By Maham Javaid
March 07, 2019
Six weeks after her husband threw her out,
Amber* filed for divorce in Islamabad. She was nervous when she arrived at the
first of three divorce hearings.
The chairman of the Islamabad Arbitration
Council, set up by the Union Council, which is responsible for signing off on
divorce, attempted to dissuade her.
"Don't get emotional and end your
marriage," said the chairman, a complete stranger to her. "I am sure
your husband is on his way and will convince you to return home with him."
Amber's then-husband did not attend the
Instead, he tried to force her to return to
the marital home by employing the restitution of conjugal rights (RCR), a legal
mechanism under Pakistan's Muslim Family Law Ordinance.
Aside from the cultural taboo surrounding
divorce in Pakistan, women seeking to end their marriages face legal hurdles
that men do not encounter as frequently.
Amber was stunned.
"Why would he want a court to force me
back home when he himself kicked me out?" said the 26-year-old.
The law her ex-husband used was originally
designed to provide an opportunity to reconcile, but is today used to
"The moment women file for divorce,
maintenance, or a dissolution of marriage, men's first response is to file an
RCR," said Hadiya Aziz, an Islamabad-based civil lawyer and prosecutor.
"About 80 percent of the time, an RCR is a method of getting back at the
Although they can be filed by husbands and
wives, RCRs are overwhelmingly used by men.
"Out of the 100 odd divorce cases I
have handled in my career, restitution was filed 30 times, and only two of the
complainants were women," says Chaudhry Muhammad Umar, a barrister
experienced in family law.
Aziz explained: "Divorce proceedings
initiated by men are concluded so fast that women hardly get a chance to file
She said that those brought by women tend
to drag on for months - and in some cases years.
For instance, it took Laaleen Sukhera, a
Lahore-based author, more than two years to be granted a divorce.
After 18 months of legal proceedings that
seemed to be leading nowhere, Sukhera withdrew her divorce petition.
"At this point, I was buried in litigation.
My ex-husband did his best to intimidate me in court, from accusing me of
insanity to filing an RCR against me," said Sukhera. "My lawyer told
me the RCR is an antiquated law that may soon be outlawed."
Other lawyers agree, and say although the
RCR is used frequently, is rarely decreed in favour of men.
Courts are hesitant to issue solutions that
require constant supervision.
Additionally, there is no constitutional
definition of a spouse's conjugal rights.
So why are men so prepared to use it?
"Essentially, husbands file
restitution cases for three reasons: to demonstrate to the court that they
never wanted this divorce and hence shouldn't have to pay a hefty maintenance;
to put legal pressure on the woman and bury her in litigation; and/or to add to
her financial burden," says Umar, the barrister.
Daanika Kamal, a lawyer working with legal
aid centres across Punjab, said the RCR is used to delay divorce proceedings,
further intimidating women.
Fearing further distress, Sukhera, the
author, opted for a "khula", a dissolution of marriage that is meant
to be faster and less harrowing than divorce.
But it took six months of cross-questioning
in various family courts before being granted the separation.
The khula forces women to forfeit much of
her "Haq Meher" - a mandatory payment in Islamic marriages
from the husband seen as insurance in the case of divorce and her dower.
Sukhera is now fighting to claim her Haq
Meher in another case.
In 2000, the family of a 13-year-old girl
from Pakpattan, in Punjab, reported to police that she had been abducted and
One of the accused responded with an RCR,
claiming that since they were married, the assault could not be considered
abduction or rape.
The RCR was decreed in his favour and the
girl was sent to live with her alleged rapist.
In 2004, he divorced the teenager during a
hearing of the rape case against him. In 2014, the man walked free.
"Abduction and rape [are] extreme and
rare ways in which the RCR can be misused," said Zubair Abbasi, a law
professor and author.
"But frequently the RCR is misused as
a pressure tactic."
He believes that the RCR can be challenged
Lawyer and teacher Abira Ashfaq went a step
further, saying the RCR could be declared as "unconstitutional because it
is against a person's dignity and privacy, and is discriminatory toward
The law has been challenged twice in
"Although the law is currently proving
to be more of a burden than a benefit, in spirit it is meant to provide an opportunity
for reconciliation between two parties," said Fauzia Waqar, head of the
government-backed Provincial Commission on the Status of Women.
The British, who introduced the law of
restitution in the subcontinent, dropped the RCR about 50 years ago.
Today it is thought of as a Muslim law, but
the concept came to Asia from English Ecclesiastical courts in 1857.
"It was meant to force back husbands
who had settled with other women," said Abbasi. "[Now] as women are
growing more economically empowered, they are at the risk of losing their
assets due to this law."
Recently, Pakistan's media regulator warned
broadcasters not to air "indecent content that includes divorce and
infidelity", which highlighted the sociocultural barriers in even
Speaking outside a civil court in Lahore,
after her divorce was finalised, Sukhera said: "People say getting married
is difficult, but in this country, getting divorced with dignity is much