Muslim Family Law Ordinance 1961: Critical Analysis

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Protection Given to Women under MFLO 1961

Abstract

Ayub Khan President of Pakistan promulgate the Muslim Family Law Ordinance in 1962 on recommendations of the Commission on Marriage and Family Laws. It deals with the most important unit of society, family. It is protecting the rights of women by establishing the system of registration of marriage. State ceded several rights of women as right of Khula, right of maintenance, right of dower and regularized the system of talaq. In this Article we will discuss right of women endorsed in Muslim Family Law Ordinance 1961.

Introduction

In the history of mankind, unfortunately, women did not enjoy a favorable status in the society. They were considered a second-class citizen. Islam was the religion which strived to elevate the women from their miserable condition. Islam gave them the right of inheritance, right to do marriage with free consent, right to dissolve the marriage and most importantly give them respect and integrity. The advent of Islam took in South Asia in the medieval age and most part of it was ruled by Muslim rulers but, unfortunately, they did not implement the true teachings of Islam. This society was patriarchal and people led their lives according to customs and usage even after embracing Islam. Radical and gender biased interpretation of Shariah by some clergy also faded the rights of women. For the first time in the history of South Asia women solemnized marriage under Muslim Personal Law were entitled to obtain a decree for dissolution of marriage from court in 1939, according to Dissolution of Muslim Marriages Act, 1939.1 After the establishment of Pakistan there was a hope to protect the rights of Muslims. In this regard Ayub Khan the President of Pakistan promulgate Muslim Family Law Ordinance to protect families and secure women rights. Though its implementation is not satisfactory but it is helping to protect the rights of women. It also need some amendments and it is needed to implement this seriously.

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Commission on Marriage and Family Law 1956:

In 1956, the Government of Pakistan constituted the Commission on Marriage and Family Laws to suggest suitable reform thereto. The Commission was headed by Mr. Justice Abdul Rashid, former Chief Justice of Pakistan and comprised of Dr. Khalifa Shuja-ud-Din, Dr. Khalifa Abdul Hakim, Maulana Itehsham-ul-Haq, Enayat-ur-Rehman, Begum Shahnawaz, Begum Anwar G. Ahmad and Begum Shamsunnihar Mahmood, as members. The Commission submitted its report in 1958 by suggesting various reforms to the existing laws governing marriage, divorce and provision of inheritance to the orphaned grandchildren. The recommendations were duly incorporated through the adoption of the Muslim Family Law Ordinance 1961.2

Registration of marriages

Registration of marriage was necessary to protect the family and the rights of women. As ‘Marriage among Muhammadans is not a sacrament, but purely a civil contract.’3 Marriage when takes into effect it will create certain rights and duties on both parties (husband and wife) therefore, to ensure right and duties it is necessary to register marriage. Drafter of Muslim Family Law Ordinance endorsed this need and enshrined this in section 5 of MFLO 1961

  1. Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Ordinance.
  2. For the purpose of registration of marriages under this Ordinance, the Union Council shall grant licenses to one or more persons, to be called Nikah Registrars.]
  3. Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this Ordinance, be reported to him by the person who has solemnized such marriage.
  4. Whoever contravenes the provisions of sub-section (3) shall be punishable with simple imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.4

This ordinance strictly applied the registration of marriage. Once marriage is registered women can gain his marital right through courts. It was common practice that males (husband) denied the marriage when they had to give rights of wives. Registration Marriage registration provides protection against false denial of marriage by either of the spouses. Marriage Certificate clarifies doubts on date and validity of the marriage in unhappy circumstances of disputes (whether civil or criminal) between the spouses relating to divorce, dower, maintenance and other cases. Fortunately, women in Pakistan benefited under this section. This section also deals with the legitimacy of offspring. Offspring of wedded couple will be legitimate and thus their rights are secured. In our practice, husbands oust their wives on minuscule conflicts and the wives have to sustain their children that is very difficult in our society. Therefore, wives suffer all atrocities for the development of their children but now according to this ordinance wives can take maintenance for legitimate offspring.

Polygamy

No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance.5

Polygamy is most common in rural areas in families without a male heir or in cases when men fell in love with another woman.6 Male do not take permission from the first wives and previous wives are usually ignored. This Act gives protection to women against second or more marriages of their husband. Husband have to take permission from the first wife in written and submit in union council then union council summon his wife to confirm her permission then a male can solemnize second marriage. A husband can solemnize second marriage without permission of the first wife but if he has substantial reasons and Arbitration council considered that reasons valid. After the decision of Arbitration council each party has right to get this matter to court of district collector.

The Council of Islamic Ideology (CII), a body that advises the government on the compatibility of laws with Islam, has often criticized the demand for a wife’s written approval if her husband wants to remarry. But the CII’s recommendations are not legally binding. The Federal Shariat Court (FSC) in June 2000 expressly stated that the said provision was not in violation of Islamic injunctions.7

If a person contravenes this provision, he shall be punished to simple imprisonment for a term which may extend to three months and fine of one hundred thousand rupees.8

Judicial magistrate Ali Jawwad Naqvi announced the verdict in a Lahore lower court, ordering the man to serve a six-month jail term and pay a fine of 200,000 Pakistani rupees ($1,902.95) on contracting second marriage without permission of the first wife.

It was the first time a court in Pakistan had sided with the woman under a 2015 family law, and followed a petition by Ayesha Bibi, who said her husband, Shahzad Saqib, had wed for a second time without her approval.

