RESEARCH STATEMENT 3
INTRODUCTION 3
LITRATURE REVIEW 8
OBJECTIVE OF RESEARCH 11
RESEARCH METHODOLOGY 11
1. MARRIAGE LAWS IN ISLAM 13
1.1 Historical Background 13
1.2 Islamic Marriage Laws 15
1.3 Essentials of Marriage 15
1.3.1 Consent of parties for the contract of marriage 16
1.3.2 Consent of wali 18
1.3.3 Essentiality witnesses to the contract of marriage 18
1.3.4 Religion of parties prior to the execution of marriage contract 20
1.3.5 Amount of dower money in a marriage contract 20
1.3.6 Essentiality of maintenance of wife 22
1.4 Polygamy under Islamic Jurisprudence 22
1.5 Types of Marriages 23
2. MARRIAGE LAWS IN PAKISTAN 24
2.1: Marriage laws enforced in Pakistan 25
2.1.1 Constitution of Pakistan, 1973 25
2.1.2 Muslim Family Law Ordinance, 1961 26
Section 5 of Muslim Family Laws Ordinance, 1961 27
Section 6 of Muslim Family Laws Ordinance, 1961 28
Section 7 of Muslim Family Laws Ordinance, 1961 30
Section 8 of Muslim Family Laws Ordinance, 1961 31
Section 9 of Muslim Family Laws Ordinance, 1961 32
Section 10 of Muslim Family Laws Ordinance, 1961 34
2.1.3 The Dissolution of Muslim Marriages Act, 1939 35
2.1.4 Child Marriage Restraint Act, 1929 37
2.1.5 Guardian and Ward Act, 1890 38
2.2 Application of marriage laws in Pakistan 39
3. COMPARISON OF ISLAMIC MARRIAGE LAWS AND MARRIAGE LAWS IN PAKISTAN 43
CONCLUSION AND RECOMMENDATIONS 46
Conclusion 46
Recommendations 48
Bibliography 50
Articles 50
Books 50
Case Laws 51
Statutes 53
TITLE FOR THE RESEARCH PROJECT
“Analysis and Application of Islamic Marriage Laws in Pakistan”
RESEARCH STATEMENT
Due to apparent differences between marriage laws of Pakistan and Islamic Marriage Laws, there is ambiguity amongst the individuals of Pakistan that whether the marriage laws in Pakistan are in accordance with Islamic marriage laws.
INTRODUCTION
Family is the base of society and marriage is the pillar on which the structure of family is established. Marriage has been defined in different ways due to variation of concepts and interpretations. According to Black’s Law Dictionary, marriage is the union of a couple as husband and wife. On the other hand, marriage can be defined as a contract which has been entered for legalizing and procreation of children.
Marriage is a personal law matter and in personal law related matters, the court of law considers the religious teachings followed by the parties. Therefore, in a case the Supreme Court defined marriage as per Islamic law marriage is the contract of civil nature and not the mere sacrament, although it has spiritual and moral value but legally it remains a contract between the parties. In the Holy Quran, the Allah Almighty ordained;
“And from His signs is that He created for your spouses from amongst yourselves that you may find tranquility with them and He has placed between you love and mercy. Verily in that are sins for those who reflect”
Before the advent of Islam, the customs related to marriage were totally different as of those introduced by Islam. The pre-Arabian society was a male dominating society and the women was not a free agent in the contract of marriage. The right of women to get married was reserved by her father, brother, cousin or any other male member of her family. Women were forced to get married by their family and it was irrelevant the whether she was old or young, widow or virgin to whomsoever they choose. Women were also deprived from the right of inheritance and they do not get any share from the properties of their father or even husband. The dower for benefit of wife was in vogue in the regular marriage among the pre-Islamic Arabs.
In addition to that dower was made an exclusive right of women whereas Islam also stressed upon the marriage being pronounced or being public and for this reason the concept of witnesses came into being. Rights of spouses were also provided by Islam which are provided both in the Holy Quran and Sunnah. Islam has also regulated the marriage by imposing limit the number of marriages unlike marriages in pre-Islamic Arabia. So, Islam has effectively regularized the marriage.
Islam being the religion of nature regulated each field of life including a man’s personal life. Islam regulated the institution of marriage which was being practiced in pre-Islamic Arabia in a number of ways. On the first count, Islam declared marriage a contract in between two parties rather than it being a sacrament. Four principles were established for the contract of marriage; whether it would have the immediate binding effect on the parties or is it binding with the delay, secondly can there be any pre-requisite to this contract, thirdly whether the person entering into the contract is entering the contract with free consent, and lastly the nature of contract.
The capacity to enter into marriage in Islamic law is provided that every Muslim who has attained the age of puberty and is of sound mind can enter into a marriage contract. For the age of puberty, the number of years to attain age of puberty may vary in different sects. Even in Islamic law there may exist more than one view in a particular matter as per different schools of thought which will be discussed detail later.
According to Islamic law, following are the essentials which are necessary to be fulfilled for a valid marriage and these essentials are;
- Consent
- Dower
- Muslim
- Witnesses
- Maintenance
However, in marriage laws of Pakistan, the essentials of marriage as per law, in addition to the above stated essentials, are;
- Registration of marriage
- Age (male should not be under eighteen years of age and female should not be under sixteen years of age)
On the basis of fulfillment of essentials required by the Islamic law, marriage can be of following types;
- Valid marriage
- Void marriage
- Irregular marriage
A valid marriage is a marriage that fulfills all the essentials required to be fulfilled. If there is defect in the essentials of marriage is permanent and are not fulfilled as per required by Islamic law such marriage is void marriage and will have no legal affect. However, irregular marriage is type of marriage which is categorized in law of land only and not in Islamic law. The children from irregular marriage are legitimate. The marriage will be irregular if the defect in the fulfillment of essentials of marriage is temporary and defect can be removed then such marriage is irregular and when the defect is removed the marriage becomes valid.
However, registration of marriage is not essential in Islamic law. Further, there are different views of jurists in different school schools of thought of Islamic law. There are different Islamic Scholars which are classified into two main schools of thoughts which are briefly discussed as under.
Sunni School of thought
Majority of Muslims in Pakistan follow the Sunni school of thought. The Sunni school of thought is further divided into following sub sects;
- Hanfi
- Maliki
- Shafi
- Hanbali
The Hanfi sub sect follows the interpretation of Imam Abu Hanifa (699-767 A.D) also called the great Imam. The Maliki follows the interpretation of Imam Maalik (711-795 A.D) and Shafi sub sect follows the interpretation of Imam Shafi. The Hanbali sub sect follows the interpretation of Imam Ahmad Bin Hanbal (780-855A.D). All these Islamic jurists are classified as Sunni Sect as they follow the same principles of interpretation of Islamic Law while interpreting however they are further classified in different sub sects on the basis of difference of opinion.
Shia School of Thought
The Shia School of thought is classified from the Sunni school of thought on basis of difference of principles used for the interpretation of Islamic Law. The Shia School of thought is further classified into following sub sects on the basis of difference of opinion while interpretation of Islamic Law using same principles of interpretation as by all jurists of Shia School of thought.
