This section includes the following sections: – Forced Marriage – Divorce (Sunni, Shia, Khula) – After Divorce, and Other Points – Domestic Violence law – Child Custody – How to Find A Lawyer

 

Forced Marriage & the Law

Islam teaches that consent from both man and woman is a must before a marriage can take place. The Qur’an states “O you who have believed, it is not lawful for you to inherit women by compulsion…” (4:19). The Sahih al-Bukhari, one of the most revered sources of hadith (Islamic practice) amongst Islamic scholars, reports the Prophet Muhammed (Peace Be Upon Him) as saying: “The widow and the divorced woman shall not be married until her order is obtained, and the virgin girl shall not be married until her permission is obtained.” (Bukhari, 67:42). The next chapter of the Sahih al-Bukhari states: “When a man gives his daughter in marriage and she dislikes it, the marriage shall be repudiated” (Bukhari, 67:43), with further hadith providing examples of the Prophet Muhammed (Peace Be Upon Him) cancelling such marriages in which the daughter’s consent was not sought.

Therefore, a forced marriage is not an issue of religion, but it is a cultural practice that violates your right as a woman and as a Muslim. The act of forcing someone to marry is in fact an act that is against the practices and teachings of Islam.

Allah Almighty said in the Noble Quran:  “O ye who believe! Ye are forbidden to inherit women against their will. Nor should ye treat them with harshness, that ye may take away part of the dower [money given by the husband to the wife for the marriage contract] ye have given them, except where they have been guilty of open lewdness; on the contrary live with them on a footing of kindness and equity. If ye take a dislike to them it may be that ye dislike a thing, and God brings about through it a great deal of good.  (The Noble Quran, 4:19)”

The following Saying is an explanation to Noble Verse 4:19:

Narrated Abdullah ibn Abbas: ”About the Qur’anic verse: ‘It is not lawful for you forcibly to inherit the woman (of your deceased kinsmen), nor (that) ye should put constraint upon them.‘ When a man died, his relatives had more right to his wife then her own guardian. If any one of them wanted to marry her, he did so; or they married her (to some other person), and if they did not want to marry her, they did so. So this verse was revealed about the matter.  (Translation of Sunan Abu-Dawud, Marriage (Kitab Al-Nikah), Book 11, Number 2084)”  So according to Noble Verse 4:19, a woman can not be forced into marriage by any mean.

Narrated AbuHurayrah: ”The Prophet (peace_be_upon_him) said: An orphan virgin girl should be consulted about herself; if she says nothing that indicates her permission, but if she refuses, the authority of the guardian cannot be exercised against her will.  (Translation of Sunan Abu-Dawud, Marriage (Kitab Al-Nikah), Book 11, Number 2088)”

Narrated Abdullah ibn Umar: ”The Prophet (peace_be_upon_him) said: Consult women about (the marriage of) their daughters.  (Translation of Sunan Abu-Dawud, Marriage (Kitab Al-Nikah), Book 11, Number 2090)”

Narrated Abdullah ibn Abbas: ”A virgin came to the Prophet (peace_be_upon_him) and mentioned that her father had married her against her will, so the Prophet (peace_be_upon_him) allowed her to exercise her choice.  (Translation of Sunan Abu-Dawud, Marriage (Kitab Al-Nikah), Book 11, Number 2091)”

Narrated Abdullah ibn Abbas: ”The Prophet (peace_be_upon_him) said: A guardian has no concern with a woman previously married and has no husband, and an orphan girl (i.e. virgin) must be consulted, her silence being her acceptance.  (Translation of Sunan Abu-Dawud, Marriage (Kitab Al-Nikah), Book 11, Number 2095)”

The above Noble Verse 4:19 and the Sayings of our beloved Prophet Muhammad peace be upon him clearly explain that according to Islam, whether the woman is virgin or not, her permission is a MUST.   Her father or older brother can not force her into marriage as the Pagan Arabs and the Jews and Christians before Islam in the Middle East used to do; see Deuteronomy 25:5 in the Bible to see how women are forced into marriage.