Talaq

Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.9 If husband gives talaq to his wife then according to Sharia he is not husband of previous wife, but if talaq is not registered then wife cannot contract marriage with someone else. So, in this situation, women remain in unclear status and if they contracted marriage with someone else, they have to face litigation and punishment of polyandry, imprisonment which may extend up to 10 years. However, since 1979, bigamy makes a woman liable to charges of Zina which can carry very severe penalty such as death. Therefore, it is vital for a woman to be absolutely clear about her marital status and to have documentary proof that she is properly divorced. Therefore, this ordinance made the registration of talaq mandatory for male. It is the duty of husband not wife and if he contravenes this provision shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.10

Talaq Salasa is not permissible according to this ordinance, that was common practice in our society. Husband usually announces three talaq at once and wife will become devoid of all marital rights at once. Talaq Salasa is an un-Islamic way of talaq Allah Almighty prohibited this this verse

[bookmark: _4fu2id3epkgt]Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah. But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah – it is those who are the wrongdoers.11

As per Muslim Personal Law and under section 7 of the Muslim Family Law Ordinance the husband pronounces talaq (oral or by way of Deed of Divorce) and sends written notice by registered post to the Union Council, mentioning address of his ex-wife. Thereafter the concerned union Council sends a copy of the notice to wife by registered post and it constitutes arbitration Council within 30 days of receipt of notice. Once the iddah period (90 days from the date the union council receives the talaq notice) is over, the union council will issue a certificate of Talaq being effective to the husband and wife.12 This law was originally designed to protect women from a instant and unrecorded divorce.

Talaq-i-Tafweez and Mubarat (Mutual Divorce)

In both of these forms of divorce, there is no need to approach the courts, meaning that the marriage can be dissolved rapidly, cheaply and with few procedural problems. In this case both husband and wife may sign a Mutual Divorce Deed and send a written notice under section 8 of the Muslim Family Law Ordinance to the concerned union council. The Union council will adopt the same procedure as of ordinary notice of talaq.

Muslim Family Law Ordinance accepted this form of talaq Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolves the marriage otherwise than by talaq, the provisions of section 7 shall, mutatis mutandis and so far as applicable, apply.13 If wives are delegated with right of divorce they can use this right in unpleasant conditions with giving anything in badle-Khula and protect several women rights.

Maintenance

As per Muslim personal law it is the liability or duty of the husband to maintain her wife according to the means and financial status of the husband. Husband’s liability of maintenance of wife or maintenance of wives remains their even if the rukhsati of the wife has taken place or not. If the rukhsati of the wife has not taken place still maintenance of wife in Pakistan can be claimed by the wife because the husband is duty bound for the maintenance of wives or maintenance of wife in Pakistan. Husband is bound to pay monthly allowance to wife till the marriage remains intact even after the divorce the husband is bound to pay monthly allowance to wife till the period of iddah.

If any husband fails to maintain his wife adequately, or where there are more wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may, in addition to seeking any other legal remedy available, apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband.14

In our society it is difficult for a woman to earn money therefore, it was needed that women should be protected against financial problems. This ordinance tried to ensure that wives can enjoy maintenance from their husbands.

Dower

Dower in Islam is gift which is mandatory to pay wife from husband at the time of contracting marriage. ‘And give the women their dowries willingly. But if they, of their own pleasure of heart remit something of it to you, then consume it with taste and pleasure.’15 It has different kinds according to payment (prompt or deferred) and amount (specified amount or unspecified). women can use this as security against unpleasant circumstances. Muslim Family Law Ordinance tried to protect this right as

Where no details about the mode of payment of dower are specified in the nikahnama or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand.16

This law is protecting the right of dower as it is held in Abdul Satar v. Shugfta Bano case

The law does not permit withholding of payment of dower till the dissolution of marriage. The deferred dower is a sort of guarantee for a woman against ill-treatment, non- maintenance, desertion or any other abnormality in the family life including; rash and arbitrary divorce whereas the prompt dower is payable either at the time of marriage or at any subsequent time when it is demanded by the wife. It is laid down in the Holy Qur’an in Verse24 of Surah Nisa-Paara-4. ‘And those of whom ye seek content (by marrying them), give unto them their portions as a duty’.17

Conclusion

Constitution of Islamic Republic of Pakistan 1973 stated equal protection of rights without any sex biased discrimination.18 To protect equal rights in Pakistan, our government made many endeavors, but seemingly reluctantly. Muslim Family Law Ordinance is one of such endeavors to protect female rights like registration of marriage and divorce, maintenance and dower. Its practical implementation is slow and reluctant. Females lack awareness about their rights and it is difficult for them to get justice from our courts because in our society mostly females are not financially independent. It is possible to get progress for our nation unless our half population (women) not enjoying equal rights. There is need to make just laws, implement laws properly and give awareness so that women can get their just rights.

References

  1. Section 2, Dissolution of Muslim Marriages Act, 1939
  2. Reports of Ad hoc Law Reform Commissions, Law and Justice Commission of Pakistan.
  3. Abdul Kadir vs Salima And Anr. on 21 January, 1886
  4. Section 5, Muslim Family Law Ordinance 1961
  5. Sub-section 1, section 6 of Muslim Family Law Ordinance 1961
  6. the Institute of Policy Studies, an Islamabad-based non-profit research organization
  7. PLD 2000-FSC
  8. Sub-section 4, section 6 Muslim Family Law Ordinance 1961
  9. Sub-section 1, Section 7 of Muslim Family Law Ordinance 1961
  10. Sub-section 2, Section 7 of Muslim Family Law Ordinance 1961
  11. Surah Al-Bakra verse 229, Holly Quran
  12. Divorce laws in Pakistan, Mumtaz and Associates
  13. Section 8 of Muslim Family Law Ordinance 1961
  14. Section 9 of Muslim Family Law Ordinance 1961
  15. Surah al-Nisa
  16. Section 10 of Muslim Family Law Ordinance 1961
  17. 2014 C L C 15
  18. Article 25, Constitution of Pakistan 1973

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