- Athna-Asharias
- Ismailia’s
- Zaidi’s
In the sub-continent, the afore mentioned institution was regulated time to time in a number of ways and every ruler had developed his own Code for the enforcement of personal laws which were later regularized in Fatawa Alamgiri developed in the era of Aurangzeb Alamgir. During British rule in the sub-continent, Muslim groups pressurized the sitting government to enact a definite code of personal laws and as a result Muslim Personal Law Shariat Act was promulgated along with other laws. After partition, a number of laws were adopted by Pakistan under Adoption of Acts Act and later a definite Code namely Muslim Family Laws Ordinance 1961 was promulgated providing marriage laws for Muslims.
LITRATURE REVIEW
The Holy Quran and Sunnah are the primary sources of Islamic law. The Holy Quran provides the principles and guidelines and Sunnah is the practice of Holy Prophet (PBUH) applying the principles to provide practical example for the whole humanity. The Holy Quran discussed the marriage providing the rules, essentials and prohibition category in this regard. The Prophet (PBUH) acted upon the guidelines and provided the way how to act upon.
Hedaya is a book composed by Shaikh Burhan-ud-Din Ali in the 12th Century. In this book, he compiled doctrine of Hanfi School on basis of principles. Hedaya was translated from original Arabic into Persian by the Maulvis who were four Muslim lawyers. Then, Charles Hamilton translated from Persian to English by order of Governor-General of India, Warren Hastings. It provides principles of Islamic law on marriage and almost all the topics of Islamic law except the law of inheritance.
Fataawa Alamgiri was compiled in the Seventeenth Century under the orders of Aurangzaib Alamgir. It was based on the model of Hedaya. Fataawa Alamgiri is the collection of the most authoritative opinions of jurists or expositions of law on all the points or topics that had been decided up to the time of compilation. It provides the Hanfi rules on all the topics of Muslim law.
Muhammadan Jurisprudence is a book written by Sir Abdul Raheem. He has discussed different principles of Islamic law providing different opinions in different School of thought of Islamic jurisprudence. He has also discussed the marriage along with types and essentials of marriage in the view of different Islamic jurists. In this book, he has briefly discussed the Muslim marriage in accordance with Shia and Sunni School of thought.
Outlines of Islamic Jurisprudence is a book written by Imran Ahsan Khan Nayazee who has compiled the principles of jurisprudence used by different Islamic jurists for interpreting Islamic laws. He has also discussed different topics but the book is based on classical Islamic jurisprudence. He has not discussed law of land and the scope of his discussion remained to the extend of Islamic jurisprudence and he has discussed different ingredients of marriage in the light of opinions of different Islamic jurists.
Sir Dinshaw Fardunji Mulla wrote a book with title Principles of Mahomedan Law in which he has discussed different topics and provided critical analysis. In his book, he has also discussed Muslim marriage in a comparison. He has discussed Muslim marriage under a separate chapter in which he has discussed different aspect of Muslim marriage according to different opinions of Islamic jurists under different Schools of thought. Further, he has also critically analyzed the Islamic law with the law of land as how the courts interpret the law of land in different cases.
Dr. Hidayatullah and Dr. M. A Mannan also published the revised editions books separately with the title Mulla’s Principles of Mahomedan Law. Both of them provided separate books which are further elaborating the Mulla’s principles of Mahomedan law with comparison of upto date case laws for better understanding. These books were helpful to get the concept of Muslim marriage and application of Muslim marriage laws through the case laws.
Muhammad Abdul Basit compiled a book with title Muslim Family Laws. Itis a compilation of Muslim family laws enforced in Pakistan. In this book, the laws are provided with commentary in which each section of law is discussed in the light of precedents. To understand the Muslim marriage laws in Pakistan and their application, the book helped us a lot. The precedents provided in the book with relevant provisions made it easier to understand the interpretation of the law by the superior courts.
Alamgir Muhammad Serajuddin, wrote a book named Muslim Family Law, Secular Courts and Muslim Women of South Asia. In this book, Muslim family laws including Muslim marriage laws are discussed in detail and comparison is done with the case laws. The discussion includes Muslim marriage laws in Pakistan and their application in Pakistan which are helpful to understand the marriage laws and to analyze Muslim marriage laws in comparison with precedents of superior courts.
Abdullahi A. An-Na’im,wrote abook named Islamic Family Law in a Changing World: A Global Resource Book. In this book the author has discussed the history of Islamic law and the customs and traditions from time to time. The book analyzed the Islamic law and its applications in the changing world. Regarding the history of Islamic marriage laws in sub-continent and their application through the law of land, the book was very informative regarding the history of law making in subcontinent and then in Pakistan.
OBJECTIVE OF RESEARCH
The prime objective of this research is to eliminate the ambiguity amongst the individuals regarding conflict of Islamic marriage laws with marriage laws in Pakistan. The research will be focused on Islamic marriage laws and marriage laws drafted by legislature in Pakistan to reach a conclusion whether there is conflict or the differences which are apparently conflicts for a layman are to regulate the marriage laws in a better way.
RESEARCH METHODOLOGY
For the proposed research, we will thoroughly study the marriage laws made by parliament specially the laws mentioned in literature review, books of Islamic Jurisprudence, other authentic literature on Islamic laws, articles and case laws to analyze the applicability and validity of Pakistani marriage laws. Moreover, we will interact with different Islamic Scholars qualified from authentic institution of Islamic Studies and research to get more sources for thorough study of Islamic law to understand the essence of Islamic law. Afterwards, we will analyze both Islamic laws and laws of land in conflict to provide suggestions and recommendations to resolve the issue of conflict.
RESEARCH QUESTIONS
- Whether the marriage laws enforced in Pakistan are in conflict with the basic essence of Islamic law?
- What are the problems faced by individuals due to the ambiguity of conflict of marriage laws in Pakistan with Islamic laws?
- Whether the consent of Wali is essential requirement for Muslim marriage?
- What is the status of Pakistani marriage laws under the Constitution of Pakistan?
CHAPTER 1
- MARRIAGE LAWS IN ISLAM
1.1 Historical Background
Islam provides a balanced structure of a society accompanied with the basic principles and guidelines from the household to the business of the state and foreign affairs. Islam also regulated the marriage as it is the base of family system which is the backbone of a society. Before Islam, there was no specific legal system however, Islam has provided guidelines in the Holy Quran and the Prophet (P.B.U.H) has provided the practical frame work for the easement of the humanity to understand and implement it, hence, the Prophet (P.B.U.H) practiced the affairs from personal matters to the state and foreign affairs being the head of state of Medina.
Before Islam, the customs were there to regulate the relations of marriage but there were different types of relations which were considered as forms of marriages. Although there was a regular form of marriage but sidewise there were certain forms of relations which were covered under name of marriage as its forms. Before Islamic law came into force, there were following forms of marriages in vogue and are thus stated as under;
- A regular form of marriage as recognized by Islam in which a man asks another for the hand of latter’s daughter or ward and after acceptance marries her by giving her dower.
- By virtue of a custom, a man asks her wife to go to a person by name who is famous in society and ask her wife to have intercourse with such mentioned person and the husband would keep himself away from her society till his wife is conceived by the man mentioned. After her pregnancy became apparent the husband would return to her and this custom arises out of desire to secure noble seed.
