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Thursday, January 27, 2011

Islamic Family Law (Pakistan)

Legal System/History
The legal system is based on English common law and Islamic law. The former is more influential in commercial law while the latter is more influential in personal status (and, more recently, criminal and tax law to some extent).
After partition in 1947, the legislation relating to Muslim family law introduced under British rule continued to govern personal status. In 1961 the Muslim Family Laws Ordinance was passed, drawing much criticism from religious leaders. The first Constitution was promulgated in 1956, and included a provision known as the repugnancy clause, affirming that no law repugnant to Islamic injunctions would be enacted and that all existing laws would be considered and amended in light of this provision. The repugnancy provision has been retained and strengthened in subsequent Constitutions and amendments.
After a military take-over in 1999, the Constitution was again suspended. During 2000, discussions continued about possible amendments to the Constitution.
School(s) of Fiqh
Hanafi majority, sizeable Ja fari and Isma ili minorities; Ahmadis legal status is unclear (self-identify as Sunni Muslims but have been declared non-Muslims by the state); also Christian, Zoroastrian, Hindu, Sikh and Jewish minorities
Constitutional Status of Islam(ic) Law
Constitution adopted 10th April 1973, suspended in 1977 and reinstated in 1985 and has been amended several times, and was suspended in 1999.
Article 1 of current (3rd) Constitution declares that Pakistan s official name shall be the Islamic Republic of Pakistan, and Article 2 declares Islam the state religion. The Objectives Resolution of the preamble of the Constitution was made a part of its substantive provisions by the insertion of Article 2A in 1985, thereby requiring all laws to be brought into consonance with the Qur an and sunnah. Chapter 3A establishes the Federal Shari at Court. Part IX of the Constitution is entitled Islamic Provisions and provides for the eventual Islamization of all existing laws, reaffirming that no laws repugnant to the injunctions of Islam are to be enacted. An explanation appended to Part IX of the Constitution specifies that, with respect to personal status, the expressions "Qur an and Sunnah" relate to the laws of any sect as interpreted by that sect.
Court System
Three levels of federal courts, three divisions of lower courts, and a Supreme Judicial Council. District courts in every district of each province, with civil and criminal jurisdiction. High Court of each province has appellate jurisdiction over the lower courts. Supreme Court has exclusive jurisdiction over disputes between federal between and among provincial governments, and appellate jurisdiction over High Court decisions. Federal Shari at Court established by Presidential Order in 1980. This Court has a remit to examine any law that may be repugnant to the "[i]njunctions of Islam, as laid down in the Holy Qur an 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 Shari at Appellate Bench empowered to review the decisions of the Federal Shari at 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.
Relevant Legislation
  • Guardians and Wards Act 1890
  • Child Marriage Restraint Act 1929
  • Dissolution of Muslim Marriages Act 1939
  • Muslim Family Law Ordinance 1961
  • (West Pakistan) Muslim Personal Law (Shari at) 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 Shari a 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)
Notable Features
Marriage Age: 18 for males and 16 for females; penal sanctions for contracting under-age marriages, though such unions remain valid

Marriage Guardianship: 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 wali s consent as essential requirement for validity of contract is the woman s consent and not the wali s

Marriage Registration: penal sanctions for those in violation of mandatory registration requirements for marriage; failure to register does not invalidate the marriage

Polygamy: 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: governed by classical law

Talaq: 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

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 recognised as valid for the dissolution of marriage under Muslim law; judicial khul 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)

Post-Divorce Maintenance/Financial Arrangements: governed by classical law

Child Custody: general rule is that divorc e 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

Law/Case Reporting System
Pakistan Legal Decisions, Civil Law Cases, Monthly Legal Digest

International Conventions (with Relevant Reservations) & Reports to Treaty Governing Bodies
CRC signature & ratification 1990 with general reservation regarding interpretation of the Convention in light of Islamic legal principles and values (reservation withdrawn in 1997)

CEDAW accession 1996 with general declaration that Pakistan s accession is subject to the provisions of the national Constitution.

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