Thursday, 4 September 2014

Report on Family Laws by Naheeda Mehboob Elahi (ASC)

“FAMILY LAWS AND JUDICIAL PROTECTION”
NAHEDA MEHBOOB ELLAHI
Advocate Supreme Court of Pakistan
1. Constitutional instruments of different countries enshrine the noblest aspirations of
their respective people. All Constitutions, therefore, embody the highest principles of civilized
norms and behaviour and political aspirations. What is important is not the letter of the
Constitutional document but its realization in practical life. If the highest principles are not
translated into reality the provisions of the Constitution remain pious hopes and mere lip service to
those high ideals and cannot serve any useful purpose. In a democratic society it is not the written
word of the Constitution of the law which ensures fair treatment to any particular class or section
of the society but the steps which the state has taken to ensure such protection and fair treatment.
It is the Constitution of Pakistan, with special reference to the Family Laws and judicial protection,
which is the subject matter of my speech today. In the Muslim world and among Muslim
communities, Islam operates as a way of life, as much as a religion. It regulates the details of
every day life through written and un-written codes which have a direct impact on people’s social,
economic, political and personal responsibilities and rights. These laws are fixed and are shaped
by socio-economic and political developments and involve a constantly changing selection of
customs, traditions, religious codes and external sources of law.
2. Prior to the partition of India and Pakistan, matters relating to marriage, divorce,
dower, inheritance and succession and family relationship were governed by, customary laws as
well as by the religious laws modified by the customs, subject to certain modifications by
legislative enactments.
3. The act, which to some extent relieved Muslim women of customary law and the
misinterpretation and misapplication of Muslim law in the matter of divorce by pronounced by the
wife, was the ‘Dissolution of Muslim Marriages Act, 1939.’ This act continues to be applied today,
practically in its original form, apart from certain amendments made by the ‘Muslim Family Laws
Ordinance, 1961’. Similarly, the ‘Muslim Personal Law (Shariat) Application Act’ was promulgated
in 1937 to displace customary practice with regard to Muslims. This was enforced in the whole of
India except in the Province of N.W.F.P., which already had its own Act with a wider scope
(NWFP Muslim Personal Law (Shariat) Application Act, 1935).
4. Nevertheless, this Act did not redress the grievance of Muslim women and the
avowed purpose of the Act to raise Muslim women to the position Islam had granted them, was
not achieved.
5. Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, states,
“Notwithstanding any customs or usage to the contrary in all questions (save questions
relating to agriculture land) regarding intestate succession, special property of females,
including personal property inherited or obtained under contract or gift or any other provision of
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personal law, marriage, dissolution of marriage, including talaq, ila, Zihar, Lian, Khula and
Mubarat, maintenance, dower, guardianship, gifts trusts and trust properties, and wakf (other than
charitable and religious endowments) the rule of decision in cases where the parties are Muslim
shall be the Muslim Personal Law (Shariat).” Agricultural land was completely excluded from the
operation of the Act, and as a result, customs relating to the inheritance of agricultural land by the
male heirs to the exclusion of female heirs continued, thereby depriving a large number of women
of their legitimate share as prescribed under the Islamic Law. The purpose of the Act was
defeated by the exclusion of agricultural land.
6. This law only applied to intestate succession and had no application to testate
succession. Under the Muslim law there are limitations to the disposal of property by will.
7. The first line of legal reforms was the ‘The West Punjab Muslim Personal Law
(Shariat) Application Act (IX of 1948)’. Initially, the scope of this Act was enlarged to cover the
question regarding succession (including succession to agricultural land). However, in 1951, the
scope was further enlarged to all questions of succession (whether testate or intestate). The
agricultural land and testate succession were no more excluded from the operation of Muslim
Personal Law (Shariat) Application Act, in the Province of Punjab.
8. A similar amendment was introduced by the Muslim Personal Law (Sindh)
Amendment Act, 1950.
9. Then came the era of Field Martial General Ayub Khan. Although the legitimacy of
late General Ayub Khan’s rule might be disputed, he was definitely the first person to take
practical steps towards resolving the problems of women in this country, particularly with respect
to the legal aspects of family and matrimonial matters. At that time, a Commission was appointed
to look into the laws regarding family matters and marriages and, in the light of its
recommendations the family courts were established and the Muslim Family Laws Ordinance,
1961 promulgated in a codified form. Prior to this, family disputes were decided by Civil Courts,
which had a reputation for delay due to difficult and lengthy procedures which created many
problems for the settlement of family disputes. The commission appointed by General Ayub found
that this amounted to “Justice delayed, Justice denied”. The Family Court Act, 1964, shortened
and simplified the procedure and adopted all possible means for providing speedy disposal of
family matters. For the first time, the law provided for a means of reconciliation, before and after
the trial, referred to as “pre-trial” and “post-trial” reconciliation proceedings, respectively.
