..::Muslim Personal Law in Pakistan

…posted by Pakistani Law Firm…Free Legal Advice

The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962….Repealed the 1937 Muslim Personal Law (Shariat) Application Act as well as provincial legislation on the application of Muslim personal law. The new Act directs the application of Muslim personal law, notwithstanding any custom or usage, to all questions of personal status and succession where the parties are Muslims. One particular provision of the new legislation states that, “the limited estates in respect of immovable property held by Muslim females under the customary law are hereby terminated”; this constitutes the opposite stance to customary land law to the 1937 enactment, and so the new Act provides that it will not apply retrospectively.

Marriage Age

18 for males and 16 for females; penal sanctions for contracting under-age marriages, though such unions remain valid.

Marriage Guardianshi

Governed by classical Hanafi law, though influence of custom is strong; in Abdul Waheed v. Asma Jehangir (PLD 1997 Lah 331), court confirmed that, under current law, adult Hanafi Muslim woman can contract herself in marriage without wal’s consent as essential requirement for validity of contract is the woman’s consent and not the wali’s

Marriage Registration

The Muslim Family Laws Ordinance (MFLO), 1961 introduced reforms to various aspects of the classical law. The reforms concern the registration of marriage and divorce, inheritance rights of orphaned grandchildren, restrictions on polygamy, consideration of every talaq (except the third of three) as single and revocable, formalisation of reconciliation procedures in disputes relating to maintenance or dissolution of marriage, and recovery of mahr, along with specified penalties for non-compliance.

Penal sanctions for those in violation of mandatory registration requirements for marriage; failure to register does not invalidate the marriage. The MFLO introduced marriage registration and provides for penalties of fines or imprisonment for failure to register. However, a Muslim marriage is still legal if it is contracted only according to the religious requisites.

Polygamy

The MFLO also instituted some limited reforms in the law relating to polygamy, with the introduction of the requirement that the husband must submit an application and pay a fee to the local Union Council in order to obtain prior written permission for contracting a polygamous marriage. The application must state the reasons for the proposed marriage and indicate whether the applicant has obtained the consent of the existing wife or wives. The chairman of the Union Council forms an Arbitration Council with representatives of the existing wife or wives and the applicant in order to determine the necessity of the proposed marriage. The penalty for contracting a polygamous marriage without prior permission is that the husband must immediately pay the entire dower to the existing wife or wives as well as being subject to a fine and/or imprisonment; any polygamous marriage contracted without the Union Council’s approval cannot be registered under the MFLO. Nevertheless, if a man does not seek the permission of his existing wife or the Union Council, his subsequent marriage remains valid. Furthermore, the difficulty in enforcing resort to the application process to the Union Council, combined with the judiciary’s reluctance to apply the penalties contained in the MFLO (as indicated by the case law), tend to restrict the efficacy of the reform provisions. This has led some observers to describe the provisions requiring the permission of the Arbitration Council as a mere formality.

Constraints placed on polygamy by requirement of application to the local Union Council for permission and notification of existing wife/wives, backed up by penal sanctions for contracting a polygamous marriage without prior permission; husband’s contracting polygamous marriage in contravention of legal procedures is sufficient grounds for first wife to obtain decree of dissolution.

Obedience / Maintenance

The chairman of the Union Council will also constitute an Arbitration Council to determine the matter in cases where a husband fails to maintain his wife or wives, or fails to maintain co-wives equitably (at the application of one or more wife or wives, and in addition to their seeking any other legal remedy). Any outstanding dower or maintenance not paid in due time is recoverable as arrears of land revenue. Also, where no details regarding the mode of payment of mahr are recorded in the marriage contract, the entire sum of the dower stipulated therein is presumed to be payable as prompt dower.

Talaq (Divorce)

Consideration of every talaq uttered in any form whatsoever (except the third of three) as single and revocable; formalisation of reconciliation and notification procedures, and procedures for recovery of mahr and penalties for non-compliance; talaq was generally rendered invalid by failure to notify in 1960s and 1970s, but introduction of Zina Ordinance led to changes in judicial practice so that failure to notify does not invalidate talaq.

Efforts were also made to reform the classical law as it relates to the exercise of talaq. The MFLO requires that the divorcing husband shall, as soon as possible after a talaq pronounced “in any form whatsoever”, give the chairman of the Union Council notice in writing. The chairman is to supply a copy of the notice to the wife. Non-compliance is punishable by imprisonment and/or a fine. Within thirty days of receipt of the notice of repudiation, the chairman must constitute an Arbitration Council in order to take steps to bring about a reconciliation. Should that fail, a talaq that is not revoked, either expressly or implicitly, takes effect after the expiry of ninety days from the day on which the notice of repudiation was delivered to the chairman. If the wife is pregnant at the time of the pronouncement of talaq, the talaq does not take effect until ninety days have elapsed or the end of the pregnancy, whichever is later. The classical law regarding the requirement of an intervening marriage in order to remarry a former husband who has repudiated the same woman three times is retained. Failure to notify invalidated the talaq until the late 1970s and early 1980s, but the introduction of the Zina Ordinance allowed scope for abuse as repudiated wives were left open to charges of zina if their husbands had not followed the MFLO’s notification procedure. Thus, judicial practice has, since the early 1980s, recognised as valid repudiations in contravention of the notification procedure. The rules regarding notification and arbitration apply, mutatis mutandis and so far as applicable, to delegated divorce (talaq al-tafwid), or to marriage dissolved other than by talaq.

