The Muslim Family Law ordinance of 1961 continues to have significant impact on the women in Pakistan. Is it time that Pakistan replaces a legislation which has had over 50 years in effect?

‘Verily, women are the twin halves of men.’
[Abu Dawood #234 & Tirmidhi #113]

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 there 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 dowery (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 a formal instrument 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, led to a number of difficulties particularly for women. Since a Muslim male can contract up to four wives at a time and needs to comply with no requirements of paperwork, 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 heir to his property.By necessitating paperwork, section 5 was considered a significant victory for women on a number of counts. It was therefore 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).

Lack of awareness among people as to the value of documentation is perhaps to be primarily blamed for failure to implement the registration of marriages clause of the MFLO. Application of 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. Coupled with this is the imperceptible disregard, almost contempt of the written law, in matters as ‘private’ as marriage, births and deaths. Stricter enforcement of sec 5(3), (4) and enhancing the punishment for its violation is an option that has been suggested. Clauses (3) and (4) make 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. Presently, contravention of this provision entails simple imprisonment for a term of up to 3 months and a fine of up to one thousand rupees, or both. This is observed that the amount of money in lieu of punishment is not difficult to pay in this time and the punishment is not sufficient in any way. That’s why creates no deterrence.
Sec 5 fails to implement its regulatory procedures to its conclusion, as unregistered and oral marriages are not considered void. Case-law too has adopted this view as narrated in Habib vs. The State (PLD 1980 Lah 791); “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.” And depicted in Abdul Kalam vs. The State (1987 MLD 1637) “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”. Similarly held in Allah Rakha vs. Federation of Pakistan (2000 PLJ 36).
Under Muslim family laws ordinance, 1961, where a marriage has not been registered as laid down by sec 5, a complaint may be filed against the parties accusing them of zina. And this provision is used as a harming instrument by family members who don’t allow their children to choose their life partner. Whereas, Convention on the Elimination of all forms of Discrimination against Women (CEDAW) in Article 16 detailed that States signed convention shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations. Clause (a) of Article 16 gives women same right to enter into marriage. Clause (b) ensures same right to women to choose a spouse and to enter into marriage only with their free and full consent. There must be some protection given under provision of Muslim Family Laws Ordinance, 1961 to spouses and specifically women who is tortured by family and society. With the evolution of society, esteemed courts of Pakistan giving judgments continuously deviating from sec 5 is the sign that amendments must be made to secure the status of women.
Until the decade of the 1980s, there appears little case-law on the validity or otherwise of an unregistered marriage. 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.This provision of the law, therefore, which was originally intended to protect women and their rights, thus became a tool in the hands of vindictive family members or other foes. In case of Habib vs. The State 1980 women was charged with the offence of zina by complainant but appellate court declared that unregistered marriage is not void. There must be reforms to avoid damage to women’s self-respect, honor and status in society.
For the very first time in the history of the subcontinent, the right to triple talaq or instantaneous, irrevocable divorce by the Muslim husband was curtailed and the principles of talaq-i-ahsan and talaq-i-hasan were incorporated into the law, under section 7, thus regulating and formalizing the process of divorce. The popularly practiced mode of talaq 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 provides is requiring the husband to follow a certain laid-down procedure for talaq involving the local authorities. The most explosive provision of the MFLO however is s 7(1). This seeks to ensure a written notice of talaq to the Chairman of the Union Council with a copy to the wife, making the fact of termination of marriage clear and unequivocal. Contravention of this procedure makes the husband liable to simple imprisonment for one year and/or a fine extending up to rupees 5000 [sec 7(2)] This supposedly straightforward procedural requirement became the cause of some of the gravest miscarriages of justice to women when the MFLO interacted with the zina provisions of the criminal law since 1979 and gave rise to a large body of case-law.
With the promulgation of the Hudood laws, the insistence of the provisions of the MFLO that only talaq, duly written and notified, would be effective became a disadvantage to women. 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. This offence, if proved, was punishable with lashes and/or stoning to death. Commonly this section is used by men to torture women.
The courts finally declared that failure to notify did not invalidate the talaq itself. In a landmark judgment (Bashiran vs. Muhammad Hussain PLD 1988 SC 186), 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 although the husband has not got it registered 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.”
The Court wrote (relying on their holding in Allah Ditta v. Mukhtar (1992 SCMR 1276)) that in general people do not send a notice of Talaq to the Chairman as required under the Muslim Family Law Ordinance. Therefore the failure to send 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.
