The area of law referred to as family law, also known as matrimonial law or the law of native relations, deals with family matters and household affairs, including adoptions, divorce, child support, and more.

This is a resource for understanding family law in Pakistan. The best family lawyers in Pakistan are available to serve their clients. Is it governed by both English common law and Islamic law? Personal status law, along with criminal and tax law, in some ways is more heavily influenced by the former.

After the partition of India in 1947, Muslim family law laws were introduced in British India and continued to govern personal status. A commission was formed in 1955 with a mandate to assess the personal status laws in the new state and identify the areas that required reform. The Commission’s 1956 report proposed several reforms, one of which was to consider all triple talaqs as single, revocable repudiations.

The recommendations of the report were met with much debate, as several leading ulama opposed them, including Maulana Abual Ala Maududi, leader and author of Jamaat-Imperial Islamic Jihad. Some of the provisions from the Report ofthe Marriage and Family Laws Commission were adopted by the Muslim Family laws Ordinance, 1961 with a focus on reforming divorce law and inheritance law for grandchildren who are orphaned; making it compulsory to register one marriage jointly with other couples; restricting polygamy; and reformuting the law regarding dower and maintenance in marriage as well as marriage age. Several factions of the ulama perceived this as unjustified meddling with the classical law. The first Constitution of Pakistan, which was promulgated in 1956, contained a clause known as the repudiation clause. The clause declared that no law that violated Islamic injunctions would be enacted and that all current laws would undergo review in accordance with this provision, to establish appropriate amendments. In the subsequent Constitutions, this repugnant provision has been preserved and strengthened.

The suspension of the Constitution was caused by a military takeover in 1999. Discussions about potential Constitutional amendments were ongoing in 2000.

Schools of Fiqh

The majority of madhhabs are Hanafi, with significant populations of Jafari and Ismaili. Whether the Ahmadis are legally recognised is somewhat indistinct. The state identified them as non-Muslims, despite their Sunni Muslim beliefs. A campaign to declare Ahmadis as non-Muslims by conservative religious groups led by Zulfiqar Ali Bhutto culminated in his resignation in 1974. This was a result of this effort. The Ahmadi faction has suggested the implementation of a modified version of the Muslim Family Laws Ordinance 1961 for use in cases related to Ahmadis’ personal status. Pakistan is home to a variety of religious groups, including Christians, Zoroastrians, Hindus, Sikhs and Jewish minorities.

Constitutional Status of Islamic Law

After being adopted on 10 April 1973 and suspended in 1977, the third Constitution was reinstated at least once in 1985, and has since been subject to numerous amendments. In 1999, it was suspended again and remained so to the present time. Pakistan’s Constitution includes Article 1 and Article 2 that declare Islam as the state religion. The Constitution’s Objectives Resolution, which was included in the preamble, was modified in 1985 to include Article 2A, necessitating that all laws be in line with the Quran and Sunnah. The Federal Shariat Court is established in Chapter 3A to examine any law or provision of law that may violate Islamic prohibitions. If a law or provision is judged repulsive, the Court must notify the federal or provincial government in writing with the reasons for the decision. If there are doubts about the correctness, legality, or propriety of any findings, sentences, or orders, and if there is any doubt about whether those decisions have been applied, the Court may suspend the sentence. The Supreme Court is composed of a Shariat Appellate Bench that can review the decisions of the Federal Shariat Court, consisting of three Muslim Supreme Court judges and up to two ulama. The Islamic Provisions section of Part IX of the Constitution mandates the Islamization of all current laws, stating that no laws shall be passed that contradict the injunctions of Allah. This provision is also part of Article II. In Part IX, there is an appendix detailing how the word “Quran and Sunnah” can be used to refer to the laws of any sect when discussing personal family law.

The President can appoint 8 to 20 members for the Islamic Ideology Council, as per the provisions of Islam. To do so, they must be familiar with the principles and philosophy of Islam as outlined in the Holy Quran and Sunnah, or understand the economic, political, legal/administrative issues faced by Pakistan. Additionally, the Islamic Council is intended to represent different schools of thought, and at least one woman should be chosen.

