Dossier 19: Muslim Women and ‘Islamic Divorce’ in England

Attachment	Size
Word Document	205.79 KB

Three important changes in English law in the past quarter of a century have opened the doors of the English matrimonial Courts to Muslim spouses resident in England. Prior to 1973, the English Courts exercised divorce jurisdiction on the basis of domicile; spouses resident but not domiciled in England could not invoke the jurisdiction of the English Court to terminate their marriage. Until 1972 the English Courts refused jurisdiction in regard to all ‘polygamous’ marriages, defining this term to encompass a marriage de facto monogamous but ‘potentially polygamous’ in the sense that according to the rites by which the marriage had been solemnized, one of the parties was permitted to marry again during the subsistence of the marriage. This provision most importantly barred the English matrimonial Courts to spouses validly married according to Muslim rites in a jurisdiction where polygamy was permitted to Muslims (for instance, Pakistan or India). At the same time, if the parties (or one of them) were domiciled in England at the time of the foreign Muslim marriage, it was generally assumed that the marriage would be considered void in English law because an English domiciliary has no capacity to enter into a ‘polygamous,’ including a ‘potentially polygamous,’ marriage.[1]

The Domicile and Matrimonial Proceedings Act of 1973 expanded the jurisdiction of the English Courts by permitting them to entertain divorce petitions in circumstances where one of the spouses had been resident within the United Kingdom for a period of twelve months prior to the presentation of the petition, and irrespective of the domicile of the parties. The Matrimonial Proceedings (Polygamous Marriages) Act, 1972, removed the bar on matrimonial relief previously raised by the fact that the foreign marriage was either potentially or actually polygamous.[2] And the 1983 decision of the Court of Appeal in Hussain v. Hussain[3] held that the Muslim marriage contracted abroad by a Muslim man domiciled in England was not void because ‘potentially polygamous.’ The Court pointed out that the Pakistani bride, according to her personal law (Pakistani Muslim law as the law of her domicile) was not permitted another husband during the subsistence of the marriage, while the husband, according to his personal law (English law as the law of his domicile) was not permitted another wife during the subsistence of the marriage. If neither spouse were permitted to marry an additional partner, where, the Court asked, was the ‘potential’ for polygamy.

Although after the statutory reforms of 1972 and 1973, either of the Muslim spouses resident in England might avail themselves of the matrimonial remedies available to them through the English Courts, if the parties were domiciled in a country where Muslim law would be applicable to the marriage, the husband was more likely to choose to execute a talaq in preference to pursuing judicial proceedings—or permitting his wife to proceed with her divorce petition. Again, changes in English law in the past quarter of a century both restricted the husband’s access to talaq (by making it clear that an extra-judicial event which took place within the jurisdiction of the English Court would not effectively dissolve the marriage in English law), and considerably liberalized the rules for recognition of a ‘procedural’ talaq[4] effected abroad (by permitting such a talaq to take place in a country with which one of the spouses was connected by ties of nationality or habitual residence, rather than merely in the country in which the spouses were domiciled).

These developments, which were largely concessions—perhaps long over due concessions—to the multi-cultural nature of post World War II England and the presence of a significant Muslim minority, produced a disturbing reaction on the part of what might best be termed the spokesmen of Muslim male interests. It will be most convenient to examine individually the various components of the evolving situation.

I. Divorce and Muslim Law

Extra-Judicial Divorce by the Muslim Husband (Talaq)

One of the features of Muslim law best known in the West concerns the facility for easy divorce which is provided to the husband. By the simple pronouncement of a verbal formula the husband can bring the marriage to an end; under the unreformed traditional law, this can be accomplished instantly and irrevocably if the husband is a Sunni. If the husband were a Hanafi (as are the overwhelming majority of South Asian Muslims; the vast majority of Muslims in England are of South Asian extraction), the fact that he uttered the fateful words while in a state of intoxication or uncontrollable rage, or the fact that he did not mean them or immediately repented having spoken them is of no legal significance—the marriage is terminated.

However, the Pakistan Muslim Family Laws Ordinance, promulgated by Ayub Khan’s martial law government in 1961, (inter alia) introduced (section 7) some minimal restrictions on the Muslim husband’s rights of easy extra-judicial divorce[5] by requiring that any talaq pronouncement be notified to a designated local official and to the wife, and decreeing that no talaq would ripen into an actual divorce until ninety days after such notification had been received. During the interval, the talaq pronouncement remains revocable (and if revoked, will not take effect as a divorce); during this interval also the local official is enjoined to undertake attempts at reconciliation of the spouses, although whether or not he carries out, or attempts to carry out, this responsibility has no effect on the finality of the talaq and the effectiveness of the divorce once the ninety days have expired without a revocation of the pronouncement being issued by the husband.

There are thus four procedural requirements for effecting a divorce by talaq valid in Pakistani law:

Pronouncement of the talaq formula;
Notification of the pronouncement to the requisite local official;
Notification of the pronouncement to the wife;
The passage of ninety days during which the husband refrains from revoking the pronouncement.

These ‘procedures,’[6] are mandatory for the execution of an effective talaq.

While a Pakistani talaq fulfils the statutory requirement of “judicial or other proceedings,” a ‘bare’ or ‘classical’ talaq (e.g., an Indian talaq) does not under Pakistani law, induced the English Courts to conclude that a Pakistani talaq constituted a divorce “obtained by means of . . . other proceedings” in the context of the Recognition of Foreign Divorces and Legal Separations Act, 1971.[7]

Recognition of Talaq Divorce in English Law

Prior to 1971, English law in regard to dissolutions of marriage occurring under and according to a foreign legal system was clear and concise: a foreign divorce would be recognized under the common law rules as a valid divorce in English law if it were valid by the law of the spouses’ domicile (which, at that time, meant the domicile of the husband). Assuming such a divorce to be valid under the law of the spouses’ domicile, it appeared that a marriage could be brought to an end in English law by an extra-judicial talaq pronounced in England.[8] The common law rules were substantially modified by the Matrimonial Causes Act, 1973, which (i) provided (section 16 (1)) that no procedure occurring within the United Kingdom could be recognized as dissolving a marriage unless instituted in a Court of law;[9] (ii) barred the recognition of a divorce obtained other than “by means of judicial or other proceedings” if both the spouses had been habitually resident in the U.K. for a period of twelve months prior to the divorce (section 16 (2));[10] and (iii) ended the wife’s domicile of dependency (section 1). Recognizing that the spouses may have separate domiciles (the wife no longer automatically acquiring her husband’s domicile on marriage) meant that henceforth a divorce could only be recognized on the basis of the common law rule (foreign domicile) if it were valid according to the law of the domicile of each spouse; recognition was precluded if one of the spouses were domiciled in the U.K.