10. Also, in 1962, the West Pakistan Muslim Personal Law (Shariat) Application Act,
was enacted. This Act extended to the whole of West Pakistan excluding the Tribal areas. This
Act was significant in bringing uniformity in the application of Muslim Personal Law in matters
relating to personal life where the parties are Muslims, in all areas of West Pakistan except the
Tribal Areas. An important result of the 1962 Act was that legally women became entitled to inherit
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property as the Muslim law prescribed in this regard became applicable to family life and other
matters including gifts.
11. It may be noted that section 2 of the West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962, abrogates customs and usages but it provides that the application of
Muslim Personal law is subject to the provisions of any law in force, relating to matters of personal
law enumerated in the section.
12. Muslim personal law is applied in courts in accordance to the sect to which an
individual Muslim litigant belongs. The Muslims in Pakistan are divided into two main sects, Sunni
and Shia. The Sunnis are divided into four sub-sects, following the four Imams Abu Hanifa, Malik,
Shafi and Ahmed-bin-Hanbal.
13. The Constitution of Pakistan, 1973, enunciates as a principle of policy that steps
shall be taken to enable the Muslims of Pakistan, individually and collectively to order their lives in
accordance with the fundamental principles and basic concepts of Islam.
14. Part-II of the Constitution of Islamic Republic of Pakistan, 1973, provides the
fundamental rights and principles of policy. Although the entirety of part II is important, I will focus
on two important articles, Article 25 and Article 35.
Article 25(1) of the 1973 Constitution provides that “All Citizens are equal before
law and are entitled to equal protection of law”. Article 25)2) provides that “There shall be
no discrimination on the basis of sex alone”. Clause 3 of Article 25 provides that “Nothing in
this article shall prevent the state from making any special provision for the protection of
women and children”. The purpose of clause 3 is the protection of women and children. It is a
form of beneficial legislation and encourages the State to take up affirmative action policies to
protect women and children.
15. Similarly, Article 35 provides that “The State shall protect the marriage, the family
and the child”. Thus, the fundamental rights and principles of policy clearly empower the state to
give protection to women, children and family. However, in reality, many of these Constitutional
guarantees are blatantly ignored.
16. The worst damage was done during the martial law regime of General Zia-ul-Haq in
1978, when the Hudood Ordinances (Zina, property, prohibition and Qazaf) were introduced and
promulgated in 1979 and the Qanun-e-Shahdat Order passed in 1984. This had a direct impact on
the implementation and interpretation of the law with regard to women. For instance, in case of
non-registration of marriage and divorce, these laws have contradicted or complicated the
implementation of Family Laws.
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17. Issues relating to marriage, dower, divorce and custody are governed by a wide
range of laws. But first let me define some concepts as recognized in Islam.
MARRIAGE
18. Marriage according to most of the Muslim jurists is a contract and the parties to a
marriage must be adult, of sound mind, have attained puberty, and be able to give free consent to
marriage. Marriage without consent is void.
19. At the time of marriage, the husband is under an obligation to fix ‘Mehr’ or dower in
favour of the wife. Under Islamic jurisprudence the following marriages are considered void:-
1) Marriages within the prohibited degrees, consanguinity, affinity and
fosterage.
2) Marriages of an adult and sane person brought about without his/her
consent.
The bar to marriages in these instances is permanent.
DOWER
Dower is known by several names, including Mehr, Sudak, Nuhlah and Akr. It is the
property which is incumbent on a husband to give to his wife, either by reason of it
being named in the contract of marriage, or by virtue of the contract itself, as
opposed to usufruct of the wife’s person. The dower can be in different forms,
namely, proper dower, specified dower, prompt dower and deferred dower.
The wife may remit the dower, or any part thereof, in favour of the husband or his
heirs, but the remission must be with free consent.
DISSOLUTION OF MARRIAGE
The marriage can be dissolved in any of the following ways:-
1. Divorce by the husband at his will, without the intervention of a court,
commonly called “Talaq”;
2. By mutual consent of the husband and wife, without intervention of the
court;
3. By a judicial decree at the instance of the wife;
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4. By the wife in exercise of a contractual right of divorce.