Judicial System

The judicial system comprises three levels of federal courts, two divisions of lower courts and a Supreme Judicial Council. Each district in each province has a district court with both civil and criminal jurisdiction, but the majority of cases are resolved on civil matters. Every provincial High Court has appellate jurisdiction over the lower courts. The Supreme Court is the only court that has jurisdiction over disputes between federal and provincial governments, and it also has the authority to appeal High Court decisions. A Federal Shariat Court was established in 1980 by Presidential Order. The court has the authority to review laws that violate Islamic injunctions and guidelines. If these laws are deemed objectionable, they must be communicated to the relevant government, explaining the decision. A decree is issued. What is the reason for this ruling? The Court is empowered to review the rulings of any criminal court concerning how hudud penalties should be applied. A Shariat Appellate Bench is appointed to review the Federal Sharia Court’s rulings and serves as the Supreme Court. The Family Courts Act, 1964, applies to the Family Courts in West Pakistan. Matters concerning personal status are exclusively the responsibility of these courts. It is the High Court that appeals from the Family Courts.

Relevant Legislation

Guardians and Wards Act, 1890

Child Marriage Restraint Act, 1929

Dissolution of Muslim Marriages Act, 1939

Muslim Family Laws Ordinance, 1961

(West Pakistan) Muslim Personal Law (Shariat) 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 the Sharia 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, to limit the number of crimes to which it is applicable)

Notable Features of Family Law

The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962

Repealed the 1937. Both provincial and local laws enact the Muslim Personal Law (Shariat) Application Act. Muslim personal law is now required to be applied in all cases involving personal status and succession among Muslims, regardless of any existing practice or convention. In contrast to the 1937 Act, the new Act does not apply retrospectively to customary land law, as it stipulates that any limited estates of immovable property owned by Muslim women under traditional law will be terminated.

Marriage Age

The minimum legal age is 18 for men and 16 for women, with penalties imposed for underage marriages, even though such marriages are still legally recognised.

Marriage Guardianship

Although classical Hanafi law governs, the custom remains dominant in the case of Abdul Waheed v., to clarify this point. Asma Jehangir (PLD 1997.

Marriage Registration

MFLO, which was implemented in 1961, brought about changes to several features of the classical law. The reforms include registering marriage and divorce, granting inheritance rights to orphaned offspring, restricting polygamy, considering every talaq as a single, non-referential relationship (except the third of three), formalising reconciliation procedures in disputes over maintenance or dissolution of marriage, and recovering mahr, with specific penalties for noncompliance.

Failure to register for marriage does not invalidate it; those who violate registration requirements may be penalised. Failure to register for marriage is punishable by fines or imprisonment under the MFLO.

Polygamy

The MFLO introduced some restricted modifications to the law on polygamy, such as mandating that the husband receive written permission from the local Union Council and submit an application. This would require him to pay a fee. The application must specify the rationale for the planned marriage and indicate whether the applicant has received the approval of the present wife(s). The Union Council’s chairman establishes an Arbitration Committee that includes representatives of the present and proposed spouses to determine the necessity of a marriage. The husband who contracts a polygamous marriage without permission will be subject to immediate payment, including imprisonment and monetary penalties, and any subsequent approval by the Union Council is not eligible for registration under the MFLO. However, a man’s subsequent marriage can still stand if he doesn’t ask for the blessing of his existing wife or the Union Council. Moreover, the difficulty in applying to members of Parliament through the Union Council and the judiciary’s unwillingness to enforce the sanctions listed in the MFLO (as per case law) tend to limit the effectiveness of the reform provisions. Certain observers have characterised the provisions that necessitate the Arbitration Council’s approval as a mere formality.

The requirements for polygamy include applying to the local Union Council and notifying existing spouses, as well as imposing penalties for infractions such as breaking legal rules.

