::Family Laws in Pakistan..Historical Background

A HISTORICAL INTRODUCTION

After Fatah-e-Makkah the teachings of Islam enlighten each and every corner of the world. Muslim teacher to conqueror by on another mean tried to propagate Islam. However in 712 AD Muhammad Bin Qasim conquered Sindh. He introduced Islamic Law in the region (1) Common man has an easy access. In every district Qazis, were appointed and Qazi-ul-Qazat was also appointed in the provincial capital (2) But the judicial department was properly established in subcontinent only from the end of the 12th century (3) it was a judicial system as practiced in other Muslim countries outsideIndiaat that time. The mughals took the administration of Justice very seriously.

The Mughal emperors appointed Qazis in Subhas, Sarkars and Parganas. Qazi was a judicial officer, whose duty was to dispense Justice. He had jurisdiction to deal both the civil and the criminal cases. (4) He had the authority to hold inquiry and conduct investigation in criminal cases.

Among the Qazis, Qazi-ul-Qazat was the chief Qazi at the realm. He was associated with the imperial Court. In every subah there was a Qazi-i-subah, who had his office in provincial capital (5) The Qazi-ul-Qazats were usually selected among the provincial Qazis (6)

Hidayatul-Qawid was the procedural code for the Courts of Qazis. It prescribed certain rules and procedure, which the Qazis were asked to follow during the trial of the cases. For instance :

1.       Qazi was bound to hear both parties, i.e. Plaintiff and defendant

2.       Take the evidence only in the Court of Justice.

3.       He was bound to maintain the Court records carefully

4.       Write the surety bonds, contracts, title deeds, bail-bonds and other documents with full consideration.

5.       He was bond to decide the case on merits and not to favour any of the litigants.

The Hidayatul-Qawid also laid down certain rules and conduct for the Qazis. For instance:

1.       A Qazi was directed not to take presents from the people of that area where he was posted.

2.       He was ordered not to accept the invitation of the feasts.

3.       He was ordered to purchase the books of law for his study.

4.       He was asked to join the company of scholars and theologies to discuss the principals and questions of fiqha (8)

5.       He was not allowed to deviate from the express principals and injunction of Islam. He was ordered to consult a mufti before deciding any case.

Jurisdiction of Qaz1s: “In respect of the nature and scope of the jurisdiction of the Qazi in deciding civil and criminal cases, it would be wrong to hold the view that his jurisdiction was limited to religious and civil cases only. There is a sufficiently large number of criminal cases decided by the Qazis”. (9)

The primary function of Qazi was the provision of Justice according to the principals of shariat, but latter the administration of the property of orphans, and unsound mind persons, was also entrusted to the Qazi. Qazi were made responsible to find a suitable match for the helpless widows, they were also responsible to perform their marriage, so Qazi performed functions of varied nature. On certain occasion Qazi advised for the construction and repair of roads and other works of public utility. (10)

A Qazi was bound to follow the express commands and injunction of the shariat, he was required to consult a mufti, before pronouncing his decree, but as far as domestic affairs of Hindus just as marriages, adoptions and inheritance were brought before a Qazi, he decided it by their own spiritual guides in accordance with their own sacred books. (11)

If one of the parties to the litigation happened to be Muslim and the other Hindu, then the matter was decided on the principals of common law and equity. (12)

Qazi was quite independent in deciding the matter of law and judgment. According to Fatva-i-Alamgiri, “If in any case the Qazi be perplexed by opposite proofs let him reflect upon the case and determine as he shall Judge right for the great certainty let him consult other able lawyers, and if they differ after weighing the arguments; let him decide as it appears just”. (13)

So, Qazi was the judicial officer who was entrusted with different responsibilities of civil religious and clerical nature. The extra burden of the duties must have impaired his judicial work.

MUHAMMADAN LAW UNDER
BRITISH RULE IN
INDIA.

The British first enteredIndiathrough the agency of the East India Company.Bengal, Bahar and the Carnatic were ceded to them by the Muhammadan Viceroys (Nawab) of the Mogul Emperor. The East Indian Company governed these areas up to1857 inthe name of the titular king who had long been in fact under the British control. Moreover the British assumption of power did not take place at once.

During the earlier years the company was delegated authority by the charters from the crown (1600, 1622, 1726 and 1833). (14) The earlier settlers were assumed to have brought with them the English common and statue law, so far as applicable to their circumstance. (15) The early charters authorized the governor and council of each settlement to exercise civil and criminal jurisdiction therein according to the laws atEngland. The charter of 1622 provided, that the company was authorized to chastise and correct all the English persons residing in the East India and committing any misdemeanor either with Martial Law or otherwise. (16) In 1661 the Governor was delegated with the power to try all persons in civil and criminal cases living within the company’s control. (17)

In 1694 the Mughal rule authorized the company to held Zamindar Courts. (18) The charters of 1726 and 1753 provided for more regular tribunals at each of the principal settlement i.e. Bombay, Madras, and Calcutta in the shape of a Mayor’s Court for civil, and the Courts of “Oyer and Terminer” and Quarter session for the criminal proceedings. George’s charter of 1726 authorized the governors and council of the principal settlement to make constitute and ordain by laws and to impose reasonable punishment upon the persons offending against the same or any of them.