- A number of men not exceeding ten used to go to a woman to have intercourse with her and if the woman conceived and was delivered, she would call them and all of them would be bound to come and she will choose and pronounce the name of one of them stating to the chosen one that this is your son. The child would be then ascribed to him and he was not allowed to disown.
- A number of men used to visit a woman who would not refuse any visitors, such women were prostitutes and if any woman from such class conceived or brought forth a child then the frequent men visitors would be assembled and the physio-gnomists used to decide that to whom the child belonged.
- As per custom of Arabs, they used to contract a temporary marriage named as mut’ah when a man came to a village to which he is not acquainted well, he would marry a woman for the time period of his stay there to have partner in bed as well as care taker of his house.
Islam has recognized the first form of marriage i.e. regular marriage and regulated marriage as permanent marriage. However, temporary marriage or mut’ah is recognized under Shia School of thought which recognizes permanent as well as temporary marriage. In pre-Islamic Arabia, the male has enjoyed a powerful discretionary status but Islam has granted the substantial rights to the female either she is wife or daughter or mother. Regarding the marriage, the concept of Islamic Law is discussed in detail hereinafter.
1.2 Islamic Marriage Laws
The Holy Quran and Sunnah of the Prophet Muhammad (P.B.U.H) are the primary sources of the Islamic Law which provides the basic guidelines for the humanity. Islam is living religion hence has allowed the Ijtihad, Qiyas etc. to deal with different situations arising from time to time, in accordance the essence of Islam through interpretation methods by the Islamic jurists and Scholars by the principles of Fiqh. All the other sources of Islamic law used by different Islamic scholars while interpreting Islamic laws are the secondary sources of Islamic Law.
1.3 Essentials of Marriage
There are certain essentials or ingredients that need to be fulfilled for a valid marriage. According to law, a person of one sex has right to enter into a marriage with a person of opposite sex. Moreover, Islamic law prohibits marriage with certain persons based on the grounds of fosterage, affinity and consanguinity. The persons amongst whom marriage is prohibited by Islamic law are called Muha’rim. If any of the basic essentials of a valid marriage is missing, the marriage will not be a valid marriage but can be irregular or void marriage. However, Shia school of thought doesn’t recognize irregular marriage. Hence marriage can be either valid or void in Shia school of thought. Under Islamic Law, the essentials of the valid marriage are as follows;
1.3.1 Consent of parties for the contract of marriage
Consent is the permission on part of the parties entering to the marriage which is given by words by men and by deflowered women, however, virgin women may give their consent through silence but rejection is expressed by words. On consent, there is difference of opinion amongst the jurists regarding whether the consent of wali is essential or not. The jurists agree on the point that the divorced major woman has to consent the marriage expressly by words relying on the saying of the Holy Prophet (P.B.U.H) as;
“The deflowered woman expresses her own consent”
All jurists of Islamic law agreed on the essential of offer and acceptance at one meeting to enter a valid marriage. For minor, the marriage through consent of guardian is recognized and opinion of jurists differ on the hierarchy of guardianship for marriage. However, on the nature of consent of wali in case of minor divorced girl there is difference of opinion. Imam Maalik and Imam Abu Hanifa is of opinion that the father of the minor divorced girl can force her to marry whereas the Imam Shafi said that the father cannot force her to marry. Imam Abu Hanifa is of view that minor can be entered into marriage through person enjoying guardianship including father, relatives etc but on attaining puberty she has the option of revocation.
Moreover, Imam Maalik and Imam Shafi are of opinion that marriage cannot be valid without guardian as guardian is condition for validity of marriage whereas Imam Abu Hanifa and Al Zuhri are of view that a woman may enter into marriage contract without guardian and it is permitted. Further, Dawood Al Zuhri is of opinion that guardian is condition for marriage of virgin but not necessary for deflowered woman.
Awareness about marriage encompasses more serious matters than mere carnal knowledge. Therefore, Islam places conjugal consent over high pedestal of morality rather than carnality. Consequently, consent of adult person who has come of age of puberty and of sound mind can decided and understand the consequences of marriage. So the person of unsound mind is excluded because he is unable to understand the consequences of the relation of marriage. Consent of marriage is different from other types of consents. Consent of marriage is expressive, specific and declaratory in nature. Therefore, free consent for marriage does not mean just agreeing or saying yes according to dictation made before him/her. Following are the requirements which need to be fulfilled in order to constitute a free consent in marriage:
- Capacity of exercising of free choice
- Capacity to enter into a valid contract
- Capability to use that capacity
- Depending upon capacity, impediments to or assistance available for application of mind
- The consent must be free from coercion, misrepresentation, fraud and undue influence
- Consent must be in benefit of the consenting party
- Free environment
- Extent of free availability of possible options to choose from
1.3.2 Consent of wali
According to Pakistani law the consent of party to contract is required not the consent of wali. The adult female can enter into the valid contract of marriage without the consent and permission of wali. The Muslim adult female can enter into the valid contract of marriage without consent of wali. So, generally it is possible for the Muslim female who has attained age of puberty can enter into valid contract of marriage without the consent of his wali. Nikkah without consent of parties is void, the laws require the consent of parties to contract of marriage, if the consent is under coercion or any deceitful means are used so that marriage is void.
1.3.3 Essentiality witnesses to the contract of marriage
According to Islamic Law every contract is recommended to be witnessed whether it is a financial contract or a civil contract. As marriage is a civil contract therefore it must also be witnessed under the Islamic Law. Imam Ahmad (Hanbali) and Imam Ishaq (Hanifi) are of view that marriage contracted in the presence of two male witnesses or one male witness and two female witnesses is valid. Female alone cannot be witness in marriage.
Hazrat Ibn-e-Abbas quoted the hadith that Prophet (P.B.U.H) said:
Without witnesses, the Nikkah is not valid.
In order to be a witness in marriage, the qualification of witness is that he must be sane, major and Muslim. He must also have contractual capacity as well. In a case where a Muslim is marrying a non-Muslim girl, then a non-Muslim can also be witness but the requirement of number of witnesses remains the same. However, there is a difference of opinion among the jurist that whether non-Muslims can become a witness in marriage of a Muslim with a non-Muslim. According to Imam Abu Hanifa and Imam Abu Yousaf, non-Muslims can become witness but this is not so in view of other jurists. A blind and dumb person can become a witness in marriage but a deaf cannot become a witness. The contract must be made in the presence of witness and they should be able to hear and understand the consent of the parties. A person who is a fasiq is not incompetent to become a witness in marriage.
Under the Shia Law presence of witness at the time of marriage is not necessary however, the presence of witness is necessary at the time of divorce. On the other hand, Imam Shafi is of the view that a female cannot be a witness in contract of marriage and only two male Muslim witnesses are required. Moreover, he also has the view that a fasiq cannot be a witness in contract of marriage.
According to Muslim marriage laws prevailing in Pakistan, witnesses to the Nikah or marriage contract is essential for a valid marriage. Therefore, endorsement of signature along with CNIC number and particulars of witnesses to the Nikah other than Nikah Registrar are required in the Nikah form prescribed by the government through law. Witnesses are required by Pakistani law as per Islamic law. However, the claim to marriage must not fail on ground of absence or non-availability of witnesses and circumstantial evidence is relevant even it is conclusive.