Obedience / Maintenance

In cases where a husband does not provide for his wife or wives fairly, the Union Council chairman will establish an Arbitration Council to resolve the issue. Land revenue arrears can be recovered for any outstanding dower or maintenance payments. e.g. Also, if there is no reference to payment of mahr in the marriage contract, then the entire amount specified as dower is assumed to be due as prompt dowry.

Talaq (Divorce)

The statement, except for the third of three talaqs, is considered one and cannot be forgotten; formal procedures for reconciliation are established through formal procedure and notification.

There was also an attempt to reform the classical law concerning the practice of talaq. After the talaq is pronounced in any form, the divorcing spouse must promptly provide written notification to the Union Council chairman as per the FMLO’s requirement. The notice will be given to the wife by him. A fine or imprisonment is the consequence of non-compliance. The chairman is required to establish an Arbitration Council within thirty days of the notice of repudiation to pursue measures for reconciliation. When this fails, a talaq that is not revoked, either explicitly or implicitly, will be enforced after the ninety days from when the notice of repudiation was delivered to the chairman.’ Whenever the wife is pregnant, the talaq doesn’t come into effect until the pregnancy has ended or it has ceased, which occurs ninety days after the announcement. The law that mandates an intervening marriage to remarry a former spouse who has rejected the same spouse three times is upheld. The talaq was declared null and void until the late 1970s and early 1980s due to non-warranty, but the Zina Ordinance enabled abuse by repudiating wives who were vulnerable to zina charges under the MFLO’s notification process. However, since the early 1980s, judicial tradition has acknowledged and accepted valid repudiations for violating the notification procedure. Similarly, the rules of notification and arbitration are applicable to delegated divorce (talaq al-tafwid) or any marriage that has been dissolved beyond its traditional meaning.

Judicial Divorce

Women who desire divorce can choose to pursue the marriage for various reasons, including desertion for four years and failure to maintain a polygamous marriage in accordance with established legal procedures, imprisonment for seven years by the husband, marital obligations for three consecutive years, mental illness, or exercise of puberty by his wife before the age of 16, and repudiating the adoption by any guardian. Md. Amin (PLD 1967. SC 97)

The Dissolution of Muslim Marriages Act, 1939

Sustains divorce in Pakistan. In accordance with the Muslim Family Laws Ordinance 1961, a new provision has been made in the Act to encompass polygamy as one of the grounds for dissolution of marriage (MFLO). An additional provision raises the minimum age for puberty in cases of marriage before 15 to 16, allowing women who were married before 16 to exercise their option, but not those who refute the marriage before 1, 8 and had the wedding ceremony already concluded. Pakistan also has a special case of divorce called the “judicial khula”. Some view it as a way to grant women the ability to divorce for any reason, provided they are willing to relinquish their financial rights (such as repaying their mortgage). Some critics argue that judges can opt for a legal divorce in cases where women have clear rights under the DMMA while still receiving financial assistance. This argument has been used as a scapegoat by some. In Khurshid Bibi v. Mohd. Amin (PLD 1967. The Supreme Court’s decision on SC 97 stated that Muslim women are entitled to khula under Islamic law, even if their husband refuses to release them from the matrimonial tie and living together consistently with her married spouse.

Post-Divorce Maintenance / Financial Arrangements

In terms of maintenance, classical law is enforced during and after marriage. The changes made to the Indian Criminal Procedure Code after independence have not been adopted by the Pakistani Criminal Prosecution Act, which permits a divorced wife who cannot afford maintenance from her ex-husband. Even though Pakistan or Bangladesh have made changes to their Criminal Procedure Codes, section 488 has not been extended to include divorce.

Child Custody

The divorced wife is generally entitled to custody until the age of 7 for males (a classical Hanafi position) and puberty until she reaches puberty, but there is some flexibility given that the Guardians and Wards Act, 1890, provides for custody and rights only.

Succession

Under post-independence legislation, sons and daughters of orphaned grandparents can inherit the portion of their father/mother’s inheritance that would have been due if they had not predeceased their grandparents, as guided by classical law.

