Family Law dealing with family relations, such as adoption, family divorce, child custody, child support, and so on, is known as family law or matrimonial law.
The following information can help you understand Pakistani family law. The family lawyers at our firm provide their clients with the best assistance in resolving family law matters here in Pakistan.
There are two types of law in the country: English common law and Islamic law. A more recent development has been an increase in the influence of the latter on personal status law (and to a certain extent, criminal and tax law). Family law is under country law.
Personal status in British India was still governed by Muslim family law after the partition of 1947. There was a seven-member Commission on Marriage and Family Laws established in 1955. The commission was charged with reviewing the personal status laws applicable in the state and deciding what areas needed to be reformed. It was in 1956, that the Commission presented its report which suggested that certain reforms should be made, including the recognition of all triple talaqs (save the third of the three) as single, revocable rejections.
There were many ulema who objected to the report’s recommendations, including Maulana Abul Ala Maududi, leader of Jamaat-i-Islami. A few of the provisions of the Muslim Family Laws Ordinance, 1961, were taken from the Report of the Marriage and Family Laws Commission, aimed at reforming divorce law and inheritance laws relating to orphaned grandchildren, requiring compulsory marriage registration, restricting polygamy, reforming the law relating to dowers and maintenance in marriages and divorces, and amending existing marriage age legislation.
It was considered unjustified interference with classical law by various sectors of the ulama. It came to be known as the repugnancy clause when the first Constitution of Pakistan was promulgated in 1956. Specifically, this clause stated that no law would be enacted that is contrary to Islamic injunctions, and that all existing laws would be reviewed in light of this provision. Successive constitutions have retained and strengthened this repugnancy provision.
The Constitution has suspended again in 1999 following a military takeover.
The majority of the population follows the Hanafi madhhab, while Jafari and Ismaili groups are smaller. Ahmadis have an unclear legal status. Sunni Muslims who self-identify as such are considered non-Muslims by the state. Conservative religious elements waged a long-running campaign to define Ahmadis as non-Muslims until it was conceded by Zulfiqar Ali Bhutto in 1974. The Ahmadis have proposed modifying the Muslim Family Laws Ordinance 1961 so that it can be applied to Ahmadi family law matters. Minorities in Pakistan include Christians, Zoroastrians, Hindus, Sikhs, and Jews.
In 1985, it was re-instituted after being suspended in 1977 and re-adopted on 10th April 1973. It has been amended numerous times over the years. It was suspended again in 1999.
Islam is declared to be the state religion of Pakistan in Article 1 of the Constitution. A substantive provision of the Constitution was created in 1985 by inserting Article 2A, which requires that all laws be in accordance with the Quran and Sunnah. In Chapter 3A, the Federal Shariat Court is established and tasked with examining laws or provisions of laws that may be in conflict with the “injunctions of Islam” recorded in the Holy Quran and Sunnah. It is the court’s responsibility to notify the federal or provincial government if it determines a law or provision is repugnant.
If there is any question about the correctness, legality, or propriety of any finding, sentence, or order or the regularity of the proceedings, the Court may suspend the sentence. In addition, the Court may examine any decisions which have been made by any criminal court regarding the application of hudud penalties. A Shariat Appellate Bench composed of three Muslim Supreme Court judges and two ulama is also empowered to review the Federal Shariat Court’s decisions. Islamization is described in Part IX of the Constitution, which forbids enacting laws that are in conflict with religious injunctions. According to the explanation that is appended to Part IX of this document, with respect to personal law, it is meant by the expression “Quran and Sunnah” refers to the laws of any sect as they are interpreted by that sect.
The Islamic provisions also stipulate that the President must appoint 8 to 20 members to the Islamic Ideology Council. It is important that they have either knowledge of the principles and philosophy of Islam as outlined in the Holy Quran and Sunnah, or an understanding of Pakistan’s economic, political, legal, or administrative problems.” It is intended to represent different schools of thought as far as possible, and at least one woman should be appointed.
