The Constitution and Female-Initiated Divorce in Pakistan: Western Liberalism in Islamic Garb
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\\jciprod01\productn\H\HLG\34-2\HLG207.txt unknown Seq: 1 13-JUN-11 8:12 THE CONSTITUTION AND FEMALE-INITIATED DIVORCE IN PAKISTAN: WESTERN LIBERALISM IN ISLAMIC GARB KARIN CARMIT YEFET* “[N]o nation can ever be worthy of its existence that cannot take its women along with the men.” Mohammad Ali Jinnah, Founder of Pakistan1 The legal status of Muslim women, especially in family relations, has been the subject of considerable international academic and media interest. This Article examines the legal regulation of di- vorce in Pakistan, with particular attention to the impact of the nation’s dual constitutional commitments to gender equality and Islamic law. It identifies the right to marital freedom as a constitu- tional right in Pakistan and demonstrates that in a country in which women’s rights are notoriously and brutally violated, female di- vorce rights stand as a ray of light amidst the “darkness” of the general legal status of Pakistani women. Contrary to the conven- tional wisdom construing Islamic law as opposed to women’s rights, the constitutionalization of Islam in Pakistan has proven to be a potent tool in the service of women’s interests. Ultimately, I hope that this Article may serve as a model for the utilization of both Islamic and constitutional law to benefit women throughout the Muslim world. Introduction .................................................... 554 R I. All-or-Nothing: Classical Islam’s Gendered Divorce Regime ................................................. 557 R A. The Husband’s Right to Untie the Knot ............... 558 R * I wish to express my deep gratitude to Professors Akhil Reed Amar and Reva Siegel for their thoughtful and inspiring comments. I am also indebted to my friend Jassna Javed, who courageously broke through social and cultural barriers to inspire both Pakistani women at home and her colleagues in the LL.M. program at Yale Law School, including myself. Needless to say, all views expressed are my own, as are any errors. The article is dedicated in loving memory to my beloved friend Benjamin Cohen A”H (1919–2010), a Yale graduate and World War II veteran who faithfully served his country and whose passing leaves a deep hole in the hearts of those who knew him. He was deeply involved in, and proud of, this Article and died just before it went into publication. In his last email to me, written on the day he died, he told me, “When you describe how an ordinary girl from a small town made her way to the top, you must mention that you actually got to become friendly with a famous but modest Yale personality!” 1 Russell Powell, Catharine MacKinnon May Not Be Enough: Legal Change and Religion in Catholic and Sunni Jurisprudence, 8 GEO. J. GENDER & L. 1, 6 n.23 (2007) (quoting Muhammad Ali Jinnah, Speech at Islamia College for Women (Mar. 25, 1940)). \\jciprod01\productn\H\HLG\34-2\HLG207.txt unknown Seq: 2 13-JUN-11 8:12 554 Harvard Journal of Law & Gender [Vol. 34 B. Tied Down: The Wife’s Right to Divorce .............. 560 R II. Opposites Attract?: Islamic Law and Gender Equality in Pakistan’s Constitution ................................... 562 R A. Islam and Human Rights Under the Same Roof: Pakistan’s Complex Constitutional Pedigree ........... 562 R B. War or Peace?: Reconciling Constitutional Commitments to Islam and Human Rights ............. 568 R III. Wedding Female-Initiated Divorce to the Constitution: Statutory and Judicial Sides of the Story .................. 572 R A. The Statutory Side of the Story: Ongoing Discrimina- tion................................................. 574 R 1. The Dissolution of Muslim Marriages Act of 1939: A Fault(y) Approach to Female Marital Freedom . 574 R 2. The Muslim Family Laws Ordinance of 1961: A Failure or Farewell to the Supremacy of the Male? .......................................... 578 R a. Notification as a Means to Decrease Discrimination .............................. 579 R b. Done or Undone?: Triple Talaq as a Blank Check to Mistreat Women .................... 583 R c. The Incredible Lightness of Divorcing: Repudiation Under Problematic Mental States . 585 R B. The Judiciary’s Side of the Story: A Quasi-Legislative Enterprise in Service of Women’s Rights .............. 586 R 1. Divorce Khula Style: A Liberal Doctrine in Traditional Clothing ............................. 587 R a. The Judicial Development of a Unilateral, No- Fault Female Divorce Right .................. 587 R b. The Islamic Romanticism of the Khula Doctrine: Judicial Rhetoric Sensitive to Women ..................................... 591 R c. Khula in a Comparative Context.............. 596 R d. Khula in a Societal Context .................. 602 R e. Khula in Judicial Context .................... 