Judicial indiscretions
MUCH has been said about the backlog of 2.4 million cases in the judicial system. At the Asma Jahangir Conference in 2024, Justice Mansoor Ali Shah stated that in 2023, judges had decided 1.69m cases. There is no doubt that disposing 1.69m cases is remarkable for about 4,000 judges working daily but how many of those 1.69m decisions resolved anything? Judicial inconsistency has hit every area of law which is why people file so many suits, counter suits and appeals in the first place. Take the example of capital punishments: 78 per cent of those convicted to be hanged are acquitted, their sentences commuted, or petitions reviewed on appeal. At the very least, appeals in cases accounting for the most serious punishment in our penal code should be few and far between.
In family law, judicial inconsistency is so rampant that a woman cannot even be certain about her status. When I am asked whether a couple is divorced or not, I cannot give them a certain answer. It is impossible to assess what child maintenance a woman can expect to receive or whether she will be able to recover her dowry items or her mehr. It all depends on the judge of the day and the mood of that particular judge.
In cases where a husband gives his wife a talaq, Supreme Court precedents state notice of the talaq must be given to the Union Council and the wife. This seems justified as it would be absurd to think that someone can be divorced without their knowledge. Pakistan is probably one of the easiest countries for a Muslim man to divorce his wife. There are hardly any formalities and no obligations. While other Muslim countries such as Jordan, Morocco, Algeria, Egypt, Syria, Libya and Tunisia have developed laws to provide spousal maintenance, there is no concept of matrimonial property or spousal maintenance in Pakistan. But even that is not enough for some judges who believe the balance of power should be tilted further to the wife’s detriment.
There are several recent reported judgements of the high courts which have decided that a man has an unfettered and absolute right to pronounce ‘talaq’ upon his wife and no other formality is required. All that is required is for him to have uttered ‘talaq’ thrice and the divorce becomes effective. It reminds one of a publicised case in India where a husband uttered ‘talaq’ thrice in his sleep and local Islamic leaders held that this was effective.
Unsurprisingly these ‘talaq cases’ usually emerge once the husband has died and there is a dispute on inheritance. Families urge judges that they have heard the husband pronouncing ‘talaq’ before his death and thus the wife should not be entitled to her paltry share. Decisions such as these are not just a vicious miscarriage of justice but render great disservice to litigants who approach a formal justice system often against their ‘better’ judgement. In one reported judgement, a wife did not know she was ‘divorced’. After her husband’s death, the judge was told that someone had heard him utter ‘talaq’. The judge decided there is no need for a man to even notify his wife of the divorce. She was denied her paltry share.
Cases of couples living abroad now throng judicial precedents because husbands living abroad realise that Pakistan is the cheapest and easiest place to discard their wives. The Muslim Family Law Ordinance states that it applies to Muslim citizens of Pakistan wherever they may be. The utility of this law was realised in the early 1990s where husbands pronounced ‘talaqs’ on their wives while on holiday in Pakistan. To avoid injustice, courts initially made a distinction in cases where couples had dual nationality. Since then, judges have decided each case de novo. In some cases, courts allow ‘holiday talaqs’ which effectively meant that the wife is denied more favourable legal recourse in the country of her habitual residence. In other decisions it was held that the husband is able to provide notice of talaq to the Pakistani consulate abroad that should act as a Union Council in holding reconciliation proceedings — something which they are not trained or have the capacity to do.
The same erratic jurisprudence can be seen in cases of children’s custody. Even where Supreme Court judgements are clear that the welfare of a child is the paramount consideration, some judges justify their decisions on their own interpretation of religious norms that may not prioritise welfare. For example, children may be placed with the non-resident parent even if it is clearly not in their welfare. The uncertainty has fed through to litigants, and it is now common practice that when a mother files for child maintenance, she is faced with a counter suit for custody — a pressure tactic which always works in the interest of the stronger party, who can continue to litigate.
In child abduction cases, Supreme Court precedents are clear that children should be returned to their country of habitual residence, but some judges ignore settled jurisprudence to favour a particular litigant. In one such case, the Supreme Court criticised the decision of the Lahore High Court stating that the court had “shied away” from its “legal and constitutional obligation for reasons best known to it”.
There is no doubt that legislation needs to evolve, and that judicial training and oversight are always beneficial; however, these decisions do not reflect a lack of knowledge, but the intentional misuse of a power that is unaccountable. As a starting point what is pressing are substantive guiding principles from the Supreme Court in ordinary cases. While there is a lot of media frenzy and judicial time spent on cases that involve political parties and personalities, there is scant and conflicting jurisprudence in areas which impact ordinary litigants. Better guidelines will go a long way to stem the chaos of multiple litigation, and identify those decision-makers who make contrary decisions for reasons best known to themselves.
The writer is a board member, AGHS Legal Aid Cell, an advocate of the high courts, Pakistan, and a solicitor of the senior courts of England and Wales.
X: @sj244
Published in Dawn, March 15th, 2025