The Qanun-e-Shahadat (Law of Evidence) Order, 1984

Replaced the Evidence Act 1872, this act essentially reinstates its predecessors but with women’s specific modifications intended to align evidence-based legal proceedings with Islamic injunctions. Changes were made to the law by the Order in relation tothe presumption of legitimacy. At the time of the original Evidence Act, there was no minimum gestation period and a maximum of 280 days. The provision in classical Hanafi fiqh now aligns with the majority position, with a minimum gestation period of six months and extending it to two years. Women’s testimony has been the norm since the Orders’ issuance, with courts being allowed to accept or act on instruments related to financial or future obligations.

The Offence of Zina (Enforcement of Hudood) Ordinance, 1979

Enforced the principles of fornication and adultery in criminal law. According to the Pakistani Penal Code, not committing fornication was considered illegal, and only having unrequited sexual intercourse with a partner of another man was punishable under section 497. The woman involved did not face any criminal liability. The Zina Ordinance imposes severe penalties for adultery and fornication, as well as restating the distinction between married and unmarried couples. When a married person is found guilty of the crime of zina, they are subjected to hadr, which involves being stoned or pronounced rajm, and an unmarried person who is not married must receive one year’s worth of hadd punishment. In the Ordinance, tazir and hadd punishments are separately differentiated for zina, with haddar being more severe and stricter on evidence. Why? If the accused confesses to the crime or if there are four good Muslim male witnesses to penetration, the hadd penalty may be enforced. The standard evidentiary criteria are frequently not met, and when there are additional challenges (such as confessions and confession retractions), the customary course of action is to impose tazir punishments, which consist of a maximum of 10 years in prison, thirty fines points, or both.

The Enforcement of Sharia Act, 1991

Defends the supremacy of sharia as the law of Islam, specifically identified in the Holy Quran and Sunnah.’ All statute law is to be interpreted in the light of sharia, as stated in Article 2 of the Act, and all Muslim citizens of Pakistan are required to act according to this. The Act’s 20th section affirms that the Constitution’s rights of women are not to be compromised.

Law / Case Reporting System

Various law publications, such as Pakistan Legal Decisions (PLD), Civil Law Case(CLC), and Monthly Legal Digest (MLD) contain the rulings of Pakistani courts.

International Treaty Governing Authorities’ Reports and Covenants. Regular.

In 1990, Pakistan signed the Convention on the Rights of the Child (CRC) and ratified it in the same year. In 1997, the reservation made when it was signed that said the CRC should be interpreted in light of Islamic legal principles and values was rescinded.

Pakistan’s accession to the CEDAW was announced in 1996, with a general declaration that the country’s national Constitution would dictate its membership.

Court System

There are numerous courts in Pakistan, with varying legal powers and jurisdictional boundaries. There are varying levels of courts, with some being federal and others provincial.

The Supreme Judicial Council, three divisions of lower courts and a trio of federal courts make up Pakistan’s legal system. The civil and criminal jurisdiction of each province’s districts is inherited by the district courts. Every provincial High Court has appellate jurisdiction over the lower courts. The Supreme Court has exclusive jurisdiction over disputes between and among provincial governments, and it also has the power to appeal High Court judgments.

In 1980, a Presidential Order created the Federal Shariat Court. Any law that violates the injunctions of Islam, as outlined in the Holy Quran and Sunnah, can be investigated by this Court. If a law is determined to be “repugnant,” it should be communicated to the concerned level with explanations. Judging the application of hudud penalties, the Court has the authority to review any decisions made by any criminal court. In addition, the Supreme Court has a Shariat Appellate Bench that can review decisions made by the Federal Shariat Court.

The West Pakistan Family Courts Act 1964 has jurisdiction over the Family Courts. These courts are the sole jurisdictions for personal status cases. It is the High Court that appeals from the Family Courts.

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A power base uses the courts as a public forum to resolve disputes and administer civil, labour, administrative, and criminal justice through its laws. Courts are the primary venue for resolving disputes in both common law and civil law nations, and it’s widely acknowledged that any individual can bring their case to court. In the same way, individuals accused of a crime are entitled to present their case in court.