Majority-e-Shoora (Parliament) and Provincial Assemblies receive recommendations from it “To enable and encourage the Muslims of Pakistan to live their lives based on the principles and concepts of Islam, as defined in the Holy Quran and Sunnah, both individually and collectively.” It also determines if proposed laws are repugnant to the federal and provincial governments, and compiles for them “such Islamic injunctions that can be given legislative effect” in a suitable form.
Federal courts are divided into three levels, lower courts are divided into three divisions, and a Supreme Court is composed of the Supreme Judicial Council. Each district in a province has a district court, which possesses both civil and criminal jurisdiction, though it primarily deals with civil matters. Appeals from lower courts are heard by the High Court of each province.
Federal and provincial disputes are exclusively handled by the Supreme Court, and High Court decisions are appealed by the Supreme Court. A Presidential Order establishing the Federal Shariah Court was issued in 1980.
Any law that may be in violation of Islam’s “injunctions, as laid out in the Holy Quran and the Sunnah,” is examined by this Court. If the Court finds a law repugnant, it must notify the level of government concerned of its decision, stating the reasons for the decision. A criminal court’s decision regarding the application of hudud penalties can also be examined by the Court. The Federal Shariat Court’s decisions can also be reviewed by the Supreme Court’s Shariat Appellate Bench. Family Courts are governed by the West Pakistan Family Courts Act, of 1964. Personal status matters are exclusively governed by these courts. Only the High Court can hear appeals from Family Courts. A Family Court is exclusively responsible for matters dealing with divorce, dower, maintenance, restitution of conjugal rights, children’s custody, and guardianship.
Several pieces of legislation relating to Muslim personal law (Shariat) were repealed, including the 1937 Muslim Personal Law (Shariat) Application Act. Muslim personal law applies to all questions of personal status and succession when the parties are Muslims, regardless of custom or usage.
It is stated in one specific provision of the new legislation that Muslim females’ limited estates concerning immovable property are terminated by the law; this is the opposite of customary land law to the 1937 enactment, which is why the new Act does not apply retrospectively.
The age of majority for males and females is 18 years old, while the age of consent for females is 16. Underage marriages are penalized, but such unions remain valid.
According to Abdul Waheed v. Asma Jehangir (PLD 1997 Lah 331), Hanafi law governs the country, though custom plays a strong role. Under current law, an adult Hanafi Muslim woman is able to contract herself into marriage without a wali’s consent, as consent is the essential requirement for a contract’s validity, not the wali’s.
A number of aspects of classical law were revised by the Muslim Family Laws Ordinance (MFLO) of 1961. Marriage and divorce registration, orphaned grandchildren’ inheritance rights, polygamy restrictions, the recognition of every talaq as single and revocable (except the third) and the formalization of reconciliation procedures in disputes involving maintenance or dissolution of marriage, the recovery of mahr, as well as penalties for noncompliance are among the reforms.
Marriages that fail to register are subject to penalties; failure to register does not invalidate marriages. Marriage registration was introduced by the MFLO, and non-registration is punishable by fines or imprisonment. It is still legal to contract a Muslim marriage as long as the requirements of Islam are followed.
Polygamy law was also reformated by the MFLO in some limited ways. The husband must apply and pay a fee to the local Union Council in order to obtain prior written permission to contract a polygamous marriage, according to the MFLO. If the applicant has obtained consent from the existing wife or wives, the marriage application must state the reasons for the proposed marriage. An Arbitration Council is formed by the Union Council chairman, consisting of representatives of the existing wife or wives and the applicant, to determine if the proposed marriage is necessary. Those who contract polygamous marriages without prior permission are subject to a fine and/or imprisonment, in addition to paying the entire dower to the existing spouses; polygamous marriages that aren’t approved by the Union Council cannot be registered under the MFLO.
The Union Council or his existing wife must, however, approve the subsequent marriage if a man does not obtain their consent. Additionally, enforcing resort to the Union Council application process is difficult, and the judiciary is hesitant to enforce the penalties in the MFLO (as shown by case law), restricting the effectiveness of the reform. According to some observers, the Arbitration Council’s permission is simply a formality that must be obtained.