Meanwhile, the Recognition of Foreign Divorces and Legal Separations Act, 1971, provided a format[11] (inspired by—but going much further than required by—the 1970 Hague Convention on the same subject) for recognition of divorces “obtained by means of judicial or other proceedings” in a country with which at least one of the parties was connected by ties of nationality, habitual residence, or domicile (including domicile as defined by the foreign country in question). The requirements for recognition of a foreign divorce under ‘code’ section of the 1971 Act were much more lenient[12] than those laid down by the (revised) common law rules, which were preserved by the Act of 1971, and modified by the Act of 1973.[13]

There are thus two distinct sets of criteria under which a foreign divorce might be recognized in English law. The common law rules cannot be invoked if either spouse is domiciled in England or if the spouses have (after the Act of 1986, if one spouse has) been habitually resident in the U.K. for twelve months prior to the divorce proceedings. Neither of these bars automatically prevents recognition of a foreign divorce under the legislation implementing the Hague Convention. Extra-judicial divorces or dissolutions of marriage raise their own peculiar evidential problems, dramatically demonstrated on two occasions when the English Court held that an extra-judicial act or event had had the effect, under the relevant foreign law, of terminating the marriage, when in fact the act or event had had absolutely no effect at all on the matrimonial status of the parties according to the law of the foreign jurisdiction.[14]

Muslim Women and ‘Islamic Divorce’ in England

The more immediately relevant problem raised by recognition of foreign divorces derived from the fact that the English Court had no jurisdiction to deal with ancillary matters unless it itself dissolved the marriage. Thus, recognizing a foreign divorce as effectively terminating the marriage, deprived the English Court of any power to make financial orders in favor of the discarded wife. Although this difficulty could arise in regard to any foreign divorce (judicial or extra-judicial), it arose predictably and cogently in regard to talaq divorces due to the fact that Muslim law recognizes neither any concept of division of matrimonial assets nor alimony on divorce.[15] The woman divorced by a talaq recognized under the regime of 1971/ 1973 had little redress unless a sizable mahr (dower) had been pledged in her favor by her bridegroom at the time of the marriage. A major incentive for a Muslim husband in England to seek to dissolve the marriage by talaq, rather than petitioning for divorce in the English Courts (or allowing his wife to proceed with her divorce petition) is the desire to avoid any financial responsibility for his divorced wife.

The inability of the English Court to protect the interests of the woman whose marriage was dissolved by a foreign divorce entitled to recognition in English law under the more liberal recognition rules, was addressed in Part III of the Matrimonial and Family Proceedings Act, 1984. This statute empowered the English Courts to grant financial relief to one or other spouse even in cases where the marriage had not been dissolved by the English Court.[16]

‘Blackmail’ of Muslim Wives in England

By no means was it a coincidence that just when it appeared clear that legislation would be passed empowering the English Courts to grant ancillary relief in cases where the marriage had been dissolved by a foreign divorce entitled to recognition under English law, spokesmen for male Muslim interests (in many circumstances this phrase is preferable to the term ‘fundamentalists’) began putting it about that under Muslim law a woman is not entitled to a divorce without her husband’s consent, and that no Muslim marriage can be dissolved in a ‘religious’ sense unless the husband pronounces a talaq.

Although this proposition is untrue as regards Muslim law, note how closely the alleged position of the Muslim woman so postulated approximates the position of the woman in orthodox Jewish law. Curiously, it appears that the fallacious proposition concerning Muslim law was readily and uncritically accepted by English legal circles simply because of this irrelevant similarity.[17] I first encountered this fallacious proposition during the course of a question period following my lectures on Muslim marriage and divorce in English law at a training session for solicitors organized by the Greater Manchester Legal Services Committee in November 1983. Having convinced my audience that Muslim law did not in all circumstances require the husband’s consent to the dissolution of the marriage and did permit the Muslim wife to obtain a judicial divorce in the face of her husband’s opposition, I made many (unsuccessful) attempts to locate the source of the propaganda that seemed to be being put about, particularly in the Bolton area.

The following summer, two well-meaning Members of Parliament (Leo Abse and Peter Thurnham) proposed, in quite dramatic speeches, an amendment17 to the Matrimonial and Family Proceedings Bill which, the proposers believed, would protect Muslim women who were being ‘blackmailed’ by their husbands and forced to pay heavily for their spouses’ consent to a ‘religious’ divorce.[18]

Under Muslim law a man may have many wives, but a woman only one husband. Thus religious divorce is essential for a Muslim woman who wishes to remarry according to her faith, but a Muslim man can be content with civil divorce alone, as he does not have religious inhibitions about remarrying as often as he wishes. Thousands of brides face that predicament. They are vulnerable to blackmail by their husbands, who will agree to a religious divorce only for a consideration.

Cases have been brought to my attention in Bolton, of which my constituency is a part. In one case, the parties had gained British nationality but had been separated for five years with a decree absolute. The ex-husband would not, however, grant a religious divorce. He demanded £5,000 and the return of the wedding jewellery as an inducement. In the second case, the husband and wife were married in India. After an unhappy relationship in Great Britain the husband sent his wife’s passport to the Home Office in an attempt to get her removed, as she did not have British nationality. He eventually agreed to a religious divorce, but only if he did not have to pay maintenance and if she returned the wedding jewellery to him.

In the third case, both sides had British nationality, and the matter was settled only after violent persuasion by the wife’s family. . . . In the case of Mrs. Patel, her relatives fulfilled the husband’s demands by paying him £4,000 and returning the marriage jewellery to obtain a religious divorce. In the fifth case, the wife was not a British citizen and her relatives paid money to obtain a religious divorce after the husband threatened to arrange a deportation.[19] Fortunately, the proposed amendment was withdrawn, the Solicitor General promising to look into the matter. Unfortunately, the damage was done. The statements in Parliament had only served to give publicity to a grossly erroneous view of Muslim law and to place the interests of Muslim women in the United Kingdom at even greater risk.[20]

Judicial Divorce and Muslim Law

The main distinction between the rights of the Muslim spouses in obtaining a non-consensual divorce is that while the husband can effect a divorce easily without his wife’s consent by pronouncement of talaq; the wife whose husband will not agree to a divorce (or who will agree only on terms she is unwilling to accept) has to go to Court. All schools of Muslim law recognize that the wife has a right to approach the Court for a judicial dissolution of her marriage. Such a judicial divorce is as final, and as much a ‘religious divorce,’ as is an extra judicial divorce effected with the husband’s consent and approval. There is, however, considerable divergence among the schools of Islamic law concerning the precise grounds which would entitle a Muslim wife to judicial dissolution of her marriage. The classical Hanafi school is by far the most restrictive in this regard. For precisely this reason, comprehensive reform of the classical Hanafi law has been accomplished in several countries since the initial reform introduced in the Ottoman Empire in 1915. Since the majority of Muslims in the U.K. trace their ancestry to South Asia, the obvious statute to examine to refute the claims of the spokesmen of the interests of Muslim males is the Dissolution of Muslim Marriages Act, 1939.[21]

The statement of objects and reasons issued with the Bill which subsequently became the Dissolution of Muslim Marriages, Act, 1939, is set out below and explains the concerns behind this Act, which has now been on the statutes books of the territory presently comprising the states of Pakistan, Bangladesh, and India for more than half a century. There is no proviso in the Hanafi code of Muslim law enabling a married Muslim woman to obtain a decree from the Court dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her, or absconds leaving her unprovided for, and under certain other circumstances. The absence of such provision has entailed unspeakable misery to innumerable Muslim women in British India.

