Special Bulletin February 2000
Shirkat Gah

Introduction

Holding certain of its provisions to be repugnant to Islam, on 5 January 2000 the Federal Shariat Court directed the President of Pakistan to take steps to amend the Muslim Family Laws Ordinance 1961 (MFLO) “so as to bring the provisions into conformity with the injunctions of Islam”. The Ordinance has long been regarded by activists as one of the few pieces of legislation protecting women’s rights within the family. Following the judgement, however, certain provisions shall cease to have effect from 31 March 2000.

This Special Bulletin is an attempt to provide activists and all those concerned about women’s rights within the family a tool for lobbying and advocacy around the issue. It shows how, over four decades, there has been a consistent demand for the protection and strengthening of legal provisions favouring Muslim women’s rights within the family1. This demand has been strongly supported by all four major government commissions on women’s status, from the 1956 Commission (headed by a former Chief Justice) to the 1997 Commission (headed by a sitting judge of the Supreme Court). This Bulletin therefore includes extracts relating to marriage, child marriage, polygamy, divorce and inheritance from the:

• 1956 Report of the Commission on Marriage and Family Laws (Rashid Commission);
• 1976 Report of the Pakistan Women’s Rights Committee;
• 1985 Report of the Status of Women Commission (Zari Sarfraz Commission);
• 1997 Report of the Commission of Inquiry for Women.

The Bulletin also points out that Pakistan’s national and international commitments oblige the state to protect and strengthen positive provisions in personal status laws and therefore includes relevant extracts from:

• the National Plan of Action (the officially adopted blueprint for implementing the Beijing Platform for Action).
• the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW);

The Bulletin brings together two written submissions presented to the FSC by women’s and human rights organisations during the Lahore hearings in the case. Activists regularly attended the hearings on the petitions at the Karachi, Lahore, Peshawar and Islamabad benches, and the court acknowledged their presence by hearing their arguments and accepting written presentations. Finally, the Special Bulletin contains two statements from human rights organisations in the immediate aftermath of the January 5 judgement.

The Muslim Family Laws Ordinance 1961 and the FSC Petitions

Hearings on some 37 petitions that challenged various substantive sections of the MFLO as violative of the Injunctions of Islam had been continuing in the FSC since 1993. The sections challenged were

Section 4: inheritance of grandchildren of predeceased parents:
In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stirpes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.

Section 5: registration of marriage:
(1) Every marriage solemnized under Muslim Law shall be registered in accordance with the provision of this Ordinance.
(2) For the purpose of registration of marriages under this Ordinance, the Union Council shall grant licenses to one or more persons, to be called Nikah Registrars, but in no case shall more than one person be licensed for any one Ward.
(3) Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this Ordinance be reported to him by the person who has solemnized such marriage.
(4) Whoever contravenes the provision of sub-section (3) shall be punishable with simple imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.
(5) The form of nikahnama, the registers to be maintained by Nikah Registrars, the records to be preserved by Union Councils, the manner in which marriages shall be registered and copies of nikahnama shall be supplied to the parties, and the fees to be charged thereof, shall be such as may be prescribed.
(6) Any person may, on payment of the prescribed fee, if any, inspect at the office of the Union Council the record prescribed under Sub-section (5), or obtain a copy of any entry therein.

Section 6: polygamy:
(1) No man, during the subsistence of an existing marriage, shall except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance.
(2) An application for permission under Sub-section (1) shall be submitted to the Chairman in the prescribed manner together with the prescribed fee, and shall state reasons for the proposed marriage, and whether the consent of existing wife or wives has been obtained thereto.
(3) On receipt of the application under Sub-section (3), Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant, subject to such condition if any, as may be deemed fit, the permission applied for.
(4) In deciding the application the Arbitration Council shall record its reasons for the decision and any party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision, in the case of West Pakistan to the Collector and, in the case of East Pakistan, to the Sub-Divisional Officer concerned and his decision shall be final and shall not be called in question in any Court.
(5) Any man who contracts another marriage without the permission of the Arbitration Council shall,
(a) pay immediately the entire amount of the dower whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and
(b) on conviction upon complaint be punishable with simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

Section 7: procedure for talaq:
(1) Any man who wishes to divorce his wife shall as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever contravenes the provision of Sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.
(3) Save as provided in Sub-section (5) talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under Sub-section (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under Sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in Sub-section (3) or the pregnancy, whichever later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this Section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.