A polygamous marriage is restricted by the requirement to apply to the local Union Council for permission and notify existing wives/wives, and penal sanctions for contracting a polygamous marriage without prior consent. The first wife may obtain a divorce decree if the husband contracts polygamous marriage in violation of legal procedures.
An Arbitration Council will also be formed by the chairman of the Union Council in cases where the husband fails to maintain the wives, or the co-wives equitably (on the request of one or more wives or co-wives, as well as any other legal remedy sought by them). A land revenue arrears claim can be made for any outstanding dower or maintenance payments not made on time. A marriage contract that does not specify the mode of paying mahr is assumed to be a prompt dower agreement in the absence of any details regarding it.
All talaqs (except the third of three) should be considered single and revocable; formalization of reconciliation and notification procedures, as well as recovery of Mahr and penalties for noncompliance; talaq was generally invalidated by non-notification in the 1960s and 1970s, but the Zina Ordinance changed judicial practice so that failure to notify no longer invalidates talaq.
There have also been efforts made to reform the classical law in regard to the exercise of talaq, which were also successful. According to MFLO regulations, the divorcing husband is required to notify the chairman of the Union Council in writing of the decree of divorce as soon as possible after the decree of divorce has been pronounced: “in any form whatsoever”. It is the chairman’s responsibility to make sure that the wife receives a copy of the notice. You can be imprisoned if you do not comply with the law or fined if you do not comply. There must be a meeting of an Arbitration Council within thirty days of the receipt of a notice of repudiation so that steps can be taken to bring about a reconciliation between the parties. After the expiration of ninety days following the delivery of the notice of repudiation to the chairman, a talaq that has not been revoked either expressly or implicitly takes effect after the expiration of ninety days from the delivery of the notice of repudiation. There must be no pregnancy in the wife at the time of the pronouncement of the talaq; if the woman is pregnant at the time, then it takes ninety days after the pronouncement of the talaq to take effect, or at the end of the pregnancy, whichever comes later.
A former husband who repudiated the same woman three times must have an intervening marriage in order to remarry her. Until the late 1970s and early 1980s, failure to notify invalidated talaq, but after the Zina Ordinance, repudiated wives faced Zina charges if their husbands did not follow MFLO notification procedures.
Thus, the judicial practice has recognized that repudiations in contravention of notification procedures are valid since the early 1980s. Delegated divorces (talaq al-tafweez) and marriages dissolved other than by talaq are subject to the same notification and arbitration rules.
If the wife agrees to give up her financial rights, judicial khula may also be granted without the husband’s consent; leading case Khurshid Bibi v. Md. Amin (PLD 1967 SC 97)
Divorce continues to be governed by this law in Pakistan. In 1961, the Muslim Family Laws Ordinance included the contracting of polygamous marriages as grounds for a woman to seek divorce when they violate the MFLO. It is amended so that women can exercise their right to puberty at age 16 rather than 15 if they are married by their father or another guardian; therefore, a girl who has been married before the age of 16 can exercise her right to puberty if she repudiates the marriage before the age of 18, provided that the marriage was not consummated. Divorce law in Pakistan is characterized by ” judicial khula.” Generally, women are allowed to divorce regardless of their grounds, provided that they are willing to give up some of their financial rights (i.e., repaying their dower). Some criticize this rule, arguing that judges can rule for a judicial khula when a woman has a clear right to a judicial divorce under the DMMA without losing their financial information.
A question presented to the Supreme Court in the case of Amin (PLD 1967 SC 97) was: “(Is) a wife entitled, under Muslim law, to…”
Despite the husband’s unwillingness to release her from the matrimonial ties, she has the right to claim khula if she satisfies the Court that they cannot live together in a way consistent with their conjugal obligations and duties.” According to the Supreme Court, a Muslim wife is entitled to khula if she satisfies the Court and if her husband denies her the right to khula, she will be forced into a hateful union.
Maintenance is governed by classical law in relation to maintenance during and after marriage. It has not been reflected in the Criminal Procedure Code of Pakistan the changes made to the Indian Criminal Procedure Code following independence that allow a divorced wife who cannot support herself to claim maintenance from her former husband. Although section 488 of the Criminal Procedure Codes of both Pakistan and Bangladesh has been amended so that it applies to divorce, no similar changes have been made to section 488 of the Indian Criminal Procedure Code.