The range of courtrooms can be found from a simple farmhouse that serves as the village court in quaint rural areas to grand buildings with numerous courtrooms located in major urban areas. The legal system is not uniform. The court’s jurisdiction is based on its role as a deliberative body, with particular powers to resolve certain judicial inquiries or petitions. Typically, it will consist of one or more presiding officers, attorneys for the parties involved, bailiffs, reporters, and potentially a jury.’

A court is commonly known as the president of a court, who is also called ‘the bench’ or judicial officer, or the body of such officials. In the United States, a judge is legally designated as referred to as “court” in federal courts.

In the United States, three issues determine a court’s ability to legally act: (1) Personal jurisdiction; (2) Subject matter control; and (3) Venue.

Jurisdiction

The authority of a court over him or her to “speak the law” is known as jurisdiction. In the United States, a court must possess subject matter jurisdiction and personal jurisdiction. Every region is governed by its own court system of states. This method grants work to courts or authorised individuals, giving both civil and criminal jurisdiction (in the United States, it is called subject-matter jurisdiction). Power can be bestowed upon each group of courts or individuals by a provision of statutory legislation, as well as enabling statutes. Jurisdiction in English law can be innate, stemming from the court’s common law origin.

Trial and Appellate Courts

The court system can be divided into two categories: trial courts (also known as “courts of first instance”) and appellate courts. The functioning of certain trial courts may involve a jury and a judge, who jointly arrive at legal conclusions and make findings of fact. The judge or judges in other trial courts make decisions that incorporate both fact and law. Unlike other court systems, those that follow Anglo-American common law have a lower frequency of judges.

Civil Law Courts and Common Law Courts

Two primary court types are civil law and common law. The courts of common law are based on the judicial system in Britain, while civil law courts are formed on French law. Civil law jurisdictions typically utilise an inquiring system for their courts. The majority of courts in the common law system operate on the adversarial system. The rules governing court operations are determined by procedural law, which covers civil procedure for private disputes and criminal law for violations of criminal laws.

Among the 8 Muslim judges who serve in the Federal Shariat Court (FSC) of Pakistan is the Chief Justice. Pakistan’s President appoints the Judges, who can choose from the judges serving in the Supreme Court, those retired from high courts, or those with the qualifications of judges in high courts.

Out of the 8 judges, 3 must be Ulema who possess a strong understanding of Islamic law. The President has the authority to extend the judges’ tenure beyond 3 years.

The FSC can investigate and rule on the repugnance of a specific law provision to Islam, either through its own initiative or by petition from governmental bodies such as national or provincial governments. Appeals for its decisions are submitted to the Shariat Appellate Bench of the Supreme Court, which is composed of 3 Muslim judges and 2 non-Muslim individuals. The bench includes three members of this body. Ulema, appointed by the President. The government must make necessary changes to align a law with Islamic injunctions if it is found to be repulsive of the injunction.

It also exercises revisional jurisdiction over the criminal courts and decides on Hudoou cases. The High Courts and the lower courts are compelled to follow the rulings of this court. The court has its own staff and establishes its rules.

The creation of the Federal Shariat Court in 1980 sparked criticism and controversy within society. However, it remains controversial. Constructed as a measure to Islamisation by the military regime and later safeguarded, but its opponents question the very essence and worth of this establishment. As per the assertion, this court solely carries out the functions of the present superior courts and also serves as a check on Parliament’s sovereignty. The court’s composition, judges’ appointment process, and the lack of security in their jobs are subject to exception, which is alleged to undermine the independence of the judiciary. It means that it is not immune to the pressures and influences of the Executive.

The recalcitrant judges were once accommodated in this court in the past. While some of its decisions, particularly those that adhere to the Islamic principle of equity, justice and fair play, extended the scope and contents of individual rights, others that restrict the rights of women are heavily criticised and condemned. To sum up, a serious debate must be held regarding the status, function, and duties of this Court.

SARDAR KHAN & CO is well acquainted with the above Family Laws and is definitely in a position to represent you at any level of proceedings.