Haq Mehr Law in PakistanAdmin
To this end, the Court held in M. Saqlain v. Zaib un-Nisa that the husband`s mutual benefits were to be taken into account when deciding on the compensation to be paid at Khula`s instigation. The court ruled that continuous cohabitation, motherhood and child-rearing, housekeeping, etc. could also be considered benefits, thus compensating for the benefits that the woman had to render. While dealing with a similar issue in Abdul Rashid v. Shahida Parveen, the court noted that the life the wife had spent with her husband could also be considered a consideration for Khula. In the present case, the wife had lived with the applicant for sixteen years and had fulfilled all her matrimonial obligations during that period. The court found that the wife had spent the most precious time of her young age with the husband; Therefore, all these factors must be taken into account when deciding on the reimbursement of the dowry. In some cases, the courts have not even invoked primarily the requirement that the husband`s cruelty forced the khula, relying solely on the argument that the wife`s services during marriage constitute a sufficient basis for refusing to return the haq. In Nasir v. Rubina, for example, without even mentioning the cruelty of the husband, the court simply awarded a wife half of the haq more on the basis of her services in marriage.
Similarly, the Aurangzeb Court ruled against Ms. Gulnazar that the wife`s life with the husband could be considered sufficient mutual benefit that the husband receives for a dowry of Rs 42,000. In Islam, the institution of marriage has been presented as a contract rather than a sacrament, making economic transactions an important part of marital relations. This essay argues that this particular understanding of the nature of marriage as a contract led to a particular order of marital rights and duties, in which almost all aspects of marriage—gender, parenthood, husband`s duties, etc.—were given monetary value, leading to the development of a certain “marriage economics.” This is based on the understanding of women as separate legal and economic entities within a marriage, who are entitled to certain obligations in exchange for economic and social security. This paper limits this study to economic transactions in the Khula cases and traces the evolution of the principle that courts assess more the amount of haq to be returned in relation to the wife`s contribution through her services as the primary caregiver and housekeeper. Arguing that this is a way of recognizing women`s previously invisible work in marriage as “work,” the document argues that there is room for progressive and pro-women developments within the legal framework of Islamic family law. As mentioned above, the Islamic view of marriage is almost completely different from the Christian and Hindu understanding, as it leaves room for the parties to negotiate mutual rights and obligations. In Islam, the case of marriage is considered an exchange of sexual and other services of the woman for a certain sum of money or any other legal object of economic value – the haq more. This particular concept of marriage was adopted by the Lahore High Court in Shahida Parveen v. Sami Ullah, where it held that marriage, although not a contract within the meaning of the Contracts Act 1872, is a special type of contract, the latter affirming the contractual understanding of the matrimonial bond. Similarly, in Abdul Kadir v. Salima, the court affirmed that, like a civil contract, marriage is concluded with the acceptance of an offer from the other party or its guardians in front of competent witnesses.
Like the matrimonial alliance with a contract of sale, the court ruled that once the offer of marriage is accepted, the woman is obliged to fulfill her matrimonial obligations; If she refuses, her body must be returned to her husband – the rightful owner of her. However, this case was later denounced as a misunderstanding of the Islamic view of marriage, as he regarded it as a contract of sale; Rather than viewing it as an exchange of commodities, it might be more accurate to view marriage as a contract of service—an exchange of the woman`s sexual services for Haq more. “Let women be equal heirs of property, so that there is no need for this useless thing called haq, which almost no woman gets anyway, [and] then different categories of talaq, khula, whatever,” another woman said. The effect of the woman`s strong legal personality, as it results from the contractual understanding of marriage, is most clearly manifested in women`s right to Khula. According to Khula`s traditional view, the wife could terminate her marriage contract by obtaining the husband`s consent and compensating him on her personal property. While this compensation was generally understood as part of the haq more, according to Hedaya, “anything that is legal as a dowry or can be accepted as a dowry can legally be given in exchange for Khula.” In this regard, some Muslim countries, such as Egypt, have gone so far as to enact laws stipulating that even a pre-eminent right of women is a valid object that could be given up in exchange for Khula. It should be noted here that this special right of the Khula to give women the possibility of terminating their marriage contract is peculiar to the Islamic conception of marriage, since, for example, in Christianity, the conjugal bond is considered to be of a permanent nature, which is dissolved only on the death of one of the parties or by decree of the ecclesiastical court. This special power of action granted to Muslim women is an inevitable consequence of the Islamic conception of marriage as a contract of service, with rights and obligations understood in economic terms, concluded by two different legal entities and dissolved at the instigation of one of the parties. The creation of this distinct legal identity, which results from the contractual nature of Muslim marriage, has important implications for women in that it offers them the opportunity to exercise their freedom of choice. While the idea that female bodies are commodified or subject to contracts is particularly unpleasant, such monetization of marriage also allows for the existence of pathways that then challenge the ideal of an autonomous and hierarchical patriarchal household. By conceiving marriage as a contract for the provision of services to women in exchange for haq, which belong exclusively to her, Islamic law assumes the existence of two different legal and economic personalities who are capable of concluding a valid contract, that is, of having different personalities.
And especially since marriage is a voluntary contract between two distinct legal entities, and not an immutable union as conceived in Christianity and Hinduism, it is obvious that this bond can be dissolved by both parties: the wife receives the right to khula while the husband can exercise his absolute right of divorce. The high rate of women-initiated divorces in Ottoman and other medieval Muslim societies is an interesting example of how the law in Khula played a key role in enabling women to exercise their free will by undermining the balance of power within patriarchal households. The withdrawal of the husband`s right to compensation goes hand in hand with the potential for further development.