605 R f. Following Through: A Proposal to Transform Khula Divorce from Pricey to Price-less ...... 609 R 2. The Demise of Fault-Based Divorce in Pakistan ... 610 R Conclusion ..................................................... 614 R INTRODUCTION In recent years, there has been an ever-increasing fascination with human rights in the Muslim world, particularly the subordinate status of wo- \\jciprod01\productn\H\HLG\34-2\HLG207.txt unknown Seq: 3 13-JUN-11 8:12 2011] The Constitution and Female-Initiated Divorce in Pakistan 555 men in Islamic law and culture.2 Westerners in general and feminists in particular have dreaded the possibility that the Islamic revival sweeping the Muslim world will turn back the clock on women’s legal and social rights.3 The West’s growing unease with violations of women’s rights in Muslim countries has made this issue a top priority for nations and advocates alike.4 Since the position of women in a given society is perhaps nowhere better reflected than in the personal status laws of a nation,5 this Article explores the legal norms surrounding divorce. Indeed, domestic life represents the sphere in which women across the globe tend to be the farthest from attain- ing equality, and subordination in the home serves as a springboard to wo- men’s subjugation in almost all conceivable spheres.6 A path to freedom from tyrannical marriages is a key factor in promoting women’s equality in social, political, and economic arenas.7 Accordingly, the value of scholarly inquiry into Muslim women’s struggles in—and to escape—oppressive fa- milial settings cannot be overstated. The Islamic Republic of Pakistan, the second largest nation in the world with a Muslim majority, represents a promising case study due to its unique constitutional system enshrining Islamic law alongside Western guarantees of gender equality.8 With this in mind, this Article proposes a new strategy 2 Azizah al-Hibri, Islam, Law, and Custom: Redefining Muslim Women’s Rights, 12 AM. U. J. INT’L L. & POL’Y 1, 4 (1997) (describing Western feminist concern with the “plight” of Muslim women); Naz K. Modirzadeh, Taking Islamic Law Seriously: INGOs and the Battle for Muslim Hearts and Minds, 19 HARV. HUM. RTS. J. 191, 192 (2006) (noting “the increased global media, military, and economic focus” on the Muslim world, especially since the September 11, 2001 attacks). 3 JOHN L. ESPOSITO WITH NATANA J. DELONG-BAS, WOMEN IN MUSLIM FAMILY LAW 105 (2d ed. 2001); Urfan Khaliq, Beyond the Veil?: An Analysis of the Provisions of the Women’s Convention in the Law as Stipulated in Shari’ah, 2 BUFF. J. INT’L L. 1, 3 (1995). 4 Modirzadeh, supra note 2, at 192. R 5 See, e.g., ESPOSITO WITH DELONG-BAS, supra note 3, at 134 (discussing how family R law in Tunisia, Somalia, and Egypt is reflective of women’s status in society); Essam Fawzy, Muslim Personal Status Law in Egypt: The Current Situation and Possibilities of Reform Through Internal Initiatives, in WOMEN’S RIGHTS & ISLAMIC FAMILY LAW: PER- SPECTIVES ON REFORM 27 (Lynn Welchman ed., 2004) (describing how Egyptian divorce laws are symptomatic of women’s low status in Egyptian society). 6 Khaliq, supra note 3, at 17. For this reason, various commentators viewed the R inclusion of Article 16 of the Convention for the Elimination of All Forms of Discrimina- tion Against Women (“CEDAW”) (which covers the family) as “a breakthrough in the international recognition of women’s rights.” Id. at 29. See Bharathi Anandhi Venka- traman, Islamic States and the United Nations Convention on the Elimination of All Forms of Discrimination Against Women: Are the Shari’a and the Convention Compati- ble?, 44 AM. U. L. REV. 1949, 1950–51 (1995) (noting that, of all the international instru- ments, it is CEDAW that “is the most comprehensive” and that is considered “a brand apart from other treaties because it seeks . to influence cultural values that may pre- scribe the traditional roles of men and women in marriage, family relations, and other situations that are fertile ground for sexual stereotypes”). 7 Indeed, it has already been acknowledged that the “discriminatory features of Mus- lim personal law have an enormous bearing on the social and economic well-being of women.” Editorial, Triple Talaq, THE HINDU, July 13, 2004, http://www.hindu.com/ 2004/07/13/stories/2004071303270800.htm. 8 Jeffery A. Redding, Constitutionalizing Islam: Theory and Pakistan, 44 VA. J. INT’L L. 759, 761 (2004). \\jciprod01\productn\H\HLG\34-2\HLG207.txt unknown Seq: 4 13-JUN-11 8:12 556 Harvard Journal of Law & Gender [Vol. 34 to ameliorate the gendered (im)balance of power in marital dissolution in Pakistan, as it has been and further could be molded by its unique Constitu- tion. Existing accounts of the Pakistani divorce law are rather incomplete, however; most focus on statutory developments