..::Family Laws and Judicial Perceptions in Pakistan

…posted by Pakistani Law Firm…Get Free Legal Advice

In this paper, I shall deal with three judgments passed by the superior courts, which

reflect the judicial perceptions.

Family laws like all other laws are applied by the courts in consonance with the existing

circumstances of the prevalent living conditions. One thing that strikes me time and

again, at the Legal Aid Center run by PAWLA, is the level of poverty prevailing in

Pakistan and in particular, that of women.

A recent newspaper headline read “Labourer Kills Three Daughters”. The responsible

father surrendered and confessed to the Police saying “I picked up my daughters one by

one from their cots to the courtyard of my house and slaughtered them. I had learnt over

time that I would never be able to generate enough resources to give honourable lives to

my daughters”.

Poverty in Pakistan is rampant. According to the World Bank estimates, twenty five to

twenty eight percent of the people live below the poverty line. Women are the poorest of

the poor. No doubt, the government is making all efforts to reduce poverty through

development, especially industrialization. In addition to the present scenario regarding

excessive riches and abject poverty, there exists in practice, a seriously misguided,

misunderstood and a misapplied concept of Honour of Women.

Cases of Honour are a regular constituent of family life. Quite often, one witnesses

newspaper headings such as “Court allows wife to live with her husband”. To join in

marriage of their own free will is a basic right of men and women. Nevertheless, it is

disputed time and again in Pakistani Society.

The Zina Ordinance brought into existence by a dictator, General Zia-ul-Haq, declared

sex without marriage to be a criminal offence. In many cases, where a woman married

without the consent of her parents , she was subjected to accusations along with her

husband and consequently was prosecuted for Zina. It is considered as a personal insult

by a father that his daughter, whom he presumed to be his property, marries of her own

choice against his wishes. Zina cases emanating from complaints through parents, exhusbands

and even relatives, are filed by the Police in our courts, against married

couples accusing them of illicit sex. A large number of such cases are decided by the

lower courts, mostly in favour of the couple and at times, against them. Some cases end

up in appeals before the High Court, the Shariat Court and the Supreme Court, more so

when the factum of the marriage is disputed.

CONSENT OF WALI

In some cases that negated the right of women to marry in accordance to with their free

will, the Lahore High Court, for the first time, held that even an adult woman required

the permission of her father or a guardian (Wali) in order contract a valid marriage (PLD

1995 Lah. 364). This was contrary to the previous decisions of the superior courts, which

had previously upheld that a woman is free to choose her own husband. This ruling

caused quite an uproar.

An appeal was subsequently filed in the Honourable Supreme Court. The court

unequivocally supported the right of women to marry according to their own choice

without any intervention of the father / guardian. The Honourable Supreme Court of

Pakistan held that as per the judgment of the Federal Shariat Court, noted in para 6,

“consent of wali is not required and a sui juris Muslim female can enter a valid

Nikah/Marriage by her own free will.” This has finalized the question on the legal field,

yet complaints and cases continue to pour in this matter.

MUSLIM FAMILY LAWS

Due to Pakistan being a Muslim state, laws relating to family issues which include

marriage, divorce, inheritance, custody and guardianship of children are governed by

Islamic Law in conjunction with other statutes. Most of these laws are not codified. There

are a number of rulings of the Superior Courts on several issues, which highlight the

judicial perception of Family Laws.

MARRIAGE

Marriage is advocated in the Holy Quran. It is the basis of a family life. An important

innovation under the Muslim Family Laws Ordinance 1961 was the mandatory

requirement of registration of marriages. For the first time, it became obligatory for

parties to use the prescribed standard form of Nikahnama. Unfortunately, few people

have taken note of the importance and contents of the prescribed Nikahnama. I have

with me some pamphlets published by PAWLA explaining its importance so that woman

can achieve equal rights in marriage through the proper use of the standard Nikahnama.

In the Pakistan of today, Quranic verses are not only misinterpreted but are manipulated

to the extent of denying women their Quranic Rights.

DISSOLUTION OF MARRIAGE – THE FATAL PRONOUNCEMENT

Misinterpretations of Islam have made it possible to unilaterally pronounce talaq three

times resulting in the commonly accepted and valid form of Talaq / Divorce. All was lost

to the wife; her home, husband and children just because of a fatal pronouncement of

talaq. The husband seldom fulfills his obligations in complying with the wife’s needs and

the granting of her rights of maintenance, her share in property or the custody of the

children. For such basic rights, the wife has to repeatedly knock the doors of courts and

yet, redressal of her grievance could take indefinite time.