According to the Guardians and Wards Act, of 1890, divorced wives are entitled to custody until 7 years old for males (classical Hanafi position) and puberty for females, subject to classical conditions. However, some flexibility exists as the best interests of the ward are taken into consideration.
Classical law governs the inheritance of orphaned grandchildren through their sons and daughters, whose fathers/mothers would have inherited the share if they hadn’t predeceased their grandparents.
The evidence act of 1872 was repealed, though mostly the original legislation was retained, there were changes that specifically affected women due to its purpose to bring the law of evidence closer to Islamic injunctions. The legitimacy presumption was modified by the Order. There was no minimum period of gestation in the original Evidence Act, and 280 days was the maximum. This change brings the provision in line with classical Hanafi fiqh’s majority position, which sets the minimum gestation period at six months and the maximum at two years. Regarding the changes relating to women’s testimony, since the Orders were issued, instruments pertaining to financial or future obligations are usually attested by two men, or by two men and two women, while all other cases can be handled by one man or one woman testimony.
Introducing the concepts of fornication and adultery into the penal codes of law was an important step. Fornication had not been recognized as a crime in the Pakistani Penal Code, and adultery was only defined as an offense under section 497 if a man had slept with the wife of another man without the latter’s permission; the woman involved was not criminally responsible for the act. The Zina Ordinance offers severe punishments for those who commit adultery or fornication, by reaffirming the classical distinction between married and unmarried parties in determining punishment for these acts.
If convicted of Zina, a married person is punished with Rajm or stoning to death, which has not been carried out by the state, and if convicted of Zina, an unmarried person is punished with one hundred lashes. Hadd punishments are generally more severe and require a greater standard of proof than Tazir punishments for Zina, which are generally less severe. Hadd penalty can be applied if the accused confesses to the crime, or if four pious adult Muslim male eyewitnesses attest to the penetration’s actual act. The Tazir punishments, which are defined as imprisonment for up to ten years, thirty lashes, and a fine, have traditionally been applied if the higher standard of evidentiary requirements has not been met, or if additional complications are involved (appeals, retractions of confessions, etc.).
In affirming sharia law as Pakistan’s supreme law (defined in the Act as Islam’s holy Quran and Sunnah), the Act affirms the supremacy of Islam. The Act stipulates that all statute law should be interpreted in accordance with the sharia and that all Muslims of Pakistan shall follow the sharia and act accordingly. This Act does not affect the constitutional rights of women, as stated in section 20.
There are a number of legal reports published by Pakistani courts, including Pakistan Legal Decisions (PLD), Civil Law Cases (CLC), Monthly Legal Digest (MLD), etc.
The CRC was signed by Pakistan in 1990, and the Convention was ratified in the same year. The reservation that was made upon signature regarding considering Islamic values and principles when interpreting the CRC was withdrawn in 1997.
A general declaration was made by Pakistan shortly before its accession to the CEDAW in 1996. This declaration stated that Pakistan’s accession to the Convention will be subject to the provisions of the national constitution.
There are a number of courts in Pakistan, with varying levels of legal superiority and jurisdiction. There are some federal courts and some provincial courts.
Federal courts are divided into three levels, lower courts are divided into three divisions, and the Supreme Judicial Council oversees the judicial system. Every district of every province has a district court with civil and criminal jurisdiction. Appeals from lower courts are heard by the High Court of each province. Over disputes between and among provinces, the Supreme Court has exclusive jurisdiction, and over decisions of the High Court, the court has appellate jurisdiction.
A Presidential Order established the Federal Shariat Court in 1980. A law that is repugnant to the “injunctions of Islam as laid down in the Holy Quran and the Sunnah” must be examined by this Court. If the Court finds a law repugnant, it must notify the level of government concerned, explaining why the law was rejected. The Court is also empowered to review decisions by criminal courts involving hudud penalties. Appeals from the Federal Shariat Court are also reviewed by the Supreme Court’s Shariat Appellate Bench.