1.3.4 Religion of parties prior to the execution of marriage contract
Every sane, adult Muslim male and female is competent to have a contractual marriage with each other, other than those who fall in prohibitory degree. Along with that, a Muslim male can also have a contract of marriage with a non-Muslim female but there is a condition on this principle which is that the female must be amongst Ihl-e-kitaab.Marriage with a female who is a follower of an idolatress or a fire worshipper is void. There is another exception to this principle that a Muslim female cannot marry a non-Muslim male even though he is amongst the Ihl-e-kitaab.
The only exception to this rule is given under the Shia Law which says that a Muslim male cannot marry a non-Muslim female including Ihl-e-kitaab. But the Muslim male can enter into a contract of valid mut’ahmarriage with a female belonging to Ihl-e-kitaab as well as fire worshipers.
Inter-sect marriage is allowed under the Islamic law meaning thereby a Shia or Sunni male or female can enter into a valid contract with a male or female of any other sect.
1.3.5 Amount of dower money in a marriage contract
Dower is a sum of money or other form of property to which a wife is entitled on entering into a marriage. It is not consideration to the contract. However, it is an obligation on husband to give dower to the wife as sign of respect but not specifying dower at the time of marriage does not affect the validity of the marriage. Dower is one of the essentials of a valid marriage and cannot forgo as stated in the Holy Quran;
“So, wed them by the permission of their folk, and give unto them their portions in kindness”
Regarding the maximum limit of dower, there is no difference of opinion amongst the jurists; however, there is difference of opinion on the minimum limit of dower. The two different opinions on minimum amount of dower are of Imam Malik and Imam Abu Hanifa. According to Imam Maalik’s view, the minimum amount of dower is three dirhams of silver or equivalent whereas Imam Abu Hanifa is of opinion that ten dirhams is the minimum amount of dower or equivalent.
Hazrat Sahl bin Sa’di (RA) quoted that a woman came to the Prophet (P.B.U.H) and presented herself to the Prophet (P.B.U.H). A person requested the Prophet (P.B.U.H) that “If you don’t need her then kindly solemnize my marriage with her”. The Prophet (P.B.U.H) said; “Due you have something for dower”. The person submitted that he has nothing. The Prophet (P.B.U.H) insisted to search for something even an iron ring. The person still could not find anything. The Prophet (P.B.U.H) asked him; “Whether you have memorized any part of Holy Quran?” The person submitted; “Yes, I have memorized few surahs of holy Quran”. The Prophet (P.B.U.H) said; “I solemnized your Nikkah with her in lieu of those surahs”.
Under Islamic law, dower can be either prompt or deferred. Prompt dower is a type of dower which is payable immediately at the time of Nikah. Deferred dower is payable at a later stage of time and is known as Ghair-Muajal. Difference of opinion exists in between the jurists as a group of jurists did not permit deferment of dower but Imam Malik is of the view that payment of dower can be delayed for a short period of time. It is also highlighted that as per the opinion of some jurists the wife is not entitled to claim the deferred portion of dower during the continuity of marriage.
1.3.6 Essentiality of maintenance of wife
Maintenance is termed as nifka in Islamic law. Maintenance literally means to keep in existence which includes to preserve or support subsistence or to make good. Maintenance of wife includes lodging, clothing, food and other necessary expenses for the physical as well as mental well-being. Maintenance of wife is obligatory on the husband. Poverty is not a justified excuse for husband to escape from the obligation of maintaining his wife. If husband is able to work for his livelihood, he is bound to maintain his wife and children. In the Holy Quran, it is provided that;
Men are in charge of women by (right of) what Allah has given one over the other and what they spend (for maintenance) from their wealth. So righteous women are devoutly obedient, guarding in (the husband’s) absence what Allah would have them guard
1.4 Polygamy under Islamic Jurisprudence
Polygamy is allowed to Muslim males under the Islamic Personal Law and there is no bar or restriction imposed on the exercising the right to marry with another woman while having the previous marriage contract in contact. In Holy Quran, regarding number of marriages allowed to Muslim male, it is stated that;
And if you fear that you cannot do justice to orphans, marry such woman seems good to you, two or three or four but if you fear that you will not do justice, then marry only one. This is proper that you may not do justice
Islam does allow male to have more than one wives but also put restriction to do justice and give them equal rights. If you are not sure to treat them equally, then Islam recommends to have only one wife. It is permission to have more than one wives at same time but regarding their rights, the Holy Prophet said;
If a person is having two wives and he does not treat them equally or justly then on the day of Judgment, half of his body would be paralysed or inclined
Hence polygamy is permitted not obligatory and permission is subject to restrictions.
1.5 Types of Marriages
A marriage in which all the essentials of marriage are fulfilled while entering into marriage contract then such marriage is valid or sahih. A marriage which is entered into by persons which are prohibited permanently from intermarrying or any such essential was missed which is not curable e.g., marriage with mahram, such marriage is batil and will be deemed to be no marriage i.e. having no legal affect. Marriage with blood relations is absolutely prohibited as stated in Holy Quran. Marriage cannot be contracted with person falling under prohibition on ground of affinity, consanguinity and fosterage. However, a marriage in which an essential was not fulfilled but is curable or the impediment is temporary e.g., marriage during iddah etc. such marriage is fasid and will become sahih on removal of impediment.
CHAPTER 2
- MARRIAGE LAWS IN PAKISTAN
Earlier to partition subcontinent was ruled and administrated by the British Crown through East India Company. Laws were enforced and the implications were according to the religion of the person. In relation to application of law, the Muslim personal matters including marriage etc. were dealt according to Islamic laws. Court was presided by the judge and for his assistance the Muslim scholar was appointed to assist the judge in matters pertaining to Islamic law.
As result, that court adjudication system led to Anglo-Muhammadan law, which in its nature is Islamic but interpretation is on the basis of English principles. The combination of both laws created ambiguity in Muslims of subcontinent. So, in result of that, in 1939, the Muslim Personal (Sharia’t) Application Act was passed which also includes matters related to marriage.
After partition in 1947, to adopt the laws enforced prior to partition, the Adoption of Acts Act was passed. Afterwards parliament felt need for the reforms in the family laws, hence, the seven members commission is formed which submits its report and make its recommendation so finally Muslim family law ordinance, 1961 is passed and enforced all over Pakistan.
The following are the laws under which the Muslim marriage is regulated in Pakistan.
2.1: Marriage laws enforced in Pakistan
2.1.1 Constitution of Pakistan, 1973
According to Article 2 of the Constitution, State religion will be Islam which will be the base of the State of Pakistan. The Islamic concept of life has prescribed certain code of conducts, parallel to that an option of freedom of choice has been given to all individuals. People who accept the code of conduct as prescribed by the Almighty Allah becomes a Muslim.
” You are the best community set forth unto mankind, Ye enjoin the right conduct and forbid the wrong, and ye believe in Allah.” (3:110)
Objective Resolution, 1949 has been made as substantive part of the Constitution as Article 2A which enshrines the basic concept of Islamic state and set out the law-making procedure. According to the Article 2A of the constitution the Muslims were given such an environment in which they profess their religion according to Islamic teachings and injunctions. The supreme law of the land is Quran and Sunnah and the existing and new laws must not be repugnant to Quran and Sunnah.
