Last year, Pakistan’s Supreme Court said that a woman has the right to dissolve her marriage to the argument that her husband, without her permission, married another woman. Recently, the Islamic Ideology Council issued a statement that rejected this decision, stating that it is against Islamic Law to allow a woman to dissolve her marriage because she did not consented her husband’s marriage to another woman. CII is an advisory body and cannot annul the Supreme Court, but an authority is considered in the requirements of the Islamic Law.
The fact that in 2024, the Supreme Court had to authorize a detailed sentence to clarify the very direct legal provisions in the Muslim Family Law Ordinance (MFLO), 1961, and the dissolution of Muslim marriages, 1939, which was later repudiated by the ICI, is an indication of the confusion manufactured around family laws in Pakistan.
Why does this confusion persist? Muslim personal law covers issues related to marriage, divorce and inheritance for the majority of the population of Pakistan. Personal law is partially encoded in the form of statutes derived from religious jurisprudence. The courts and religious bodies often misunderstand the simple meaning of the statutes to adjust to their own views on Islamic jurisprudence. For example, the courts have repeatedly interpreted the provisions of the 1961 ordinance on Talaq, often refusing to enforce the notification and registration requirements in the law. They also tend to fill the gaps in the laws encoded with conservative interpretations of the Islamic Law.
The origins of Muslim personal law are found in the British colonial era. As the colonial government began to introduce legislation that regulates political and economic spheres, forged exceptions for matters related to marriage, divorce and inheritance, declaring that these would be treated in accordance with the coastal and religious laws of each community.
The gap between the encoded law and judicial interpretations continues to create uncertainty.
Muslim political groups were eager to ensure the primacy of Sharia about custom in matters of family and inheritance law. In 1937, Muslims said legislation that declared that personal law derived from Sharia only instead of custom would rule family issues and inheritance for Muslims.
Before independence, Muslims secured another coded law: the Muslim marriages law approved in 1939. Although this law established the right of Muslim women to dissolve their marriage in certain circumstances, the motivation behind the law was not the promotion of women’s rights. In fact, it passed to prevent Muslim women from renouncing their faith and marry the non -Muslims. Before this law, Muslim women who seek to finish a marriage could only do so after becoming another religion, which would lead to the automatic termination of their marriage to a Muslim man. This would also allow Muslim women to marry their faith after their marriage to the Muslim man ended.
Muslims in the subcontinent, like other religious communities, were extremely concerned with losing their members, especially women, marriage outside their communities. The law of dissolution of Muslim marriages, 1939, specifically declared that the renunciation of their faith by a married Muslim or its conversion to another faith will not dissolve on their own in their marriage.
After independence, Muslim personal law continued to govern family matters for Muslims in Pakistan. When, in 1955, Prime Minister Bograph had a second marriage, the protests of prominent women led to the formation of the Rashid Commission, whose objective was to recommend reforms to Muslim personal law and “give women their appropriate place in society according to the foundations of Islam.” The recommendations of the Commission included limitations on polygamy and the mandatory registration of Nikahnama. His cautious recommendations were opposed to conservative forces and it was not until 1961 that Field Marshal Ayub Khan promulgated the MFLO, which incorporated some of the commission’s recommendations.
The MFLO did not reach the demands of women’s rights activists, since it allowed polygamy, as well as unilateral divorce, while introducing some safeguards for women. Even these limited protections were subsequently diluted through judicial interpretations. The Zina Ordinance, imposed by the Ziaul Haq generation, introduced strict adultery and fornication sanctions, making the mflo application even more complicated. The divorce or Talaq that did not meet the requirements of the MFLO was validated by the courts to protect the women who married after they thought they had been divorced by their spouses.
The gap between the encoded law and judicial interpretations, contradictory decisions by the courts and the pronouncements of the religious authorities continue to create uncertainty about family laws. Women and children suffer more due to this confusion.
How do we advance beyond this confusion? Instead of fragmented and incoherent family laws, we must adopt encoded laws related to marriage, divorce and inheritance that have priority over the unqualified interpretations of religious jurisprudence. A central objective behind the framed of these civil laws must be consistency with the fundamental rights in the Constitution, including the right to equal protection under the law and the prohibition of discrimination based on sex.
The Supreme Court must provide clear addresses to the Judiciary on the application of family laws and specify that the courts are obliged to enforce the statutes, the judicial precedent and the Constitution. Courts cannot selectively impose their interpretations of religious jurisprudence.
Efforts to improve family laws so far demonstrate that reforms that depend on the progressive interpretations of Islamic law tend to fall short. They weaken even more for the conservative application. Recognizing this obstacle, women’s rights activists, in particular the Women’s Action Forum, have recommended a more enlightened approach towards all matters related to marriage and inheritance. It is time for our legislators to accept their recommendations.
The writer is a lawyer.
Malkani.sara@gmail.com
Posted in Dawn, April 18, 2025
