FAMILY LAW & LAWYERS IN PAKISTAN
After the partition of India in 1947, the legislation relating to Muslim family law introduced in British India continued to govern personal status. A seven-member Commission on Marriage and Family Laws was established in 1955 with a remit to consider the personal status laws applicable in the new state and determine the areas needing reform. The Commission submitted its report in 1956, suggesting a number of reforms, including, for example, the consideration of all triple talaqs (except for the third of three) as single, revocable repudiations.
The report led to much debate, with many leading ulama (including Maulana Abual Ala Maududi, leader of the Jamaat-i-Islami) opposing its recommendations. The Muslim Family Laws Ordinance, 1961 adopted some of the provisions of the Report of the Marriage and Family Laws Commission, aiming to reform divorce law and inheritance law relating to orphaned grandchildren, introduce compulsory marriage registration, place restrictions on the practice of polygamy, and reform the law relating to dower and maintenance in marriage and divorce, as well as to amend existing legislation with relation to marriage age. Again, various sectors of the ulama regarded this as unjustified interference or tampering with the classical law. When the first Constitution of Pakistan was finally promulgated in 1956, it included a provision that came to be referred to as the repugnancy clause. This clause stated that no law repugnant to Islamic injunctions would be enacted and that all existing laws would be considered in light of this provision, in order to institute appropriate amendments. This repugnancy provision has been retained and actually strengthened in the succeeding Constitutions.
After a military take-over in 1999, the Constitution was again suspended. During 2000, discussions continued about possible amendments to the Constitution.
Schools of Fiqh
The predominant madhhab is the Hanafi, and there are sizeable Jafari and Ismaili minorities. The legal status of the Ahmadis is somewhat unclear. They self-identify as Sunni Muslims, but were declared non-Muslims by the state. In 1974, then-Prime Minister Zulfiqar Ali Bhutto finally conceded to a long-standing campaign waged by conservative religious elements agitating for the official designation of Ahmadis as non-Muslims. There have been Ahmadi initiatives to adopt a modified version of the Muslim Family Laws Ordinance 1961 to be applied to Ahmadi personal status cases. There are also Christians, Zoroastrian, Hindu, Sikh and Jewish minorities in Pakistan.
Constitutional Status of Islamic Law
The third Constitution was adopted on 10th April 1973, suspended in 1977, and re-instituted in 1985; it has undergone numerous amendments over time. It was suspended again in 1999 and remained suspended at the time of writing.
Article 1 of the Constitution declares that Pakistan shall be known as “the Islamic Republic of Pakistan” and Article 2 declares Islam the state religion. In 1985, the Objectives Resolution contained in the preamble of the Constitution was made a substantive provision by the insertion of Article 2A, thereby requiring all laws to be brought into consonance with the Quran and sunnah. Chapter 3A establishes the Federal Shariat Court and stipulates that the Court shall take up the examination of any law or provision of law that may be repugnant to the “injunctions of Islam, as laid down in the Holy Quran and the Sunnah”. If a law or provision is determined to be repugnant, the Court is to provide notice to the federal or provincial government specifying the reasons for the decision. The Court may also examine any decisions relating to the application of the hudud penalties which have been decided by any criminal court, and may suspend the sentence if there is any question as to the correctness, legality or propriety of any finding, sentence or order or the regularity of the proceedings. The Supreme Court also has a Shariat Appellate Bench empowered to review the decisions of the Federal Shariat Court and consisting of three Muslim Supreme Court judges and up to two ulama. Part IX of the Constitution is entitled Islamic Provisions and provides for the Islamization of all existing laws, reiterating that no laws shall be enacted which are repugnant to the injunctions of Islam. An explanation appended to Part IX clarifies that, with respect to personal law, the expression “Quran and Sunnah” means the laws of any sect as interpreted by that sect.
The Islamic provisions also provide for the creation of an Islamic Ideology Council of 8 to 20 members appointed by the President. They must have “knowledge of the principles and philosophy of Islam as enunciated in the Holy Quran and Sunnah, or understanding of the economic, political, legal or administrative problems of Pakistan.” The Islamic Council is meant to represent various schools of thought as far as that may be practical, and at least one woman should be appointed. Its function is to make recommendations to the Majlis-e-Shoora (Parliament) and the Provincial Assemblies “as to the ways and means of enabling and encouraging the Muslims of Pakistan to order their lives individually and collectively in all respects in accordance with the principles and concepts of Islam as enunciated in the Holy Quran and Sunnah.” The Council also determines for the federal and provincial governments whether or not proposed laws are repugnant, and compiles for them in suitable form “such Injunctions of Islam as can be given legislative effect.
