Family laws Prevalent in

Pakistan
Shagufta Omar
22nd April 2014

In Charge Dawah Centre for Women, Dawah Academy IIUI

General Secretary Women Aid Trust Pakistan
President Pakistan Chapter, International Muslim Women Union
(IMWU)
 Preamble
 Importance of legislation
 History of any legislation in Pakistan
 Pre-partition era
 Qazi courts (Muslim Rule)
 British rule
 Post independence era till date
 Basis for analysis of any law
 Providing justice
 Compliance with Shariah
 Holistic and not fragmantory

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Pre Partition Legislation
 Bombay Regulation, 1827
 Preference to Govt. Act or Regulation
 Law of the land
 Law of the defendant
 Rule of Justice
 Punjab Civil Code, 1861
 Punjab Laws Act, 1872
 Penal Code of India, 1862
 Drafted by Lord Meek ale

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Pre Partition Legislation (Contd.)

 Hindu Divorce and Remarriage Act 1856

 The Divorce Act, 1869
 Evidence Act, 1872 (replaced in 1984)
 Special Marriage Act, 1872
 Christian Marriage Act 1872
 Married Women Property Act, 1874, (still valid)
 Guardians and Wards Act (GWA), 1890
(still valid)

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Pre Partition Legislation (Contd.)
 Marriage Validation Act 1892
 Anand Nikah Act 1903
 Foreign Marriage Act 1903
 Parsi Nikah and Talaq Act 1936
 CrPC in 1898 (Statutes for Criminal Law)
(still valid)
 CPC 1908 (Statutes for Civil Law, still valid)

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 Pre Partition Legislation (Contd.)

 Child Marriage Restraint Act (CMRA), 1929 (Still valid)

 Muslim Personal Law Act (1887-1936)
 Muslim Personal Law (Shari’at) Application Act,
1935 (NWFP) in wider perspective
 Muslim Personal Law (Shari’at) Application Act,
1937 (India) in wider perspective
 On demand of Muslim Women Organizations
 Provided relief to Muslim women
 Dissolution of Muslim Marriage Act, 1939 (Still valid)
Provided grounds for dissolution of marriage on the
basis recognized by Shariat

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 Legislation in Pakistan
 Pakistan Penal Code (PPC) 1948
 According to Independence Act 1947 clause
18 (3) as interim action PCI was replaced as
PPC
 According to adaptation of Central Acts and
Ordinance Order 1949, already prevalent laws
were adapted after minor changes (CMRA,
DMMA, GAWA etc)

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 Legislation in Pakistan (Contd.)
 Muslim Personal Law Shariat Application
Act 1937 with changes was gradually
implemented in Pakistan
 West Punjab Muslim Personal Law
(Shar’iat) Application Act, 1948
 West Pakistan Shar’iat Application Act,
1962 (included Agricultural land in
inheritance)

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 Islamization of Laws in
Pakistan (Contd.)
 Objective resolution 1949
 22 mutually agreed points by Muslim Scholars
provided basis for Constitution
 First Constitution promulgated in 1956
 Second Constitution was promulgated in 1973
with following features
 Objectives Resolution became preamble of Constitution
 Provision that no law repugnant to Islamic injunctions would be
enacted was included
 All existing laws would be considered and amended in the light of
this provision
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 Islamization of Laws in
Pakistan (Contd.)
 Amendment in Constitution in 1985
 Objectives Resolution became substantive part of the
Constitution as Article 2A
 In the light of two Constitutions the following
institutions were formed
 Institute of Islamic Research (IRI)
 Council of Islamic Ideology (CII)
 Federal Shariat Court (FSC)

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 Role of IRI, CII and FSC with
Reference to Family Law
 Institute of Islamic Research (IRI), now an
integral part of IIUI
 For compilation of Fiqh, priority was given to
family law
 Research based books on Islamic knowledge and Fiqh
 English and Urdu translations of basic sources
 Justice Tanzeel ur Rahman, Chief Justice FSC
and Chairman CII compiles “Majmooa e
Qawaneen e Islam published in multiple volumes
under various headings, published by IRI
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 Council of Islamic Ideology
 Basic idea to provide Islamic guidance to Parliament for
legislation
 Gave recommendations which became basis of Hudood
Ordinances 1979
 Provided analysis and recommendations for amendments
and alternatives for laws enacted during British Rule and
those after Independence
 Regarding Muslim Family Laws the Council presented a
Resolution in 1964 which was reviewed in various sessions
till 1967, and many amendments were approved. These
recommendations were published as “Report – Muslim
Ailee Qawaneen”

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 Federal Shariat Court (FSC)
 In 1979, Shariah benches were established in high courts
with a right to analyze compatibility of any law with Islam.
However Muslim Personal Law was declared out of its
jurisdiction along with few other areas
 Shariah Appellate Bench in Supreme court was established
(3 Judges and 2 Islamic Scholars)
 Article 3 A was included in the Constitution through
presidential order no. 1, in 1980, and Federal Shariat Court
(comprising of 5 judges) was established in the Capital
replacing high court Shariat benches
 FSC and SCSAAB has presented many amendments and
alternatives in Family law by using their prerogative