Judgments including the above are ‘damage containment’ responses by courts to the interaction of the MFLO and the Hudood laws. While these have saved women from the disastrous consequences of being found guilty of adultery, they have almost nullified provisions of the MFLO to offer some relief to women against arbitrary and unregistered talaq. Rather than expose a woman to charges of adultery and her child to charges of illegitimacy, the Court reasons that the husband’s declaration of talaq, though lacking notice, was nonetheless valid. The judiciary has exercised its controversial right to choose to apply the Ordinance’s laws or to avoid them. In either case its objective seems to be to provide women litigants with some meaningful relief, whether that means granting or denying a divorce.
Yet another example of “judicial activism” is Mushtaq Ahmed v. Mst. Sat Bharai and Five Others. There, the Supreme Court held that a woman could inherit from her husband because he died before the ninety-day waiting period expired. The purpose of that period was to give the husband time to reconsider his decision to divorce. The wife, the respondent, argued that since her husband had served notice in compliance with section 7 yet had died well before the expiration of ninety days, there was ample time for him to change his mind. The petitioner argued that the waiting period under section 7 had been misinterpreted as a “time for thinking and cooling down” in which the husband does not give up his right to talaq. The Court disagreed with the petitioner and held, from the facts narrated above it is clear that Gheba Khan (husband) died much before the expiry of 90 days. During this period, if he would have been alive, he would have had the option to revoke the divorce pronounced by him. There is a procedure provided under law under which reconciliation proceedings are initiated and it is only on expiry of 90 days of service of notice that the Talaq becomes effective. On the date Gheba Khan died, Talaq had not become effective in terms of section 7 of the Ordinance. Therefore, the respondent continued to be his wife. The Court, presented with a novel situation not explicitly addressed by the Ordinance, nonetheless fashions a rationale in order to confer the status of widow upon Gheba Khan’s former wife.
The judgments continuously deviating from the provisions of the ordinance depicts that this Law has not achieved the objects. MFLO has had been over 56 years in effect, it intended to secure the position of women and their rights but these provisions act as a weapon against women. An example can be referred here, on the 65th birthday of Pakistan 14 August, 2012, the court of appeals in Virginia hearing an appeal from the circuit court in Fairfax country in the same state decided that an annulment of marriage claim by plaintiff Hamid Mughal can be granted.
Hamid Mughal accused Tahira Naseer of bigamy on the ground that no notice was served after divorce between his wife and her first husband and under Islamic law in Pakistan; bigamy is punishable with harsh sentence. And he claimed that she never told him about her first husband and incorrectly stated on their application for a marriage license in Virginia that her marriage to husband was her first marriage. Tahira Naseer’s second husband was able to use the overlooked registration requirement in Pakistani law to argue that he should be permitted an annulment instead of an actual divorce. His intent for this was probably and simply to avoid the distribution of assets that would occur if the court decided that his wife of five years had indeed been divorced from her first husband when he married her in 2003.
With an annulment, he would not have to share any of the assets the couple may have purchased in five years — cars, homes, couches, pots and pans all comfortably falling into his lap through the ingenious tactic of insisting that he had been duped five years ago. Tahira Naseer’s story is an instructive one of multiple jurisdictions, embarrassed families and social stigmas all colluding to disenfranchise women and leave them solely culpable for the breakdown of relationships and ignored legalities.
The details of the case reveal all the culprits: a Virginia court looking solely at the letter of the law, a lazy first husband unmotivated to fulfill legal obligations that imposed no cost on himself, a scheming second husband intent on not parting with a penny and a flawed if well-intentioned piece of legislation. All these combined to leave a woman stuck between two court systems, without justice from either.
The MFLO contained some very important provisions that were advantageous to women. The unilateral right to terminate the marriage contract, technically known as talaq belongs to the husband under Islamic law. Khula, as well as the delegated right to divorce (talaq-i-tafwid) for women, was also recognized in statute in section 8, the latter being incorporated as an option in the standard marriage contract (nikahnama).
Article 16 (c) of CEDAW narrates that States shall take all appropriate measures to eliminate discrimination against women and gives same rights and responsibilities during marriage and its dissolution to women equal to men. Sec 8 of MFLO affirms the Article 16 (c) by giving more power in women’s hands to dissolve a marriage if they desire so.
Previous only Law operating dissolution of Muslim marriages is Dissolution of Muslim Marriages Act of 1939 (DMMA), under section 2 it listed 8 grounds of khula and did not recognize and included incompatibility or irreconcilable differences as a ground for a wife to seek divorce. Under the Dissolution of Marriages Act, if a woman could not prove one of the enumerated eight grounds of fault when seeking a judicial decree of divorce, then she and her husband were trapped in an unhappy marriage.
