Opinion: Imran Khan-Bushra Bibi Conviction in 'Un-Islamic' Marriage Case Undermines Law

On February 3, 2024, Judge Qudrat Ullah, presiding over a court of appropriate jurisdiction, in Rawalpindi, Pakistan, awarded Imran Khan, the former Prime Minister and his current wife, Bushra Bibi, imprisonment of a term of seven years each and also imposed fine of Rs. 500000/- (US $ 18000) each, for contacting a void marriage. This is the fourth conviction within a week and just a few days before the general elections to disgrace and humiliate the couple. Imran Khan has been banned from contesting elections, though he is the leader of Tehreek e Insaf of Pakistan, a formidable political party. Elections shall be held on February 8, 2024. Many people are questioning the credibility of the elections as Khan and his party, the PTI, have been sidelined, which was a formidable opposition. 

Bushra Bibi was earlier married to Khawar Maneka, who is the complainant in the instant case. He alleged that her subsequent marriage with Imran Khan was fraudulent because she did not observe the mandatory period of abstinence of three months after divorce. This period of abstinence is called Iddat. 

Maneka Khawar had filed a complaint in November 2023, questioning the validity of Bushra Bibi’s marriage with Imran Khan. The complaint described that based on the prevailing legal principles of Muslim family law; their marriage is volatile of marriage laws (applicable to Muslims of Pakistan). The court found merit in the complaint, resulting in the awarding of imprisonment and a fine to be paid by the erring couple. The judgment was pronounced the very next day, the trial was over. It seems a very hurried piece of adjudication. 

A week before that, the erring couple was sentenced to 14 years of imprisonment in a case of corruption, the Toshakhana case, for illegally disposing of the state gifts, received internationally and domestically by Imran Khan during his period as prime minister of Pakistan. 

The former prime minister has been lodged at Adiala prison in Rawalpindi, since August 2023, facing over a hundred and fifty different charges of alleged violation of laws and misconduct. For security reasons, the trials are being held in the Adiala prison itself. 

Once Imran Khan was seen as the blue-eyed boy of the armed forces, he was ousted from power in a no-confidence motion, in 2022, said to be managed and manipulated by the armed forces, which has been controlling political power from behind the scenes in Pakistan for more than seventy years. Imran Khan had tried to escape from the clutches of the armed forces; therefore, he landed in this mess. Many previous prime ministers had also disposed of the gifts for profit; no action was taken against them. 

As contended by Khawar Maneka, divorce matures on the full expiry of the Iddat period.  During this period, a divorced woman has to abstain from meeting any other man, not related to her by blood. Also, she must abstain from her outgoing husband completely. If both divorcing parties are living under one roof, is not a problem, as long as they abstain from intimacy of all kinds and have no contact with each other. 

In case of a contact with the husband divorcing her, the divorce becomes void. If the desire to divorce still exists, the process starts all over again, right from the beginning. The period of three months will start from the day, the subsequent divorce is pronounced in front of at least two independent adult witnesses. 

There is no corresponding provision for a man to wait for three months or even for a day, to get married again after divorcing his wife. The waiting period for the divorced woman is mandatory mainly to determine and confirm pregnancy, if any from her previous wedlock, which would extend the obligation of paying maintenance to be provided to the divorced wife and newborn child. 

Under Muslim cultural customs and law, the rule of observance of Iddat is a kind of balance with the mourning period for the deceased husband and to calmly thinking about the causes of divorce. It is a protection for the woman from criticism. Society expects a widow or a divorced woman to be serene and calm to pondering over her changed marital status. This would show her piety and would present her to be a person, who is not in a hurry to marry someone immediately after divorce, belying all suspicions that were preplanned. 

The undisputed date of marriage of Imran Khan with Bushra Bibi is January 1, 2018. She was a known faith healer and always kept her face covered. Imran Khan made a statement after his marriage that he saw her face only after marriage. He recognized her as his spiritual guru. He used to seek spiritual guidance from her before marriage. He was then not the Prime Minister of Pakistan. It was a matter of his faith in her healing and spiritual powers.