Article 227 of the Constitution of Pakistan is most important article which is also base for the Pakistan as an Islamic State. It states that all the prevailing laws of Pakistan must be brought in light of Quran of Sunnah and all new laws must be in conformity of Quran and Sunnah. All the enacted laws which are repugnant to Quran and Sunnah must be declared null and void and they will have no legal effect. In reference to this, Islamic Ideology Council has been established whose duty is to check the laws that whether they are in accordance with Quran and Sunnah or not and trace out the conflicting laws. For dealing with the disputes related to this issue, Federal Shariat Court has been established.
In the explanation of this article, it is provided that the interpretation of Islamic law in reference to Muslim Personal Law will be according to the sect of the individuals. However, the Personal Laws of non-Muslims will not be affected.
2.1.2 Muslim Family Law Ordinance, 1961
Muslim Family Law Ordinance was established in the year 1961 during the era of President Ayub Khan. It was based on the recommendations made by the Commission which was made by the Government for the regulating of family system. This Commission was formed in 1954 and the first meeting of the Commission was organized on 5th October, 1955. In this meeting, the matters related to the procedure of Muslim personal laws were discussed. In 1956, the Commission report was published in the official Gazette of Pakistan after that it was forwarded to the Muslim scholars in the Parliament for discussion and recommendation. Later on, the recommendations of the Muslim scholars were also incorporated in the Muslims Family Law Ordinance, 1961. The Ulema of different schools of thoughts have argued on the validity of this Ordinance.
Along with other essential of marriage as prescribed by the Islamic law the following procedural requirements are made mandatory by the Muslim Family Laws Ordinance, 1961 under the law of Pakistan. The punishments described in the provisons of the Ordinance are only for defaulting the procedural requirements and it does not affect the validity of marriage. These requirements mainly consist of Nikahnama and restriction on polygamy and the status of Arbitration Council.
Section 5 of Muslim Family Laws Ordinance, 1961
Under the law of land in Pakistan, every marriage solemnized under Islamic law needs to be registered under the provision of Muslim family law ordinance. The union council grants the license to person called as Nikkah registrar who has to maintain registers preserving the records of marriages and these records are preserved by union council. There can be only one Nikkah registrar to be licensed for anyone ward. Any person avoiding the registration of marriage will be held punishable as per law (simple imprisonment for period not exceeding three months or with fine up to one thousand rupees or both).
In a case the court held that registration of marriage is not requirement of law for valid Nikkah and Nikkah even not registered under law shall remain valid. Hence the validity of Nikkah is not affected by non-registration of marriage. The validity of Nikkah form can only be challenged by the parties’ signatory to it and law doesn’t permits others to raise objections on the validity of Nikkah form when the contents of Nikkah form are admitted by the husband and wife.
Copy of Nikahnama produced would not require production of witnesses to prove the same. Nikahnama is a public document and its certified copy can be issued by Nikah Registrar and Secretary of Union Council, which is admissible in evidence. Where execution of Nikahnama is disputed same cannot be treated as a public document.
Nikah performed orally is a valid Nikah and it cannot be declared invalid on the mere basis of non-registration of marriage under the provisions of Section 5 of the Ordinance. The entries in form of Nikahnama are efficient proof of transfer of property and it does not require any further document for the proof of its ownership.
The apex Court of Pakistan has laid down the principle that Muslim Law presumes in favour of marriage in the absence of direct evidence on the point provided, however, evidence exists to show that a man and woman have lived for a prolonged time, the fact of acknowledgement by the husband of the paternity of the children of the wife, and the acknowledgment by the husband that such woman is his wife.
In every ward Nikah Khawan is appointed under Sub-section (2) of Section 5 of the MFLO but it does not require any qualification prescribed in the Ordinance.
Section 6 of Muslim Family Laws Ordinance, 1961
No Muslim male citizen of Pakistan shall contract another marriage during subsistence of an existing marriage unless he is permitted in writing by the arbitration council. To seek the permission for another marriage he has to move an application to the Chairman Arbitration Council stating the reasons for the proposed marriage and whether the existing wife or wives has permitted him to do so. If he has contracted another marriage without the permission as required by law, he shall be punishable with simple imprisonment upto one year or with fine upto five thousand rupees or both.
The law does not prohibit polygamy and absence of prior permission from Arbitration Council does not invalidate the marriage, hence, not affecting the validity of marriage. If a Muslim male citizen is married to a Muslim non-citizen female, he does not require any prior permission from Arbitrary Council for his second marriage with either Muslim female citizen or non-citizen. He can marry with another woman even without incurring any penalty under the Muslim Family Laws Ordinance, 1961.The law also prohibits married women to have more than one husband at the same time. A marriage with a woman already in matrimonial relation is void.
An offence under Section 6 of MFLO has following necessary ingredients:-
- A previous marriage and existing wife/wives
- Absence of a requisite permission from Arbitration Council for taking additional wife
- Celebration of marriage in violation of Section 6 of the Ordinance
Where these have been fulfilled an offence under Section 6(5) is committed for which a complaint may be filed. If a man contracts a second marriage without the permission of the Union Council and without disclosing the fact of an existing marriage to the second wife, then the second wife is also aggrieved and competent to file complaint under this Section. And can lawfully institute criminal proceedings against the husband for the offence of bigamy or polygamy.
The Council of Islamic Ideology has introduced some recommendation to the Parliament of Pakistan in the year 2014 that to make amendments in the provisions of Muslim Family Laws Ordinance, 1961 especially with regard to polygamy. Parliament has not considered this matter till now as this matter has already been decided by the Parliament and the Federal Shariat Court of Pakistan in the year 2000. FSC at that in its leading judgement has decided that the provisions of Section 6 of MFLO are not in conflict with Shariah and is merely a procedure to be followed for the subsequent marriage and the punishment is only for the non-observance of the procedure as defined in the Section 6(5) of MFLO. The spirit of this section is to avoid the injustice to the existing wife or wives and also to avoid secret marriages.
Likewise in Pakistan, many other Muslim countries provisions regarding restriction of polygamy have been adopted. A great example can be seen in Tunisia who has adopted the principle of monogamy and justified it on the basis of a Quranic verse which says
“you will not be able to be equitable between your wives, even though you be eager to do”.
Section 7 of Muslim Family Laws Ordinance, 1961
Section 7 of the Muslim Family Laws Ordinance, 1961 describes that when a husband wishes to divorce his wife in any form whatsoever, he shall have to give notice in writing of his having done so to the Chairman of the concerned area and shall supply a copy whereof to the wife.
This section elaborates following steps: Firstly there has to be pronouncement of Talaq, i.e. it has to be verbally pronounced as mandated by Shariah. Secondly the pronouncement can be in any form whatsoever, which would mean that in any prevalent mode which can be in one’s own language or as the case may be, in Arabic as some sects prescribe in this behalf. And Lastly the verbal pronouncement of Talaq has to be reduced in writing and has to be sent a copy of it to the Chairman of Union Council with a copy to the wife.
The necessary requirement or ingredient of Talaq is a conscious and wilful pronouncement of Talaq with intention to release the wife from marriage bond. The failure to follow the above prescribed procedure may entail or be followed by the punishment prescribed under the succeeding subsections but the validity of Talaq or the separation of the spouses from the marriage bond will not be affected.