The Hanafi jurists, however, have clearly laid down that in cases in which the application of Hanafi law causes hardship, it is permissible to apply the provisions of the Maliki, Shafi'i or Hanbali law. Acting on this principle the ulama [i.e., religious scholars and functionaries] have issued fatwas [i.e., opinions concerning the religious law] to the effect that in cases enumerated in clause 3, Part A of this Bill [contained in section 2 of the resultant Act], a married woman may obtain a decree dissolving her marriage. A lucid exposition of this principle can be found in the book called al-Hilat al-Najizah published by Maulana Ashraf Ali Saheb who has made an exhaustive study of the provisions of Maliki law which, under the circumstances prevailing in India, may be applied to such cases. This has been approved by a large number of ulama who have put their seals of approval on the book.

As the Courts are sure to hesitate to apply the Maliki law to the case of a [non-Maliki] woman, legislation recognising and enforcing the above mentioned principle is called for in order to relieve the sufferings of countless Muslim women.[22] The background to this statute, enacted during the British period by rulers who had generally refrained from interference in the personal laws of its subjects is extremely interesting.

In the unique circumstances of British-India a few desperate Hanafi women had discovered that a way out of intolerable matrimonial situations existed if they were willing to apostatize, even temporarily, from Islam. In Islamic law, apostasy on the part of a Muslim spouse dissolves a Muslim marriage; a female apostate would, however, be incarcerated until she repented of her error and then remarried on a minimal mahr (dower) to the man to whom she had been married at the time of her apostasy. Apostasy was not a crime in British-India; indeed, the Christian missionaries were actively seeking converts and the Evangelical lobby was strong. It is to the latter that must be credited the Caste Disabilities Removal Act, 1850, (otherwise known as the Freedom of Religion Act), which declared that the apostate lost none of his pre-existing rights (particularly rights of property and inheritance) by virtue of leaving or being expelled from caste or religious communion. Perhaps somewhat illogically, the British-Indian Courts when confronted with the question decided that, although much of the law of apostasy was not applicable in British-India, that part of Muslim law which decreed the dissolution of the apostate’s marriage was in force. A Muslim woman could thus easily shed the husband she despised by converting to Christianity. She could, and often did, then reconvert to Islam as a single woman.

Although the number of women who resorted to such desperate measures was small both numerically and statistically, the cases that did occur were widely publicized in the Urdu press and aroused considerable concern in the Muslim community. Petitions and memorials were submitted calling upon the government to overrule the Courts which were issuing declarations recognizing the dissolution of her marriage occasioned by the apostasy of the Muslim wife. The government was reluctant to take any action unless some alternative remedy were made available to the women who were using apostasy as a means of obtaining matrimonial relief otherwise unavailable to them. Meanwhile, many distinguished ulema issued fatwas proposing that Hanafi women should be allowed access to judicial divorce on grounds recognized by other Sunni schools, particularly Maliki.

The Act of 1939 was essentially a compromise: it entitled Muslim women to petition for divorce on the grounds set out below (which had been adopted from Maliki law), while at the same time laying down that apostasy on the part of a married Muslim woman would no longer have the effect of dissolving her marriage (section 4).

Section 2 of the statute sets out the grounds on which a South Asian Muslim wife may petition the Court for divorce:

2. A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:  (i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years; Provided that the marriage has not been consummated;[23]

(viii) that the husband treats her with cruelty, that is to say: (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (b) associates with women of evil repute or leads an infamous life, or (c) attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qumran;

(ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim law.

In Pakistan and Bangladesh the Dissolution of Muslim Marriages Act was amended by the Muslim Family Laws Ordinance, 1961, and a further ground on which a wife may seek a judicial divorce enumerated: “that the husband has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961,” i.e., without the requisite prior permission of the Arbitration Council. It is perhaps worth noting that the Act of 1939 is of general application, and applies to Muslim women in Pakistan, Bangladesh, and India, whether Hanafi or Shafi'i, Sunni or Shia. It should also be noted that the fact that a woman has recourse to the Dissolution of Muslim Marriages Act to secure judicial divorce does not affect her financial claims against her husband: section 5 of the Act specifically provides—“Nothing contained in this Act shall affect any right which a married woman may have under Muslim law to her dower [mahr] or any part thereof on the dissolution of the marriage.” She would, of course, also be entitled to maintenance from her husband during the period of iddah. It should also be pointed out, and with some emphasis, that there is nothing to be found in the 1939 Act to the effect that the husband’s consent is required for the divorce to become final, or imposing the requirement that the husband pronounce a talaq before the wife is free to remarry according to Muslim law and Muslim rites—nothing in fact in any way comparable to the terms proposed to be introduced into English law by the Abse-Thurnham amendment.

The grounds available under the Dissolution of Muslim Marriages Act are not really very different from those available under the English legislation. Most divorce petitions in a contested action rely on either five years’ separation or unreasonable behavior to establish irretrievable breakdown of the marriage necessary to obtain a divorce under the Matrimonial Causes Act, 1973. It could be argued that the former ground is less lenient than those available under the Dissolution of Muslim Marriages Act, which entitle a wife to divorce on grounds of either failure to maintain for two years or failure to perform marital obligations for three years. The import of the English expression “has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent” is much the same as the comparable clause in the Dissolution of Muslim Marriages Act, “makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment.”

A divorce granted by the Courts of India, Pakistan, or Bangladesh under the Dissolution of Muslim Marriages Act does not require the husband’s consent or approval; the Muslim wife is most emphatically not in the position of the Jewish agunah.[24] There is absolutely no justification at all for subjecting Muslim women in England to a more fundamentalist, or less enlightened, interpretation of Muslim law than that to which their sisters in the subcontinent are subject, or for denying Muslim women in England rights which their sisters in the subcontinent have enjoyed for more than half a century.[25]

It is tragic that the well-meaning MPs were not better informed than they were, for had they been, the statements made in the House of Commons, instead of merely broadcasting an erroneous proposition concerning Muslim law and publicizing the success that Muslim men were having ‘blackmailing’ their ignorant and uninformed wives, could have been used to expose the error and publicize the correct state of affairs, thus achieving to some extent the goal sought by the ill-advised MPs of granting some protection to ill-used women.

Within a year or so of the discussion in Parliament concerning the Abse-Thurnham amendment, I was contacted by a solicitor representing a Muslim woman suing for divorce in the English Court. The letter indicated that both the solicitor and her client were of the opinion that the marriage would not be dissolved ‘religiously’ unless the husband pronounced a talaq; made it clear that the husband was attempting to extract a heavy price for his talaq; and asked for my advice. I pointed out that the client clearly had grounds for divorce under the South Asian Dissolution of Muslim Marriages Act; that the grounds available to her under the English legislation were quite comparable to those available under the Dissolution of Muslim Marriages Act; that were the marriage dissolved in South Asia under the Dissolution of Muslim Marriages Act, the husband’s consent would not be necessary and the wife would not lose her rights to mahr; and that I saw no reason why a Muslim woman in England should be denied rights available to her sisters in Pakistan. I enclosed a copy of my article on Muslim women and judicial divorce,[26] written in response to the Abse-Thurnham debate. The solicitor replied that my letter and enclosure had been “a real eye-opener” to both her and her client. The moral is obviously that women are only vulnerable to the kind of intimidation and blackmail to which Muslim women in England are being subjected to the extent that they are ignorant of their rights under Muslim law. If they have available to them information with which they can reply to their husband’s pronouncements concerning what Muslim law decrees or demands, they are able to hold their own ground and to refuse to be intimidated or blackmailed.

