‘Churails’ and family law in Pakistan

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The web series, Churails, tells the story of four Karachi-based women who launch a detective service for women against their cheating husbands. These women accept the label of Churails for themselves and start their enterprise under the guise of a designer’s shop titled, ‘Halal Designs’. Their business thrives as the word spreads about their ‘services’ amongst upper class women. But soon they run into deep trouble when one of their clients kills her husband after finding out about his infidelity. An angry mob attacks their shop and burns it down. Such violent reaction further ignites their passion to expose the hypocrisies of patriarchy. This is how the saga of their ventures against a criminal network involved in fashion, cosmetics and drug industries gets triggered.

Without many spoilers, I’ll describe a few important rules of family law that we may learn or get cue from via Churails.

Whether family law is law?

When the lead character, Sara, informs her politician husband, Jamil Khan, that she wants to get back to practicing family law, he questions not only her ability to restart her practice but also the importance of family law. He goes on to ask if family law is law at all.

There is a common perception that undermines family law as a branch of law especially when compared with other areas of law, such as criminal law, property law, constitutional law, and international law. But this undermining is misguided. While the rules of family law may not be deemed as important on their own in legalese per se, they permeate into almost every important area of law.

For instance, in criminal trials involving sexual offences, the issue of the validity of a marriage plays a crucial role when it comes to whether an act constitutes an offence. Similarly, entitlements in property disputes depend upon legitimacy of family relationship as parents, siblings, spouse, or progeny, especially when it comes to litigation involving inheritance, wills, or gifts. So important is the institution of family that familial rights are protected under constitutional law and international covenants such as the Convention on the Elimination of all Forms of Discrimination Against Women 1979 (Cedaw) and the Convention on the Rights of the Child 1989 (CRC). When citizens of multiple jurisdictions enter into a marriage relationship, the private international law regulates their legal affairs concerning dissolution, custody, maintenance, inheritance, and matrimonial property. Family law also affects the application of tax law regimes and intergenerational transfer of wealth. Therefore, people like Jamil Khan should be reminded of the crucial role of family law in the legal system especially when family law interacts with other areas of law.

What constitutes a marriage?

In the web series, the parents of Zubeida, the boxer, try to force her to marry a stranger. They arrange a ceremony with a cleric to conduct the marriage at their home. Is such a marriage ceremony is valid? Consent is the most important feature of marriage because marriage under Islamic law is a contract. A contract is based on the consent of the parties and any involvement of coercion or undue influence vitiates it. In one case, Muhammad Aslam v The State 2012 PCrLJ 11, the Federal Shariat Court held that a consent of marriage obtained from a woman through fear is invalid. Therefore, even when the Churails might not have saved Zubeida, her marriage ceremony would have been invalid under the law.

The next question is: can Zubeida enter into a marriage with a person of her own choice? In several judgments, Pakistani courts have held that an adult Muslim girl can contract a marriage of her own accord, without the consent of her guardian (wali), that is, the father or any other closest male relative. In the famous Saima Waheed case, Saima’s father, Hafiz Abdul Waheed, wanted to marry her off with an old man against her will. To avoid the forced marriage, she fled her home and married against the wishes of her father who then challenged the validity of Saima’s marriage on the basis that she could not marry without his consent. The High Court rejected his petition. The father appealed before the Supreme Court. In its judgment reported as Hafiz Abdul Waheed v Asma Jehangir PLD 2004 SC 219, the Supreme Court held that the consent of the father (guardian) is not required for the validity of the marriage of an adult Muslim female under Islamic law. Therefore, if Zubeida wants to marry Shams, whom she likes, she does not have to seek the consent of her father.

Muslim family law and the protection of adopted children

After Batool, another lead character in the web series, is sent to prison for killing her abusive husband, her daughter, Mehak, is sent to an orphanage. A family adopts Mehak, but they do not take proper care of her. When she runs away from home, they do not care to even report to the police that she was missing.