CONTINGENT DIVORCE
Contingent divorce is permitted under Islam so as to take effect on the happening
of a future event. It can be oral or in writing, but after the promulgation of the
Muslim Family Laws Ordinance, a divorce of any kind is compulsorily registerable.
Like marriage, talaq/divorce has to be with free consent.
In case of a judicial decree, the wife may seek dissolution on the grounds
mentioned in the Dissolution of Muslim Marriages Act, 1929, including Khula and
section 10(4) of the Family Court Act. Section 10(4) of the Family Court Act lays
down conditions for grant of Khula during pretrial reconciliation proceedings and
makes it obligatory upon the wife to surrender the dower amount in lieu of Khula.
Khula means “to put off”, as a man is said to Khula his garments when he takes
them off. In law, it is the laying down, by a husband, of his right and authority over
his wife for an exchange.
Khula occurs when aversion is on the side of the wife and she takes the initiative in
the dissolution of marriage by agreeing to forego her dower and other material
benefits given by the husband. If the wife does not wish to seek dissolution by way
of Khula, she may still seek dissolution on other grounds mentioned in the
Dissolution of Muslim Marriages Act, 1929, such as husband’s impotency,
prolonged insanity or imprisonment, and his failure to perform marital obligations or
maintain his wife. Desertion is also accepted as a ground for dissolution of
marriage when the whereabouts of the husband have not been known for the last
four years.
MAINTENANCE
Under Muslim Law, the established essential principle that the male is the
“provider” is largely drawn from the traditional translation and interpretation of
Surah Al-Nisa (4): Verse 34 which begins:
“Men are the protectors and maintainers of women, because Allah
has given the one more (strength) than the other, and because they
support them from their means”
It has been held by the courts while interpreting the Muslim Family Laws
Ordinance, 1961, and Mohammedan Law, the wife is entitled to maintenance
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during subsistence of marriage and also the post-operative period during Iddat or
pregnancy.
20. However, if the wife is living separately from the husband without a reasonable
cause she is not entitled to maintenance provided the separation is on account of the husband’s
cruelty or non-payment of prompt dower.
21. The courts in deciding the above issues are governed by the following laws:-
1) The N.W.F.P. Muslim Personal Law (Shariat) Application Act, 1935.
2) The Muslim Personal Law (Shariat) Application Act, 1937.
3) The West Punjab Muslim Personal Law (Shariat) Application Act, 1948.
4) The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.
These Acts were enacted with the object of replacing customs with
Muslim Personal Laws in certain specified areas where the parties were
Muslim.
5) Child Marriage Restraint Act, 1929 (Act XIX of 1929)
The aim of this Act was to restrain the solemnization of a child marriage.
6). The Dissolution of Muslim Marriages Act, 1939
This is the most important piece of legislation promulgated in the area of
Muslim Family Law. It consolidates and clarifies the provisions of Muslim
Law relating to the valid grounds for dissolution of marriage in a suit filed
by the wife.
7) Dowry and Bridal Gifts Restriction Act, 1976 (XLIII of 1976); Dowry and
Bridal Gifts Restriction Rules, 1976 and The West Pakistan Dowry
(Prohibition on Display) Act (West Pakistan Act No. XVI of 1967)
These laws were introduced to take measures to regulate, restrict and
ultimately eliminate the practice of dowry, but till today this legislation has
not been enforced.
8) The Guardian & Wards Act 1890
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In Pakistan the Guardian & Wards Act, 1890, is applicable to custody and
guardianship cases while keeping in view the personal law to which the
minor is subject. Personal law is that which is applicable to a person on the
basis of his/her religious conviction. A minor is supposed to be subject to
the same personal law as his/her father.
This law applies to Muslim and non-Muslim Citizens of Pakistan. The
established view is that “where the provisions of the personal law are in
conflict with the provisions of the Guardian and Wards Act, 1890, the latter
will prevail over the former.
The courts have held time and again that in custody matters, welfare of the
minor is of paramount consideration.
The custody and guardianship matters fall within the Schedule of the Family
Court Act 1964, and therefore, are decided by the Family Judge acting as a
Guardian Judge.
9) The Muslim Family Laws Ordinance, 1961.
This law is based on the recommendations of the Commission on Marriage
and Family Laws set up in 1955, which submitted its report on the matter in
1956. Five years later their recommendations were considered and the
Muslim Family Laws Ordinance was promulgated.