Unlike secular law, marriage within the ambit of Islam is not only a civil contract but a religious and spiritual contract between two people – which must be entered into freely and with mutual consent. According to Islamic custom, parents and guardians have specific rights in this matter; to arrange the marriage ceremony and conduct it as a respectful family event; give their advice and recommendation for a life partner for their children. These rights are encapsulated within the philosophy of ‘willayah’. However, Islam does not allow parents, guardians or other relatives to enforce their will or choice on a boy or a girl since it is they who are the real parties to that contract. The right to exercise free will and consent in choosing a spouse is a God given right. This is also clearly evident from important commandments given by the Holy Prophet (PBUH) in numerous Hadith, which lay down the foundational principles of formulating a marriage contract. In the Sahih Al-Bukhari, for example, a chapter in the book of marriage has been given the heading: “No father or mother or any close relation can force his/her children to marry any one against their free will and consent”

Within this chapter Abu Hurairah transmits from the Holy Prophet (PBUH) who said: “No female whether a widow or divorcee will be forced to marry any one unless her express and categorical consent has been freely taken and in the same way a woman not previously married can never be forced to marry anyone unless her free consent and permission is taken”

Imam Bukhari has set another chapter heading within the book of marriage: “If parents force their daughter to marry someone against her wish then the marriage will be void”.

Under this chapter Imam Bukhari reports a Hadith of the Holy Prophet (PBUH) from Khansa Bint e Hizam Al Ansariyah. She states that her father married her off to someone forcefully whom she did not like. She took her case to the Holy Prophet (PBUH) and upon listening to her; the Holy Prophet (PBUH) rejected the marriage and declared the marriage as void”.

In another Hadith in the Sahih of Imam Bukhari it is narrated by Abdullah Ibn Abbas (r.a.d) that the Holy Prophet (PBUH) said that if a woman wants to marry and is already a divorcee or widow, her right of free consent and free choice is superior then the right of her guardian. If she is not previously married and this is her first marriage even then her parents or other guardians cannot enforce their choice on her. They are not allowed to force her to marry any one against her free choice and free consent.

It is thus clearly apparent that forced marriages are totally unacceptable in Islam. Islamic commandments as mentioned above are very categorical in nature. Those who invoke Islam in order to justify their actions do so for ulterior motives. There is a need to educate all and sundry on these issues. In most of the cases, forced marriages are the result of monetary gains, local and tribal traditions and caste affiliations. Strict legislation accompanied by media awareness campaign could be helpful in stemming the trend of the forced marriages.

Pakistan – Muslim Family Laws Ordinance 1961 covers all aspects.

Divorce (Sunni, Shia, Khula)
Different Forms of Divorce

According to Islamic Law, the contract of marriage may be terminated in any one of the following ways:

  • The wife approaches a competent court of authority seeking intervention without the consent of the husband.
  • Through a mutual understanding and agreement of the husband and wife without the intervention of a court of law.
  • Through a decree of a competent court of law obtained when both husband and wife approach it.

The wife cannot declare herself divorced of her own and without the consent of the husband, unless an agreement to the effect was reached upon by both parties at the time of signing of the contract of marriage, and was properly mentioned in appropriate legal papers, in this case the Nikahnama. In Islamic terminology, when the husband divorces his wife, the deed is termed “Talaq”; when divorce is obtained through mutual consent of both the parties, it is to be called “Khulaa”; and when a divorce is obtained through intervention of a court of law, it is termed “Mubarrat”.

Divorce by “Talaq” (Divorce by Husband)

As per Islamic Law, any Muslim who has reached the age of maturity and is of a sound state of mind may divorce his wife without offering any reason.

Muslim Family Laws Ordinance 1961, under its Section 7, delineates a very specific procedure through which divorce is to be obtained, and should the procedure not be followed, the pursuant of such a course of action may be held liable to legal punishment. The procedure is as follows:

(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman* a notice in writing of his having done so, and shall supply a copy thereof to the wife.

(2) Whoever, contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

(3) Save as provided in sub-section (5) talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.

(4) Within thirty days of the receipt of notice under Sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a conciliation between the parties, and the Arbitration Council** shall take all steps necessary to bring about such reconciliation.

(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effect until the period mentioned in Sub-section (3) or the pregnancy, whichever later, ends.

(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under his section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.”

