The ‘parting gift’
NOTWITHSTANDING clear assertions on the emancipation of women in the Quran, successive regimes in Pakistan have failed to recognise or enforce the same. The available legislation pertaining to women is mostly penal in nature: the laws seek to protect women against violence, abuse and other evil customary practices.
Their enforcement is, however, abysmally weak. So weak, that in practice, they are almost non-existent. In a study conducted by the Aurat Foundation last year, it was revealed that penal provisions prohibiting forced marriages, minority marriages and depriving women of their right to inheritance through fraudulent/ deceitful means, are unknown to police officials and investigators/ prosecutors. As regards awareness amongst women about these provisions, the situation was found to be equally deplorable.
A law about women empowerment is the Islamic law of inheritance, which is based on Quranic text. This law was enforced in 1937 in the Indo-Pak subcontinent. After independence, the Muslim Personal Law (Sharia) Application 1962 was adopted in Pakistan. Its practical implementation, though, remains abysmally low; not even 10pc women receive their share. The maulvis cried hoarse when the Punjab government enacted recently penal legislation to protect women against violence and called for enforcement of Sharia in the country. But they remain mum about the implementation of Islamic law aimed at the emancipation of women.
The Islamic law on female right to inheritance, coupled with her right to dower and maintenance, is a shining example of according high socio-economic status to women. It remained unparalleled for centuries in global history. Even the most advanced civilisations could not match it. The British woman had no legal status or right to share in inheritance till the 20th century. They practised the principle of ‘primogeniture’, where the eldest son acquired the entire estate of his father.
Women are denied their rights despite assertions in the Quran.
Further, under the principle of ‘coverture’, the married woman had her legal personality subsumed into the husband. Thus she could not sue or be sued except through a male family member. Alas, despite the categorical assertion in Quran — the primary source of Islamic law — women continue to be denied their legitimate rights.
The Islamic principle of mata’a (parting gift) to a divorced wife, enshrined in the Quran, goes unnoticed. The Quranic text (Surah Al Baqarah, verse 236) is most emphatic: “There is no blame on you if ye divorce women before consummation or the fixation of their dower; but bestow on them (a suitable gift), the wealthy according to his means, and the poor according to his means; a gift of reasonable amount is due from those who wish to do the right thing.”
This is followed by verses 240-241 as follows: “Those of you who die and leave widows should bequeath for their widows year’s maintenance and residence; but if you leave (the residence), there is no blame on you for what they do with themselves, provided it is reasonable. And Allah is Exalted in power, Wise. For divorced women maintenance (should be provided) on a reasonable (scale). This is a duty on the righteous.”
In Surah Al Ahzab, verse 49, it is ordained: “O Ye who believe! When ye marry believing women, and then divorce then before ye have touched them, no period of ‘iddat’ have ye to count in respect of them: So give them, a present, and set them free in a handsome manner.” Quite obviously, mata’a is a Quranic principle and is obligatory. It is payment due to a divorced wife and is separate from her right to dower or maintenance. The quantum of mata’a can be fixed, in keeping with the facts of the case, taking into account the duration of marriage, circumstances of divorce and financial status of the husband, etc.
There are examples of recognition and practice of this principle in the Muslim world. Mata’a is paid in the form of cash, kind, apparel, maintenance money and residence. Certain states enforced the command through legislation by giving ownership of the house in occupation of the wife at the time of divorce. The obligation is enforced through legislative enactment by Egypt, Malaysia, Tunisia, Morocco, Jordan, Brunei, etc. Accordingly, appropriate provisions can be enacted in Pakistan through amendments in the Muslims Family Laws Ordinance 1961 and (WP) Family Court Act 1964.
A decade or so ago, a draft to this effect was proposed by the Law and Justice Commission of Pakistan. Regrettably, the Council of Islamic Ideology opposed the draft law, arguing that the husband is not liable for any financial liability beyond the period of iddat. But based on Islamic principle and practices in several Islamic states, the draft law was approved nevertheless by the commission and forwarded to the government for implementation. It is still awaiting implementation.
The writer practises law in Islamabad and served as secretary, Law & Justice Commission of Pakistan, director general, Federal Judicial Academy and registrar, Supreme Court of Pakistan.
Published in Dawn, July 29th, 2016