II. The Islamic Sharia Council and ‘Islamic’ Divorce

Why an ‘Islamic’ divorce?

I have recently been advising a young Muslim woman who had gone through a procedure involving the Islamic Sharia Council in London and purportedly resulting in an ‘Islamic divorce.’ The first question which obviously arises is why, having obtained a decree absolute from the English Court before she approached the Sharia Council, the woman considered such a course necessary.

She explained to me that she thought such an ‘Islamic’ divorce was necessary in two respects. (i) She wanted a divorce that would be recognized in Pakistani law. Although the woman is a British national, was domiciled in England prior to her marriage, and resumed her English domicile after the parties separated some years prior to the divorce, her (ex) husband is a Pakistani national and domiciled in that country. She and her family have close friends in Pakistan and she wanted to be free to visit that country without harassment and worry. And (ii) she wanted a divorce that would be recognized in certain countries of the Middle East (e.g., Bahrain) where she is likely to travel because she has relatives living there. The fear was that in the absence of an ‘Islamic’ divorce, in addition to the decree absolute, her ex-husband might follow her to, or encounter her in, Pakistan or Bahrain, and there claim his conjugal rights and enforce her wifely obedience on the ground that the matrimonial bond still subsisted.

It is important to realize that in the modern world Islamic law, as law, does not exist as some disembodied entity floating in the stratosphere, over-reaching national boundaries and superseding national law. In the modern world, Islamic law exists only within the context of a nation state; and within the boundaries of any particular state it is only enforced and enforceable to the extent that, and subject to the reforms and modifications that, the nation-state decrees.

In regard to Pakistan, all the woman needed to do was to send a copy of the English decree (with a covering letter indicating that she was giving notice of the divorce as required by section 8 of the Muslim Family Laws Ordinance) to the local official empowered to receive notifications of divorces under the Ordinance, with a copy of the covering letter to her ex-husband. Section 7 of the Ordinance, which specifically deals with divorces effected by the husband’s unilateral pronouncement of talaq, has been discussed above. Section 8 of the Ordinance applies the same procedural requirements (mutatis mutandis) to other forms of divorce,[27] including divorce by mutual consent (the extra-judicial khul; see below). The wording of section 8 of the Muslim Family Laws Ordinance clearly would encompass a judicial divorce decreed on the petition of the wife.

More significantly, the Pakistan Family Courts Act, 1964, specifically enacted (section 21):

(1) Nothing in this Act shall be deemed to affect any of the provisions of the Muslim Family laws Ordinance, 1961, or the rules framed there under; and the provisions of sections 7, 8, 9, and 10 of the said Ordinance shall be applicable to any decree for the dissolution of marriage solemnized under the Muslim Law, maintenance or dower, by a Family Court.

(2) Where a Family Court passes a decree for the dissolution of a marriage solemnized under Muslim Law,[28] the Court shall send by registered post, within seven days of passing such a decree, a certified copy of the same to the appropriate Chairman [i.e., a local government official] referred to in section 7 of the Muslim Family Laws Ordinance, 1961, and upon receipt of such copy, the Chairman shall proceed as if he had received an intimidation of Talaq required to be given under the said Ordinance.

(3) Notwithstanding anything to the contrary contained in any other law, a decree for dissolution of a marriage solemnized under Muslim Law shall—(a) not be effective until the expiration of ninety days from the day on which a copy thereof has been sent under subsection (2) to the Chairman; and (b) be of no effect if within the period specified in clause (a) a reconciliation has been effected between the parties in accordance with the provisions of the Muslim Family Laws Ordinance, 1961. Thus a judicial decree of divorce obtained by a Muslim woman in Pakistan is, in effect, a decree nisi, and becomes a decree absolute ninety days after notice of the decree has been delivered to the requisite local official, unless the parties become reconciled during this period. The only way the husband can prevent the decree from becoming final is by persuading his wife to a reconciliation; he has no power of veto and cannot impose ‘conditions’ or require his wife to ‘purchase’ his acquiescence to the decree.

The Muslim Family Laws Ordinance states that its provisions apply to “all Muslim citizens of Pakistan, wherever they may be;” it thus applies to the woman’s ex-husband (a Pakistani national). Notice of a divorce under section 8 of the Ordinance may be given by either spouse;[29] in the case of a judicial divorce obtained by the wife, it would primarily be her responsibility to ensure that notice was appropriately given.[30] There are no grounds for contending that a non-Pakistani woman who had been married to a Pakistani national and whose marriage had been dissolved by judicial proceedings outside of Pakistan could not give notice under section 8; and no grounds for contending that such notice (failing reconciliation of the parties within the statutory ninety days), would not lead to effective registration of the divorce in Pakistan.[31]

As far as Bahrain or any other state wherein Muslim law is applicable in matters of personal status to nationals and domiciliaries of that state, a foreign Muslim husband would not be permitted to invoke the domestic law to override a divorce obtained by his foreign wife in a foreign country. The rules of private international law would surely be held to govern the question of the matrimonial status of two foreigners who were neither nationals of or domiciled in (e.g.) Bahrain, whose marriage had not taken place in Bahrain, and who had been divorced in England.

The matter would be determined by reference to the country or countries of domicile or nationality of the individuals involved. The woman is domiciled in England and a national of the United Kingdom; according to the law of her nationality and domicile, she is divorced. The ex-husband is a national of and domiciled in Pakistan; if the divorce had been notified under section 8 of the Muslim Family Laws Ordinance, by the law of his nationality and domicile, he is divorced.

The Position of the Sharia Council

The woman approached the Sharia Council in London in August 1992 (by which time she had already obtained a decree absolute), requesting that this body arrange an ‘Islamic’ divorce for her.

The Sharia Council is a self-constituted body, founded in 1982[32] and claiming to have branches in London, Birmingham, Manchester, Bradford, and Glasgow. It has, of course, no legal status in England; it has no legal status under Pakistani, Bangladeshi, or Indian law (the vast majority of British Muslims are of South Asian descent). The Constitution of the Council sets forth among its objects, inter alia, the following:

To advance the Islamic Religion in particular by… Establishing a bench to operate as a court of Islamic Sharia and make decisions on matters of Muslim family law referred to it.

To educate the public generally in the field of Muslim family law and to foster and disseminate information in that field.

Literature put out by the Sharia Council claims that ninety-five percent of all the queries referred to them concern “matrimonial problems faced by Muslims in this country,”[33] and the majority of these “come from women who are seeking a divorce from their husbands;” “[i]t is usually Muslim women who are seeking an Islamic divorce from their husbands who turn to us.” “Even a number of cases are referred to us through the solicitors who were able to obtain civil divorces for their client but they had to turn to us to obtain an Islamic divorce.”

