Is the Muslim Family Law Ordinance’s regulation of the institution of marriage, a call for its reform?

Pakistan came into being on the premise of the Pakistan Movement’s ‘Two Nation theory’, according to which Muslims  were to be granted a separate nation. Accordingly the Constitution of Pakistan 1973 (Article 2A) guaranteed Muslims the ability to lead their lives in accordance with the teachings of Islam.  This was the promise of Pakistan for both, individuals and families and the country has since legislated to enable families to avail laws conforming to Islamic principles.

Post the independence of 1947, consistent pressure from women’s group’s led to the setting up of a commission on the law regulating marriage and families. The commission titled the ‘Rashid Commission’ was set up in June of 1955. Aiming to restricting polygamy and expanding the existing rights of women in Pakistan at the time, the commission concluded its report in 1958 which resulted in the Muslim Family Law Ordinance (MFLO) 1961.This was a short ordinance and it regulated matters related to succession (section 4), registration of marriages (section 5), polygamy (section 6) dissolution of marriages  (section 7, 8), maintenance (section 9), and dower (section 10).

The most important of these was Section 5 of the MFLO which addressed the registration of muslim marriages. The importance of this section manifested itself every time the validity of a Nikah (the muslim contract of marriage) was called into question.  The complete absence of documents evidencing the validity or the existence of a marriage created problems especially when relevant inquiries were made pursuant to criminal and civil trials.

Islamic jurisprudence does not require formal documentation as evidence of a valid marriage contract and evidence of an oral ceremony usually suffices. Despite centuries of a ‘written’ legal documentation culture, many parts of the Muslim world continue to practice the oral tradition as far as marriages are concerned. Lack of documentary evidence of marriage, however, lead to a number of difficulties particularly for women. Since a Muslim male could contract up to four wives at a time without paperwork requirements for the process, husbands could contract subsequent marriages without the knowledge or consent of the existing wife/wives. The result, often seen, was widows’ desperately seeking recognition as the widow of the dead husband and subsequently as an heir to his property. By necessitating paperwork, section 5 was considered a significant victory for women on many counts. It was in the interest of women to have their marriage registered and recorded. Since this evidenced the existence of a marriage by public documents it allowed women to access a plethora of rights (e.g., enabling them to secure their right to inherit from deceased husband, legitimization of children etc).

Applications pursuant to sec 5 remained confined to large cities and urban centers of the country. Rural communities and the tribal areas of Pakistan, for the most part, continued with the practice of oral ceremonies. Lack of awareness regarding the value of documentation contributed to the failure to implement the registration of marriage clause of the MFLO. Encouraging this was the popular practice in Pakistan of blatant disregard, or rather, the contempt of binding law, in matters deemed to be ‘private’ which included marriages, births and deaths.

Stricter enforcement of sec 5(3), (4) and enhancing the punishment for its violation was an option suggested by academic opinion. Clauses (3) and (4) made it incumbent upon whoever conducts a marriage ceremony (if it is a person other than the Nikah Registrar himself), to inform the Nikah Registrar of the event. Contravening this provision entailed simple imprisonment for a term of up to 3 months and a fine of up to one thousand rupees, or both. Since the amount of money in lieu of imprisonment was not difficult to pay the penalty was not sufficient and escaped engendering deterrence which was its raison d’être.

Section 5 failed to implement its regulatory procedures by declaring unregistered marriages, or those concluded orally, to be void. This can be evidenced by a plethora of case-law. A court in Habib vs. The State[1] held that “Nikah can be performed orally and such a Nikah is not invalidated merely because it is not registered according to the provisions of the MFLO, 1961.” Another court in Abdul Kalam vs. The State[2] held that “The registration of Nikah is not necessarily the proof of Nikah. According to sec 5 of MFLO, 1961 the Nikah takes place and it is then to be registered. In Muslim law Nikah can be performed by offer and acceptance in the presence of witnesses. The non-registration only attracts a penalty under sec 5(4). We thus find no error in Nikah itself”. Similar remarks were made by the court in the case of Allah Rakha vs. Federation of Pakistan^[3]. By making these statements, not only did the courts undermine the efficacy of section 5 MFLO, they also trivialized the importance of a system documenting marriages, which section 5 MFLO was trying to install.