This Ordinance advanced women’s legal rights to some extent. For the first
time, a uniform mode of divorce, marriage etc., were prescribed. Khula and
the delegated right of divorce for women were also recognized, the latter
being incorporated as an option in the standard Nikahnama. Secondly,
polygamy was restricted, making it binding on the husband seeking a
subsequent marriage to submit an application for permission to contract
another marriage to the Chairman Arbitration Council, besides seeking the
permission of his existing wives. In the event of the husband contracting
such a marriage, the Ordinance made him immediately liable to pay the
existing wife/wives her/their dower. In addition, the Muslim Family Laws
Ordinance amended the Child Marriage Restraint Act by raising the legal
age of marriage for females from 14 to 16 years. The Ordinance also
provides security of inheritance of children from a predeceased son.
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Matters such as dower, maintenance etc., are also dealt with under the
Ordinance, which is implemented through the Muslim Family Law Rules,
1961, the Family Court Act, 1964 and Family Court Rules, 1965.
The provisions of this Ordinance not only override the provisions of statute
law but also any law, custom or usage, including Muslim Personal Law.
10) The West Pakistan Family Courts Act 1964 (West Pakistan Act XXXV of
1964)
This Act was designed to establish Family courts for the expeditious
settlement and disposal of disputes relating to marriage and family affairs
and mentioned in the schedule of the Act.
Initially the disputes referred to in the Schedule were as follows:-
1. Dissolution of marriage
2. Dower
3. Maintenance
4. Restitution of conjugal rights
5. Custody of children
6. Guardianship.
22. However, by the Family Court Amendment Act, XXIV of 1971, jactitation of
marriage was also included in the Schedule. Similarly, in the Family Court
Amendment Act, XVI of 1997, “Dowry” was also added in the Schedule. The last
amendment in the Schedule of this Act was brought in October 2002 by the Family
Court Amendment Ordinance, LV of 2002. Now the Schedule of the Family Court
Act is as follows:-
1. Dissolution of marriage including Khula
2. Dower
3. Maintenance
4. Restitution of conjugal rights
5. Custody of children and visitation rights of parents to meet them
6. Guardianship.
7. Jactitation of marriage.
8. Dowry
9. Personal property and belongings of a wife.
Implementation of the Family Court Act is facilitated through the West Pakistan
Family Court Rules, 1965.
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23. I would not be doing justice to today’s topic if I did not discuss family laws affecting
non-Muslims like Christians, Hindus, and Parsis. Some of the laws affecting other religions are
therefore discussed below.
24. The Constitution of Islamic Republic of Pakistan provides security to non-Muslims
and the freedom to profess religion, to manage religious institutions, and safeguards against
discrimination in respect of access to public places and service etc. (Art. 20 - 28).
CHRISTIAN LAWS
25. Christian laws have remained static on our statute book since 1869/1872. The
Divorce Act relating to Christians was enacted in 1869. The Divorce Act, 1869 has its grounding in
the English Law of Divorce because the British subjects domiciled in India were governed by this
law. This law remained un-changed until 1976 when the original jurisdiction of District Judges over
divorce cases was switched over to the Courts of Civil Judges with appellate powers being given
to the District Judge.
26. Due to the Christian philosophy of marriage (that spouses are pre-chosen in
heaven and are permanent Unions for eternity), the bonds of holy matrimony “cannot be broken,
except on the charges of infidelity arising out of an adulterous act on the part of either spouse.”
Besides petitions for judicial separation, nullity of marriage and restitution of conjugal rights can
also be filed for under this Act. Under section 10 of the Divorce Act, 1869 a husband may seek
dissolution of his marriage solely on the grounds of adultery by his wife. A wife, on the other hand,
cannot petition for divorce on the ground of her husband’s adultery alone. She must show either
incestuous adultery, bigamy with adultery, adultery coupled with rape, sodomy or bestiality,
adultery coupled with cruelty, or adultery coupled with desertion without reasonable excuse, for a
period of two or more years.
27. Under section 13 of the same act, the court is obliged to observe that there is no
collusion between the parties so that the question of entering into compromise and obtaining a
compromise decree is not conceivable under this Act. The onus to prove under the Divorce Act
lies more with the wife than with the husband.
28. Due to this law most divorce cases by Christians are based on false charges of
adultery. The reason being that the law does not provide any ground, other than adultery, for
obtaining a divorce. Secondly, most Christians convert to Islam to wriggle out of their marriage.