The matter is not merely that the Sharia Council does not recognize the ‘civil divorce;’ the premise appears to be that a couple may be simultaneously married to each other under two sets of legal regimes, and that each marriage must be individually dissolved. As the Muslims normally conduct their marriages both Islamically (known as Nikah ceremony which is accomplished through an Imam at any Mosque or Islamic Centre), and by registering with the civil authorities,[34] this Council deals only with the Islamic Nikah. It has nothing to do with the civil marriage which is dissolved by the British Courts and not by us.

If the marriage ceremonies took place in the order in which they are mentioned in this extract, it might be possible to argue that from the perspective of Muslim law, it was the nikah ceremony which was relevant and the civil ceremony was totally superfluous. However, the ceremonies do not and cannot take place in that order, because the nikah (if it were to occur first) would almost certainly be in violation of the Marriage Acts—not because it was a Muslim ceremony but because it would almost certainly have taken place in an ‘unregistered building.’[35] It is because the venue of the nikah is an unregistered building where a marriage ceremony cannot be legally performed and because the act of purporting to solemnize a marriage in an unregistered building is a criminal offense, that the civil ceremony precedes the nikah; the nikah then becomes merely a ceremony of religious celebration and blessing, legally without significance in either English or Muslim law as far as the status of the parties is concerned: a man can no more marry a woman to whom he is already married in Muslim law than he can in English law.

However, the civil ceremony, which routinely precedes the nikah ceremony, is not irrelevant in Muslim law. The legal requirements for solemnization of a marriage according to Muslim law consist merely of offer and acceptance of the contract of marriage at the same meeting and in the presence of witnesses. These requirements are fully satisfied by the civil marriage ceremony.

This very important point was underscored by the 1967 decision of the Pakistan Supreme Court in Jatoi v. Jatoi.[36] The question here was what law of divorce would govern the dissolution in Pakistan of a civil marriage solemnized in an English registry office between a Pakistani Muslim man and a Spanish Christian woman. Since marriage and divorced in Pakistan are governed by religious-based communal laws, a choice had to be made between the (Christian) Divorce Act, 1869, and Muslim law.

The Supreme Court held that the solemnization of the marriage under the U.K. Marriage Act, involving as it did formal consent to the marriage on behalf of each party at the same meeting in the presence of witnesses, fully conformed to the legal requirements for solemnization of a marriage under Muslim law. The marriage having been “assimilated to the position of a Muslim marriage,” the majority went on to hold that the marriage could be and had been dissolved by the husband’s pronouncement of talaq. Since the registry office ceremony constitutes a valid solemnization of the marriage in Muslim law, the subsequent nikah ceremony, rather than producing a second matrimonial tie totally separate and distinct from that created by the civil ceremony, is irrelevant in Muslim law as far as the status of the parties is concerned (note again that in Muslim law, no less than in English law, one cannot marry someone to whom one is already married).

The Muslim nikah is undoubtedly of social and cultural significance; it is of legal significance primarily in regard to the specification of the wife’s mahr (dower). (The fact that the parties are already legally man and wife at the time of the nikah ceremony is of no significance in the context of mahr: the amount of dower can be set or modified at any time after the marriage.)

The Islamic Sharia Council in the present case set about arranging a divorce by khul —an extra-judicial divorce agreed with the mutual consent of the parties. A necessary prerequisite for a khul—or any other form of divorce—is that the parties are at the time actually married to each other. This prerequisite fails in the present case; thus reliance on the khul, or upon any alleged terms of the khul agreement, likewise fails. A concomitant of a divorce by khul is that the woman ‘purchases’ her freedom by making concessions in favor of her husband in order to secure his consent to the divorce.[37] Usually the Muslim wife surrenders her right to the dower (mahr) pledged by the husband and payable on dissolution of the marriage by death or divorce.

However, as observed by Leo Abse, M.P., in his speech to the House of Commons, children are sometimes made the currency of the barter: According to orthodox Jewish or Islamic law,[38] in order to remarry, the divorced parties must be in possession of a religious divorce—a gett as it is called within the orthodox Jewish religion, a talaq for the committed Moslem. The obtaining of such religious decrees requires an initiative from the husband…

Unfortunately, one partner—usually the husband—can brutally manipulate the passionate wish of the other party to be free after a civil divorce to remarry according to the religious law…[39] Therefore the protection that our civil law provides for maintenance and the custody of children can be subverted by a ruthless partner. The partner—usually the husband—blackmails the wife. The price for taking the necessary initiative [for the obtaining of a ‘religious’ divorce] is an agreed settlement and arrangement relating to children. It might be a settlement which, if the issues were adjudicated upon openly in court, would according to the principles which this House had laid down in our civil law, be far different from that to which the hapless wife has been compelled to submit.[40]

The literature produced by the Sharia Council states that a divorce decreed by the English Court will only be recognized ‘Islamically’ if the husband is the petitioner or if the husband consents to the divorce in writing. In any other case the wife who wishes to be divorced ‘Islamically’ must apply for an ‘Islamic divorce’ through the Sharia Council. An application for divorce by the wife is known as Khula, a condition of which is that the wife must return to the husband any mahr (dower) or jewellery she received from him, if he so demands it.

The procedure for the granting of an ‘Islamic’ divorce to a woman applicant as set out in the Council’s literature may be summarized as follows. Upon receipt of the application, the Council will attempt to correspond with the husband (or, as will most commonly be the case, ex-husband) in order to ascertain his response to his wife’s (or ex-wife’s) application. If no reply is received, a second letter is sent; and, if there is still no response, a third. If a reply is received and if the husband (or ex-husband) has imposed any conditions upon the granting of an ‘Islamic’ divorce to his wife (or ex-wife), she is required to comply with them “provided that these conditions are reasonable.”

Apparently the Council is the judge of the reasonableness or otherwise of the pre-conditions. What is particularly interesting is that the Shariah Council apparently claims jurisdiction to grant a khul to the wife if the husband fails to reply to their communications, or in certain circumstances if the husband refuses his cooperation or consent—i.e., claims the right to impose a divorce by khul on the husband in ex parte proceedings and/or without his consent, although the ‘price’ of the khul is the woman’s renouncement of claims for mahr, repayment of any mahr already paid, and return of any jewellery etc. presented to her by her husband.

The first part of this proposition reflects the Maliki view of khul, assuming that the Council is functioning in the role of the ‘arbiters’ supposedly appointed by the spouses. (The Hanafi view is that the arbiters can only attempt to reconcile the spouses and have no authority to dissolve the marriage unless the husband has specifically empowered them to pronounce talaq on his behalf.)

The second part of the proposition, however, departs from Maliki law to the disadvantage of the woman, for the Maliki arbiters would not automatically impose reparations upon the woman, and certainly would not automatically deprive her of her entire mahr. Having made a determination that the marriage should be dissolved, the Maliki arbiters would attempt to allocate blame for the discord and may award the wife all, some, or none of her mahr.