Section 8 of Muslim Family Laws Ordinance, 1961
Section 8 of Muslim Family Laws Ordinance, 1961 describes the other modes of dissolution of marriage then Talaq and it recognizes the right of wife to dissolve the marriage via khula. This section is based on the concept of delegated divorce or talaq-i-tafviz. Under Muhammadan Law husband enjoys absolute power of divorce but he delegated this power to his wife or to any one he deems fit through a contract. As mentioned in column 18 and 19 of Nikahnama the husband may delegate this power to his wife at the time of Nikah. A Muslim marriage can also be dissolved in ways other than Talaq and khula and these grounds of dissolution of marriage by wife have been described under Section 2 of Dissolution of Muslim Marriages Act, 1939.
Section 9 of Muslim Family Laws Ordinance, 1961
The definition of maintenance in Islam is Nifka. In the language of law it signifies all those things which are necessary to the support of life, such as food, clothes and lodging. The subsistence of the wife is incumbent upon her husband. When a woman surrenders herself into the custody of her husband, it is incumbent upon him to supply her with food, clothes and lodging, whether she is a Muslimor an infidel, because such is the precept in Holy Quran. Such an obligation arises from the moment the wife is subject to the moral control of her husband and in certain cases for a time even after it is dissolved.
Maintenance is also an essential ingredient in marriage therefore; it is also inserted in the nikkah form prescribed by law to mention the maintenance. Maintenance is the right of wife in correspondence to the conjugal rights of husband. In case, husband fails to maintain his wife the law provides legal remedy to the wife to seek right of maintenance. Any amount of maintenance shall be recoverable as recovery of arrears of land revenue if not paid in due time. As per required by Islamic law, the law of land also provides that maintenance of wife is obligation on part of husband.
A plain reading of Section 9 of Muslim Family Laws Ordinance means that a husband has to maintain his wife “adequately” and if he has and if he has more wives than one, he must maintain them “equitably”. Therefore, the maintenance should not be bare minimum sustenance allowance but a convenient provision in consonance with what the husband can afford as also what are the needs of the wife. The question of quantum of maintenance is a matter primarily in the discretion of the trial Court which has to take into consideration several factors, like the status of the family, the earning capacity, commitments of the husband, and what is required by the wife to maintain herself.
Muslim Family Laws Ordinance, 1961 is silent so far as past maintenance is concerned, therefore, the Court while deciding the matter must keep in mind the intention of the Legislature. The past maintenance can be claimed by a wife who is willing to perform conjugal rights and other marital obligations and has been deserted by the husband without any lawful excuse. However, if there is no default on the part of a husband towards maintaining his wife nor there is any allegation of cruelty and immoral treatment against him, the right to claim past maintenance diminishes. Section 488 of Criminal Procedure Code, 1898 also opposed the arrears of past maintenance. It enables the Court only for future maintenance.
From the Colonial period, the Court followed the Hanfi law regarding maintenance of wife, which only allows the grant of future maintenance and that led to great injustice and criticism. Only the Hanfi law discourages the allowance of past maintenance, however, the rest of three school of thoughts i.e. Hambali, Shafi and Malaki recognize the past maintenance to wife. In 1956 the Commission made recommendations to allow past maintenance to the wife but that was not accepted and incorporated in the Ordinance. As this issue remained objectionable in Pakistan, the High Court of Lahore has interpreted Section 9 of MFLO according to the intention of Legislature and laid down the principle that if the husband is negligent in maintaining his wife then the wife is not only eligible for grant of future maintenance but also for the past maintenance as well.
Section 10 of Muslim Family Laws Ordinance, 1961
Dower is one of the essentials of a valid marriage in Islamic law as well as law of land in Pakistan. Courts while interpreting the law in a case held that dower is a condition to make a union of husband and wife lawful. Without dower the union between the spouses cannot be legal union and may lead to self-destroying legal consequences.
Islamic Law ordains that there should always be a consideration made by the husband in favour of the wife. It is a settlement in favour of the wife made prior to the completion of the marriage contract and is a precondition of a valid marriage. It is immaterial whether dower is imposed on the husband as a mark of respect for wife or it is the consideration for society of the wife. It is undoubtedly a precondition and a pre-requisite of a valid matrimonial contract. It is indispensable, so much so that in its absence the relationship between man and wife cannot be legitimized and shall be regarded as a sinful union.
As dower is essential element in marriage therefore in the Nikkah form as prescribed by law of land serial no.13 requires the amount of dower in total to be mentioned, whereas serial no. 14-16 of the Nikkah forms requires the description and mode of payment of dower which can be either prompt or deferred. If the detail of mode of payment of dower is not specified in the Nikkah Nama, the total amount of dower shall have deemed to be payable on demand.
Dower is the sole right of wife and during subsistence of marriage the prompt dower is to be recovered, hence, law has not specified time period of limitation for implementation of decree for prompt dower and husband is deemed t be under obligation to satisfy the decree whenever the wife has moved to the legal forum to claim her right of dower.
The prompt dower is to be recovered during subsistence of marriage, therefore, no specific period of limitation for implementation of decree for prompt dower can be fixed because due to subsistence of marriage the husband acknowledges the right of his wife and he deemed to remain under a legal obligation to satisfy the decree whenever the decree holder has moved the legal forum for satisfaction of her right.
2.1.3 The Dissolution of Muslim Marriages Act, 1939
According to the preamble of the Act, it is a consolidating Act. It has been assumed that the Act is a declaratory one, but this at most would apply to Section 2 of the Act. But even as to Section 2, as it is the Act is not wholly declaratory. The statement of objects and reasons for the Bill shows that there is no provision in the Hanfi law enabling a married Muslim woman to obtain a decree dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her or absconds leaving her with non-providence for and under other circumstances.
The absence of such a provision has entailed unspeakable misery to innumerable Muslim woman in British India. It is further stated that the Courts hesitate to apply the Maliki Law which provides for dissolution in such circumstances although the Hanfi jurists have clearly laid down that in cases of hardship under the Hanfi law the principle of the Maliki law may be applied.
This Act has been passed and enforced in the year 1939 and adopted after the partition of subcontinent by Pakistan. The intention of legislating this Act, is to protect the rights of women and free exercise of dissolving the marriage by wife. Section 2 of the Act, provides nine grounds on which a wife can claim dissolution of marriage through Court and it also includes any other ground which the Court deems fit. These grounds include dissolution on the basis of missing husband, failure of husband to provide maintenance, second marriage of husband against the provisions of Muslim Family Laws Ordinance, 1961, husband’s imprisonment, failure of husband to perform marital obligation, impotency of husband, insane or viral disease of husband, marriage of minor girl without her consent, cruelty (physically or mentally) and any other ground which the Court deems fit.
If the dissolution of marriage is claimed on the basis of any ground as mentioned above, the burden of proof lies on the wife to prove the allegation leveled for dissolution of marriage. In case she successfully discharges her burden and proves the allegations, then the Court shall grant her decree for dissolution of marriage along with other benefits. But in case if she fails to prove the allegation then the mere fact that the wife could not establish her allegation on ground take for dissolution of marriage would not disentitle her for dissolution of marriage on the ground of khula. If the wife fails to substantiate her case on the grounds claimed in the plaint for dissolution of her marriage then the Court is under legal obligation to dissolve the marriage but on the basis of khula particularly when the wife is not ready to live with her husband at any cost.
