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Contents Foreword V Acronyms and Abbreviations Vi Executive Summary Vii

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Contents Foreword V Acronyms and Abbreviations Vi Executive Summary Vii Contents Foreword v Acronyms and Abbreviations vi Executive Summary vii Chapter 1. Background of the Study 1 1.1.Introduction 1 1.2.Objectives 2 1.3.Methodology 2 1.4.Scope of Study 3 2. Family Laws in Pakistan 4 2.1.An Overview 4 2.2.Concepts 5 2.2.1. Marriage 5 2.2.2. Dissolution of Marriage 5 2.2.2.1. Muslim Marriage 6 2.2.2.1.1. Talaq 7 2.2.2.1.2. Khul’a 11 2.2.2.1.3. Mubarat 14 2.2.2.1.4. Li’an 15 2.2.2.1.5. Zihar 16 2.2.2.1.6. Ila 17 2.2.2.2. Christian Marriage and Divorce 18 2.2.2.2.1. Dissolution of Marriage 19 2.2.2.2.2. Nullity of Marriage 19 2.2.2.3. Hindu Marriage 19 2.2.2.4. Parsi Marriage 20 2.2.2.4.1. Suit for Nullity 20 2.2.2.4.2. Suit for Dissolution 20 2.2.2.4.3. Suit for Divorce 20 3. Rights of Divorced Women 22 3.1. Rights of Muslim Divorced Women 22 3.1.1. Dower 23 3.1.1.1. Prevalent Legal Provisions 23 3.1.1.1.1. Gaps in the Prevailing Legal System and Impact thereon Divorced Women 23 3.1.1.2. Islamic Laws 30 i 3.1.1.2.1. Divorced Women’s Right to Dower under different Modes / Circumstances of Dissolution of Marriage 31 3.1.1.2.1.1. Divorce 31 3.1.1.2.1.1.1. Divorce before Consummation of Marriage 32 3.1.1.2.1.2. Dissolution of Marriage after Consummation 33 of Marriage or even Valid Retirement (Khilwat-e-Sahiha) 3.1.1.2.1.2.1. Khul’a and Mubarat 34 3.1.1.2.1.3. Li’an 39 3.1.1.2.1.4. Dissolution of Marriage on the ground of Cruelty or Impotency of Husband 39 3.1.1.3. Recommendations of Previous Commissions/Committees on the Status of Women 40 3.1.1.4. Legal Provisions in Other Countries 40 3.1.2. Maintenance 43 3.1.2.1. Prevailing Legal Provisions 43 3.1.2.1.1. Gaps in the Prevailing Legal System and Impact thereof 43 3.1.2.2. Islamic Law 47 3.1.2.2.1. Past Maintenance 47 3.1.2.2.2. Maintenance during Iddat (probation) 48 3.1.2.2.3. Maintenance during Pregnancy and Lactation 49 3.1.2.2.4. Maintenance beyond period of Iddat (probation)/Pregnancy 49 3.1.2.2.5. Maintenance in case of Khul’a and Mubarat 50 3.1.2.2.6. Quantum of Maintenance 51 3.1.2.3. Recommendations of Previous Commissions / Committees in Pakistan 51 3.1.2.4. Legal Provisions in Other Countries 52 3.1.3.Maintenance for Child(ren) 55 3.1.3.1. Prevailing Legal Provisions 55 3.1.3.1.1. Gaps in the Prevailing Legal System and Impact thereof 56 3.1.3.2. Islamic Law 57 3.1.3.3. Recommendations of Previous Commissions / Committees in Pakistan 57 3.1.4.Guardianship and Custody (chizanal) 57 3.1.4.1. Prevailing Legal Provisions 58 3.1.4.2. Gaps in the Prevailing Legal System and ii impact thereof 58 3.1.4.3. Islamic Law 61 3.1.4.3.1. Guardianship for the purpose of Marriage 62 3.1.4.3.2. Guardianship for the purpose of management and preservation of property 62 3.1.4.3.3. Custody (Hizanat) for the purposes of bringing up child 62 3.1.4.4. Recommendations of Various Commissions in Pakistan 65 3.1.4.5. Legal Provisions in Other Countries 66 3.1.5. Return of Dowry 68 3.1.5.1. Prevailing Legal Provisions 68 3.1.5.2. Gaps in the Prevailing Legal System and Impact thereof 69 3.1.5.3. Recommendations of Various Commissions in Pakistan 70 3.1.5.4. Legal Provisions in Other Countries 71 3.1.6. Remarriage 72 3.1.6.1. Prevailing Legal Provisions 72 3.1.6.2. Islamic Law 72 3.1.7. Descent and Kind Treatment 74 3.1.8. Inheritance in case of Talaq al-mariz (Divorce by a Sick Husband) 74 3.1.9. Damages on giving Divorce without any Fault of Wife 75 3.2. Right of non-Muslim Divorced Women 75 3.2.1. Legal Provisions in Other Countries 75 3.3. Right of both Muslim and non-Muslim Divorced Women in Pakistan 77 3.3.1. Share in Homemaking 77 3.3.1.1. Legal Provisions in Other countries 78 4. Procedural Issues and their Impact 81 4.1. Gaps and their impact 81 4.1.1. Inadequacy and Complexity of Procedural Laws 81 4.2. Impact on the rights of Divorced Women 85 iii 4.3. Recommendations of Various Commissions / Committees in Pakistan 86 5. Policy Framework 90 6. Mechanism for the Institutional Support of Divorced Women 94 Policy Recommendations 95 Appendices 1. Federal Laws - A 102 2. Family Laws-Text - B 105 3. Case law - C 120 4. Policy Research Draft Report - D 123 5. List of Participants- E 143 i Sindh (Karachi) ii NWFP (Peshawar) iii Punjab (Lahore) iv Baluchistan (Quetta) v Islamabad vi FANA (Gilgit) Islamabad (Meeting exclusively for minorities) 155 iv Foreword National Commission on the Status of Women is a statutory body with