The judiciary is composed of three levels of federal courts, three divisions of lower courts, and a Supreme Judicial Council. District courts in every district of each province, having both civil and criminal jurisdiction though they deal mainly with civil matters. High Court of each province has appellate jurisdiction over the lower courts. Supreme Court has exclusive jurisdiction over disputes between federal and among provincial governments, and appellate jurisdiction over High Court decisions. Federal Shariat Court established by Presidential Order in 1980. This Court has a remit to examine any law that may be repugnant to the “injunctions of Islam, as laid down in the Holy Quran and the Sunnah.” If a law is found to be repugnant, the Court is to provide notice to the level of government concerned specifying the reasons for its decision. The Court also has jurisdiction to examine any decisions of any criminal court relating to the application of hudud penalties. The Supreme Court also has a Shariat Appellate Bench empowered to review the decisions of the Federal Shariat Court. The West Pakistan Family Courts Act, 1964 governs the jurisdiction of Family Courts. These courts have exclusive jurisdiction over matters relating to personal status. Appeals from the Family Courts lie with the High Court only. The Family Courts have exclusive jurisdiction over matters pertaining to the dissolution of marriage, dower, maintenance, the restitution of conjugal rights, the custody of children, and guardianship.
- Guardians and Wards Act, 1890
- Child Marriage Restraint Act, 1929
- Dissolution of Muslim Marriages Act, 1939
- Muslim Family Laws Ordinance, 1961
- (West Pakistan) Muslim Personal Law (Shariat) Application Act, 1962
- (West Pakistan) Family Courts Act, 1964
- Offence of Zina (Enforcement of Hudood) Ordinance, 1979
- Law of Evidence (Qanun-e-Shahadat) Order, 1984
- Enforcement of Sharia Act, 1991
- Dowry and Bridal Gifts (Restriction) Act, 1976
- Prohibition (Enforcement of Hudood) Order, 1979
- Offence of Qazf (Enforcement of Hudood) Order, 1979
- Execution of Punishment of Whipping Ordinance, 1979 (many provisions of this Ordinance were repealed later on so as to limit the number of crimes to which it is applicable)
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.
18 for males and 16 for females; penal sanctions for contracting under-age marriages, though such unions remain valid.
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.
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.
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.
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.
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.
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.
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.
Law / Case Reporting System
The decisions of Pakistani courts are published in Pakistan Legal Decisions (PLD), Civil Law Cases (CLC), Monthly Legal Digest (MLD) and a number of other law reports.
International Conventions & Reports to Treaty Governing Bodies
Pakistan signed the CRC in 1990, and ratified the Convention the same year. The reservation made upon signature regarding the CRC being interpreted in light of Islamic legal principles and values was withdrawn in 1997.
Pakistan acceded to the CEDAW in 1996, with a general declaration to the effect that Pakistan’s accession to the Convention is subject to the provisions of the national Constitution.
Court system of Pakistan is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature while others are provincial.
Pakistan has three levels of federal courts, three divisions of lower courts, and a Supreme Judicial Council. District courts exist in every district of each province, with civil and criminal jurisdiction. The High Court of each province has appellate jurisdiction over the lower courts. The Supreme Court has exclusive jurisdiction over disputes between and among provincial governments, and appellate jurisdiction over High Court decisions.
The Federal Shariat Court was established by Presidential Order in 1980. This Court has a remit to examine any law that may be repugnant to the “injunctions of Islam, as laid down in the Holy Quran and the Sunnah.” If a law is found to be ‘repugnant’, the Court is to provide notice to the level of government concerned specifying the reasons for its decision. The Court also has jurisdiction to examine any decisions of any criminal court relating to the application of hudud penalties. The Supreme Court also has a Shariat Appellate Bench empowered to review the decisions of the Federal Shariat Court.
The West Pakistan Family Courts Act 1964 governs the jurisdiction of Family Courts. These courts have exclusive jurisdiction over matters relating to personal status. Appeals from the Family Courts lie with the High Court only.
- Anti Terrorism Court of Pakistan
- Pakistan Penal Code
- Blasphemy law in Pakistan
- Copyright protection in Pakistan
- Gay rights in Pakistan
- The Oath of Judges Order, 2000
A court is a public forum used by a power base to adjudicate disputes and dispense civil, labour, administrative and criminal justice under its laws. In common law and civil law states, courts are the central means for dispute resolution, and it is generally understood that all persons have an ability to bring their claims before a court. Similarly, those accused of a crime have the right to present their defense before a court.