2.1.4 Child Marriage Restraint Act, 1929
Child marriage is an offence Pakistan and the Criminal Court has the jurisdiction i.e., Magistrate 1st Class. According to this Act, minor is a person who is under 18 years of age. If marriage of a minor is solemnized with the male adult above the age of 18 years, the male adult is liable to fine Rs.1000 and imprisonment of one month. In addition to that, the parents or guardian of the minor and the persons who are performing, conduction or directing any child marriage shall also be guilty of the same offence and will be awarded with the same punishment. A minor who is below the age of 16 years cannot enter into a valid contract of marriage not even through a respective guardian.
A Muslim boy or girl may enter into a contract of marriage whether they have not attained the age of puberty through their respective guardian. There is also a conflicting view in this regard where the Lahore High Court decided that the restitution of conjugal rights cannot be granted because the girl has not attained the age of puberty in the eyes of law however, that girl was of the age of fourteen years and it was also proved that she has attained the age of puberty, and the marriage was contracted with the consent of her guardian as well. The Court declared this marriage as not merely voidable but void. Muslim male or female attains majority on puberty, which is completion of fifteen years of age and the Majority Act, 1875 does not affect Islamic law regarding attainment of majority.
The Child Marriage Restraint Act, 1929 makes the marriage with girl below age of 16 years punishable but does not render the marriage invalid. However, no punishment for girl is described in this Act. Muslim girl having right of marriage on attaining age of puberty has a right to make choice. Finding of fact that the female was minor on date of performance of her Nikah was not open to interference by the High Court in criminal revisional jurisdiction.
2.1.5 Guardian and Ward Act, 1890
According to Section 25 of Guardian and Ward Act, 1890, the guardian of a minor who had not attained the age of 18 years, has to perform the acts of the minor on his behalf. Under this Section, the guardian of a minor is appointed for the welfare of child and he has to protect the best interest of minor. There is no hard and fast rule to determine the welfare of minor however, it is to be determined according to facts and circumstances of every case. In interpretation to this Section, the minor girl who is or above the age of 16 years can enter into a contract of marriage through a guardian.
The Saima Waheed Case is yet the best illustration of the recent trend in judicial conservatism. It is based on the Hanfi school that an adult woman who is sui juris can enter into a valid contract of marriage without the consent of her wali. This principle has been already upheld in a number of cases decided by the Federal Shariat Court who is the official custodian of Islamic morals and law. In book of Hedaya which is based on the principles of Imam Abu Hanifa states that “A woman who is adult, and sound mind may enter into a valid contract of marriage without the consent of her guardians.”
In conflicting view Justice Ihsan-ul-Haq Chaudhry has held that an adult Muslim woman cannot enter into a valid marriage contract without the wali’s intervention and consent. The parents have a right to be obeyed by their children and this right of obedience is based is legally enforceable as enshrined in the Holy Quran and Sunnah. His judgement is firmly based on his notions of Islamic values and morality. In his view, the Islam stands for integrity, upkeep and preservation of family. He declared court marriage as secret marriage and it has destructive effects. In his judgement, he concluded that the couple was not validly married. No wonder, the case attracted widespread media attention nationally and internationally. Justice Khalil-ur-Rehman Ramday’s judgment is a continuation of the theme of Justice Chaudhry on the moral decline of the West (Thesis by Justice Chaudhry) and the necessity of following the Islamic way of life.
2.2 Application of marriage laws in Pakistan
Family courts are established under Family Court Act, 1964. All the disputes arising out of marriage and family matters, are intended to be settled and dispose of by the family courts. The law requires that there shall be a family court in each district. Any dispute of family matter is placed before the Family Court. The judge of Family Court shall be qualified to be appointed as a District Judge or Additional District Judge or a Civil Judge. The procedure of Family Court is provided by special law and the provisions of Civil Procedure Code, 1908 are not followed except Section 10 and 11. Moreover, the evidence is not recorded as per the requirements of Qanoon-e-Shahadat Order, 1984. The procedure of Family Court including evidence is specifically provided by special law i.e. Family Courts Act, 1964 and West Pakistan Family Court Rules, 1965.
Matters under Family Courts Act, 1964 in relation to marital spouses needs to make settlement of marriage conveniently therefore, legislation has omitted strict application of provisions of Civil Procedure Code, 1908 and Qanoon-e-Shahadat Order, 1984. Every suit before a Family Court shall be instituted by presenting a plaint providing names and addresses of the parties and witnesses along with brief summary of facts. List of Documents relied on, is also annexed to the plaint. The Family Court on receiving plaint, shall send intimation to the defendant for written statement. The written statement shall be submitted by defendant within 30 days. After receiving the written statement, the Family Court shall fix an early date for pre-trial hearing.
The Family Court shall examine the plaint, written statement and precise evidence and documents provided to ascertain issues between the parties. The Family Court shall attempt for reconciliation or compromise between the parties at pre-trial stage. If compromise is not possible, the Court will proceed further by framing issues in the case and initiate trial proceedings by fixing a date for evidence. The trial Court can pass a decree of dissolution of marriage even without recording evidence if the reconciliation fails after the genuine efforts for reconciliation made by the Family Court as obligation on Court.
Any suit before Family Court including suit for dissolution of marriage shall be disposed of within a period of six months from institution of suit. If case is not disposed of within six months, either party to the suit shall have the right to make an application before the High Court to issue necessary directions. The family Court shall have the jurisdiction to try a matter where offence is committed as specified in Part II of the Schedule of Criminal Procedure Code, 1898 where one spouse is victim of an offence committed by the other spouse.
A decree passed by the Family Court shall be appealable to the High Court if the Family Court is presided by a District Judge or Additional District Judge or a person appointed with equivalent rank and status. In any other case, the appeal shall lie to District Court. There shall be no appeal against decree passed by Family Court for dower not exceeding thirty thousand rupees, for maintenance up to one thousand rupees per month and for dissolution of marriage except on ground specified in clause (viii)(d) of Section 2 of Dissolution of Muslim Marriages Act, 1939. There shall be no appeal and revision against interim order passed by Family Court and the appellant Court shall dispose off the appeal within four months.While applying the laws in family matters the Court shall consider the interpretation of Quran and Sunnah as per interpreted by the sect followed by the parties.
Muslim states in the present world can be divided into three categories with regard to marriage laws. The first category is of those countries who has totally abolished the principles of Shariah and has adopted the secular system of law. Turkey is the only country in this category who has totally adopted secular system of government. The second category include countries who have partially adopted Shariah law and partially adopted the secular system of government, these have adopted there laws in light of Shariah but not in its strict sense. It includes countries like Pakistan and other Northern Middle Eastern Countries. And the third category is of those countries who still adopt the Shariah law in its strict sense and does not allow any kind of change or new concept in the governance of state. It includes the states of Arabian Penisula.
CHAPTER 3
- COMPARISON OF ISLAMIC MARRIAGE LAWS AND MARRIAGE LAWS IN PAKISTAN
After discussing Islamic marriage laws and Muslim Marriage laws in Pakistan, we have to analyse both in comparison so that we could achieve the objective of the research statement. The comparison of Islamic and Pakistani marriage laws is necessary to answer the research questions and to find out whether there is any conflict between them or not to minimize the ambiguity prevailing in general public in this regard.