The 1961 Muslim Family Laws Ordinance lays down the procedure to be adopted by the

husband after the pronouncement of Talaq. It is obligatory for the husband to give notice

of the pronouncement of Talaq to the Chairman and a copy thereof to the wife. Talaq

does not become effective before the expiry of 90 days starting from the day of the

receipt of the Talaq by the Chairman. The Chairman is required to try and bring

reconciliation between the parties. He is not empowered to put a stop to the Talaq from

becoming effective, nor can he ensure that the divorced wife receives her due share in

the property, her haq mehar, dowry, her due role in her children’s life and sufficient

means for her maintenance as well as her children.

DIVORCE BY WIFE

There was a misconception that Muslim women had no rights to obtain a divorce through

the courts. As a remedy to this situation, the Dissolution of Muslim Marriages Act of

1939, brought sweeping changes in the law. Section 2 of the Act specified a number of

grounds on which a woman married under Muslim Law could sue for divorce, including

cruelty, non-maintenance and impotence as well as any other ground that could be

recognized as valid for the dissolution of marriage under Muslim Law.

KHULA

One of the recognized forms under the Muslim Law for Dissolution of Marriage through

which a woman can obtain divorce is that of ‘Khula’. In pre-partition India, Khula was

only accepted as a ground for divorce by the British Indian Courts subject to the

husband’s agreement to the dissolution of marriage via Khula.

The law has undergone considerable change thereafter. The first case bringing in

changes in the concept of Khula was that of Bilqis Fatima, in which it was argued before

the High Court that Khula is a right of the wife. The judge ought to grant Khula if he finds

that the husband and wife will not observe the limits of God otherwise.

In a leading case decided by the Honourable Supreme Court of Pakistan, Khurshid Bibi

versus Baboo Mohammad Amin (PLD 1967, SC 97, P 112), it was held that:

“The Husband is given the right of divorce to his wife, though, of course,

arbitrary divorces are discountenanced. Similarly, wife is given the right to

ask for Khula in case of extreme incompatibility ……”

This ruling changed the concept of the right of Khula by the wife. In a large number of

cases concerning dissolution of marriage, Khula is the main ground and often resorted to

as an alternate plea.

A large number of Ulema even today, refuse to recognize Khula granted by courts

without the consent of the husband as a valid divorce. Confusion is caused by two

parallel and conflicting interpretations of the Islamic Law. On one hand, there is the

statutory law and interpretation by the Superior Courts of Pakistan and on the other, is

the archaic interpretation as preached by the Ulema and supported by their fatwas

(opinion).

PROCEDURE FOR KHULA

Formerly in the case of Khula, women had to face the same stress delay and difficulties

as in cases for dissolution of marriage on other grounds such as cruelty or nonmaintenance.

The husband usually refused to grant Khula to the wife and in order to

defeat this right, the husband claimed huge compensation for Khula, often making false

allegations of having given the wife huge sums in the shape of jewelry and property and

even claiming the property in the name of the wife as belonging to him. This placed a lot

of strain on the judges for such cases required heavy sifting of evidence thus leading to

lengthy procedures.

President General Musharraf has tried to curb this through amendments to the Family

Law Courts Act dated

1st of October, 2002. Presently in cases of Khula, the procedure

has been shortened and simplified. When the wife files a case for dissolution of

marriage, the court issues notice to the opposite party being the husband. If he fails to

appear after the due process of posting and publication, the court can proceed with the

case ex-parte. In case where the husband or his representative appear, he is required to

file a written statement following which the court has to fix a date for pre-trial

proceedings for reconciliation.

The amendments require that “the family court in a suit for dissolution of

marriage, if reconciliation fails, shall pass Decree for dissolution of

marriage forthwith and shall restore to the husband the mehr received by

the wife in consideration of the marriage at the time of marriage.”

This change in the procedural law has brought much needed relief to suffering wives

who had to bear insurmountable delays or long drawn out legal battles for the

enforcement of their right of Khula.

The consequences of Khula differ from that of Talaq by the husband since following a

Khula, the ex-husband and the ex-wife can remarry without the necessity of any

intervening marriage to another person by the wife, as required for under the doctrine of

Halala which is recognized by most jurists.

Khula has become an easy and a quick form of relief to many women suffering from

miseries of violence in circumstances where they were unable to sustain a happy

marriage within the limits prescribed by God.

FEDERAL SHARIAT COURT

Article 3A, Federal Shariat Court (FSC) was inserted in the Constitution in 1980. Apart

from appellate powers, the FSC was granted legislative powers. The Federal Shariat

Court has jurisdiction to determine whether any law or provision of law is repugnant to

the injunctions of Islam.

CHANGE IN LAW OF CRIME

The Judgment of the Shariat Appellate Bench of the Honourable Supreme Court,

reported at PLD 1989 SC 633, recommended amendments to certain sections of the

Criminal Procedure Code 1898 and the Pakistan Penal Code 1860. The court

considered that in Islam “the individual victim or his heirs retain from the beginning to the

end entire control over the matter including the crime and the criminal”. Sweeping

changes were ordered which were made in the areas concerning the law of crimes.