Muslim family law in Pakistan requires the adopting parents to take utmost care of adopted children. In several judgments, courts have laid down principles to protect the rights of these children. In one judgment, the Supreme Court went to the extent of treating adopting parents as real parents in order to protect the interests of the adopted child. In one such case, a man found an abandoned child near his home in Karachi. He decided to give the child to his friend, Younas Qureshi, who was childless. After taking custody of the child, Mr Qureshi and his wife treated the child named Asma as their own baby. Mr Qureshi registered himself as the father in her official documents (such as B-Form and ID card) and treated her as his actual daughter. The child also believed herself to be the biological daughter of Mr and Mrs Qureshi. Everything went well until Asma got married. At that time, someone spread stories that she was not the real daughter of her parents. She confronted her parents who insisted that she was their real daughter. Her suspicions grew when her father refused to hand over to her the property documents of a plot that he had purchased in her name. Frustrated due to her father’s attitude, she sued him for fraud, deceit, and defamation. The court dismissed her petition but during the judicial proceedings she discovered that she was indeed adopted. The disclosure deeply disturbed her, and she filed a civil suit to restrain her father from denying her paternity. The trial court and the high court did not accept her petition and she appealed before the Supreme Court. The Supreme Court accepted her petition and held that Mr Qureshi had been treating and acknowledging her as his daughter since her childhood, therefore, he could not deny her paternity. The Supreme Court declared that Asma was the daughter of Mr Qureshi and she was entitled to all the rights of a daughter in the property of her father (for details, see Asma Naz v Muhammad Younas Qureshi 2005 SCMR 401) This case illustrates the role of family law in protecting the rights of adopted children.

Financial rights of wives and children during marriage

Muslim family law obligates husbands to ensure maintenance of their wives and children. A woman, even when she is earning her livelihood, has no responsibility to financially contribute towards the household. A husband’s failure to provide maintenance to his wife furnishes her with grounds to file for divorce. She may file an application before the Chairman Union Council or the judge of a Family Court to get an order for maintenance for herself and for her children. Under the law, a father is bound to maintain his sons until they attain the age of majority (18 years) and his daughters until they are married. The father also has to provide maintenance to his divorced or widowed daughter(s) until they are remarried. In the absence of a father, the grandfather has to maintain the grandchildren.

Despite the clear provisions of the law, the enforcement mechanism to force fathers to maintain their children and wives is not efficient, especially when spouses are separated, and men enter into another marriage. In the absence of a state-sponsored mechanism for social welfare, abandoned wives and children face severe financial problems.

Whether a wife may divorce her husband?

Churails’ lead Sara is upset because of her husband’s infidelity. Batool’s husband mistreated her and the husband of Shehnaz, a client of Churails, is homosexual. Each one of them has a legitimate ground to dissolve their marriages. Under Pakistani law, there are two main types of divorce: fault-based and no-fault based. The Dissolution of Muslim Marriages Act 1939 (DMMA) lays down several grounds that a wife may invoke to dissolve her marriage. The most frequently invoked grounds supported by DMMA include cruel treatment of the wife by the husband that includes mental torture, association with women of ill-repute or leading an infamous life, forcing a wife to live an immoral life, interference with wife’s property, obstruction in her observance of religious profession or practice, and failure to treat wives equitably in case of polygamy. To dissolve her marriage under the DMMA, the wife has to prove fault in the conduct of her husband based on evidence that is acceptable in court. However, the judicial procedure is not only cumbersome, but it is also time consuming.

An alternative to the fault-based divorce is the no-fault based divorce, known as khula. This is a wife’s right to end the marriage based on her own will, similar to a husband’s right of talaq that is unilateral and no-fault based. A wife who wants to exercise her right to khula has to file a petition before the court stating that she does not want to live with her husband without giving any reasons for her decision to end the marriage. The court will try to reconcile the differences between the spouses and issue the decree of dissolution of marriage if the wife insists upon dissolving the marriage. The court may ask the wife to return her dower (mahr) that she received from her husband at the time of marriage. Procedurally, getting a decree of khula is easier and faster because it does not require recording of evidence and cross-examination of witnesses. A decree of khula is not appealable before superior courts and it also saves further time and cost. In practice, most women dissolve their marriage on the basis of khula because it entails a simple procedure.

It must be noted that a husband and wife are not required to go to the family court to dissolve their marriage and may agree between themselves to amicably end it. This type of dissolution of marriage is called mubarat. Given that the court has to issue a decree of dissolution of marriage when the wife asks for khula, it is likely that her spouse would dissolve their marriage without going to court unless there are financial disputes regarding marital property, such as dower and dowry or custody of children.

What are the financial rights of wives upon divorce?

The makers of Churails seem to assume that wives have financial leverage upon husbands during the marriage and after divorce. However, the fact is that this is not true under Pakistani law. Not only does a Muslim husband have the unilateral right to divorce his wife at his will without assigning any reason or going to the court to get permission to divorce, he also does not have to share the assets accumulated during the marriage with his wife upon divorce.

