Hamdard Islamicus (Jun 2022)
FINANCIAL RIGHTS OF WOMAN ON THE DISSOLUTION OF HER MARITAL RELATIONSHIP AND DEATH OF HER HUSBAND IN ISLAMIC LAW AND PAKISTANI LEGAL SYSTEM
Abstract
This article focuses on financial rights of the wife on the dissolution of her marital tie under Islamic law and Pakistani legal system. It explores the complexed issues involving the provision of dower/mahr for the wife, the provision of maintenance in various situations of dissolution of marital relationship, financial support for the children in case of separation, financial stipulations promised by the husband to his wife, and whether a widow can possess either the corpus of the property or receive its benefits upon the death of her husband when he has legally transferred either of the two to his widow? All the above issues are analysed under Islamic law, statutory law where available, and case law in Pakistani legal system. The main findings of this work are that dower is guaranteed to the wife but there are complicated issues where dower is denied and she has to resort to the Court to receive it; that maintenance and lodging till the end of the waiting period (‘iddat) is always on the husband in case of separation but problems arise in case of separation through divorce or khul‘ where a woman accepts the deal that she will not claim either lodging or maintenance; that promises by husbands to recompense his wife a sum of money in the event of divorce remain unfulfilled because of the ruling of the Supreme Court of Pakistan that Family Courts have no jurisdiction in the matter; that husband can gift either the corpus of his property or the usufruct to his widow if he so wishes; that Courts have persistently ruled that conditions attached to a gift of property to a woman would be void but the gift would be valid; that Courts have given apparently conflicting decisions on whether deferred dower becomes payable on demand or on dissolution of marriage either by death or divorce. Finally, Courts have developed elaborate principles of Islamic law mainly derived from the Hanafi school of thought, and with few exceptions, have followed these principles consistently. The main recommendations of this work are that the current judicial pronouncements of the august Supreme Court of Pakistan that deferred dower could only be paid to the wife on separation by death or divorce may be overruled through an amendment in legislation and that the issue that the sum of money stipulated by the husband to be paid to his wife in case of divorce as a penalty or compensation or damages is not in the jurisdiction of the Family Court may be overruled through an amendment in the Schedule to the Family Courts Act, 1964 to expand the jurisdiction of the Family Courts. The methodology used in this work is doctrinal.