The Christian man after conversion to Islam may divorce his Christian wife by pronouncing divorce
whereas the marriage of a Christian woman automatically stands dissolved on her conversion to
Islam, as according to the law of the land, a Muslim woman cannot marry a non-Muslim (including
a Christian).
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29. The other issues arising out of the matrimonial bond i.e. maintenance, custody,
dowry etc., are all dealt with under the general jurisdiction conferred on the family Courts by the
Family Court Act, 1964.
30. However, the rigours of the Divorce Act should be simplified by providing an honest
practical and humane solution to this social problem so that importance of the institution of
marriage is not undermined. The legislature and the church may contemplate on this issue and
provide a solution.
31. The other legislation concerning Christians is the Christian Marriage Act, 1872. The
most interesting feature regarding this Act is that it applies where either of the parties is Christian.
32. Free consent in public before witnesses by those having the capacity, age and
outside prohibited degrees of affinity and capable of consent are the essentials of a Christian
marriage.
33. The Christian law strongly opposes polygamy and strictly enforces monogamy.
There can be no marriage where the former husband or wife of either party is living and the
marriage with such former husband or wife is still in force or has not been dissolved. National
Council of Churches in Pakistan should be urged to take up the task in suggesting reforms and
changes in the Christian law to make the same more practical and workable.
HINDU LAWS
34. There are four sources of Hindu Laws:-
1) Sruti: Vodas which usually contain very little law.
2) Smariti: Collection of laws handed down through time. Included here
are the codes of “Manu” “Yagyvalkiya” and “Narada”.
3) Customs: When there is conflict between a custom and
”Smariti” texts, clear proof of usage, will outweigh the written
texts of law. There is marked difference between Hindu and
Muslim law.
4) Statutory: Enacted by the Parliament and override all of the above
sources of law.
Except for inheritance laws and Hindu Women’s Right to Separate Maintenance
and Residence Act, 1946, there is hardly any codified law in respect of marriage
and divorce of Hindu’s. Despite the lack of codified law, suits can be filed under the
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General jurisdiction conferred on the Civil and Family Courts under the Family
Court Act, 1964. However, if substantive rights are not provided under the personal
law in matters of divorce or dissolution of marriage then the same cannot be filed
before the courts.
Marriage according to Hindu law is a holy union. It has been held by the Bombay
High Court that a marriage is a Sanskara or Sacrament (1908 32 Bombya 81). It is
one of the last ten sacraments that are enjoined by the Hindu religion, to purify the
body of inherited impurities. The same view was taken by the High Court of Madras
(1914 27 Madras 273 FB).
Being a Sacrament, Hindu marriage is not generally dissolved. Divorce is quite
foreign to the Hindu system of law. Pakistani Hindu’s, both male and female cannot
divorce under the law laid down in the Hindu text. However, if a custom allows
divorce, it is given preference over the texts. Similarly under Hindu law, sisters and
daughters do not inherit.
It is absolutely necessary that laws relating to divorce be promulgated. In India,
legislation regarding divorce (Divorce Act/Laws, 1956) and legal separation of
Hindu’s exist. The same can be examined.
Similarly in India, laws relating to women’s inheritance have been enacted. We
should do likewise.
PARSI FAMILY LAWS
35. The law relating to Parsis was promulgated in 1936. The Parsi Marriage and
Divorce Act, 1936, provides that in order for the marriage ceremony to be
performed both man and the woman must be Parsi. The marriage is valid if the
parties are not related in the degree of consanguinity or affinity. A Parsi marriage is
solemnized by a priest during a ceremony called “Ashirvad” and in the presence of
two sane Parsi adult witnesses. A Parsi who has changed his or her religion shall
not contract marriage under this Act or any other law during the lifetime of their
spouse.
Divorce in the Parsi community is difficult to obtain by either spouse. A married
person may sue for divorce on any one of the grounds mentioned in the Act which
includes adultery, fornication or bigamy, rape or unnatural offence, voluntarily
causing grievous hurt etc.
The law also deals with matters such as alimony for the wife, provided she remains
unmarried and chaste.
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The law relating to intestate succession applicable to Parsis has underwent various
changes since the enactment of the Indian Succession Act, 1925. The Parsi
Intestate Act was incorporated verbatim in Chapter-III. Then the Amendment Act,
1939, was promulgated (Gazette of India 20th May 1939 Part, Page 854). By this
Act XVII of 1939 Section 50 to 56 were substituted for section 50 to 56 as originally
enacted of XXXIX of 1925. Act XVII was later repealed by Act XXV of 1942 and its
sections are now incorporated in this Act XXXIX of 1925. Now if the Parsi male or
female dies intestate his/her property is divided as prescribed under this Act.