*The term “Chairman” is described by Muslim Family Laws Ordinance 1961, section 2(b) as: “‘Chairman’ means the Chairman of the Union Council or a person appointed by the Central or a Provincial Government, or by an officer authorized in that behalf by any such Government, to discharge the functions of Chairman under this Ordinance

**The term “Arbitration Council” is described by the said ordinance in its section 2(a) as: “‘Arbitration Council’ means a body consisting of the Chairman and representative of each of the parties to a matter deal with in this Ordinance

Divorce may be oral or written

Oral Divorce

Divorce in Writing

No specific words have been specified which may be repeated to effect a divorce. Such words may be employed which are easily comprehensible and clear, and which leave no room for doubt. Intent to divorce is not required by law to be proven if the words are held to be clear (such as, “I divorce you” or “You have today been rendered haram upon me”), however if the words spoken are to be deemed unclear (such as “I shall maintain no contact with you”), then intention to divorce needs to be proven. For everything that has been mentioned here, the presence of the wife, or the husband directly addressing the wife is not held to be necessary. If a man is to say explicitly to his wife that she had been divorced at any given point in time, the divorce is held to have become effective from the time specified by the husband.

According to Shiite school of thought, an oral divorce is the only sort of divorce that is held to be effective, and written divorce is held to be ineffective, unless one of the two parties concerned is unable to speak. A shia man must declare his divorce in Arabic in the presence of both parties, or representatives of both parties. Sunni school of thought accept both oral and written divorce.

Muslim Family Laws Ordinance 1961 specifies three steps which ensure that a divorce is effective: A) That divorce is declared in accordance with Islamic Law (which have previously been looked upon) B) “Chairman” of a Union Council is given notice C) A copy of the notice is also served to the wife. If one or more of the conditions mentioned are not met, divorce does not become effective.

As per Islamic Law, divorce becomes effective from the time of writing of the deed on paper onwards. The text must be easily readable and easily comprehensible, and must be clear and leave no doubt. A written divorce may not be required to be brought to the wife’s notice at all, and would be held to be effective forthwith.

Pakistani law does not accord the “Chairman” of the Arbitration Council the right to issue an order or decree regarding the divorce or to declare it effective or ineffective, as case may be. Also, a husband may directly challenge a divorce order if handed down by a court of law or show cause notice served on him.

Various Modes of Talaq

Talaq-e-Ahsan

Talaq-e-Hasan

Talaq-e-Biddayi

Talaq-e-Rijayi (Revocable Divorce)

Talaq-e-Ahsan is deemed the most “approved form of Talaq” in Islamic Jurisprudence. It is effected by a single declaration of repudiation, during a woman’s “clean period”, and by subsequent abstention from intercourse with her, during her period waiting (Iddat). In this period, however, repudiation is revocable and the husband may resume conjugal relations with his wife. Until the period of waiting has expired, the marriage tie is not dissolved. The husband retains marital authority over the wife, and if during this period either party dies the other may inherit. The right to revoke repudiation before waiting expires exists only in the cases where the marriage has been consummated. Repudiation of a wife with whom the marriage has not been consummated is irrevocable.

Muslim Family Laws Ordinance 1961 prescribes only this mode of Talaq. Previous legislation on the matter had allowed for employment of other modes of Talaq.

This is a less preferred mode of talaq. It is effected by three repudiations in three successive “clean periods”. After the first and the second repudiation the situation is the same as in the “Ahsan” form of divorce, that is, the repudiation is revocable. It becomes absolute when the third repudiation has been pronounced or when the period of iddat (waiting period) has expired without revocation of repudiation.

This mode is considered to be a irrevocable divorce.  It is a form which is not approved or recognized by the Prophet Muhammad (PBUH). It is effected by three repudiations, which may be pronounced at any time and without definite intervals. This may be in the manner of saying “I declare my three Talaqs to you” or declaration of the Talaq may be made three separate times. Although strictly speaking, this method of divorce is regarded sinful, it is nevertheless recognized as effective and produces the same results as “Talaq-e-Hasan”.

During the Talaq-e-Hasan, for so long as the third Talaq is not declared, it remains “Talaq-e-Rijayi”, or revocable divorce. The husband may attempt to reconcile with his wife, and revoke the divorce.

This is to be seen in the context of the following verse: “A divorce (revocable) is only permissible twice: after that the parties should either hold together on equitable terms or separate with kindness. ” [Surah Al Baqara verse 229]

Talaq-e-Baen

Talaq-e-Baen is irrevocable Talaq. It becomes effective once the waiting period in Talaq-e-Ahsan has ended, or when the third Talaq is declared in Talaq-e-Hasan. Once a divorce becomes Talaq-e-Baen, the husband loses conjugal rights on his wife. A written divorce becomes Talaq-e-Baen as soon as it is written.