The charter of 1753 provided that suits between Indian natives should be determined among themselves, unless both parties agreed to submit them to the mayor’s Courts. (19)

In 1765 the Mughal Emperor Shah Alam issued a farman purported to vest in the company the diwani jurisdiction (collection of provincial revenue and the administration of civil Justice only, but not the criminal Justice). Criminal Justice remained for many years apparently in the hands of Nawab Nazim of Bengal.

Modernisation of The Administration of Justice: The Warren Hastings plan of 1772 established the system of civil and criminal Courts. The Courts established under the famous Regulation of 1772 followed British procedure. The amateur Judges and magistrates knew barely more of English law than the Native Law, but they were assumed to have a common sense to maintain the state of peace among the native community, by applying the indigenous legal norm, According to S.27 of regulations of 1772 it was established that, “In all suits regarding inheritance, succession, marriage, and caste, and other religious usages and institution, the laws of the Koran with respect to Mohammedans and those of the Shasters with respect to Hindus, Shall be invariably adhere to”.

The regulations did not provide any general indication of the law to be applied by the Courts. The Courts had Mohammedan Law officer (Maulvis) attached to all of them, original and appellate, civil and criminal, to advice on a particular question of Islamic Law. Despite the Anglicization of the general legal system. Matrimonial disputes were dealt according to the law of Quran, or the Islamic laws with only minor modifications. The British government was reluctant to adopt the revolutionary measures due to the fact that family law was viewed as a sensitive matter, interference in which might have produced resistance or social unrest. The practices which had struck so deep rooted in the minds of the general public could not be uprooted immediately by the enforcement of any law, particularly when the law was passed by the alien rulers.

After the introduction of British legal system, in the administration of Justice. Muhammadan criminal law modified from time to time by the company’s regulations. In 1790 the criminal jurisdiction was withdrawn from the Nazim, and from that date the Islamic laws related to crimes, punishments, revenues and evidence, were anglicized by the successive regulations, The Muhammadan Law was entirely replaced by the laws of the British origin in 1862, when the penal code and the first code of criminal procedure were introduced. The Indian Evidence Act, 1872 changed the rules of evidence.

One of the rules while Anglicizing the native laws was the application of the doctrine of “Justice, equity and good conscience” in those cases where indigenous laws provided no remedy. For example the matters of contract and dealing between the parties were left to be determined by the discretion of the Judges on the principals of Justice, equity and good conscience”.

In the nineteenth century Births Government moved gradually in social legislation which affected to the personal laws of the people ofIndia. They carried out legislation against the social norms which they found too cruel, and very often these social norms were against women. The matters dealt with in chronological order, were sati, the ill-treatment of widows. The ban on widows remarrying polygamy, child marriage and denial of property rights to women. (20)

These measures however did not prove of great change in the status of women, because these measures themselves where half hearted in the sense that as a matter of policy, the British Government was reluctant to pass any legislation that would affect the religion and custom of native subjects. The British Government focused its attention on some selective matter while neglecting the important elements affecting native women. Due to this policy the women of sub-continent were deprived of their basic rights. For example many of the most inhuman customs practiced in this region were allowed to govern the matter concerned with women. As a matter of customary practice the women were denied to their rights of inheritance and succession. Although Laws give women fixed shares in property, and spell out their rights clearly, her ownership of property is absolute, “yet custom which denies it to her was made the over-riding rule until the fourth decade of the 20th century” (21)

Custom as a Source of Law:Warren hasting system depended firstly on the attachment of learned Maulawis and pandits to every Court civil or criminal and their “Fatwas were acceptable on all the points of law in question. Secondly on the translation of Arabic and Sanskirt authorities. The first step in this direction was the publication ofHamilton’s Hedaya in 1791. It introduced to the English readers not only the true principals of medieval jurists but also the interpretation of these principles. Sir William Jones translated a concise monograph called the “Sirajiyyah” and a commentary there on called “Sharifyah”. The translation of Fatawi-Alamgiri (the great collection of decisions as compiled by the order of the Mughal emperor Aurangzaib in the 17th century) was done by Mr. Neil Baillie in 1850. The amateur British Judges and magistrates were depending on these two sources. It was felt that the law to be administered needed description. After the events of 1857 the British rulers achieved a stable position in the sub-continent. They started their efforts to provide a uniform law for all the classes of native Indians. They focused their attention on customs as a main source of statutory law. In this context the British Government enacted many laws in which the customary law was given preference over personal law. For example “ThePunjab Laws Act-IV 1872, and “The NWFP laws and Justice Regulation-IV1901.” The custom was made the first rule of decision in all the matters included marriage, dowers, divorce, succession, special properly of females, wills etc. personal law was to be applied only if customary law had no rule on a particular point”. (22)

The efforts to make the custom as the first rule of decision met with failure I the sub continent, because it adversely affected women rights.

