Nature and Origin of Family laws in Pakistan

1.Abstract

The study of history of Muslim family laws enabled the modern society that they need the actual

modern laws. For the first time in subcontinent Mughals introduced the Sharia laws and tried to

propagate the Islam. 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. Because it was felt that the existing laws of Sharia are not

satisfying them. Knowledge of the formative and classical periods of Islamic Law, set in an

historical context, is a basic tool for the understanding of contemporary themes in Islamic Law.

Students in Muslim jurisdictions may have some knowledge of earlier Islamic periods, but may

not appreciate the significance of this period for the crystallization of themes in Islamic Family

Law. We therefore recommend that these sessions are adapted accordingly.

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2. Introduction and Historical background: Family law consists of a body of statutes and case

precedents that govern the legal responsibilities between individuals who share a domestic

connection. These cases usually involve parties who are related by blood or marriage, but family

law can affect those in more distant or casual relationships as well. Due to the emotionally-

charged nature of most family law cases, litigants are strongly advised to retain legal counsel.

The Holy Prophet (PBHU) maintains Azwaaj-e-Mutaharat and after that his companions

adopted the same procedure and then Sunnah began to develop and after that four Schools of

thought followed the Sunnah and also corrected the ambiguities in family matters. After the old

period we entered into the era of Mughals and in this era Muslim family laws became weaker but

when British were ruling Subcontinent they also gave some family laws like non-Muslim family

Act. In family we shall discuss below about the marriage and polygamy in marriage. We shall

discuss about divorce and the consequences regarding divorce. Dower is also an important

element of marriage and we shall see how it enforces and how much effective in family matters.1

3. Origin of Family Law

Sources of Islamic law / Family law:

1. Ancient Sources.

2. Modern Sources.

3. Legislation or Statutory Law.

1. Ancient Sources

A. Quran: The Quran is the primary and final source of Islamic law and the highest authority in

Islamic law. It contains direct revelation by the Prophet Mohammad through the angel Gabrial

compiled by his disciples. The precepts of the Prophet should not be taken in such a way so as to

deduce any new rules of law. The courts have been directed not to put their own constructions on

the Quran in opposition o the rules of Islamic commentators.

1 Development of family law By S.M Gupta, Published Year 2002 ,Chapter 1, pp. 10-12

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B. SUNNAH OR HADIS: Hadis consists of the precepts, acts and saying of the Prophet

Mohammad, which are preserved by tradition. The Sunnah consist of what the Prophet did and

the Hadis consist of what the Prophet said or enjoyed. The life, precepts and acts of the Prophet

are the most important sources of Islamic law, only next to the Quran. When the Quran is silent,

the Hadis applies.

C. IJMAA: That is concurrence of opinion amongst the companions and disciples of the

Prophet. One IJMAA is superseded by another. When the Quran and the Hadis are silent on a

particular point, the concurrence amongst jurist (IJMMA) Prevails.

D. KIYAS OR QIYAS: That is analogical or juristic deduction arrived at by comparison of the

first three sources, that is the Quran, the Hadis and the Ijama. Qiyas is reasoning by analogy and

is founded by Abu Hanifa, the founder of the Hanafisect.

E. URF OF COUSTOM: It contains of pre -Islamic custom which was neither confirmed nor

denounced by the Prophet but was allowed to be continued. The Shariat act 1937, which applied

Muslim Personal law to the Mahomedans, abrogated custom and usage in so far as these have

displaced the rules of the Mahomedan law. Custom to be valid, must be ancient , invariable and

not opposed to the Quran or Hadis or any statute or the principles of justice , equality and good

conscience.

2: Modern Sources

A. Equality, justice and good conscience: To the principles of equality, justice and good

conscience constitute an important source of Muslim law. The Hedaya refers to these rules in

connection with the duties of the Qazi.

B. Judicial decisions: The decisions of Courts of law on different matters related to Islamic law

are important source of it like decisions of the Family Courts or Federal Shariat Court of

Pakistan.

4. Legislation or Statutory Law: Legislation constitutes the most modern source of

Mahomedan law. Some rules of the Muslim law have been expressly directed by the legislature

to apply the Muslims. Statutes passed by the legislatures abrogate custom and introduce

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uniformity in the application of laws. Whenever a statue exists, it applies even in derogation of

ancient texts and traditions.