Pakistani family law does not acknowledge the concept of matrimonial property. A wife is not entitled to claim a share in the assets acquired by the husband during the subsistence of marriage on the basis that by acting as a homemaker she enabled him to acquire those assets. The exercise of her right to khula is likely to leave a wife worse off financially because she has to return dower to her husband. She is not entitled to any financial support such as alimony from her former husband upon divorce.

Pakistani family law provides limited financial protection to divorced women. In some cases, judges have held that the courts should consider the ‘reciprocal benefits’ that husbands gain from their wives during the marriage while determining the amount of dower that wives have to return to their husbands upon the dissolution of marriage based on khula. For instance, in Shams Ali v Add District Judge, Sambrial PLD 2012 Lah 183, the Lahore High Court regarded a wife’s living with her husband for a number of years as “a benefit received” by the husband and rejected the husband’s petition to get back the dower upon dissolution of marriage based on khula. Similarly, in Abdul Rashid v Shahida Parveen 2013 YLR 2616, the Peshawar High Court held that the life spent by a wife with her husband is sufficient consideration for no-fault based divorce (khula) and the wife who exercises her right to khula should not return dower to her husband.

In the absence of legal protection to their financial entitlements, Pakistani women have relied on the contractual nature of marriage in Islam to safeguard those rights. At the time of marriage, women may ask for substantial dower in the form of plots or other property that has to be transferred to their name. They may also negotiate for a delegated right to divorce as provided in the standard nikah nama in column 18. Generally, this column is crossed out by the nikah khwan who registers the marriage. Wives, however, may also protect their financial rights after marriage through contracts. An excellent example of a wife’s protection of her own and her children’s financial rights is furnished in one judgment of the Peshawar High Court reported as Awal Zaman v Nasreen Bibi 2015 YLR 1770. Awal Zaman and Nasrin Begum were married for over 40 years and had five children. In 1994, the husband desired to enter a second marriage. The law required Awal Zaman to get the consent of his first wife before doing so. Nasrin Begum consented to the second marriage of her husband upon the condition that if he abandoned her later on, she would be entitled to receive 50 per cent of his salary for the maintenance and educational expenses of their children, 50 per cent share in his pension, and 50 per cent share in his agricultural property and houses. Her husband accepted this condition in a written agreement. Thirteen years after entering into a second marriage, relations between Nasrin Begum and her husband became strained and he refused to honour the agreement. Therefore, she filed a suit for declaration and recovery of half the share in his salary and pension emoluments and the recovery of Rs70,000 that she incurred on the marriage of her daughters. Her husband, Awal Zaman, challenged the authenticity of the agreement and contested that it was a “fictitious and manipulated document”. The trial court and the first appellate court found the agreement valid and decided in favour of Nasrin Begum. Awal Zaman challenged these decisions before the Peshawar High Court, which, while describing the controversy as “unique” also dismissed his petition. In this way, Nasrin Begum was able to secure financial rights for herself and for her children in the property of her husband.

Inheritance rights of wives

Under the Muslim family law, a wife’s right to inheritance is limited. She is entitled to receiving one-fourth share in the property of her husband if the couple did not have any child. This share is reduced to one-eighth if the couple has children. This can leave a widow in a precarious position and financially dependent either on her children or on other close relatives. Separately, under Sunni law, one cannot use a will to increase the share of an heir beyond what’s stipulated in the Muslim family law. This means that a widow’s share in the inheritance of her husband cannot be legally increased even if the husband leaves a will in her favour. Under Sunni law of inheritance, a person’s right to will has two limitations: first, a will cannot be made in favour of a legal heir (does not apply in Shia law); and second, a will cannot consume more than one third of the estate. However, these limitations do not apply if other legal heirs give their consent after the death of the testator. Another lead character, Jugnu Chaudhry, has her uncle’s will in her favour, although legal limitations will still apply to it.

While we may learn a few legal rules of family law from Churails, it serves to highlight the precarious financial rights of women within the institution of marriage in Pakistan. Unlike their counterparts in the West, Pakistani women do not receive a share in matrimonial property. Similarly, their rights to maintenance, alimony, and inheritance are subject to various conditions and limitations. In the absence of legal protections, women may rely on agreements (pre-nuptial and post-nuptial) in order to secure their financial rights.

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