a mandate to review the laws, rules and regulations adversely affecting the status and rights of women in Pakistan, and to recommend to the Government of Pakistan appropriate policy reforms. Women in Pakistan generally face problems in getting their due rights as promised by their religions and as guaranteed by the Constitution of Pakistan. The international commitments of the government to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and Convention on the Rights of Child (CRC), further strengthen their cause. The divorced women are among the worst affected in this regard and hence this issue deserves serious attention. These problems are due to the gaps and lacunae in the prevailing policy, laws, their implementation mechanisms and traditional social customs. Inadequate institutional support for the destitute women and their children adds to their misery. To address this vital issue the Commission initiated an in-depth research study on this subject in 2005. The research was widely disseminated across the country for a thorough discussion and debate with experts at provincial and national levels. In this process experts from legal, religious and political sections, and civil society members were actively involved. This cross section dialogue enabled the research to be objective and wider in scope. This important research ‘The Impact of Family Laws on the Rights of Divorced Women in Pakistan’ was` possible under a UNDP project for the institutional strengthening of NCSW. National Commission on the Status of Women is obliged for this support. Syeda Viquar-un-nisa Hashmi, as Policy Research Officer of this project, conducted this research with care, caution and commitment. It is hoped that these policy recommendations will create public awareness as well as assist the Government of Pakistan, in bringing about the necessary policy reforms, that will help in eliminating all forms of discrimination against women. Dr. Arfa Sayeda Zehra Chairperson v Acronyms and Abbreviations AJK Azad Jammu and Kashmir AIR All India Report CEDAW The Convention on the Elimination of All forms of Discrimination Against Women CRC Convention on Rights of Child CLC Civil Law Cases Cr. P.C Criminal Procedure Code CIW Commission of Inquiry for Women CSW Commission on the Status of Women CPC Civil Procedure Code CSO Civil Society Organizations FANA Federally Administered Northern Area ILR Indian Law Report KLR Karachi Law Report LRC Law Reform Commission MLD Monthly Law Digest MFLO Muslim Family Laws Ordinance, 1961 MLR Monthly Law Review NCSW National Commission on the Status of Women NLR National Law Report PLJ Pakistan Law Journal PLD Pakistan Law Digest SCMR Supreme Court Monthly Report SC Supreme Court SACH Struggle for Change YLR Yearly Law Report UNDP United Nation Development Programme vi Executive Summary A woman, irrespective of her marital status has a right to the dignified life. Though there is no dearth of laws, addressing family issues but unfortunately the prevailing policies and their implimentation in Pakistan are not very clear about the rights of the divorced women. Therefore, this study is an attempt to review the relevant prevailing policy and family laws that have a direct bearing on the rights of divorced women. Since the family laws in Pakistan are based on the personal laws relating to specific religions, and the Muslim personal laws are based on the primary sources of law vis-à-vis., Holy Qur’an and Sunnah hence in this study initially the rights of divorced women as provided in the personal laws were clearly identified and discussed in detail, then the prevailing family laws were analyzed. In the case of Muslims personal laws, the criteria for analysis was the primary sources of laws besides the constitutional guarantees, International commitments of Pakistan by virtue of being signatory to Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), Convention on the Rights of Child (CRC) and the recommendations of the previous Commissions and Committees on the Status of Women, which hold valid for non-Muslim citizens of Pakistan as well. It was revealed that there are about 51 prevailing family laws, out of which seven including Dissolution of Muslim Marriages Act, 1939, Muslim Family Laws Ordinance, 1961, Family Courts Act, 1964, The Divorce Act, 1869, Parsi Marriage and Divorce Act, 1936, Dowry and Bridal Gifts (Restriction) Act, 1976 and Guardian and Wards Act 1890, directly and indirectly dealing with the rights of divorced women are almost completely silent on the subject.
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