Judicial Divorce

Grounds on which women may seek divorce include: desertion for four years, failure to maintain for two years or husband’s contracting of a polygamous marriage in contravention of established legal procedures, husband’s imprisonment for seven years, husband’s failure to perform marital obligations for three years, husband’s continued impotence from the time of the marriage, husband’s insanity for two years or his serious illness, wife’s exercise of her option of puberty if she was contracted into marriage by any guardian before age of 16 and repudiates the marriage before the age of 18 (as long as the marriage was not consummated), husband’s cruelty (including physical or other mistreatment, unequal treatment of co-wives), and any other ground recognized as valid for the dissolution of marriage under Muslim law; judicial khula may also be granted without husband’s consent if wife is willing to forgo her financial rights; leading case Khurshid Bibi v. Md. Amin (PLD 1967 SC 97)

The Dissolution of Muslim Marriages Act, 1939

Continues to govern divorce in Pakistan. The Act has been amended by the Muslim Family Laws Ordinance 1961 to include the contracting of a polygamous marriage in contravention of the MFLO in the grounds entitling a woman to a decree for the dissolution of her marriage. Another amendment raises the age at which a woman has to have been married by her father or other guardian to exercise her option of puberty from 15 to 16; thus, the option of puberty may be exercised if the girl was married before the age of 16 if she repudiates the marriage before the age of 18 so long as the marriage was not consummated. The “judicial khula” is a significant feature of divorce law in Pakistan. It is welcomed by some as giving women the right to divorce regardless of grounds, provided that she is prepared to forgo her financial rights (i.e., repaying her dower). It is criticized by others who point out that judges may rule for a judicial khula in cases where women are clearly entitled to a judicial divorce under the terms of the DMMA without losing their financial rights. In Khurshid Bibi v. Mohd. Amin (PLD 1967 SC 97), the question for the Supreme Court to determine was stated as follows: “(Is) a wife, under the Muslim law, entitled, as of right, to claim khula, despite the unwillingness of the husband to release her from the matrimonial tie, if she satisfies the Court that there is no possibility of their living together consistently with their conjugal duties and obligations.” The Supreme Court stated that the Muslim wife is indeed entitled to khula as of right, if she satisfies the Court that she would be forced into a hateful union if the option of khula was denied her by her husband

Post-Divorce Maintenance / Financial Arrangements

Governed by classical law In terms of maintenance during and after marriage, the classical law is applied. The post-independence changes to the Indian Criminal Procedure Code that allow a divorced wife who is unable to support herself to claim maintenance from her former husband have not been reflected in the Criminal Procedure Code of Pakistan. While the Indian Criminal Procedure Code was extended so as to apply to divorce, no such reforms have been made to section 488 of the Criminal Procedure Codes of either Pakistan or Bangladesh

Child Custody

General rule is that divorced wife is entitled to custody until 7 years for males (classical Hanafi position) and puberty for females, subject to classical conditions, though there is some flexibility as best interests of the ward are considered paramount according to Guardians and Wards Act, 1890

Succession

Governed by classical law; reform introduced in post-independence legislation allows for orphaned grandchildren through sons and daughters to inherit the share their father / mother would have been entitled to had they not predeceased the grandparents.

The Qanun-e-Shahadat (Law of Evidence) Order, 1984

Replaced the Evidence Act 1872, though it essentially restates the original legislation, but as it was intended to bring the law of evidence closer to Islamic injunctions, there were changes which specifically impacted upon women. The Order introduced changes to the law as it relates to the presumption of legitimacy. The original Evidence Act did not provide for a minimum period of gestation, and the maximum was 280 days. Now, the minimum gestation period is set at six months and the maximum at two years, bringing the provision into accordance with the majority position in classical Hanafi fiqh. With regard to the changes introduced relating to womens testimony, practice since the Orders issuance has been for instruments pertaining to financial or future obligations to be attested by two men, or one man and two women while courts may accept or act on the testimony of one man or one woman in all other cases.

The Offence of Zina (Enforcement of Hudood) Ordinance, 1979

Introduced the concepts of fornication and adultery into criminal law. The Pakistani Penal Code had not afforded any recognition to fornication as a crime, and adultery was only defined as an offence under section 497 if a man had intercourse with the wife of another man without his permission; the woman involved bore no criminal liability. The Zina Ordinance provides for severe penalties for committing adultery or fornication, and reiterates the classical distinction between married and unmarried parties in determining punishments. Thus, the hadd punishment for a married person convicted of zina is rajm, stoning to death, a penalty that has not been carried out by the state, and the hadd for an unmarried person found guilty of zina is one hundred lashes in a public place. The Ordinance also makes a distinction between tazir and hadd punishments for zina, as hadd punishments are generally more severe and require a more rigorous standard of proof. If the accused confesses to the crime, or if there are four pious adult Muslim male eye-witnesses to the actual act of penetration, the hadd penalty may be applied. Often the higher standard of evidentiary requirements is not met, and if there are other complications as well (appeals, retractions of confessions, etc.), the usual course has been to apply tazir punishments, defined as imprisonment for up to ten years, thirty lashes, and a fine.

The Enforcement of Sharia Act, 1991

Affirms the supremacy of the sharia, (defined in the Act as the injunctions of Islam as laid down in the Holy Quran and Sunnah) as the supreme law of Pakistan. The Act states that all statute law is to be interpreted in the light of sharia and that all Muslim citizens of Pakistan shall observe the sharia and act accordingly. Section 20 of the Act states that notwithstanding anything contained in this Act, the rights of women as guaranteed by the Constitution shall not be affected

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