Sections 299 to 338 of the Pakistan Penal Code were replaced and the Criminal

Procedure Code was amended. These are commonly known as the Qisas and Diyat

Amendments.

Following these amendments, abortion was allowed in the early stages of pregnancy not

only to save the life of the woman, but also for the provision of necessary treatment to

her. The relevant amended section 338 of the Pakistan Penal Code pertaining to the law

on abortion provides as follows:

Section 338. Isqat-i-Haml.

Whoever causes a woman with child whose organs have not been

formed, to miscarry, if such miscarriage is not caused in good faith for the

purpose of saving the life of the woman, or providing necessary treatment

to her, is said to cause ‘Isqat-I-Haml’.

Explanation: A woman who causes herself to miscarry is within the

meaning of this section.

Isqat-I-Haml concerns abortion before the child’s organs have been formed, which can

be within eight weeks and according to some authorities, within twelve weeks of the

pregnancy. The change in law permits abortion within eight / twelve weeks of pregnancy,

not only to save the life of the woman but also to provide the woman with necessary

treatment.

With the changes in law, especially the inclusion of the provision ‘providing necessary

treatment to the woman in good faith’ makes conviction for Isqat-I-Haml (abortion before

the limbs are formed) quite difficult. In cases of complaint or prosecution, several

defenses would become available, where the consent of the woman is also available.

The scope of legal abortion for family planning purposes has expanded considerably.

‘Providing necessary treatment’ can include several reasons for abortion.

The Qisas and Diyat amendments brought in a sweeping change in the laws of abortion

in Pakistan. The one thing that should be a topmost priority on the agenda of the

Government of Pakistan is Family Planning or Population Welfare as it is often referred

to by the government. In many Muslim countries, the efforts made for family planning are

supported by the Ulema and religious scholars. Unfortunately, in Pakistan such efforts

are often met with objections raised by the so- called religious scholars who condemn

family planning. In either case, sufficient funds are not allocated to the cause of family

planning services in Pakistan.. According to reports, nearly one-third of married women

in the reproductive age group do not have access to family planning services. In

Pakistan, an extremely high number of abortions are carried out by untrained people

which inevitably leads to added suffering and often death for women. Attitudes

harboured by husbands to family planning are at times negative which acts as another

impediment.

The status of women in Pakistan is often reduced to just that of the child bearer. This

along with a lack of education and training, especially in circumstances of poverty, is one

of the main reasons for the dependent status of women leading to their exploitation. The

economic well being of families and the progress of Pakistan as a nation is being

severely hindered by an ever increasing population.

Cruelty to women, unfortunately has gained momentum, especially in cases of Karo-

Kari. A high number of judges have to deal with cases of honour killings which has given

rise to the need to provide special training to judges at the trial court level.

The High Court and the Honourable Supreme Court have at times exercised their suo

motu jurisdiction and taken up cases, through press reports, of gross violation and

cruelty to women. Courts must encourage people to come directly with their complaints

in cases concerning violation of Human Rights. There must also be a network of pro

bono lawyers and paid lawyers through the aegis of government to protect the inherent

human rights of women.

The pronouncements and judgments of cases decided by the Superior Courts do not

always reach the judges or the police officers in several parts of the country. They

continue to be guided by obscure traditions and practices and often interpret laws in a

manner detrimental to women. The lack of knowledge and biased attitudes needs to be

addressed. It is strongly recommended that the Honourable Supreme Court of Pakistan

directly, or through any collaboration, publish the special judgments of the last 50 years

which have brought about a landmark change in the laws, in all local languages and

distribute them to all courts, judges, bar associations with strict instructions to adhere to

these judgments.

There must be a cell where the public can lodge a complaint when a trial judge fails to

apply the judgments of Superior Courts following which an enquiry must be carried out

and the erring judge punished.

Life is a changing process and it is essential that changes in law be part of the legal

system in Pakistan. There must be an end to distress and delays in litigation. The

environment in courts must improve. We all need to work to realize Justice for All.

* The writer is a prominent lawyer and activist. She is Advocate of the

Honourable Supreme Court of Pakistan and President of the Pakistan

Women Lawyers’ Association. She has authored four books:

Women and

Law in Pakistan

, Islamisation of Laws in Pakistan, Socio-Economic

Political Status of Women

and,Woman Versus Man, Socio Legal Gender

Inequality in Pakistan, published in 2003.

Address:F-21/1/A, Block-8, Clifton, Karachi, Pakistan.

Mrs. Rashida Mohammad Hussain Patel

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