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Federal Shariat Court (FSC) (Cont’d.)
 Decisions of FSC are binding on High Courts and Lower
Courts but can be challenged in Supreme court
(SCSAAB)
 FSC could give opinion about any law on any petition
filed about any law according to Article 203 (D) of
Constitution of Pakistan
 In 1982 FSC was empowered to give suomoto verdict
against any law being repugnant to Islam
 FSC and SCSAAB have recommended many alternatives
and amendments in Family Laws

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 Constitutional Rights
 Principles of Policy
 Fundamental Rights
 Right to life
 Right of protection of honor
 Right to Education
 Social Rights
 Political Rights
 Economic Rights

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 Gender Equality Aspect/Consideration
in Legislation
 Gender equality specifically guaranteed in the
Constitution adopted in 1973 (Articles 25,27, 32,
34 & 35)
 There shall be no discrimination on the basis of sex
alone
 Protection of marriage, family, mother and child is
ensured
 Full participation of women in all spheres of national
life is ensured
 Education, job opportunities, Equal pay etc

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Family Law Developments in
Pakistan
 Muslim Family Law Ordinance, 1961 (MFLO)
 Based on recommendation of the commission on
Marriage and Family Laws (Report 1956)
 Few provisions were opposed by Ulamas and later on
through FSC challenged, others endorsed
 Muslim Family Law Ordinance, 1961 rules
 Family Courts Act , 1964
 Family Courts Rules

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 Muslim Family Law Ordinance
(MFLO) 1961 (Important features)
 Marriage Registration (Nikah Nama), Section 5
 Mehar, Section 10
 Maintenance (Financial arrangements), Section 9
 Consent of wife in case of second marriage,
Section 6
 Talaq Registration, Section 7
 Khula, Judicial Divorce, and delegated right of
divorce, Section 8
 Inheritance of orphaned grand children, Section 4

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 Muslim Family Law Ordinance
(MFLO) 1961
 Contradictions to Islamic Teachings
 FSC in 2000 in Allah Rakha vs Wafaq
presented detailed analysis of the MFLO,
and declared few provisions against Islam
 Government of Pakistan has appealed in
Supreme Court Shariat Appellate Bench
against this

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 Dissolution of Muslim Marriage
Act (DMMA)1939
 Background of the enactment
 Provided basis of comparative fiqh at that time
and onwards (Inclusion of Malaki and Shafai Fiqh)
 Section 2 provides that a wife can seek decree of
dissolution of marriage on the following grounds:
 Missing husband for a period of four years.
 Husband failed to provide maintenance for a period of
two years.
 Husband gets second marriage without permission of
first one.

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 Dissolution of Muslim Marriage
Act 1939 (DMMA) (Contd.)
 Husband sentenced to imprisonment for a period of
seven years or onwards.
 Husband is impotent.
 Husband has been insane for a period of two years.
 Wife after attaining majority while marriage was
solemnized by her father against her consent.
 Husband treats wife with cruelty and habitually
assaults her.
 Husband force the wife to lead an immoral life.
 Husband disposes the property of wife without her
consent or prevents to exercise her legal rights over it.

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 Dissolution of Muslim Marriage
Act 1939 (Contd.)
 Husband obstructs wife in the observance of her
religious profession or practice.
 Unequal treatment of husband in case of more than
one wife.
 Husband accuses wife of Zina and she denies so and
proceedings of Lian has been held, (Read with section
14 of Hadd e Qazaf Ordinance 1979)
 Or any basis recognized by Shariah
 Court is bound to decide the matter within
six months, (Section 3)

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 Child Marriage Restraint Act
(CMRA) 1929
 Childhood marriages prohibited
 Prohibition of marrying boy with less than 21
years and for girl with less than 14 years. Later
on this age was settled as 18 years for boys and
16 for girls through an amendment in MFLO. Still
later in the light of Majority Act it is settled as 18
years for both.
 The parents and the Nikha khwan both are liable to be
punished with imprisonment and fine if they are involved
in arranging the marriage of a girl who is under 16/18

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Child Marriage Restraint Act
(CMRA) 1929 (Contd.)
 However higher courts have established
this principle that if any under-age girl
enters into a marriage contract with her
own free will then in that case age factor
shall not be the sole consideration, rather
her adulthood and maturity will be judged
on medical grounds.

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 Guardian and Wards Act
(GAWA)1890 (Contd.)
 Welfare of the minor
 In case of separation mother has the legal right
to keep the custody of her son till the age of 7
years while her daughter shall remain in her
custody till marriage
 For boys till 7 and girls till 16 years, court will
pass interim orders on the first date of hearing
for the custody of minor to the mother and
visiting rights to the father.