Until the 1980s, little debate was found on the validity of marriages being questioned by case law.  This, however, became one of the most litigated sections of the MFLO (along with the section on notice of divorce) due to its interaction with the Offence of Zina (Enforcement of Hudood Ordinance, 1979). Under Muslim family laws ordinance, 1961, where a marriage was not registered as laid down by sec 5, a complaint may be filed against the parties accusing them of zina (the offence of adultery which carries serious criminal penalties in Pakistan). This loophole was used as a means of conveying great harm by family members who dictated their children’s choices for marriage. This was addressed specifically by the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) in Article 16 which required signatory states to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations. Clause (a) of Article 16 allowed women the right to enter into marriage, by choosing a spouse (clause b) with their free, non-coerced consent. With Pakistan being a signatory, this added more impetus to the need for a mechanism which emancipated couples from the threat of prosecutions of Zina, thereby adding to the need for solidifying the system of registration of marriages which was continually undermined by contravening judicial opinion.

Another provision which interacted with the offence of Zina was sec 7 MFLO, which was also attempting to formalize the institution of marriage within Pakistan. This section incorporated principles of Talaq-e-ahsan and Talaq-e-hasan whereby the right to triple talaq[4] or instantaneous, irrevocable divorce by the Muslim husband was curtailed and the process of divorce formalized and regulated. The popularly practiced mode of talaq in Pakistan was for the husband to pronounce the triple talaq (talaq-ul-biddat), resulting in immediate termination of the marriage and eviction of the wife from the marital home. The basic protection that section 7 provided was by requiring the husband to follow a certain procedure for divorce which included sending a written notice of talaq to the wife and the Chairman of the Union Council[5].  Contravention of this procedure made the husband liable to imprisonment of one year and/or a fine extending up to rupees 5000.[6] This supposedly straightforward procedural requirement became the cause of some of the gravest miscarriages of justice for women as vindictive former husbands who had failed to send written notices to the Union Council, alleged that their former wife, who after being divorced had remarried, was guilty of adultery and liable to be charged for zina as no notice of divorce was sent to her and she was therefore not divorced. This offence, if proved, was punishable with lashes and/or stoning to death.

The courts finally declared that failure to notify did not invalidate the talaq itself in a landmark judgment where  Naseem Hassan Shah CJ held that: “where a wife bona fide believing that her previous marriage with her former husband stands dissolved on the basis of a talaqnama[7] although the husband has not registered it with the Union Council enters into a second marriage, neither the second marriage nor the fact of her living with the second husband will amount to Zina because of her bona fide belief that her first marriage stood dissolved.”[8] The Court noted (relying on the decision in Allah Ditta v. Mukhtar[9]) that in general people do not send a notice of talaq to the Chairman as required under the Muslim Family Law Ordinance. Therefore, failure to send a notice does not render the divorce ineffective under Shariat if both appellants proceeded on the assumption that the Talaq the husband had given the wife was effective in Shariat, then they had not committed any offense and their divorce was valid.

But all similar judgments, including those mentioned above, are ‘damage control’ responses by courts to the interaction of the MFLO and the Hudood laws. While these have saved women from the painful consequences of being found guilty of adultery, they have almost nullified provisions of the MFLO trying to install a structure for the registration and dissolution of marriages with Pakistan. By upholding a divorce which did not follow proper procedure the courts did undermine the efficacy of sec.7 MFLO but simultaneously protected a woman who would have faced unjust prosecution for the offence of Zina. This appears to be a choice between the lesser of the two evils, for the courts applying this law.

The law regulating divorce before the MFLO did not allow for anything besides the 8 recognized grounds to validate a khula[10] and this did not include incompatibility or irreconcilable differences as a ground for a wife to file for unilateral divorce.^[11] This trapped a lot of muslim females in marriages they were desperate to get out of. In a swift legal maneuver in 1959, before the MFLO’s birth, the Lahore High Court changed the critera of khula into a legal, judicially determinable one. In the case of Balquis Fatima v. Najm Ullkram Qureshi, the Court declared that a husband’s consent was no longer necessary if a wife could show incompatibility and if she would return her dower as financial consideration. The High Court based its decision on the Qur’anic verse which states: “If ye (judges) do indeed fear that they would be unable to keep the limits ordained by God, there is not blame on either of them if she give something for her freedom.”^[12] The MFLO through its section 8 allowed women to file for khula (talaq belongs to the husband under Islamic law and this provision of the MFLO allowed women to legally access the right to divorce without requiring compliance from the husband).This aided Pakistan to comply with its obligations pursuant to CEDAW as it required signatories to ensure women had rights equal to men in the dissolution of marriages.[13] But this provision of the MFLO, had its own failings.