The Shariat Act 1937 expressly applies the Muslim personal law to the Mahomedan in some

matters only, e.g. intestate succession, marriage, divorce, dower, gift, guardianship, trustwakf

etc. The Dissolution of Muslim marriage act 1937 the Mussal etc. have introduced important

changes in the existing Muslim law on the subjects.2

5.Marriage: In Islam, marriage is considered both a social agreement and a legal contract. In

modern times, the marriage contract is signed in the presence of an Islamic judge, imam, or

trusted community elder who is familiar with Islamic law. The process of signing the contract is

usually a private affair, involving only the immediate families of the bride and groom.

Marriage is a vital part of a Muslim’s life. In fact marriage is so important in the religion of Islam that it is

declared to be one half of one’s faith. As a Muslim one should live in accordance with the Islamic

Jurisprudence in the way shown by the greatest of creations and the person who was the greatest

impact on mankind in the existence of the universe, The Holy Prophet Muhammad. The Prophet himself

married and also encouraged others to marry. It has been reported that The Prophet Muhammad said,

“A person who possesses the means to marry (i.e. he is able to work etc. to support a wife and

children) and does not marry then he is not from amongst us (i.e. the believers).”

Polygamy: MFLO has also introduced some reforms in the law relating to polygamy. Now, a

husband must submit an application and pay a prescribed fee to the local union council in order

to obtain permission for contacting a second marriage. Thereafter, the chairman of the union

council forms an arbitration council with representative of both husband and wife/wives in order

to determine the necessity of the proposed marriage. The application must state whether the

husband has obtained consent of the existing wife or wives. Contacting a polygamous marriage

without prior consent is subject to penalties of fine and or imprisonment and the husband

becomes bound to make immediate payment of dowry to the existing wife or wives. Nonetheless,

2 Mahomedan Law by S.P Sengupta, 2nd edition,kamal law house, chapter 1, pp. 6-8 The Islamic Law of Inheritance, by Hamid khan, chapter 1, pp. 10-12

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if the husband has not obtained consent from the existing wife or wives the subsequent marriage

remains valid.3

Definition of nikah: Literally, the word nikah means "to collect things". The word nikah is used

to connote the piercing or absorbing of a thing into another thing. When the water of rainfall

absorbs into the earth the Arabs say: nakaha'l-matru'l-'ard. Likewise when the trees are

intermingled it is said: tanakahat'il-ashjar. Technically, the word nikah refers to cohabitation

(mubasharat). In Shari`ah nikah refers to a contract. A contract means a knot or a tie. As a

woman and a man are tied together by a knot (of wedding called the wedlock), hence nikah is

also called `aqd (a contract). Betrothing or asking for marriage (nikah) or engagement is a

ceremony that takes place prior to the ceremony of nikah. it is like a preface of the nikah.

Conditions for a valid marriage

Consent of both parties.

“Mahr" a gift from the groom to his bride.

Witnesses- 2 male or female.

The marriage should be publicized; it should never be kept secret as it leads to suspicion

and troubles within the community.

Under-age Marriages: The Child Marriage Restraint Act 1929 has made under-age marriages

a  penal offences. Under the Act the minimum age of marriage for a male is 18 years whereas the

minimum age of marriage for a female is 16 years. Despite the fact that under-age marriages are

liable to punishment, such unions are not rendered invalid.

Consent of Wali:According to the Hanafi school, an adult woman may contract her marriage without the consent of a Wali.4

3 Ibn Rushd, vol.2, p.2, ibid.(http://www.inter-islam.org/Lifestyle/marry.htm), visited date, November 19, 2014.4 Some Aspects of Marriage and Divorce in Muslim Family Law, By Dr Shahzad Iqbal Sham, p.13 Isfahani, Raghib, Mufridat al-Quran, see Nakaha, Lahore, Ahl Hadith Academy, 1971, p.1077. (http://www.islamawareness.net/Marriage/marriage_article001.html )

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6. Registration of marriages

Every marriage solemnized under Muslim Law shall be registered in accordance with the

provisions of this Ordinance.

For the purpose of registration of marriages under this Ordinance, the Union Council

shall grant licences to one or more persons, to be called Nikah Registrars, but in no case

shall more than one Nikah Registrar be licensed for any one Ward.

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.