If we look at the Parsi law of intestate, it is somewhat similar to the Muslim law of
inheritance with the difference that Parsis are also given the rights of making a will
and parting with their property after death, in any way they choose.
JUDICIAL PROTECTION
36. Now, the question arises whether the courts in Pakistan have been able to interpret
laws so as to protect the family in accordance with the principles laid down in the Constitution.
37. As a practicing lawyer I feel that family laws are inadequate to deal with or cater for
disputes arising between the parties. The courts in Pakistan despite a lack of legislation catering
to some of these disputes have interpreted the provisions liberally and given affect to the acts, and
provided remedy where there is no specific prohibition.
38. Generally in family disputes the courts overlook technicalities and proceed to
decide the case. Interestingly, while enacting the Muslim Family Laws Ordinance, 1961, the fact
that there is no specific provision relating to the maintenance of minors or matters relating to
restriction on dowry articles or bridal gifts was overlooked. Similarly, in the Schedule of the Family
Court Act, under section 5, matters regarding jactitation of marriage, dowry, bridal gifts,
guardianship, personal property and belongings of the wife, and visitation rights of parents etc.,
were not initially mentioned, but were subsequently inserted.
39. The courts, however, granted maintenance to minors under the same section and
were guided by other codified non-statutory laws. Similarly, the dissolution of marriage through
court is not mentioned in the Muslim Family Laws Ordinance, 1961, and is merely provided in the
Schedule under section 5 of the Family Court Act. The courts nevertheless granted decrees for
dissolution of marriage on grounds mentioned in the Dissolution of Muslim Marriage Act, 1939. It
was not until October 2002 that the most recent amendments were introduced, simplifying the
procedure for dissolution of marriage in cases of Khula alone.
40. Most of the complications in matrimonial disputes arise due to non-registration of
marriages or divorces. The courts in Pakistan gave protection to women and children and have
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held, in case of denial of parentage due to non-registration of marriage, in favour of holding
legitimacy and marriage and observed that the clause regarding the non-registration of marriage
and divorce prescribes a penalty and does not declare such marriage or divorce to be void or
illegal.
41. The courts in cases of inheritance by females have overlooked the bar of limitation
if the woman has been deprived of her legitimate share of inheritance otherwise than by due
process of law. The Supreme Court in the landmark judgment titled, Ghulam Ali and Others Vs.
Mst. Ghulam Sarwar Naqvi (1) has held in cases of inheritance that brothers cannot legally claim
‘adverse possession’ against their sister, and much less “oust” her. In the case of relinquishment
of inheritance by a female co-sharer without consideration, such relinquishment having been
declared void as being against public policy, the presumption would be that relinquishment was
not on account of natural love but on account of social constraints. Brothers of a female co-sharer
were required by law to protect the rights of their sister if ever they come into possession of their
land in any capacity. One who is enjoined with the protection of the others property cannot lay a
claim adverse to the interests and rights of that other who owns it. The scope of the rights of
inheritance of females is so wide and their thrust so strong that it is the duty of the court to protect
and enforce them, even if the legislative action for this purpose of protection in accordance with
Islamic jurisprudence is yet to take root.
42. In matters of custody the courts have mostly presumed that the welfare of the
minor lies in giving custody to the mother, subject to supervision and control of the father. The
grounds for disqualification of right of mother to custody are not strictly followed if the same are
not affecting the welfare of the minor. In Muhammad Tahir Vs. Raees Fatima (2), the Supreme
Court disallowed the father’s petition for custody of the minor children and disagreed with his
contention that he was allowed to take custody from the Mother because the mother was illiterate,
had no source of income and that she had developed an illicit relationship with another person.
The court held that a mother who had not contracted marriage after divorce was a fit person to
hold custody.
43. In Firdous Iqbal Vs. Shifaat Ali (3) the Supreme Court set aside the order of the
High Court whereby the High Court had set aside orders of the two courts below by holding “Right
of the father to hold custody of his minor son was not an absolute right, but qualified by the
paramount consideration for the welfare of the minor. The father may disentitle himself to custody
on account of his conduct and in the light of facts and circumstances of each case.”