In Pakistani law if a man divorced a woman (talaq), he was bound to pay the full dower. If a woman filed for a khula she was to eschew all dower received by her upon marriage. Khula granted pursuant to the MFLO allowed women to be disadvantaged by the consequence that, husbands forced their wives to ‘buy their freedom’ by refusing divorce until the wife relinquished all claim to any dower due, and to repay all that she had already received. In Mst. Shamshad Begum v. Abdul Haque[14], the court held that While a judicial khula may be obtained without the necessity of proving specific grounds (as is required under the Dissolution of Muslim Marriages Act, 1939), and without the consent of the husband (as is required under the traditional Hanafi law), the court in granting such a dissolution will require the wife to repay her dower and any other ’benefits’ she has obtained from the marriage.

This has undergone much transformation in interpretation by the courts as they are now granting women divorces yet leaving the money out of the consideration, holding that if a husband wants financial consideration, he can sue his former wife in a separate civil suit. Where courts have entertained the question of financial consideration along with the khula’ claim (in contrast to ordering the consideration claim to be pursued in a separate civil suit), they often put the burden on a man to prove that indeed a dower (or portion of it) was paid to his wife. A man must prove that his wife received any benefits which she should return as a matter of evidence, and if he can show she did receive benefits, he must specify what those benefits were in his petition or counter-complaint.  Judges are putting the burden on the husband to go after the dower, impeding this process with higher transaction costs. In Mst. Shazia Nasim v. Additional District Judge 1995, the Court decided that a mere statement of hatred is sufficient for the purposes of the divorce. The appellant’s husband argued that in return for the khula’ she should return the gold ornaments he claimed to have given her during the marriage. But, the Court stressed, his claim had no weight since he had not produced any evidence that the gold ornaments he claimed to have given her were even made of gold, and even if they were, the Nikahnama (document recording the marriage) did not list them as part of the dower. If a husband has not submitted any evidence of money or objects given to his wife during their marriage, he has no right to claim them.’ This might make it seem like the courts are swinging interpretations in favor of women, but the reality lies far from this. Divorce is still a social taboo in Pakistan, impeded with social stigma and delays in court.

These provisions of the MFLO have also been objected to on grounds of Islam and their lack of compliance with its teachings. The Federal Shariat Court (FSC)[15] decided 37 petitions filed under art.203-D of the constitution of Pakistan[16] in the year 2000 in which, Among others, sec. 5 and 7 were both challenged to be in contravention to Islamic principles. A full bench of the FSC later declared sec.7 to be repugnant to Islamic principles and therefore void.[17] Despite this sec.7 continues to operate as valid law. Given that Islam is the popular religion within Pakistan, all Islamic concerns should be inextricably linked to the decisions which legislators make while drafting and replacing laws.

The practice of the courts and the lack of practical efficacy of the provisions of the MFLO clearly urge for reform. Courts, as evidenced by case law, continuously deviate from the provisions of MFLO. While the result of such deviation has been protecting women, it has been doing so at the expense of the aims which the MFLO was deployed with, 56 years ago. This ordinance has been viable law for over 56 years and was drafted in order to protect women. But in all these years, it has created legal loopholes allowing its provisions to be used as ammunition against women and has forced the courts to legislate in direct contravention to it. The ordinance was designed to encourage women and allow them access to better rights, but by overlooking the results of its juxtaposition with the Hudood Ordinance, a great deal of new problems were born.  The courts have attempted rectification but these are all ad hoc measures and thoroughly dependent on the personal views of the incumbent judge, thereby promising similar reliefs to no one. The country therefore needs to carry out an exhaustive reform of the provisions of the MFLO regulating the registration and dissolution of marriages in Pakistan.

[1] PLD 1980 Lah 791

[2] 1987 MLD 1637

[3] 2000 PLJ 36

[4] This term will be used interchangeably with ‘divorce’ in this paper

[5] Muslim Family Law Ordinance, s 7(1)

[6] Muslim Family Law Ordinance, s 7(2)

[7] the divorce deed

[8] Bashiran vs. Muhammad Hussain PLD 1988 SC 186

[9] 1992 SCMR 1276

[10] A unilateral divorce by the woman

[11] Dissolution of Muslim Marriages Act of 1939, s 2

[12] Qur’an 11:229

[13] Convention on the Elimination of all forms of Discrimination against Women art 16(c)

[14] PLD 1977 Karachi 855

[15] A local court which evaluates local laws to ensure their compliance with the provisions of Islam.

[16] Which allows the court to declare provisions of law repugnant to Islamic teachings to be void.

[17] PLD 2000-FSC, p 1