Kinds of Divorce

Khula

Khulaa is a sort of divorce in which a woman may exercise her right to divorce. If she is to approach her husband, expresses her intention to seek divorce, and repudiates her claim on the Meher (roughly equivalent to dowry; under Islamic Law a husband must offer to his wife a certain amount of money or gold as may be decided upon by both parties at the time a marriage is contracted; the husband is legally bound to pay the Meher and it is deemed one of the perquisites for marriage), and her husband assents, then Khulaa becomes effective.

Illa

If a husband is to swear an oath stating that he will not indulge in sexual intercourse with his wife or would otherwise remain cut off from her, for a period which he determines himself, and which is in excess of four months, then divorce becomes effective. The husband is now liable to Kaffarah (expiation for breaking of a vow) as per Islamic law. The Kaffarah is to feed or clothe ten poor persons, or to free a slave. If the person cannot do any of these things, then he or she must fast for three days.

Mubarat

When husband and wife mutually agree to divorce, it is termed Mubarat. Mubarat, or divorce by mutual consent, is held to be Talaq-e-Baen. The female must complete the waiting period (Iddat) under legal obligation.

Divorce Under Influence

According to Sunni school of thought, if a man under the influence of alcohol, or narcotics, or even under the influence of another person, declares his wife divorce, even when he does not really have the intention for it, the divorce is held to be effective. The Shiite school of thought, however, does not recognize this sort of divorce.

Wife May Be Accorded the Right to Divorce

The husband may accord his wife the right to divorce. The conditions under which a wife may divorce her husband are the husband’s personal discretion, who accords the right. If those conditions are met, a wife has the right to divorce her husband.

In Pakistan, the Nikahnama has a section dedicated to this. However, this section is usually cancelled out when the Nikahnama is being signed. Women are either ignorant of the presence of this section, or are not allowed to ask that it may be filled, and they be accorded the right to divorce.

Contingent Divorce

A “Contingent Divorce” is a sort of divorce in which the husband and wife had agreed previously that if a certain condition is to arise, divorce would become effective by itself, and therefore, if such a condition as laid down (especially by the husband) is to arise, divorce becomes effective of its own and immediately. Sunni schools of thought accept Contingent Divorce, however, Shiite school of thought rejects the concept in its entirety. Sunni scholarship presents the following Quranic verse as supportive of Contingent Divorce:

“This expiation is stated in the Qur’ân as follows: “Allah will not take you to task for that which is unintentional in your oaths, but He will take you to task for the oaths which you swear in earnest. The expiation thereof is the feeding of ten of the needy with the average of that wherewith you feed your own folk, or the clothing of them, or the liberation of a slave, and for him who finds not (the wherewithal to do so) then a three days’ fast. This is the expiation of your oaths when you have sworn; and keep your oaths. Thus Allah expounds unto you His revelations in order that you may give thanks.” [Sûrah al-Mâ’idah: 89] ”

Effect of Apostasy on Marriage: As soon as either the husband or the wife apostatize, and change their religion, marriage is said to be terminated.

Judicial Divorce at Suit of Wife: When Conditions Allow A Woman To Ask for Divorce?

Under the following conditions, under both Islamic and Pakistani law, a woman may file suit for divorce in a competent court of law:

Absence of husband

If a woman’s husband has remained absent or missing for a period of time in excess of four years, she may file a suit for termination of contract of marriage. The decree obtained from a court under such a plea is considered ineffective for six months. If during the six months the husband is to return, and is to prove to the court that he has returned and that all is now well between him and his wife, the court usually terminates its decree to the effect of termination of marriage.

 

Failure to provide maintenance

Here maintenance is to be treated as meaning provision of food, clothes and board. If a husband is unable to provide for his wife’s maintenance for period of time that is in excess of two years, the wife has the right to sue for divorce. The failure may be intentional and purposeful, or unintentional and without purpose (as in the case of abject poverty, or physical inability, etc). If however it is to be proven that the wife has been unfaithful to her husband or has failed to execute her duties as a wife, then her suit for divorce is to be quashed. Simi larly, if the wife is to leave her husband and refuse to return, the suit is held to be not maintainable.

 

Imprisonment of husband

If a husband is to be sentenced to imprisonment for seven years or more, and all his appeals to review the sentencing are quashed, his wife may file suit for divorce.