In the early 20th century the customary laws faced a heavy blow, when the Muslims of the sub-continent demanded the enforcement of the Shariat Act. The Jamiat-Ulema-i-Hind the greatest Muslim religious party also supported the demand and all the Muslim women’s organizations also condemned the customary law because it adversely affects the rights of women. It was felt that under the customary law the position of women was quite dismal and only shariat could improve the rights of women.

Hafiz Muhammad Abdullah from West Central Punjab moved the bill on1st April 1937. Jinnah was also active in the passing of the Shariat Act, 1937.

While describing, how the customary law affected the rights of Indian women, and how the shariat law would improve their legal position Mr. Jinnah said” the principal underlying this bill is to secure to the female heirs their due share according Muhammadan Law. According to customs and usage that have prevailed the position of the female heirs has been a very precarious one. If a man dies, his widow is only entitled to maintenance. When the question arises as to what maintenance she is entitled to, it is always a very difficult question to decide, because when a son or a male heir succeeds to a large estate, he tells the widow that Rs.100/- is quite enough for her although it may be an estate of ten or twenty or thirty lacs and then invariably litigation arises”. (23)

“Under the Anglo Muhammadan Law, the rights of divorce of Muslim women were limited and it was very difficult for the Muslim to seek divorce. The representative of legislature from North,West Punjab, Khan Bahadur Shiekh Fazl-i-Haq Piranha said in this regard that the present Anglo Muhammadan Law as Practiced in the British Courts in the matters of divorce etc, has given rise to the dangerous and unhealthy practice of resorting to apostasy by women. In the original Muhammadan law the wife has restricted right divorce known as Khula ________ with the passage of the bill under discussion; the cruelty treated wife will be able to get desired divorce on reasonable grounds and without abjuring her faith.” (24)

The criticism that was made against customary law, (besides the fact that it was an obstacle to any kind of progress in the way of women) was that it was vague and required a great deal of litigation to settle basic issues.Indiawas a large realm, and the customs of the natives differed from tribe to tribe and place to place. It was not easy inIndiato establish a fixed custom on all the tribes.

About the customary law professor Allen remarks “that every custom is in some fundamental respect an exception from the ordinary law for the land. It is limited in its application and does not apply to the generality of citizens, but only to a particular class of persons or to a particular place. (25)

Thus the venture of the British to install custom as a legal principal throughout the realm met with failure, the position was so uncertain that people has to spend so much money on litigation that by the time litigation came to an end the property for which people were fighting would disappear. (26)

The Shariat Act was passed with the backing of the Government and Unionist party and the Muslims of India proved that they were one nation, governed by the same set of legal principals.

NOTES AND REFERENCES:

1.       Gender and Human rights in Islam and International Law Shaheen SardarAli Page. 140

2.       Ahede Salateen-e-Dehli” Sallah-ud-DinNasikPage-54

3.       Gender and Human Rights in Islam and International Law. Shaheen SardarAli Page-140.

4.       “Muslim inIndia” Ifran Habib Page -240

5.       Ibd Page-24

6.       Ibd Page-241

7.       Ibd Page-252

8.       Ibd Page-252

9.       Ibd Page-254

10.     “Ahede Salateen-e-Dehli” Sallah-ud-DinNasikPage-293

11.     Anglow Muhammadan Law “A Digest” Page-37

12.     “Ahede Salateen-e-Dehli” Sallah-ud-DinNasikPage-294

13.     Fatawai-Alamgiri Vol-III Page-383

14.     Gender and Human Rights in Islam and International Law Shaheen Sardar Ali Page. 141

15.     Anglow Muhammadan Law 3, “A digest” Page-42

16.     Gender and Human Rights in Islam and International Law Shaheen SardarAli Page. 141

17.     Ibd Page-141

18.     Ibd Page-141

19.     Anglow Muhammadan Law, “A digest” Page-43

20.     Dushka Saiyid “Muslim Women of the BritishPunjab” Page-20

21.     Gender and Human Rights in Islam and International Law Shaheen SardarAli Page. 143

22.     Ibd Page-145

23.     Dushka Saiyid “Muslim Women of the BritishPunjab” Page-31

24.     Ibd Page-35

25.     Salmond “Jurisprudence” Page-211

26.     Dushka Saiyid “Muslim Women of the BritishPunjab” Page-31

By: SALMANAWAZLecturerUniversityLawCollege, Quetta

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