44. In the case of illegal removal of the minor, the superior courts, in particular the High
Court has held that it has jurisdiction to regulate custody by restoring custody to the parent,
through its writ jurisdiction under Article 199 and under powers under section 491 of the Cr.PC., in
the nature of Habeas Corpus. This power has now also been given to Session judges who are
also acting as justices of peace. This has curbed, to some extent, the tendency of husbands to
illegally remove minors so as to avoid payment of maintenance to the minors or to coerce, and
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emotionally blackmail the wife to succumb to his demands. This is by far the most speedy and
efficacious remedy.
45. In Shaista Naz Vs. Muhamamd Naeem Ahmad (4) the Supreme Court held that
the High Court has the power to issue directions in the nature of Habeas Corpus under section
491 Cr.P.C where the child is illegally or improperly removed. The Supreme Court set aside the
orders of the High Court whereby the High Court had granted custody to the father on the ground
that the mother, on contracting second marriage, had lost the right to Hizanat, and was no more
entitled to custody of the minor. The Supreme Court held that even on remarriage the mother was
entitled to retain custody and the custody would not, ipso facto, devolve on the father. The High
Court could not have issued directions under section 491 Cr.PC. for handing custody to the father.
The father should have been directed to approach the Guardians Court.
46. In Khalida Parveen Vs. Muhammad Sultan Mehmood (5) the Supreme Court of
Pakistan set aside the orders of the High Court whereby it had disallowed the petition of the
mother under section 491 Cr.PC. for recovery of her minor daughter aged 2 years on the ground
that the minor was too attached to her father. The court held that the custody of the two-year old
daughter by the father was illegal and improper and that the mother was entitled to custody under
section 491 Cr.P.C.
47. In Nighat Firdous Vs. Khadim Hussain (6) the custody of the minor was given to the
father by the courts below by holding that the father has an absolute right to claim custody of a
child over seven years’ of age and that maternal aunt has no such right. The Supreme Court
observed that the maternal aunt had taken care of the child when he was fifteen days old at the
time of the death of the minor’s mother. Throughout this period the father had not taken any
interest in the minor but after the maternal aunt filed an application for maintenance of the minor
child, the father filed a custody petition. The Court also held that this would cast aspersions on the
bona fides of the father.
48. The courts have also held that regardless of the mother’s income or poverty and
the father’s preferential right to custody, the father is obliged to maintain his minor children and
daughters till they get married. The superior courts have also held that where the son has become
a major, but is receiving education and father is well to do, than he is obliged to pay maintenance
to his major son.
49. In Abdul Rauf Vs Shireen Hassan (7) the Supreme Court held that parents are
under an obligation to provide maintenance and it is a moral obligation of the parents to provide
the means to support the life of their children.
50. In Arbab Mir Muhamad Vs. Irum Altamas (8) the Supreme Court observed that the
father who was a well to do person was under an obligation to provide maintenance to the son,
although the son had become an adult and was still getting an education.
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51. Similarly, the courts have held that a wife is entitled to maintenance and an
independent residence, and is under no obligation to live with the parents of the husband. In
Muhammad Siddique Vs. Shahida Parveen (9) the High Court observed that it is not necessary for
the wife to live with her in-laws in case her husband was serving abroad and she was entitled to
maintenance and would only be disentitled to maintenance when she failed to live with her
husband. Again it was held that the wife is entitled to live separately from her husband on account
of his cruelty and non-payment of prompt dower.
52. In Muhammad Tauqeer Vs. Additional District Judge (10) it was held that the mere
refusal by the wife to live with her in-laws in the absence of her husband was no ground to
disentitle her from maintenance. The wife, in the circumstances, could not be considered to be
disobedient as she was under no obligation to live with her in-laws.
53. In Syed Muhammad Vs. Mst. Zeenat and others (11) the Supreme Court observed
that prompt dower was to be recovered during subsistence of marriage, that no period of limitation
is provided for its recovery and that the husband is under an obligation to pay the same whenever
demanded by the wife.
54. In Chanani Begum Vs. Muhammad Shafique etc. (12) the Court held that the wife
could refuse to live with her husband if her prompt dower had not been paid and could also
demand maintenance from the husband till such time prompt dower was paid to her.
55. Where the husband has transferred some property in the Nikahnama/marriage
certificate in lieu of dower, it has been held that the same is proof enough of transfer, without the
transfer requiring any formal registration to this effect by the husband. On the basis of this entry,
the wife can claim maintenance. In “Haji Ajab Gull Vs. Rahim Gul” (13) the Supreme Court of
Pakistan held that dower can be fixed in the form of a life interest in property.