There is a universally accepted Hadith about a Khula case which arose between a woman of the name of Jamila and her husband Sabit Ibn-Qais. The Holy Prophet (PBUH) granted the divorce on the basis of extreme incompatibility of temperament only; no other accusation was made by the wife as a foundation for the demand of divorce. We are recommending that incompatibility of temperament should not give the wife a right to demand a divorce except in the Khula’ form.
In a swift legal maneuver in 1959, before the MFLO’s passage, the Lahore High Court changed the Islamic tradition of khula’ into a legal, judicially determinable one. In Balquis Fatima v. Najm. Ullkram Qureshi, the Court wrote 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’an 11:229: “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.”
After promulgation of MFLO, 1961 khula granted under section 8 of Ordinance, the disadvantage to her of such a divorce is that the usual condition on which a husband will give (or offer) his consent is that she relinquish all claim to any dower due and repay that already received. Since if he divorces her by talaq, the husband is bound to pay the full dower, the wife is easily placed in a position of having to buy her freedom from a husband who (perhaps from reasons more material than affectionate) refuses to divorce her.
In Mst. Shamshad Begum v. Abdul Haque (PLD 1977 Karachi 855), court decided that While a judicial khul’ 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.
However, it is important to note that judges sometimes practice Ijtihad liberally. Courts 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 proceeding. Judges are putting the burden on the husband to go after the money, giving him higher transaction costs. Simultaneously, judges are making it easier for women to obtain single status, moving towards creating a rule similar to talaq, which is still effective even if a husband has not returned his wife her properties or has not paid her the deferred dower. Judges are not forcing women to pay for their happiness.
In Mst. Shazia Nasim v. Additional District Judge 1995, the Court decided that a mere statement of hatred is sufficient. Shazia Nasim’s husband argued that in return for khula’ she should return the gold ornaments he claimed to have given her during 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 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.’ 42 “[I]n the absence of any proof of receipt of benefits by the wife from the husband, the wife would be entitled to the grant of ‘Khula” without restoration of such unproved benefits.’ 43 Even where certain items are listed in the Nikahnama (unlike the situation in Mst. Shazia Nasim above) the husband bears the burden to prove that in fact his wife received the dower (or some part of it).
Where courts entertain 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 has to 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.
It needs to be underlined that both Islam and the laws of the land allow a woman to approach the judiciary for the dissolution of her marriage. In reality, however, the stumbling blocks are so many and so insurmountable that only a small portion of suffering women dares to seek relief and justice through courts. Society’s overall disapproval, lengthy litigation processes, high costs, lack of support from parents, and mental and physical stress are some of the difficulties that keep most suffering women away from the courts.
The Federal Shariat Court(FSC) had decided 37 Shariah petitions, which were filed under Article 203-D of the Constitution, in 2000.Through those petitions Sections 4, 5, 6 and 7 of the MFLO were challenged for being repugnant to the injunctions of Islam. Section 4 is regarding the entitlement of shares of grandchildren in the inheritance of their deceased father; Section 5 is regarding registration of marriage; Section 6 is about permission of arbitration council for contracting second marriage; and Section 7 deals with the notice of Talaq (divorce) sent to the chairman of the union council and formation of arbitration council in this regard. A full bench of the FSC comprising chief justice Mian Mahbud Ahmad, Justice Dr Fida Mohammad Khan and Justice Ch Ejaz Yousaf, in its judgment reported as PLD 2000-FSC Page-1 declared Sections 4 and 7 as repugnant to the injunctions of Islam.
Through the time judiciary have seen take on a kind of legislative role as it redefines divorce, the rights a woman has to divorce, and the methods by which she can preserve those rights. In the process, courts have created a common law.
The above stated situations exposes that the time needs a law reform to cope with the present condition. The complete MFLO is somehow in question in front of courts of law. The women have been affected unanimously. For the success of a country both gender plays a vital role. And if basic rights of women are not getting protection they can’t play their role properly. The question after reading the above discussion raised in our mind is that courts continuously deviating from provisions of an ordinance and no law reform came into being?
Fifty six years have elapsed since the MFLO was promulgated. It was no doubt a courageous effort on behalf of the Rashid Commission and the government of the time to bring some of the important recommendations within the ambit of the statute. As illustrated in the preceding sections, a number of provisions designed to protect women from injustices meted out by husbands and family back-fired due to the juxtaposition of the Hudood Ordinance. Although courts have rectified some of the most glaring loopholes through judgments, these are ad hoc measures and very much dependent upon the personal views of the judge. At the same time, the reality is evident that, by virtue of these judgments, a number of substantive clauses of the MFLO have been made redundant and ineffective. Time therefore is now ripe for charting the way forward in family law reform in Pakistan.