Particularly since women who approach the Sharia Council for a divorce have already obtained a divorce decree from the English Court, a procedure which requires that they prove grounds which are very comparable to those available to Muslim women in South Asia under the Dissolution of Muslim Marriages Act, the rather heavy handed attitude toward Muslim women urgently needs to be reconsidered. The other problem, demonstrated by the case I have recently been involved in, is that the Sharia Council has no effective sanctions which can be invoked to ensure that the (ex) husband abides by his agreement and fulfils his responsibilities and undertakings. The khul in this case was granted on the (ex) wife’s refund of her mahr and her commitment to allow her ex-husband access to the child of the marriage in accordance with prior arrangements made through the Sharia Council. The (ex) husband was also to return the jewellery given to the (ex) wife by her parents and other relatives. The (ex) wife refunded her mahr, but the husband did not return the wife’s jewellery. And the Council was equally powerless to hold the (ex) husband to orderly arrangements concerning access to the child.

However, there is a powerful sanction available for use against the wife—the threat that without an ‘Islamic’ divorce, she is not free ever to marry again according to Muslim law. While remarriage may be the very last thing on the mind of a woman in the process of extricating herself from an unhappy and traumatic matrimonial situation, the fact remains that she may some years hence wish to consider remarriage. By that time she may well have lost all contact with her ex-husband and have no idea where he is or how to get in touch with him. If she believes (or is induced to believe) that her first marriage had not been effectively dissolved, she would obviously be in a difficult situation. Better, it might seem, to sever the bond ‘Islamically’ as well as civilly, at once, through the Sharia Council. The granting of an ‘Islamic divorce.’ states the Council’s publication, produces “[a] great sigh of relief for the wife who feels really she is Islamically free to start a new life.”

Concluding remarks

The immediate need is for moderate and educated Muslims to interest themselves in the question of Muslim law in a non-Muslim environment. It is surely unacceptable that Muslim women in a country like England should be forced, by ignorance and social pressure, to subject themselves to an interpretation of Islamic law that is harsher than that to which women in South Asia[41] are subjected. The matter is too urgent to be left to self-appointed committees of ulema.

A matter to be kept prominently in mind is that, as a leading Muslim scholar in India has written, “The true Islamic law in fact stood for what is now known as the ‘breakdown’ theory of divorce.”[42] More than a quarter of a century earlier, a distinguished Muslim jurist, Chief Justice Tyabji of Sind, explained the Dissolution of Muslim Marriages Act in the following terms: From the earliest times Muslim wives have been held to be entitled to a dissolution when it was clearly shown that the parties could not live ‘within the limits of Allah,’ when: instead of the marriage being a reality, a suspension of the marriage had in fact occurred, or when the continuance of the marriage involved injury to the wife… The grounds stated in section 2 of Act 8 of 1939 in sub-clauses (1) to (iv) are based on the principle that a suspension of the marriage had occurred which justified dissolution, and in sub-clauses (v) to (viii) on the principle that continuance of the marriage in those cases would be injurious to the wife.[43] In this case the learned Judge granted the petitioning wife a divorce on the ground that the husband had failed to maintain her for the statutory period of two years, although during this period the wife was living apart from her husband without legal ground (i.e., was herself in desertion and un-entitled to claim maintenance from her husband unless she rejoined him in the matrimonial home) on the basis that such separate living and failure of the parties to reconcile their differences demonstrated the total breakdown of the marriage. Marriage in Islam not being a sacrament, the Judge found no merit in preserving a marriage which had broken down and equally no desecration in dissolving a marriage which had failed.

What the Muslim woman petitioning for divorce in the English Court must prove is that the marriage has “broken down irretrievably.” And she must establish this breakdown by proving one of the following facts:

(i) adultery coupled with the further circumstances that she finds it impossible to live with the respondent;

(ii) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(iii) desertion for two years;

(iv) separation for two years when both spouses agree to a divorce; or

(v) separation for five years.

This is perhaps a more limited list than that available to the Muslim wife in South Asia under the Dissolution of Muslim Marriages Act, although the entries under section 2 (viii) would constitute the kind of behavior referred to by the shorthand expression ‘unreasonable behavior’ in the context of the English statute.

The immediate point is to emphasize how closely analogous are the grounds upon which a Muslim woman might obtain a divorce from the English Court and those upon which her sister may obtain a divorce from the Indian or Pakistan or Bangladeshi Court. A marriage that has broken down, has broken down irrespective of geography. Meanwhile, individual Muslim women who possess the strength of personal character and religious faith[44] to take their own individual stands may push the community in more liberal and humane directions—just as individual South Asian Muslim women who went to the extent of apostatizing (usually temporarily) from Islam in order to shed a husband they could not rid themselves of by less drastic means deserve credit for the passage of the Dissolution of Muslim Marriage Act of 1939.

Acknowledgement: The above paper first appeared in the Journal of Muslim Minority Affairs, Vol 17, No. 1, 1997, pp. 97-115 and is reproduced with permission herewith.

We would like to extend our thanks to the author.

Journal of Muslim Minority Affairs
Carfax Publishing Company
PO Box 25, Abingdon
Oxfordshire OX14 3UE, U. K.

FOOTNOTES

[1] Note that before the changes under discussion, spouses domiciled in England who had been married in England (in a registry office or in a Muslim ceremony in one of the few mosques registered as places where marriages can be solemnized) or in monogamous rites abroad (e.g., under the Indian Special Marriage Act, 1954) could approach the English Courts for matrimonial relief.

[2] See Lucy Carroll, “Recognition of Polygamous Marriages in English Matrimonial Law: The Statutory Reversal of Hyde v. Hyde in 1972,” Journal: Institute of Muslim Minority Affairs, 5 (1984): 81-98.

[3] (1983) Family 26. See Lucy Carroll. “Definition of a ‘Potentially Polygamous’ Marriage in English Law: A Dramatic Decision from the Court of Appeal (Hussain v. Hussain),” Islamic and Comparative Law Quarterly, 4(1984): 61-71.

[4] The distinction between foreign divorces “obtained by means of judicial or other proceedings” and foreign divorces obtained without the necessity of any ‘proceedings’ is important in English law. The Pakistani talaq has been held to fall in the former category, while the ‘bare’ or ‘classical’ talaq (such as the Indian talaq) has been held to fall in the latter category.

[5] The Ordinance also introduced some restrictions on polygamy; required registration of Muslim marriages; raised the marriage age for girls from fourteen to sixteen years; provided an expeditious alternative to proceedings in the magistrate’s court for the wife who sought maintenance from her husband; and protected the rights of succession of the ‘orphaned’ grandchild.

[6] Or, more accurately, the actions covered by the first three entries in the list; it is difficult to characterize the waiting period of ninety days as a procedure.