The FSC judgement upheld Section 5 as “in no manner violative of any Injunction of Islam. Indeed, it directed the enhancement of the existing punishment of fine and/or 3 three months imprisonment for contravening Section 5 on registration of marriage: “registration of marriage as provided for by Section 5 in a Government record will be a positive check on the litigation where due to non registration, the marriage and/or paternity of children is denied in order to just deprive the wife or the children from her inheritance. The measure intended to be preventive for avoiding litigation thus in no manner be termed as un-Islamic or opposed to the Injunctions of Islam. We may also observe that for having effectual compliance of the provision it would be desirable that the punishment prescribed by sub-section (4) of Section 5 be suitably enhanced as that prescribed presently is not adequate to attract strict compliance of the provision.”

Section 6 was held to be “reformative only” and “not violative of the Injunctions of Islam,” although this was subject to certain “observations and recommendations” contained in the judgement. The court stated that regarding polygamy, “suitable measures” should be adopted “to put an end to or at least minimise the instances of injustice being found abundantly in society”. It further recommended that in the event that the husband intends to contract another marriage: “the Arbitration Council should figure in when a complaint is made by the existing wife or her parents/guardians. The intention is to protect the rights of the existing wife/wives and interest of her/their children.”

However, the FSC held Section 4 to be repugnant to Islam using the argument that Islam does not provide for the direct inheritance by orphans from their grandparents.2 The court said it would: “leave it to the legislative domain of the country to deliberate on it and bring about the law which would safeguard the interest of the orphan grandchildren and exclude all possible complications of litigation that may crop up as a result of loose or unthoughtfor provision of law. We are preferring the creation of a will in favour of the orphan grandchildren by the grandparent over other solutions which may be available for the socio economic problem inter-alia for the following reasons: “[…] c) that a provision can be made that in case a propositous dies without creating a will, the will - to the extent of 1/3rd in favour of the grandchildren out of the estate with a ceiling that it does not go beyond the share of their predecessor - shall be deemed to have been created by the grandparents in their favour.”

Finally, while the FSC held that “no valid objection can be raised to the spirit of Section 7”, it also criticised the “over exuberance of legislation in a new field” and held that Section 7(3) and 7(5) resulted in an “implied violation of the Injunctions of Quran” and therefore “cannot be maintained.” The implication is that divorce should take immediate effect upon pronouncement, while iddat could be observed subsequently, its length depending upon each individual situation.

Women’s and human rights groups issued a number of statements in response to the judgement, above all objecting to the FSC’s application of jurisdiction over the Muslim Family Laws Ordinance. The FSC was created during Gen. Zia-ul-Haq’s so-called ‘Islamisation’ in 1980 with the jurisdiction to examine whether laws are in conformity with the injunctions of Islam. However, under Article 203 (B)(c) of the Constitution, personal laws are exempted from the FSC’s scrutiny, and there have been numerous judgements since 1980 upholding this view. Nevertheless, the FSC relied upon a 1994 judgement of the Supreme Court (PLD 1994 SC 607) which held that the “mere fact that a codified law or statute law applied to only the Muslim population of the country, in our view, could not place it in the category of ‘Muslim Personal Law’ envisaged by Article 203(B)(c) of the Constitution.” In other words, the MFLO did not fall under the definition of ‘personal law’ and was therefore not immune from scrutiny by the FSC.

The orthodox attack against the MFLO
The current attack, although the most concerted challenge in the MFLO’s nearly 40-year history, is in fact a continuation of an attack, both inside the legislature and outside, by orthodox elements that began even before the Ordinance was promulgated. Maulana Ehtishamul Haq Thanvi wrote a blistering dissenting note to the report of the 1956 Rashid Commission, whose recommendations laid the foundation for the MFLO. Subsequent attacks on the MFLO from the religious Right have mirrored the original dissenting note.

During cycles of state-sponsored ‘Islamisation’ under successive governments in the 1980s and 1990s, various sections of the MFLO came under challenge in the FSC. The MFLO - notably Section 7 – became the victim of a highly charged debate over whether the statute law or the injunctions of Islam are to be supreme, and whether the superior courts had the power to declare a law repugnant to Islam. In line with the fluctuating political environment, the superior courts issued contradictory judgements on these issues, the FSC decision merely being the latest.

Certainly, it is not just the MFLO that has suffered over the years: the real victims have been the millions of women whose rights have been undermined by this sustained attack on the MFLO. It is now time to look back at all the recommendations made over the years for strengthening Muslim family law in Pakistan and to move forward to a situation where women’s rights within the family are fully legislated and implemented.

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