In marriage, there are essentials provided for a valid marriage. Regarding consent, the jurists of Islamic jurisprudence are agreed upon the importance of consent of parties entering into the marriage contract. However, regarding consent of wali or guardian, there is difference of opinion in Islamic Law as already discussed whereas the Muslim marriage laws in Pakistan does not require consent of wali as held in Saima Waheed Case. Saima Waheed Case is the leading judgement in which the Court held that a major Muslim girl can enter into marriage contract even without the consent of wali. The Court relied upon the opinion of Imam Abu Hanifa and it is well settled principle of Hanfi Law that an adult woman can contract a valid marriage even without the consent of guardian.
With respect to marriage of minor divorced girl, there is difference of opinion in Islamic jurisprudence but agreed on the status of marriage of minor girl with the consent of guardian as valid marriage. As per Muslim marriage laws in Pakistan, child marriage is restrained and an adult male, marrying a girl less than sixteen year of age, is punishable under the law.
With respect to witnesses in marriage contract, majority of jurists of Islamic law are agreed that witnesses to marriage contract are essential. The superior Courts in different judgements also held witnesses are required by law but in the absence of witnesses during the nikkah the marriage cannot be nullified. Hence, there is no ambiguity with regard to the requirement of witnesses.
According to Islamic Law, adult Muslim male can marry with Muslim female of any sect and even kitabiya. But Muslim female cannot marry a non-Muslim male. The law of land also follows the same opinion in judgements of superior Courts. Dower and maintenance are essential of marriage in Islamic Law and as well as in Pakistani law and there is no conflict among them.
Islamic law does not require any kind of registration of marriage but Pakistani law requires registration of marriage. The registration of marriage is not in conflict with the Islamic injunctions as non-registration of marriage does not affect the validity of marriage but requirement of law to maintain records in the public interest.
Polygamy is restricted to the condition of getting permission from the arbitration council by following the procedure provided by law whereas Islam permits polygamy only subject to the equal treatment amongst wives as discussed in detail earlier. The court held in a case that failure to obtain permission from the wife to enter into contract of second marriage attracts penal action for husband but it does not affect the validity of second marriage. Failure to obtain permission from wife cannot invalidate second marriage. So, the restriction of obtaining permission from arbitrary council is a restriction or condition as there is restriction of equal treatment in Islamic law.
CONCLUSION AND RECOMMENDATIONS
Conclusion
From the discussion and research conducted, it is concluded that Islam has provided each and every aspect of marriage. Pakistan being an Islamic state made laws to regulate the marriage and tried to cover all important aspects of marriage. Family courts are established with exclusive jurisdiction to resolve the marriage disputes and a framework is established for speedy resolution of family matters. Family court have jurisdiction on issues of family matters in accordance with the religion of the parties acting on the provisions of constitution.
Although there is difference of opinion of different jurists of Islamic law on different aspects of marriage, the legislature while drafting Muslim family laws considered different opinions of different jurists to provide general guidelines through law. However, the superior courts in Pakistan in their decisions interpreted the Islamic law as interpreted by the sect followed by the parties to the family suit upholding the explanation of Article 227 of the constitution.
Further, the overall research leads us to the conclusion that the ambiguity amongst the general public is due to the reason that where the Islamic laws permit the marriage of minor through guardian and polygamy. Islamic law does not require registration of marriage. On the other hand, the Muslim family laws enforced in Pakistan provides sanctions of imprisonment and fine in case of not complying with the requirements of law of land.
Moreover, different groups of people follow different sects and consider only those interpretations as Islamic law. Hence, due to misunderstanding and lack of information general public could not understand the basic essence of Islamic injunctions. Difference of opinion is not an issue which can be easily understood from following text;
“Hazrat Abu Huraira quoted that two women were going somewhere accompanied by one son with each woman and suddenly a wolf snatched a kid and ran away. The issue raised was that the kid left with them belongs to whom? So, they took the issue to Hazrat Daud (A.S) to decide the matter. Hazrat Daud (A.S) decided the matter in favor of older woman. Afterwards, both went to Hazrat Suleman (A.S) and narrated the incident. Hazrat Suleman (A.S) after applying his wisdom decided in favor of younger woman.”
Pakistani Muslim marriage laws are not in conflict with the Constitution of Pakistan because Constitution provides that the laws should be made in the light of Holy Quran and Sunnah. Hence, the Muslims Family laws in Pakistan are not repugnant to the Islamic injunctions as laws are made to provide guidelines by considering different interpretations by different Islamic jurists.
Moreover, the requirements of law of land which are not required by Islamic law are to regulate family system, to maintain records and compliance is necessary to avoid consequential complexities. Superior Courts while interpreting the law in different decisions held that non-compliance with the requirements of law of land only does not affect the status of validity of marriage but required by law on principle of necessity and in public interest at large.
Federal Shariat Court in a case ruled that Section 6 of Muslim Family Laws Ordinance, 1961 does not expressly declare the subsequent marriage as illegal and just provide a procedure to be followed. The spirit of the said section is reformative only and is provided only to avoid injustice to the existing wife or wives which is also a condition to which permission of polygamy is subjected under Islamic law.
Regarding the status of court marriage in Islamic law, from the research held it is concluded that in the court marriage, the law requires consent of parties to marriage contract, parties to marriage contract are sane and adult, witnesses, dower and maintenance which are also essentials under Islamic law for a valid marriage. The consent of wali is not required by court for marriage and majority of Islamic jurists agreed that consent of wali is not an essential for a valid marriage of major girl. As the court marriage requires all the essentials of marriage to be fulfilled as required by Islamic law, hence, the court marriage is valid marriage under Islamic law. However, the procedure of Talaq under Dissolution of Muslim Marriages Act, 1939 is not in accordance with Islamic injunctions as the procedure is different from that of Islamic law.
Recommendations
As per the research and its conclusion, it is recommended that although the Muslim marriage laws in Pakistan are not repugnant to the Islamic injunctions but to reduce ambiguity the legislature should review the laws and reduce the punishment for non-compliance with the procedure and requirements only required by law not by Islamic law. As per constitution, personal laws are dealt under the Islamic injunctions and as per interpretation by sect followed then if requirements of Islamic laws are fulfilled and only requirements of law of land are not fulfilled, the criminal penalty in such cases is not justified. It is, therefore, humbly submitted that the penal sanctions i.e. punishment of imprisonment should be repealed by the legislature and fine may be left as it is as sanctions to enforce the laws. Moreover, the legislature should review the the Dissolution of Muslim Marriages Act as the procedure regarding Talaq is not in harmony with Islamic law, hence, need to be brought in accordance with Islamic Law.
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Statutes
- PAK CONST. Constitution of Pakistan, (1973)
- PAK CODE. Muslim Family Laws Ordinance, (1961)
- PAK CODE. The Dissolution of Muslim Marriages Act, (1939)
- PAK CODE. Child Marriage Restraint Act, (1929)
- PAK CODE. Guardian and Ward Act, (1890)
- PAK CODE. Family Court Act, (1964)