[7] See Quazi v. Quazi, (1980) AC 744; ex parte Fatima, (1984) 2 All ER 458; Chaudhary v. Chaudhary, (1984) 3 All ER 1025.See also Lucy Carroll—(1) “The Pakistani Talaq in English Law: Ex Parte Minhas and Quazi v. Quazi,” Islamic and Comparative Law Quarterly, 2(1982): 17-37; (2) “Recognition of Foreign Divorces—Chaudhary and Fatima in the Court of Appeal: A Conflict?” Journal of Social Welfare Law, 1985:151-155; (3) “A ‘Bare’ Talaq is not a Divorce Obtained by ‘Other Proceedings’: Chaudhary v. Chaudhary,” Law Quarterly Review, 101(1985): 170-175; (4) “A Talaq Pronounced in England is not an ‘Overseas Divorce’: ex parte Fatima,” Law Quarterly Review, 101(1985): 175-179; (5) “Talaq in English Law: ‘Procedural’ Talaqs, ‘Bare’ Talaqs, and Policy Considerations in the Recognition of Extra-Judicial Divorces,” Journal of the Indian Law Institute, 28(1986): 14-35; and (6) “The U.K. Family Law Act, 1986: Recognition of Extra-Judicial Divorce in England,” Journal of the Indian Law Institute, 31(1989): 154-176.

[8] See Qureshi v. Qureshi, (1971) 1 All ER 325. In view of the provisions of section 16(1) of the Domicile and Matrimonial Proceedings Act, 1973, this decision does not apply to extra-judicial divorces effected after 1 January 1974.

[9] This provision was specifically intended to reverse by statute the decision in Qureshi v. Qureshi. See now section 44(2) of the Family Law Act, 1986.

[10] Now see section 46(2)(c) of the Family Law Act, 1986, which raises the bar to recognition if one spouse (rather than both spouses) were habitually resident in the U.K. for a year prior to the institution of the divorce proceedings.

[11] Sections 2 to 5 of the 1971 Act; see now section 46(1) of the Family Law Act, 1986.

[12] E.g., recognition was not automatically barred if one (or indeed, both) spouses were domiciled in England, or if both had been habitually resident there for a year prior to the divorce. To constitute a foreign divorce, of course, the talaq had to be executed abroad; no extra-judicial dissolution of marriage may take place within the jurisdiction of the English Court.

[13] Section 6 of the 1971 statute; the 1973 statute (section 2) substituted a revised section 6 in the earlier Act. See now section 46(2) of the Family Law Act, 1986.

[14] (1) Viswalingam v. Viswalingam; the case is reported in full (High Court and Court of Appeal) in Malayan Law Journal, 1980:10. See Lucy Carroll, “A Question of Fact: Ascertainment of Asian Law by the English Court. A Critique of Viswalingam v. Viswalingam,” Malayan Law Review, 22(1980): 34-65.

(2) Chaudhary v. Chaudhary, (1984) 3 All ER 1025. See Lucy Carroll, “A ‘Bare’ Talaq is not a Divorce Obtained by ‘Other Proceedings’: Chaudhary v. Chaudhary,” Law Quarterly Review, 101(1985): 170-175.

[15] But note surah II ayat 214:—“For divorced women maintenance [or provision] should be provided on a reasonable scale. This is a duty on the righteous.” (Yusuf Ali, trans.) The Shafi'is take this verse seriously; other Sunni schools adopt an interpretation which confers no protection on the woman and imposes no responsibilities on the man. Note, however, the recent dramatic decision of the Dhaka High Court in Muhammad Hefzur Rahman v. Shamsun Nahar Begum, 47 (1995) Dhaka Law Reports 54. See Lucy Carroll, “Divorced Muslim Women in India: Shah Bano, the Muslim Women Act, and the Significance of the Bangladesh Decision,” in Women Living Under Muslim Law, Talaq-i-Tafwid: The Muslim Woman’s Contractual Access to Divorce. An Information Kit, forthcoming.

[16] It needs to be noted, however, that this statute did nothing whatsoever to deal with the major evidential problem which foreign extra-judicial divorces present to the English Courts. This problem, as so vividly demonstrated in Viswalingam, concerns the lack of competent and informed ‘expert’ evidence on foreign legal systems and the consequent difficulties the Court faces in attempting to ascertain whether the alleged action or event or happening actually brought the marriage to an end under the relevant foreign law. Before granting an order for financial relief under the 1984 statute, the English Court will still have to reach a determination as to whether or not there has been a dissolution of the marriage by means of a ‘foreign divorce’ valid in the relevant foreign jurisdiction and entitled to recognition under English law.

[17] According to the individual claiming credit for suggesting the amendment (the then lecturer in Muslim law at Cambridge University and subsequently dean of the faculty of law at East Anglia University), the proposed amendment was modeled on a New York State statute applicable to New York Jews. (David Pearl, Cambridge Law Journal, 1984, pp. 249-250.) This is, of course, totally irrelevant to the question of whether it should be part of English law applicable to Muslims in England. Indeed, the Muslim law of divorce and the Jewish law of divorce are so different that any proposition which assumes the two systems are analogous is prima facie open to serious question. E.g., the only ground which Jewish law recognizes for dissolution of marriage, and the only ground on which a gett can be procured, is the mutual agreement of the spouses. While Muslim law recognizes divorce by mutual consent (khul), it also recognizes divorce at the instance of either spouse in the face of the opposition and resistance of the other spouse.

[18] The proposed amendment read as follows (Hansard 13 June 1984, col. 926): 9A.--(1) Where a petition for divorce or nullity of marriage has been presented to the court, either party to the marriage may apply to the court at any time before decree absolute opposing the grant of the decree absolute on the ground that there exists a barrier to the religious remarriage of the applicant which is within the power of the other party to remove.

(2) The Court shall not entertain an application under subsection (1) hereof unless the applicant satisfies the court of the existence of such a barrier by means of a written declaration by the religious authority which authorised or sanctioned the marriage being dissolved by the court, or which authorised or sanctioned a religious ceremony of marriage between the same parties or on proof that such authority no longer exists, by a religious authority recognised by both parties to be competent.

(3) If the court is satisfied as to the existence of such a barrier then subject to the provisions of subsection (4) hereof the court shall refuse to permit the decree to be made absolute until it is satisfied by means of a written declaration by the authority referred to in subsection (2) hereof that the said barrier has been removed or that the parties have taken all such steps within their power to remove the said barrier or until the said application is withdrawn by the applicant.

(4) Notwithstanding the provisions of subsection (3) hereof the court may order that the decree may be made absolute if there are exceptional circumstances making it desirable for the decree to be made absolute without delay.

Even assuming that the husband’s action in securing a ‘religious divorce’ were necessary in order for the requirements of Muslim law to be satisfied, I entirely fail to see how the proposed clause would solve the problem it purportedly attempted to address. In the five examples proffered by Mr. Thurnham, M.P. in his speech in the House of Commons (see extract quoted in text), it was apparently the respondent husband who was purporting to refuse the ‘religious divorce.’ Unless he is domiciled in England and anxious to remarry, delaying the decree absolute will not affect him adversely and may well benefit him (e.g., as long as the marriage is not dissolved, he will not become liable for payment of the deferred dower).

[19] Peter Thurnham, M.P., Hansard, 13 June 1984, cols. 928-929.

