi, “and the law is backed by Islamic jurisprudence as well. However, conservative religious clerics do not concur with this interpretation and insist on a man’s consent as being the decisive factor.”

Maulana Abdul Qadir, a 78-year-old religious cleric from district Shangla, who is an alumni of the Deobandi seminary, Darul Uloom Haqqania, and has been an active member of the jirgas (mediating bodies) in his native town, has his own take on this: “The use of the word talaq by men in the rural areas is considered a common form of abuse. It is an abominable practice but men have been doing this for centuries.”

When asked what is the status of such marriages (if men use the word more than three times consecutively), he replied, “Based on religious opinion, no one can deny that the marriage gets dissolved but if neither spouse approaches us, it goes unnoticed.

“This obsession with religious injunctions on every trivial issue is more common in urban areas”, says Maulana Qadir. “In the rural areas, people opt for established customs and traditions in this regard.” Commenting on his experience of living in a seminary in Karachi, Maulana Qadir observes that, “Here, in Karachi, every other person approaches the prayer leader or the religious seminaries seeking advice on the issue of talaq.”

Nazish Brohi, a women’s rights activist and columnist at daily Dawn, commenting on Maulana Qadir’s views says, “In a way he’s right, but this obsession with women exists in rural areas as well, as many retrogressive practices by jirgas, panchayats (group of influential men in the village who act as arbitrators in disputes), have shown. However, in the rural areas there are multiple power sources such as the jirga, community elders and joint family systems. In the urban areas, these support systems are not as strong, leaving only the religious forces as the deciding authority.”

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A visit to the online fatwa facility of Jamia Binoria SITE Karachi, or the iconic Darul Uloom Deoband, UP, India, confirms this impression. It reveals that one third of the questions seeking religious opinions pertain to the issue of divorce. Most of them are about pronouncing talaq thrice in a single instance, and if there is any possible way to wriggle out of the situation. Most of the people are writing for advice to save their marriage. Post hasty divorce!

Both schools of the Hanafi fiqh, the Barelvis and the Deobandis, whether in Pakistan or in India, agree that pronouncing talaq thrice in a single instance are decisive and the marriage stands dissolved. This view, though controversial, has rarely been challenged. Religious bodies in Pakistan such as the Council of Islamic Ideology (CII) or the Muslim Personal Law Board in India insist that any constitutional amendment, court ruling or a moderate interpretation of Islam cannot change what has clearly been stated in Sharia law. The CII says that while the practice of giving three talaq at once is an abhorrent practice, it cannot be reversed. They say that in order to force people to avoid it, it should be made a punishable offence.

And what if the divorced couple wants a reunion? According to the law of the land – the Muslim Family Laws Ordinance, 1961 – it is consent which is important and the law does provide a way to do it. The law says that the woman may remarry her former husband without going through halala if talaq is pronounced thrice in one instance. (Halala is when, after talaq is pronounced thrice, a reunion is allowed only if the woman undergoes nikah with another man, granting him full conjugal rights and then gets divorced. Only then is remarriage allowed with the former husband). However, the 1961 law states that the husband needs to give talaq thrice (on three different occasions) and only then would halala become incumbent on the wife before remarriage to the former husband.

In contrast, the majority religious opinion in this regard is that you are not entitled to remarry, even if the separation came about as a result of three talaq pronounced consecutively in a single instance. According to this inpretation, reunion with the former husband is allowed only if the woman undergoes another marriage and then gets a divorce.

No matter how harrowing and degrading this practice may be to the woman, it continues to be followed by many people under the influence of the religious clergy. In most cases, the cleric gets the woman married to one of his aides or disciples or, in a few cases, even marries the woman himself , taking advantage of a temporary marital arrangement. People, out of sheer ignorance, follow this practice.

Azmatullah, a low-level employee at a private corporation, divorced his wife by uttering the word talaq three times but changed his mind just a few hours later. He asked his prayer leader for advice, who told him that halala was the only way to remarry his wife. The prayer leader was of the same ethnicity as Azmat and volunteered to find someone trustworthy. Azmat refused, as he was reluctant to ask someone from his own community and instead went to his gym instructor friend for help as he felt his friend would be more likely to keep the issue private. The friend agreed and Azmat’s wife was forced to take part in the Nikah-e-Halala after being pressurised by her parents and Azmat’s entreaties. For the next 40 days, the ‘friend’ would demand to be left alone with his ‘wife’ and only agreed to divorce her after that period.

Then she was remarried to Azmat but was unable to get over the trauma of halala. Distraught at the experience she had been forced to undergo, the wife asked for a khula from Azmat. Her unrepentant husband had the audacity to abuse her and then divorced her for the second time.

Why should a wife be subjected to this tormenting practice of halala if the blunder has been committed by the husband? This question was put to Mufti Saifullah Rabbani, a member of the administrative staff of Jamia Binoria SITE Karachi, who provided an alternative solution. After listening to the story of Azmat and his wife, he termed it a reprehensible act. He said that, though he belongs to the Hanafi school, if someone approaches him with a similar case, he refers him to a cleric from the Salafi school i.e the Ahle Hadith, who have a different view on the matter. The Salafis declare that no matter how many times the word talaq has been repeated in a single instance, it will only count as one and the marriage is not dissolved. (It will have to be repeated twice more, at intervals, to take effect).

Explaining why he adopts this view, Rabbani said, “Holding the family together should be preferred over adhering to a given preference over fiqh.” This view is shared by many moderate religious scholars like Khalid Zaheer and Javed Ahmed Ghamidi and has been expressed by them in their TV appearances. Khalid Zaheer says, “In religious shows in the month of Ramzan, most of the questions we respond to deal with the triple talaq issue and the practice of halala.” Khalid Zaheer is emphatic on this issue. He considers halala un-Islamic and says it is equal to zina (adultery).

An Ahle Hadith (Salafi school) cleric from Saeedabad, Baldia Town, said, “During my three years of leading prayers here at the mosque, the number of people following Ahle Hadith remained the same, but dozens of people from the Hanafi school approached me for getting a decree on the issue of talaq.”

Zareef, a local cable TV operator, is among those who had approached the Ahle Hadith cleric. He recalls, “One morning in 2003, I woke up to the noise of my mother and wife quarrelling. Infuriated by this, I got up and started beating my wife but she continued talking and loudly abusing my mother. So I uttered the word talaq three times. All of a sudden, everyone was quiet and my mother started crying. Then, my brother came forward and asked me to leave. My wife packed her bags and moved to her uncle’s house since my in-laws were living in Khyber Pakhtunkhwa. Members from both families got involved, but one of my wife’s relatives was a cleric and he said that, in his view, the marriage stood dissolved.”

Zareef says, “My wife was sent to her parents’ home but I did not let the children go. Three months passed. My wife and I were willing to compromise, so I went to the Ahle Hadith cleric, got a decree and sent it to my in-laws, and within a few weeks, my wife was back home.”

This story ended well. And so can many others. The law – the Muslim Family Laws Ordinance 1961 – is clear on this issue. The conflict arises when different religious interpretations are offered – and mutely accepted by the people.

The issue is symptomatic of much deeper divisions. The furore over the pro-women laws that have been passed – and those that are still held up – by parliament is a case in point. Women seem to be seen as the key to preserving the status quo.

According to Nazish Brohi “Traditional institutions and practices like the jirgas etc, are all designed to preserve traditions and resist change. But their logic and effectiveness is over. We are in the middle of great socio-economic changes and these are creating cultural shifts. Resistance to change will die down eventually.” But for now, women continue to bear the brunt.

Ali Arqam main domain is Karachi: Its politics, security and law and order