56. In case of dissolution of marriage on grounds of Khula, the courts have held that
the wife can file repeated suits for Khula and is not hit by principles of res judicata as the
grounds/circumstances of the suit may be different each time.
57. Even a decree for restitution of conjugal rights passed in favour of the husband
does not stand in the way of the court dissolving the marriage on the ground of Khula.
58. However, in spite of all the above interpretations we find that certain prejudices
exist, which when coupled with the interpretation and application of these laws, pre-determine
women’s rearing, education, employment, marriage, inheritance, popular and political
participation.
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59. Women are powerless to challenge the interpretations given to the principles
governing their lives due to their isolation, non-participation, lack of knowledge of the codified law
and the sources of law.
60. The family laws also need to be changed to bring them inline with socio-economic
changes as laws cannot remain static. Family Law is a living law and to maintain the status quo in
law, by irresponsibly adhering to certain interpretations tantamount to subjecting family law to
fossilization. Law must be interpreted and applied keeping in view the changing conditions of life.
RECOMMENDTIONS
In this regard, I have a few recommendations:-
1) Why should suits for restitution of conjugal rights be permitted to be filed
before the family court when virtually all of the decrees obtained cannot be
executed and are merely an exercise in dragging the wife into unnecessary
litigation and delaying decisions in the legitimate suits filed by her?
Sometimes the husband after obtaining a decree for restitution of conjugal
rights asks for attachment and sale of the wife’s property in execution
proceedings, on the grounds that in spite of the decree for restitution of
conjugal rights she has refused to perform marital obligations. There is
extensive misuse and misapplication of these suits/decrees and the same
are also opposed to public interest and fundamental rights.
2) The husband’s right to divorce his wife under Muslim Law is absolute, and
he does not have to give a reason for exercise of such right. Sometimes the
wife is given divorce without justification after 20 to 30 years of marriage.
On the other hand, the wife’s right is restricted and subject to judicial
scrutiny. The husband under law is bound to provide maintenance to the
wife during existence of marriage and during Idaat (after divorce) whereas
the Holy Quran provides no such time limitation. Surah al-Buqrr (2), verse
241 states, “For divorced women maintenance (should be provided) on a
reasonable scale.”
Similarly, for widows the traditional verse of Surah Baqrr (2), verse 240
provides for one year maintenance.
Why cannot the law be interpreted to provide maintenance to the divorced
wife till her re-marriage?
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3) In case of dissolution of marriage on the ground of Khula, where cohabitation
has taken place, the wife becomes entitled to her prompt dower
which is consideration for marriage. But where she asks for Khula she is
asked to surrender/or return this dower (section 10(4) Family Court Act
1964). Although (1) this is not a benefit of marriage, rather consideration
for providing company to the husband (2), she has given reciprocal benefit
to the husband by providing him with company, looking after him. his house
and bearing his children. At most, the wife may be directed to forego the
deferred dower but not the prompt dower.
(4). There is no provision in the Family Court Act or Pakistan Panel Code
dealing with domestic violence. Recently, jurisdiction has been conferred on
the family court to pass interim orders to preserve and protect any property
in dispute (section 21-A added by Amendment Ordinance Lv of 2002),
preservation of which is necessary for the satisfaction of the decree, if and
when passed.
This section will only be useful where the dispute is with respect to some
property, the preservation of which is necessary till final decision. Domestic
violence as such is not defined anywhere and protective orders to provide
security to family against threat of violence by another family member,
mostly husbands, is not provided for. In case of hurt, the wife can avail
ordinary remedy under the criminal procedure code by registration of FIR
but as a practicing lawyer my experience is that where hurt caused is
simple, the police refuses to register an FIR on the ground that it is noncognizable.
There is therefore an urgent need to define domestic violence and to
introduce special law on this subject, wherein provisions for protection of
the person and property of minors are provided for.
__________________________________________________________
1. PLD 1990 SC 1
2. 2003 SCMR 1344
3. 2001 SCMR 838
4. 2004 SCMR 990
5. PLD 2004 SC 1
6. 1998 SCMR 1593.
7. PLD 2001 SC 31
8. PLJ 2005 SC 742
9. 1991 CLC (Note) 227
10. 2001 MLD 1650
11. PLD 2001 SC 128
12. 1985 MLD 310
13. 1991 SCMR 2500.

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