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 Guardian and Wards Act
(GAWA)1890 (Cont’d.)
 In any case, all the day to day expenditures of
the minor, whatsoever, like feeding, clothing,
lodging, education and health etc., shall be
borne by the father.
 If the father fails to fulfill this liability, the minor
may seek help of the court and the court may fix
quantum of maintenance allowance keeping in
view the standard of life of both the families and
coercive measures may also be used to recover
the allowance from father.

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 Legislation in Pakistan (Contd.)

 Dowry (Prohibition on Display) Act, 1967

 Dowry and Bridal Gifts (Restrictions), 1976
 Married women property Act 1874
 Possession and operational rights on her
property and income, with husband having no
control over it

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 Legislation in Pakistan (Contd.)

 Mother and child facilities for working women

 Maternity leaves under Govt. Services Rules

 Under Factories Act, 1934, in case of more

than 50 women working in factories, there
must be a day care center for their children
 Mines Maternity Benefit Act 1941 , prohibits the
employment of women in mines for a certain
period before and after childbirth, provides for
payment of maternity benefit to them, and
Prohibits dismissal during period of pregnancy.

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 Effects of International
Legislation in Pakistan
 Inquiry Commission for Women set up in 1994,
report in 1997, which recommended many provisions
related to Family Law as well as inclusion of western
family laws
 Pakistan Acceded to CEDAW in 1996
 Requires to incorporate principle of gender equality in all
matters including marriage and family (Article 16)
 Minimum age for marriage is set
 NCSW established through ordinance in 2000,
(reviewing of laws related to Women)
 Preparation of National Gender Policy

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 Later Developments in Family,
Criminal Law in Pakistan
 Ruling of High Court on getting into marriage
without wali’s Guardian) consent (Saima Waheed
case in 1997)
 Family Courts Act amendments , 2002
 Section 310 (Qisas and Diyat Ordinance, 1997), & 310-A,
(Criminal Law Amendment, 2005), whoever gives a female
in marriage or otherwise in Badal-I-Sulh shall be
punished with rigorous imprisonment which may
extend to 10 years and shall not be less than 3
years

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Later Developments in Family,
Criminal Law in Pakistan (Contd.)
 The Criminal Law (Amendment) Act, 2004

 Punishment on Wanni (badal-sulh)

(amendment in 310 A PPC)

 Removed lacunae in Qisas-o-dyat with

reference to Karokari (honor killing)

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 Later Developments in Family,
Criminal Law in Pakistan (Cont’d.)
 Amendment in PPC in 2011 with insertion of a new chapter
XXA “Of Offences against Women” with following
provisions:
 Minimum 5years to maximum 10 years of punishment with fine
of 1 million rupees for anyone who deprives woman from
inheriting any movable and immovable property, by deceitful or
illegal means (Section 498 A)
 Minimum 3 years to maximum 7 years of punishment with fine
of Rs.500,000/- for anyone who whoever coerces or in any
manner compels a woman to enter into marriage (Section 498 B)
 Minimum 3 years to maximum 7 years of punishment with fine
of Rs.500,000/- for anyone who compels or arranges or
facilitates the marriage of a woman with Holy Quran (Section 498 C)

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 Required areas for Legislation
in Family law
 Comprehensive codified Family Law
 Codified Inheritance Law
 Maintenance rights of widow/divorcee from
father/brother
 Maintenance rights of orphan from paternal
uncles
 Domestic Violence
 Beating, burning, acid burning, physical torture,
incest

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 Required areas for Legislation
in Family law (Cont’d.)
 Your Input is Required

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 Conclusion
 Improvement of entire legal framework
 Issues of governance and implementation
 Responsibility for Imparting awareness to
masses and professionals regarding
 Existing Laws
 Shariah laws
 Lacunas of prevalent laws
 Required areas for Legislation or
improvements required

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 References
 Women and Law in Pakistan by Rashida Patel, 2000
 Muslim Women And Law by Safia Iqbal, 2000
 The code of Muslim Family Laws (manual)
 Women And Social Justice by Dr. Anis Ahmad, .2001
 Family Law in Islam, Theory and Practice by Dr. M. Tahir
Mansoori
 An analysis of MFLO by Justice Taqi Usmani
 Dissolution of Marriage: Practice, Laws and Islamic
Teachings, article published in “Policy Perspective” by
Shagufta Omar
 Constitutional and Legal rights of Women in Pakistan by
Women Aid Trust

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 References (Contd.)

 Zoojain mein alahdigi; Shariat aur mulki qanoon, article

published in Aurat, khandan aur hamara muashra,
Institute of Policy Studies by Shagufta Omar
 Hudood Ordinance (Manual)
 Comparative study of Hadd-e-Zina Ordinance 1979 with
Pakistan Penal Code by Women Aid Trust (English)
Published 2005
 Hadd-e-Zina Ordinance 1979: An Analysis by Women Aid
Trust (Urdu) Revised edition, 2006
 Women and protection of Women Rights, Ameena Ulfat,
G.M.Chaudhry. Federal Law House

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