Court facilities range from a simple farmhouse for a village court in a rural community to huge buildings housing dozens of courtrooms in large cities. A court is a kind of deliberative assembly with special powers, called its jurisdiction, to decide certain kinds of judicial questions or petitions put to it. It will typically consist of one or more presiding officers, parties and their attorneys, bailiffs, reporters, and perhaps a jury.
The term “court” is often used to refer to the president of the court, also known as the “judge” or the “bench”, or the panel of such officials. For example, in the United States the term “court” (in the case of U.S. federal courts) by law is used to describe the judge himself or herself.
In the United States, the legal authority of a court to take action is based on three major issues: (1) Personal jurisdiction; (2) Subject matter jurisdiction; and (3) Venue.
Jurisdiction, meaning “to speak the law” is the power of a court over a person or claim. In the United States, a court must have both personal jurisdiction and subject matter jurisdiction. Each state establishes a court system for the territory under its control. This system allocates work to courts or authorized individuals by granting both civil and criminal jurisdiction (in the United States, this is termed subject-matter jurisdiction). The grant of power to each category of court or individual may stem from a provision of a written constitution or from an enabling statute. In English law, jurisdiction may be inherent, deriving from the common law origin of the particular court.
Trial and Appellate Courts
Courts may be classified as trial courts (sometimes termed “courts of first instance”) and appellate courts. Some trial courts may function with a judge and a jury: juries make findings of fact under the direction of the judge who reaches conclusions of law and, in combination, this represents the judgment of the court. In other trial courts, decisions of both fact and law are made by the judge or judges. Juries are less common in court systems outside the Anglo-American common law tradition.
Civil Law Courts and Common Law Courts
The two major models for courts are the civil law courts and the common law courts. Civil law courts are based upon the judicial system in France, while the common law courts are based on the judicial system in Britain. In most civil law jurisdictions, courts function under an inquisitorial system. In the common law system, most courts follow the adversarial system. Procedural law governs the rules by which courts operate: civil procedure for private disputes (for example); and criminal procedure for violation of the criminal law.
The Federal Shariat Court (FSC) of Pakistan consists of 8 muslim judges including the Chief Justice. These Judges are appointed by the President of Pakistan choosing from amongst the serving or retired judges of the Supreme Court or a High Court or from amongst persons possessing the qualifications of judges of a High Court.
Of the 8 judges, 3 are required to be Ulema who are well versed in Islamic law. The judges hold office for a period of 3 years, which may eventually be extended by the President.
The FSC, on its own motion or through petition by a citizen or a government (federal or provincial), has the power to examine and determine as to whether or not a certain provision of law is repugnant to the injunctions of Islam. Appeal against its decisions lie to the Shariat Appellate Bench of the Supreme Court, consisting of 3 muslim judges of the Supreme Court and 2 Ulema, appointed by the President. If a certain provision of law is declared to be repugnant to the injunctions of Islam, the government is required to take necessary steps to amend the law so as to bring it in conformity with the injunctions of Islam.
The court also exercises revisional jurisdiction over the criminal courts, deciding Hudood cases. The decisions of the court are binding on the High Courts as well as subordinate judiciary. The court appoints its own staff and frames its own rules of procedure.
Eversince its establishment in 1980, the Federal Shariat Court has been the subject of criticism and controversy in the society. Created as an islamisation measure by the military regime and subsequently protected under the controversial 8th Amendment, its opponents question the very rationale and utility of this institution. It is stated that this court merely duplicates the functions of the existing superior courts and also operates as a check on the sovereignty of Parliament. The composition of the court, particularly the mode of appointment of its judges and the insecurity of their tenure, is taken exception to, and it is alleged, that this court does not fully meet the criterion prescribed for the independence of the judiciary. That is to say, it is not immune to pressures and influences from the Executive.
In the past, this court was used as a refuge for the recalcitrant judges. And whereas some of its judgments, particularly the ones which relying on the Islamic concept of equity, justice and fair play, expanded and enlarged the scope and contents of individual’s rights were commended, others that tend to restrict the rights of women, are severely criticized and deplored. In brief there is a need for a serious discussion on the status, utility and functions of this Court.
ZA-LLP is well acquainted with the above Family Laws and are definitely in a position to represent you at any level of proceedings.
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