[20] See Lucy Carroll, “Muslim Women and Judicial Divorce: An Apparently Misunderstood Aspect of Muslim Law,” Islamic and Comparative Law Quarterly, 5(1985): 226-245. This article was based on a long statement which I submitted to the Solicitor General, the Lord Chancellor, and the Law Commission immediately after the discussion in Parliament on the Abse-Thurnham amendment.

[21] It is extremely difficult to comprehend why this statute—so much more relevant to the situation than a New York State statute applicable to New York Jews; see fn. 17 above—was not called to the attention of those advising the women so brutally exploited in the cases referred to by Peter Thurnham, M.P., in the House of Commons, or to those supporting the suggested amendment.

[22] Gazette of India, 1936, Part V, p. 154; as quoted and cited by Tahir Mahmood, Muslim Personal Law: The Role of the State in the Subcontinent. Nagpur, India: All India Reporter, 1983 (2nd edn.), pp. 47-48.

[23] See Lucy Carroll, “Muslim Family Law in South Asia: The Right to Avoid an Arranged Marriage Contracted During Minority,” Journal of the Indian Law Institute, 23 (1981): 149-180.

[24] A Jewish woman who has obtained a judicial divorce from the civil Court exercising matrimonial jurisdiction in the matter of divorce, but who has been denied a gett by her husband and thus retains the status of ‘married woman’ in orthodox Jewish law.

[25] See article cited in fn. 20 above.

[26] Ibid.

[27]  “8. Dissolution of marriage otherwise than by talaq.—Where the right to divorce has been duly delegated to the wife [talaq-i-tafwid] and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq, the provisions of section 7 shall, mutatis mutandis and so far as applicable apply.” (Emphasis added.)

[28] Solemnization of a marriage “under Muslim law” need not be concluded by or in the presence of a religious functionary or representative; it need not involve any religious rites or ceremonies. The legal requirements for solemnization of a marriage according to Muslim law consist merely of offer and acceptance of the contract of marriage at the same meeting and in the presence of witnesses. See further below.

[29] The husband pronouncing a talaq must himself give notice under section 7. The corollary is that his failure to give notice conclusively evidences the fact that he retracted or revoked the pronouncement. The forms of divorce covered by section 8 normally occur at the initiative of the wife or through the agreement of the spouses; there is no requirement that notification of the divorce effected “otherwise than by talaq” be given by the husband. (A judicial divorce obtained by a Muslim husband in a jurisdiction, or under circumstances where extrajudicial divorce by talaq would not be recognized would also come under section 8; theoretically notice could be given by the wife no less than by the husband, once the decree were final.)

[30] This is particularly the case in the province of the Punjab (where the parties to the present case resided together during the marriage; and where the ex-husband is apparently still domiciled), because in 1971 the provincial government deleted subsections (2) and (3) and part of subsection (1) of section 21 of the Family Courts Act. As applicable in the Punjab, section 21 therefore reads simply:—“Nothing in this Act shall be deemed to affect any of the previsions of the Muslim Family Laws Ordinance, 1961, or the rules made thereunder.

Interpreting the effect of the provincial amendments, the Lahore High Court in 1975 (Muhammad Ishaque v. Ch. Ahsan Ahmad, PLD 1975 Lahore 1118) concluded:—“The Family Courts would thus continue to follow the practice of sending a copy of the decree to the Chairman concerned but at the same time it is also necessary for the wife in whose favour the decree is passed, to independently inform the Chairman about the decree as also to send a notice thereof to the husband in a formal manner.

[31] I am fortified in making this statement by conversations and communications with members of the superior judiciary in Pakistan (including an individual at the time a judge of the Supreme Court) and with senior advocates in Pakistan in the period immediately after the Abse-Thurnham amendment had been proposed in the House of Commons and with specific reference to that amendment.

[32] At a time when it was clear that legislation would soon be enacted (as it was two years later) which would make it impossible for a Muslim husband to absolve himself of any financial responsibility for the wife who had filed for divorce in the English Court by hastily effecting a talaq abroad, thereby depriving the English Court of jurisdiction to dissolve the marriage (because, assuming the talaq were entitled to recognition in English law, the parties were no longer husband and wife) and, consequently, of jurisdiction to order a financial settlement in favor of the wife (because, prior to the legislation of 1984, this jurisdiction only arose if the English Court itself dissolved the marriage). See now Part III of the Matrimonial and Family Proceedings Act, 1984.

[33] The Council claims to have dealt with more than 950 matters in the period (apparently) 1982-1991; a more recent (but undated) document puts the number at more than 1150.

[34] The reference is to a marriage ceremony in a registry office.

[35] English law requires that marriages be solemnized in a registered building. The main complication this poses for members of the Muslim and Hindu communities is that a building can only be registered for the solemnization of marriages if it is used exclusively for religious services. Many mosques and temples are used for purposes (e.g., accommodation of the religious leader and his family) other than a venue where religious services are conducted.

[36] PLD 1967 Supreme Court 580.

[37] The khul is usually concluded by the husband’s pronouncement of talaq, although in Hanafi law such a pronouncement is not strictly required. In essence, the wife is ‘buying’ her husband’s pronouncement of talaq by agreeing to the ‘price’ (in monetary or other terms) which he demands. The bargain necessarily fails if the alleged husband has no authority to pronounce talaq in reference to the woman in question—which, of course, he does not if he is no longer married to her. According to some Muslim jurists, the bargain cannot be enforced against the woman who, although she had grounds for judicial divorce, agreed to a divorce by khul and payment by her of compensation out of ignorance, as a result of pressure, or to preserve her modesty and her family’s honor (by refraining from airing private matters in a public forum). That the woman in the present case had grounds for judicial divorce is proved by the fact that she had, even at the time of her approach to the Shariah Council, a decree absolute in her hands.

[38] Note again the assumption that Jewish law and Muslim law are analogous and the Muslim woman whose husband has not pronounced a talaq is in the same position as the Jewish woman whose husband refuses her a gett.

[39] In orthodox Jewish law, the only recognized form of divorce is the consensual gett; the husband has to give, and the wife has to accept, the gett. In the absence of a gett, an orthodox Jewish woman cannot remarry.

The Muslim woman, it must be stressed, is not in a position analogous to the Jewish agunah. While Muslim law recognizes divorce by mutual consent (the khul), it also recognizes unilateral divorce by the husband (talaq) or by the wife (faksh). Of course, the woman is disadvantageously placed in that while the husband can execute his unilateral talaq extra-judicially, she has to claim her right of unilateral dissolution through the Courts.

[40] Hansard, 13 June 1984, cols. 926-927; emphasis added.

[41] To which geographical region the overwhelming majority of Muslims in Britain trace their origin.

[42] Tahir Mahmood, The Muslim Law of India. Allahabad: Law Book Co., 1980, p. 95.

[43] Hajra v. Kassim, unreported; passage in the text was quoted by the same judge in Noor Bibi v. Pir Bux, AIR 1950 Sind 8, p. 10.

[44] The woman I most recently advised asserted with considerable feeling, after more than two years of attempting to work matters out through the good offices of the Sharia Council, “If this is Islam, then I am not a Muslim! But I know that it is not Islam; I refuse to accept that it is Islam.