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Know
Your Rights |
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The Constitution of Pakistan and Fundamental Rights |
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| What to do if your Rights have been Violated? | |||||||||||||||||||||||||||||||||||||||||||||||||||
| Rights in a Muslim Marriage | |||||||||||||||||||||||||||||||||||||||||||||||||||
| Dissolution of Muslim Marriage | |||||||||||||||||||||||||||||||||||||||||||||||||||
| Christian Hindi and Parsi Marriages | |||||||||||||||||||||||||||||||||||||||||||||||||||
| Custody of Children | |||||||||||||||||||||||||||||||||||||||||||||||||||
| Crimes against Women | |||||||||||||||||||||||||||||||||||||||||||||||||||
| Rights in a Muslim Marriage | |||||||||||||||||||||||||||||||||||||||||||||||||||
| Haq Mehr: An Essential Right | |||||||||||||||||||||||||||||||||||||||||||||||||||
| As an essential requisite of marriage,
haq mehr is always due to the wife, no matter whether it has been written
and specified in the marriage contract nor not (clauses 13-16). Mehr is
one of the most basic rights of a married woman and therefore the custom
of writing the purely symbolic amount of Rs 32.50 effectively denies women
the benefit of their marriage rights. If it has not been fixed in the nikahnama, it is known as ‘mehr ul misl’ or proper dower and the court will then set it by taking into account her status and the mehr given to her close female relatives. If the mehr has been fixed it can be prompt (mehr moajjal) or deferred (ghair moajjal or mu’wajjal) or split into parts some of which is prompt and some of which is deferred. If it is not specified which form the mehr is, it is assumed to be prompt. Mehr can be in the shape of land, jewellery, cash
or gold. Gold is preferable and its weight should be written in the nikahnama,
which offers the wife some protection against inflation, whereas written
cash amounts can become worthless after a few years.
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| Inheritance | |||||||||||||||||||||||||||||||||||||||||||||||||||
| Inheritance is the only area of family law where there are different provisions for different sects, the major difference being over the share given to daughters when there is no male heir.
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| Inheritance: What to do if your rights have been violated By taking a firm stand against customary practices, the courts strongly uphold women’s right to inherit moveable and immovable property such as agricultural land. The courts do not accept a brother’s claim that they are maintaining their sister and therefore do not need to give them their share of inheritance. Any agreement surrendering inheritance rights which does not fulfill the following conditions is illegal under the Contract Act of 1872:
Other Rights in Marriage Courts do not enforce customary practices: There are many issues related to marriage where the law has taken a firm stand in favour of women rights. For example an agreement between families regarding an exchange marriage (e.g., watta satta, addo baddo and pait likkhi) cannot be enforced through a court of law if one of the parties breaks the agreement. Similarly, engagement agreements and have no force in law. The Dowry and Bridal Gifts (Restriction) Act 1976 means that giving a jehez of more than Rs 5,000 carries a penalty - for the bride’s family but not for the bride. The courts insist that jehez and bridal gifts (e.g. salami) are the property of the wife alone and in the event of divorce or separation will not allow husbands to keep any jehez valued over Rs 5,000 just because this jehez is in excess of the legal limit. |
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| Maintenance
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| Maintenance: What to do if your rights have been violated | |||||||||||||||||||||||||||||||||||||||||||||||||||
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Failure to provide maintenance is one of the most common violations of women’s rights within marriage. To secure maintenance, the wife can either apply to the Union Council or to the Family Courts.
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Dissolution of Marriage A Muslim Marriage is a contract and can be dissolved like any other contract. It is automatically dissolved on the death of one of the spouses. Other than this, both wife and husband have legal and religious rights to dissolve a marriage. A husband has the unilateral right of talaq, which can never be taken away but can be restricted through the nikahnama (clause 19). A wife can dissolve her marriage unilaterally only if the right of divorce has been unconditionally delegated to her by the husband in the nikahnama (clause 18). Other forms of dissolution of marriage which the wife can use are khula and judicial divorce (including option of puberty). These both have to be sought through the Family Courts. The Importance of Following Divorce Procedures No matter whether the marriage has been dissolved through talaq, khula or judicial divorce, it is vital that legal procedures be properly followed. Failure to do so can raise doubts about the effectiveness of the divorce and lead to serious legal problems, such as a case of bigamy and zina against a woman who later remarries, or difficulties in settling issues related to the divorce such as past maintenance or claiming deferred haq mehr. The paternity of children can also be disputed.
Talaq
The Importance of Registered notice of Talaq A verbal talaq is not recognised by law and the husband’s failure to send written notice to the Union Council makes the talaq ineffective. Even if the Union Council issues a certificate of talaq, if notice was not properly served on the wife, the talaq can be challenged. This law was originally designed to protect women from a instant and unrecorded divorce. Before 1979 and the introduction of the Zina Ordinance, a woman who was not properly divorced and who later remarried could be punished for bigamy and sentenced up to 7 years (or up to 10 years if she concealed the previous marriage) and only on the complaint of her first husband. However, since 1979, bigamy makes a woman liable to charges of zina which can carry very severe penalty such as death. Therefore, it is vital for a woman to be absolutely clear about her marital status and to have documentary proof that she is properly divorced. Notice of talaq can be served on a wife (with the Union Council’s permission) through her father, mother, adult brother or sister – but no other relatives. If this is not possible because her whereabouts are not known and notice cannot be served on her through her immediate family, the husband can still serve notice through a newspaper approved by the Union Council. Sometimes families make the mistake of refusing to receive a registered notification, fearing that it is notice of talaq. This is dangerous because notice can then be served through a newspaper and the talaq will be effective, but the woman will be unaware of her status. Talaq-i-Tafweez and Mubarat In both of these forms of divorce, there is no need to approach the courts, meaning that the marriage can be dissolved rapidly, cheaply and with few procedural problems.
Khula, which literally means ‘untying the knot’, is the dissolution of marriage initiated by the wife and is granted by the court.
Judicial Divorce - Dissolution of Muslim Marriages Act, 1939 Where the woman initiates the dissolution of marriage but regards the husband at fault, she approach the court for a judicial divorce.
Option of Puberty Child marriages are restricted and those responsible can be punished for violation, although a marriage contracted by a minor’s parents/guardian is not invalid. However, on becoming adult, the spouses have the right to repudiate the marriage and for a woman the procedure is through the courts.
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