The Law is Like a Camel’s Intestines: The Punishing Temporality of Family Law in Peshawar
I began my fieldwork in Peshawar, Pakistan proposing to study cases of khula — wife-initiated divorce— filed in the family courts. I was interested in the kinds of social and legal negotiations through which my interlocutors fashioned themselves into “litigants”, drawing on liberal legal ideologies of the rights-bearing individual. Khula was developed through a process of “judicial ijtihad” by the Pakistani superior courts as a no-fault divorce that circumvented the requirement of a husband’s consent for dissolution. Thus, female litigants could, often by forgoing their mahr (the mandatory marriage gift), obtain a judicial divorce if they made a submission to the court that they could no longer live in the marriage within the limits set by God. Adjudicated under summary procedures, khula cases are meant to be decided within six months of filing, although they can take up to four times as long.
Interestingly however, I found that despite the comparative speed of the khula process, many of the cases being adjudicated in Peshawar had initially been filed as fault-based divorces (faskh) under the Dissolution of Muslim Marriages Act, 1939, or by women who alleged they had already been verbally divorced by their husbands and sought to formalize the talaq via the courts. Most importantly, in these cases litigants also made concurrent claims on their mahr, since wives legally retained their entitlement to this property in the event of faskh or talaq. While the latter types of dissolution involved more extensive evidentiary procedures compared to khula, the mahr claims made in these cases were sometimes women’s only access to property, particularly as daughters’ inheritance remains a fraught and contested matter.
In Peshawar, mahr is rarely a nominal or symbolic sum, and commonly consists of some combination of gold, cash, or shares in immovable property, depending on the parties’ economic means. The significant value of mahr promised in the marriage contracts raises the financial stakes of divorce for both parties in the event of dissolution, particularly in faskh or talaq cases. Female litigants saw the recovery of mahr as their haq (their right or entitlement) in cases where the marriage had been of long duration or violent and abusive. The financial stakes in these cases, however, also incentivized respondent-husbands to drag out legal proceedings. As a strategy this was particularly successful, since the mounting emotional, social, and economic costs of lengthening litigation frequently caused female litigants to convert their dissolution cases to khula, forgoing claims made on mahr property.
While the mills of justice quite universally grind slowly, in these cases the delays endemic to litigation took a particular toll, since filing the divorce case in the first place was socially transgressive, exacting significant relational and reputational costs. “My relatives refuse to even meet me anymore. They call me da kacharo khaza (a woman of the courts)”, an interlocutor reported. Repeated delays can exhaust even the most sympathetic of family members accompanying female litigants as moral support, or as witnesses. Delays, actively weaponized, make the prospect of concluding the case more tolerable than waiting years for financial claims that seem increasingly out of reach. Such an effect is not necessarily unintentional: at one point, a lawyer-interlocutor generously talked me through an exhaustive list of delaying strategies he had on hand. He could advise his client to not receive court summons, pretend not to have engaged a lawyer for a few hearings, not file a written statement for a few others, let his wife’s case go to ex-parte decree before he challenged it…the list went on.
“My marriage was azab (torture),” an interlocutor on the receiving end of such delays furiously recounted, “but this is another kind of azab. The law is like a camel’s intestines. It makes your life hell”. The exhausting, circuitous, even intestinal process of the law is compounded by the gendered social cost of navigating the court space, the stain of the katcheri (courts) lingering long after the conclusion of the legal case.
In her ethnography of dar-ul-qazas in India, Katherine Lemons argues that by sidestepping property issues in judgements, these forums actively make Muslim divorce a “matter of kinship not of exchange” (2019: 96), through a jurisdictional move that separates dar-ul-qazas from the state courts. I trace a similar effect in the family cases in Peshawar: through the conversion of faskh and talaq to khula, divorce is rendered a matter of emotional disposition, such as the wife’s “hatred” of the husband— “I can no longer live with my husband within the limits set by God” — and stripped of the economic demands made via the mahr claim. Here, however, rather than by way of jurisdictional separations, this effect is accomplished through the punishing temporality of the legal process.
About the Author
Sana Naeem
PhD Candidate, Harvard University
Sana Naeem is a PhD Candidate in the Social Anthropology department at Harvard University, studying how the encounter of law and kinship is staged through divorce litigation in the family courts in Peshawar, Pakistan. She has also completed an MPhil in Social Anthropology at the University of Oxford, and a BA-LLB from the Lahore University of Management Sciences.