It is alleged by Khawar Maneka that she divorced him on September 25, 2017, and married Imran Khan on January 1, 2018. The Iddat of three months gets completed during this period. It is not clear, how he alleges that she did not completely observe Iddat, making their marriage volatile of Sharia law and the Muslim Personal Law.  Bibi stated before the court “Khawar Maneka gave me a triple divorce in April 2017," Bushra Bibi further contended “Imran Khan and I solemnized our marriage on January 1, 2018." The court did not accept her version. No reasons for not believing her were provided.
 
Khawar Maneka further stated in his claim that Bushra Bibi’s actions have reduced his respect in society and are a cause for the humiliation of his family, being a disgraceful act (I do not have access to the full judgment, therefore, I am bit constrained).

Understanding the Case

In November 2023, last year, Khawar Maneka, Bibi's ex-husband filed a complaint against the marriage of Imran Khan to Bushra Bibi. Imran Khan was arrested and jailed in August 2023. Khawar Manaka was quiet for more than five years. What was he waiting for all this while? It can be easily argued that he did not come to court with clean hands. If he was sincere in his efforts to prevent a wrong being committed by his outgoing wife, he should have immediately come forward and should have sought correction of their actions. The process of law cannot be used for purposes of getting even, retribution, revenge or jealousy. If so, it amounts to abuse of the process of law, which is a crime under Muslim law and also under civil law. In the Quran, the punishment for such treachery is 80 lashes. Khawar Maneka needs to explain the delay beyond a reasonable doubt since it is alleged by Bushra Bibi that she completed the period of Iddat before contracting marriage with Imran Khan. It is her word against his word. The divorce deed presented by him has been said to be fabricated. There is no explanation from him for this delayed complaint; possibly he tried to fish in troubled waters!!

Judge Kudrat Ullaha of Rawalpindi court has also declared the marriage of Bushra Bibi with Imran Khan illegal because the said marriage took place before the divorce due to incomplete Iddat. He has declared it to be null and void. Consequently, the status of divorce is non-existent, will it follow that Bushra Bibi is still married to Khawar Maneka? Did he pay her maintenance during the Iddat period? Before the process of divorce started, she was living with him along with five children. Since the subsequent marriage is not valid as per the court order based on the stand taken by the previous husband, who sought to have it declared illegal and void, should he not pay for her maintenance, also for the five children as per Muslim law from the date of pronouncement of divorce and thereafter till now? These are the questions which should have been opined upon by the court but were conveniently left unanswered. Therefore, the verdict is incomplete and needs to be revisited in appeal. 

Considering the court ruling that the January 2018 marriage with Bushra Bibi, a faith healer, was un-Islamic and illegal. It has been declared null and void and against the Sharia law. They are not husband and wife any more. Accordingly, Imran Khan has no obligation to maintain Bushra Bibi. She remarked, “The divorce deed presented by Khawar Maneka is a fabricated document," she also said, “This marks the first instance in history where a case related to Iddat has been initiated.” After the end of the trial, Imran Khan and his family insisted that the trial was totally politically motivated.

What Muslim Law Says

As per Muslim law, a woman cannot be left unprovided for like this, to go through hardships when her current husband has been declared unlawful and her previous husband comes back on the scene after five years to say that her subsequent marriage of his divorced wife is unlawful. Is he fishing in troubled waters and using the process of law to provide additional grounds to opposition political parties to disgrace Imran Khan just a week before the general elections, slated to be on February 8, 2024.

Some people in Pakistan are saying that this judgment is a "damning blot on our justice system" and are condemning the state's actions as a ploy to demean Imran Khan and Bushra Bibi. The timing of these four convictions, occurring just before the general elections on 8 February, is critical. Despite being banned, Imran Khan retains significant voter support in his country. 