There is a Family Courts Act of 1964 that governs the jurisdiction of these courts in West Pakistan. Personal status matters are exclusively handled by these courts. Only the High Court can hear appeals from Family Courts.
Courts are public forums where disputes are adjudicated and justice is administered under the laws of the power base. The courts are the central means of dispute resolution in common law and civil law states, and all individuals have the right to bring claims before the courts. A court has the right to hear a defense presented by someone accused of a crime.
A village court in a rural community might have a simple farmhouse as its courthouse, or dozens of courtrooms in a large city might have dozens of buildings. It is a deliberative assembly with the authority to decide certain types of judicial questions or petitions that have been presented to it, referred to as its jurisdiction. There may be a presiding officer or officers, lawyers for the parties and bailiffs, reporters, as well as a jury.
An official of the court, commonly known as a “judge”, “bench”, or a panel of such officials, is referred to as a “court”. US federal courts, for instance, use the term “court” (for the judge) by law to refer to themselves as a judge.
Generally, a Court’s Authority to act is based on Three Major Factors:
(1) Personal Jurisdiction (2) Matter Jurisdiction (3) Venue
The power of a court to speak the law is called jurisdiction. Personal jurisdiction, as well as subject matter jurisdiction, are both required in the United States. A state’s territory is governed by its own court system. Civil and criminal jurisdictions are granted in this system (in the United States, this is called subject-matter jurisdiction). A written constitution or an enabling statute may grant power to each category of court or individual. An English court’s jurisdiction may be inherent, resulting from its common law origin.
It is possible to categorize courts as trial courts (sometimes referred to as “courts of the first instance”) or appellate courts. Depending on the trial court system, juries may make factual findings under the direction of the judge, who then reaches conclusions of law, which, when combined, represent the judgment of the court. In other trial courts, the judge or judges make both factual and legal decisions. In systems other than those based on Anglo-American common law, juries are less common.
A civil law court and a common law court are the two main types of courts. The common law courts are based on the judicial system in Britain, whereas civil law courts are based on France’s court system. An inquisitorial system underlies most civil law jurisdictions. Most common law courts operate on an adversarial basis. Courts are governed by procedural law: civil procedure governs disputes between private parties (such as land disputes), and criminal procedure governs crimes.
A total of 8 Muslim judges comprise Pakistan’s Federal Shariat Court (FSC), including its Chief Justice. In Pakistan, the President appoints these judges from among serving or retired judges of the Supreme Court or a High Court or from among individuals holding the qualifications of a High Court judge.
There must be 3 Ulema judges, who are well versed in Islamic law, among the 8 judges. The President may extend the judges’ terms of office by 3 years.
FSC has the authority to examine and determine whether or not a certain provision of law is in violation of Islam upon its own motion or upon petition by a citizen or government (federal or provincial).
The Supreme Court’s Shariat Appellate Bench, composed of three Muslim judges and two Ulemas, appointed by the President, hears appeals against its decisions. A law declared to be in violation of the injunctions of Islam must be amended by the government to bring it into compliance with the injunctions.
Also, the court assesses Hudood cases under its revisional jurisdiction. High Courts and subordinate judiciaries are bound by the court’s decisions. Rules of procedure and staff are set by the court itself.
There has been criticism and controversy in society ever since the Federal Shariat Court was established in 1980. The 8th Amendment protected this institution under the controversial military regime’s Islamisation program, but opponents question its seriousness and utility. It is alleged that this court will duplicate the functions of the existing superior courts while also acting as a check on Parliament’s sovereignty. According to some, the court fails to meet the criterion prescribed for judicial independence due to its composition and the insecurity of its judges’ tenure. It is not immune from the Executive’s pressures and influence.
Judges who were recalcitrant once hid here as a refuge. A number of its judgments, especially those based on the Islamic concept of equity, justice, and fair play, have expanded and enlarged the scope and content of individual rights. However, others, which tend to restrict women’s rights, have been severely criticized and condemned. Briefly, this Court’s status, utility, and functions need to be discussed seriously.