Failure to perform marital obligations

If a husband is unable to perform his marital obligations for a period of time that is in excess of three years without any justifiable reason, his wife may sue for divorce. Impotence of husband: If a husband was impotent at the time of contracting a marriage, and has remained impotent thereafter, his wife may sue for divorce. A husband may prove to a court of law his potency within a year, to prevent a divorce.

 

Insanity of husband

If a husband has been insane for a period of time that is in excess of two years, his wife may file suit for divorce.

 

Cruelty of husband

If a woman is subjected to cruelty by her husband, she may file suit for divorce. “Cruelty” includes if she is subjected to domestic violence or is otherwise mentally tortured; if her husband maintains company with women or ill repute or spends a life that is otherwise immoral; if her husband forces his wife to lead an unethical or immoral life; sells his wife’s property; if her husband does not allow her to follow her religion (which should be taken to mean the religion of Islam); if her husband has more than one wife, and is found to be partial to one, or unnecessarily unfair to the woman in question; and if her husband falsely alleges that she has indulged in acts of infidelity, thus bringing ill-repute to her name, and then fails to substantiate his claims. According to Hanifi Sunni school of thought, if a woman is a member of the Ahl-e-Kitab (People of the Book; meaning Christians and Jews), or her husband has not yet reached a mature age or is insane, then the question of allegation of infidelity (called “Lua’an”) does not arise. According to Shiite school of thought, the condition of the “Lua’an” (or allegation of infidelity) for divorce is not maintainable if the husband is underage or of unsound mind.

 

Other Points

  1. If marriage was consummated before divorce, a female divorcee must first complete the waiting period of Iddat, which is four months and ten days, before she can re-marry. If however, marriage was not consummated before divorce, the condition of the Iddat is not applicable and the woman may marry as and when she pleases.
  2. If marriage was consummated before divorce, a woman may seek payment of the Meher in full. If marriage was not consummated, she may seek payment of only half of the Meher after divorce.
  3. For so long as a divorce does not reach the stage of being declared Talaq-e-Baen, both parties have right to inheritance to each other’s property. Once a divorce reaches the Talaq-e-Baen stage, both parties lose rights to inheritance on each other’s property.
  4. Once divorce has reached the stage of Talaq-e-Baen, sexual intercourse is disallowed. Any children conceived in this state are to be considered illegitimate.
  5. Halala: Once divorce has reached the stage of Talaq-e-Baen, and a husband and wife pair reconcile and wish to re-enter the bonds of matrimony, the following procedure is to be followed: complete divorce must be effected, the wife must complete her waiting period or Iddat, then marry another male, consummate marriage with him, then if the second male agrees to divorce or dies, she must go through the waiting period or Iddat once more, and then, finally, she may re-marry the original husband.

Pakistan – Divorce and law relating to it are covered under Muslim Family Laws Ordinance 1961

 

Domestic Violence Law

Islam condemns domestic violence. Once a number of women came to the prophet, on whom be peace, to complain that their husbands had beaten them. The prophet announced that men who beat their wives are not good men. The prophet also said: Do not beat the female servants of Allah.

Allah knows that life is not always a bowl of cherries. And so He stipulates that a man must be kind to his wife even if he happens to dislike her (Qur’an 4:19). Allah offers a good reason as to why men should not dislike their wives. Allah says that He has placed much good in women (Qur’an 4:19). In this regard the prophet Muhammad, on whom be peace, said that no believing man should hold a grudge against a believing woman. So what is a husband to do if he dislikes some things about his wife? This is bound to occur, since no human being is perfect. The prophet instructed that men should look for the agreeable traits in their wives rather than focus on their faults. (See Saheeh Muslim, chapter on advice relating to women).

The prophet also advised men that if they wish to benefit from marriage they should accept their wives as they are rather than try to straighten them out and thus end up in divorce. In the following verse of the Qur’an, Allah warns men that if they retain their wives in marriage it should not be to take advantage of them. The verse reads:

Retain them in kindness or release them in kindness. But do not retain them to their hurt so that you transgress (the limits). If anyone does that he wrongs his own soul. Do not take God’s instructions as a jest (Qur’an 2:231).

Once the prophet, on whom be peace, was asked what are the obligations of husbands toward their wives. He replied:

Feed her when you eat, and provide her clothing when you provide yourself. Neither hit her on the face nor use impolite language when addressing her (See Mishkat, chapter on the maintenance of women).