Whoever contravenes the provisions 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.

The form of Nikahnama, the registers to be maintained by Nikah Registrars, the recorders

to be preserved by Union Councils, the manner in which marriage 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.

7. Dissolution of Marriage: Dissolutions of Marriage can be done by way of Talaq or Khula

General Information A Muslim Marriage is a contract and can be dissolved like any other

contract. It is automatically dissolved on the death of one of the spouses. Other than this, both

wife and husband have legal and religious rights to dissolve a marriage. A husband has the

unilateral right of talaq, which can never be taken away but can be restricted through the

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nikahnama. A wife can dissolve her marriage unilaterally only if the right of divorce has been

unconditionally delegated to her by the husband in the nikahnama.

That the Pakistan citizens are required by law to register their marriage with the relevant Union

Council. In the same way it is also mandatory for them to follow the specific provisions of

MFLO 1961 and Family Court Act 1964 in respect of their matter regarding dissolution of

marriage including Divorce and Khula. Under Muslim Personal Law, divorce is a right of

husband and he has the sole authority to pronounce it without having recourse to any Court

proceedings. While Khula is the right of wife, for which she can apply only to a Muslim Judge.

8. Khul’a (Divorce by Wife through Court): If the wife is not delegated the right of Divorce in

her nikahnama then she would need to apply for Khula. Khula, which literally means ‘untying

the knot’, is the dissolution of marriage initiated by the wife and is granted by the court. To apply

for Khula the wife would need to file a suit for Khula in the Family Court under the West

Pakistan Family Courts Ordinance, on the grounds that she feels she can no long live with her

husband “within the limits prescribed by Allah’ and such a statement on oath made in her suit

would be sufficient to establish her case for Khula.

9. DIVORCE / DIVORCE (TALAQ) BY THE HUSBAND: Under The Muslim Family Laws

Ordinance (MFLO) limited reforms have also been introduced in relation to Divorce (Talaq).

Under The Muslim Family Laws Ordinance (MFLO) a divorcing husband shall, as soon as

possible after Divorce Divorce (Talaq) has been pronounced, in whatever form, give a notice in

writing to the chairman of the Union Council. The chairman must then supply a copy of the

notice of Divorce (Talaq) to the wife. Non-compliance is punishable by imprisonment and/or a

fine. Within thirty days of receipt of the notice of Divorce (Talaq), the chairman must constitute

an Arbitration Council in order to take steps to bring about a reconciliation between the husband

and the wife. If and when such attempts to negotiate a reconciliation fail, a Divorce (Talaq) that

is not revoked in the meantime, either expressly or implicitly, takes effect after the expiry of

ninety days from the day on which the notice of repudiation was first delivered to the chairman.

If, however, the wife is pregnant at the time of the pronouncement of Divorce (Talaq), the

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Divorce (Talaq) does not take effect until ninety days have elapsed or the end of the pregnancy,

whichever is later.5

10. Dower: The Dower is the financial gain which the wife is entitled to receive from her

husband by the virtue of marriage. It is also called Mahr. It may be settled before marriage, or at

the time of marriage or even after the marriage. The right of wife to dower becomes complete on

the consummation of marriage. The amount of dower may be increased after the marriage.

Prompt dower

Prompt dower is payable on demand. It may also be demanded before the consummation of the

marriage. The wife may refuse to live with him unless he pays the prompt dower.

Deferred dower

Deferred dower is payable on the dissolution of marriage either death or divorce.

Importance of dower in Islamic law

Dower provides protection to the wife against the arbitrary dower of the husband to pronounce

divorce. It is a mark of respect to the wife and a check on the power of husband to divorce.

11. Conclusion

The family is the basic unit of Islamic society. It has its beginning by the coming into existence

of the relationship of a husband and a wife. Then this chain extends to their further generation

and thus the human society comes into existence. The history of family law and traditions of

family which we are practising are very old. They provide the solutions of the problems arising

in families. With the passage of time Muslims adopted many family laws to maintain balance in

life. Marriage and divorce are part and parcel of lives of Muslim families. There are though

some difficulties complexities in family laws but they only way to provide people their basic

5 Muslim Law of Divorce, by I. Mulla, Pakistan Law Publishers, pp. 04-06

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rights and needs. So the existence of family laws is very important to run the society in a right

way.

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