As per the social philosophy of Islam, staying alone for an adult is not recommended, marriage is considered a good and proper act (Sunna), and therefore, there is nothing wrong in getting married again. It is the husband’s obligation to maintain his wife, including the divorced one too. Certainly, the obligation continues till the period of Iddat and thereafter, depending upon the prevailing Sharia law and terms agreed for the divorce. Some scholars believe that under the Sharia law, the husband does not have the obligation to maintain his divorced wife. This customary law was prevalent in India too. In 1985, the Indian Supreme Court made it mandatory for a husband to maintain his divorced wife for the rest of her life or till she gets married again (Shah Bane Begum Vs. Mohd. Ahmed Khan SC 1985). This decision flows from the fundamental right to life, guaranteed to every Indian citizen by the constitution. The right to live with dignity is part of the fundamental right to life. This judgment of the Indian Supreme Court also took into account the Quran mandate as stated in Verse 241 of Sura Bakre that it is the duty of the husband to provide for his divorced wife:

“Wa lilmutallaqaati mataa’um bilma’roofi haqqan ‘alal muttaqeen”

It means that it is the duty of the righteous to make provisions according to what is acceptable –for divorced women is a duty. 
A reasonable provision must be made for divorced women—a duty on those mindful of Allah˺. Divorced women should be provided for adequately. This is an obligation on those who are mindful of God.

In 1986, the Indian Parliament passed a law by enacting, the “Protection of Muslim Women on Divorce Act of 1986”, whereby, the obligation of the husband to maintain his divorced wife extended till her lifetime.  

In India, a Muslim woman has a right to be maintained with her divorced husband for the rest of her life or till she gets married again. Recently, in a decision of the Bombay High Court, it has been held that a husband has an obligation to maintain his divorced wife even if she gets remarried. 
 Justice Rajesh Patil in his recent judgment opined that a divorced Muslim woman is entitled to receive maintenance that was due to her from her former husband under the Muslim Women (Protection of Rights on Divorce) Act (MWPA), 1986, even if she had remarried. He further held:

"The essence of the Act is that a divorced woman is entitled to a reasonable and fair provision and maintenance regardless of her remarriage. The fact of divorce between the husband and wife is in itself sufficient for the wife to claim maintenance under section 3 (1) (a). Such entitlement... is crystallized on the date of divorce...," said Justice Rajesh Patil in his January 2, 2024 verdict. The husband has the right to appeal. It was argued that the wife has remarried and therefore, now the previous husband does not have to give maintenance to his divorced wife. Justice Patil said that the protection referred to in MWPA is "unconditional" and nowhere does the Act "intend to limit the protection that is due to the former wife on the ground of remarriage". He agreed with the plea made on behalf of the wife that section 3 of the Act does not use the word 'remarry'. "The Act seeks to prevent the destitution of Muslim women and to ensure their right to lead a normal life even after divorce. Hence, the legislative intent of the Act is clear. It is to protect 'all' divorced Muslim women and safeguard their rights," explained Justice Patil. His verdict is based on the Supreme Court's 2001 judgment that maintenance should be paid within three months of the divorce period. He noted that MWPA has no provision to enhance maintenance amount once granted under section 3. "On the date of passing of impugned order, the amount payable by the husband got crystallized, therefore, even in future, if the divorced wife remarries, it will not make any difference if the amount is payable in a lump sum," said Justice Patil, concluding that the sum of Rs 9 lakh is "fair and reasonable".

Justice Patil dismissed the husband's challenge to two orders to pay his ex-wife lump sum maintenance. The couple had married in February 2005 and a daughter was born in December 2005. The husband went abroad for work. In June 2007, the wife and their daughter went to live with her parents. In April 2008, the husband divorced her by registered post. She filed for maintenance under MWPA for herself and their daughter. In August 2014, the Chiplun magistrate granted her Rs 4.3 lakh maintenance. In May 2017, Khed sessions court enhanced it to Rs 9 lakh (Reported by Times of India on January 7, 2024).

Under the circumstances, if Khawar Maneka has respect for Muslim law, he should make reasonable provisions for Bushra Bibi, a duty on those, who are mindful ˹of Allah’s command. She has to be provided for adequately. This is an obligation on those who are mindful of God. Bushra Bibi has not returned to Khawar Maneka

(Sona Khan is a Senior Advocate in the Supreme Court of India and an expert on Islamic Law)

Disclaimer: Views expressed in the opinion piece are those of the author.