The prophet equated perfect belief with good treatment to one’s wife when he said:

The most perfect believer is one who is the best in courtesy and amiable manners, and the best among you people is one who is most kind and courteous to his wives (see Tirmidhi, chapter on the obligations of a man to his wife).

Finally, the prophet, the best example of conduct said:

The best among you is the one who treats his family best.

Some of the last words of the prophet delivered during the farewell pilgrimage enjoins that men should hold themselves accountable before Allah concerning the question of how they treat their wives. Therefore his advice to all men, is as follows:

You must treat them with all kindness.

Pakistan – Domestic Violence in Pakistan is covered under the Domestic Violence (Prevention and Protection) Act, 2012

 

Child Custody

The Qur’an advises couples accordingly “Take mutual counsel together, according to what is just and reasonable” (65:6).1

In the event of divorce, children often bear the most painful consequences. Islamic law takes their needs into account and makes sure that they are cared for.

The financial support of any children — bot

h during marriage or after divorce — rests solely with the father. This is the children’s right upon their father, and courts have the power to enforce child support payments, if necessary. The amount is open for negotiation and should be in proportion with the husband’s financial means.

The Quran advises the husband and wife to consult each other in a fair manner regarding their children’s future after divorce (2:233). This verse specifically holds that infants who are still nursing may continue to breastfeed until both parents agree on the period of weaning through “mutual consent and counsel.” This spirit should define any co-parenting relationship.

Islamic law stipulates that physical custody of the children must go to a Muslim who is in good physical and mental health, and is in the best position to meet the children’s needs. ‘’Women have more right to custody of children than men; in principle custody belongs to them, because they are more compassionate and more kind, and they know better how to raise small children, and they are more patient in dealing with the difficulties involved. The mother has more right to custody of her child, whether it is a boy or a girl, so long as she does not re-marry and so long as she meets the conditions of custody. This is according to scholarly consensus.

The conditions of custody are: being accountable (i.e., an adult of sound mind etc.), being free (as opposed to being a slave), being of good character, being a Muslim if the child concerned is a Muslim, and being able to fulfil all obligations towards the child. The mother should not be married to a person who is a stranger (i.e., not related) to the child. If one of these conditions is not fulfilled and there is an impediment such as insanity or having remarried, etc., the woman forfeits the right to custody, but if that impediment is removed, then the right to custody is restored. But it is best to pay attention to the interests of the child, because his rights come first.

The period of custody lasts until the age of discretion and independence, i.e., until the child is able to discern what is what and is independent in the sense that he can eat by himself, drink by himself, and clean himself after using the toilet, etc.

When the child reaches this age, the period of custody ends, whether the child is a boy or a girl. That is usually at the age of seven or eight.

With regard to the effect of travelling on transferring custody, if the parents have separated and are disputing custody, any of the following scenarios may apply to their travelling:

1 – If one of the parents wants to travel without moving, i.e., he or she intends to come back, then the parent who is staying put has more right to the child.

2 – If one of them wants to travel for the purpose of settling there, and the new city or the route is dangerous, then the parent who is staying put has more right to the child.

3 – If one of them wants to move and settle within the same city, and the city and the route is safe,the father has right to the child than the mother, regardless of whether the one who is moving is the father or the mother.

4 – If both parents want to travel to the same place, then the mother should retain custody.

5 – If the place is nearby so that the father and child may see one another every day, then the mother should retain custody.

When the child reaches the age of independence, the period of custody comes to an end, and the period of kafaalah or sponsorship of the young begins, which lasts until the child reaches adolescence or in the case of a girls, starts her periods. Then the period of sponsorship ends and the child is free to make his own choices.

Women’s rights to sponsor children. It appears from the comments of the fuqaha’ that women have the right to sponsor children in general, and that mothers and grandmothers in particular have this right.  But the scholars differed as to who has more right to sponsorship if the parents are in dispute and are both qualified to sponsor the child. The Maalikis and Zaahiris think that the mother has more right to sponsorship of the child, whether it is a boy or a girl. The Hanbalis think that boys should be given a choice, but the father has more right in the case of a girl. The Hanafis think that the father has more right in the case of a boy and the mother has more right in the case of a girl. Perhaps the correct view is that the child should be given a choice if the parents are disputing and they both fulfil the conditions for sponsorship.’’2

Pakistan – ‘’Traditionally in Pakistan, mothers were given ownership of minor, but the trend has been showing signs of change. More and more women are opting for career driven lives, which may not enable them to bring up their children as a single parent. In Pakistani Laws the custody of a minor is given to the mother, this right is called as right of hizanat. But after the age of seven years, the mother’s right over the son ends however it is not an absolute right; it is made in the interest of the boy. Girls are given to mothers until they attain puberty. One important aspect of this law is that the conduct of the mother is of great importance, and if that is found ‘objectionable’, she may not be given custody rights. The father has the right to custody after the mother’s term ends by the court of law. In case of the absence of both parents, the grandparents are offered the custody of the child. ‘’3

 

Relevant Statutes of Pakistan for Marriage, Divorce, Custody, Polygamy, Inheritance, Dower, Succession and Maintenance

 

  • Guardians and Wards Act 1890
  • Child Marriage Restraint Act 1929
  • Dissolution of Muslim Marriages Act 1939
  • Muslim Family Law Ordinance 1961
  • (West Pakistan) Muslim Personal Law (Shariat) Application Act 1962
  • (West Pakistan) Family Courts Act 1964
  • Offence of Zina (Enforcement of Hudood) Ordinance 1979
  • Law of Evidence (Qanun-e-Shahadat) Order 1984
  • Enforcement of Sharia Act 1991
  • Dowry and Bridal Gifts (Restriction) Act 1976
  • Prohibition (Enforcement of Hudood) Order 1979
  • Offence of Qazf (Enforcement of Hudood ) Order 1979
  • Execution of Punishment of Whipping Ordinance 1979

‘’In an emergency:

If you are being physically abused often and you are beginning to fear serious harm, prepare yourself by taking the following precautions, especially if violence takes place at night:

  1. Confide in a close neighbour or friend, who you can trust.
  2. Tell him or her that you fear that you might need help in an emergency.
  3. Decide on a way to indicate you are under threat, so he or she can call police on 15.
  4. Find out the CPLC Zonal Office number of your area and give it to your friend/confidante, along with the
  5. 15 police emergency number.
  6. Ask him or her to inform the police that a woman is being battered in the neighborhood and she may be in danger.
  7. Ask him or her to give the police your address.

The interruption by the arrival of the police can stop immediate violence, and you may be able to spend the night in relative safety.

Where to go

  • If you have decided to leave your home, it is advisable to do so during the day and take refuge at a women’s shelter.
  • Staying away will help you to think through your situation, talk to someone, see a psychologist to overcome trauma and fear before taking action.
  • Go as soon as possible for a medico legal examination. The urgency is to ensure that all injuries like bruises or cuts are seen and recorded by the medico-legal officer. That will be your evidence, in case you choose to take legal action. Recording your injuries does not mean you have to take legal action, but it is important to record the incident.
  • Locate a women’s shelter that provides fairly comprehensive support, including advice on legal aid.

What to do

If you decide to come out of your abusive situation through legal action:

  • Read the section on this site that lists organizations who provide legal aid to survivors of violence.
  • Call one of the listed Helpline numbers for legal aid and advice
    • APWA Legal Aid Call Centre Helpline – 111-279-252 – between 2:30 PM to 6:30 PM
    • Crisis Centre, Ministry of Women’s Development – 0300-290-8535 between 11:00 AM to 6:30PM
    • Panah Home Phone: 0213-3636-0025, 0214-3636-0028 between 9:00 AM to 5:00 PM
    • Madadgaar Helpline: 111-911-922 between 7:00 AM to 7:00 PM
  • The organization will advise and assist you through the process, and help fulfill the legal & police requirements, as they are familiar with it.
  • The first step is to undergo a medico-legal examination as soon as possible, as your case rests on establishing evidence of grievous hurt.
  • The medico-legal examination takes place at one of the hospitals listed below between 9:00 AM and 4:30 PM:
    • Civil Hospital
    • Jinnah Hospital
    • Abbassi Shaheed Hospital
  • Usually the medico-legal examiner asks for a letter from the Police Station or Police Surgeon. This is not an essential requirement and it is your right to ask to be examined, but you may still face difficulty without the letter.
  • Your Legal Aid provider will assist and arrange for the letter to the MLO
  • Find out when the MLO will give you the certificate, and collect it on the date.’’ 4

1 http://www.al-islam.org/wii-persp-edt2/12.htm

2 Wilaayat al-Mar’ah fi’l-Fiqh al-Islami, p. 692

3 Child Custody, Adoption and Guardianship

4 Domestic Violence Guide