TABLE OF CONTENTS

CHAPTER Page No.

1
 1.INTRODUCTION------------------------------------------- 3

2.Registration of Marriage------------------------------------ 7

3.Polygamy ----------------------------------------------------- 10

4.Divorce ------------------------------------------------------- 16

5 . Inheritance -------------------------------------------------- 23

BIBLIOGRAPHY ---------------------------------------------------------------- 26

Chapter No. 1

Introduction

Islam is “Deen” complete in all respect, principles of which are enshrined in the Holy
Qur’an and the Sunnah of Prophet Muhammad (peace be upon him). While religion as a
western concept means mere system of faith and worship, practice of sacred rites, the word
“Deen” in Arabic language of the Qur’an is not confined and used so restrictively. It also
represents all that goes with “statecraft” and “way of life”. 1It provides guidance for Muslims
in all fields including family system, contribution of Holy Qur’an as well as Ahadis in this
direction is marvelous and outstanding. It proclaims creation of society in which it propagate
1PLD 1976 Lah. 930

2
the concept of equality between man and man as well as guides the Muslims to keep them in
their respective circles.
Family is a basic unit of society. If there is any fault in basic unit the whole society
can never work properly it will be ruined. Islam is Deen which had given various provisions
for Muslims to guide them on every step it has given solutions from the family problems to
the state problems so that every unit work properly and in this way Islamic Society becomes
the ideal society. Pakistan is an Islamic State and Islam is the state religion of Pakistan 2 It
would not wrong to say that Pakistan was got in the name of Islam therefore the first
fundamental right of a Muslim is to be ruled in accordance with Islam. After the addition of
Article 2-A in the Constitution the Holy Qur’an and Sunnah have become the Supreme Law
of Pakistan and the Courts are obliged to enforce the existing laws with such adaptions as are
necessary in the light of the Holy Qur’an and Sunnah to uphold the Holy provisions thereof.
Every organ of the state is duty bound to act and implement the Islamic Principles as
enshrined in the Holy Qur’an and Sunnah. Where existing laws or any provision thereof, on
examination by the Federal Shariat Court are declared repugnant to the Injunction of Islam,
such laws and provisions thereof cease to have effect on the day on which the decision of the
Court takes effect.3 That is why no law repugnant to the Holy Qur’an and Sunnah can be
enacted and all existing laws have to be brought in conformity with the Injunctions of Islam
as enunciated in the Holy Qur’an and Sunnah.
Pakistan is an Islamic State4 and Islam is the state religion of the Pakistan.5It can be
said that Pakistan was the only country established in the name of Islam. 6Two nation theory
was the base of making Pakistan and Islam was the pivot on which the Two nations theory
revolved.7Quaid-e-Azam said “Brotherhood, equality and fraternity of man, these are all the
2Article 2 of the Constitution of Pakistan, 1973.

3 PLD 2001 S.C. 18

4Article 1 of the Constitution of Pakistan, 1973.

5Article 2 of the Constitution of Pakistan, 1973.

6Talbot, Ian (2 February 1984). "Jinnah and the Making of Pakistan". History Today.Retrieved 26
February 2017. As British rule there drew to an end, many Muslims demanded, in the name of Islam, the
creation of a separate Pakistan state

7Presiding over the Muslim League session in Lahore on 22 nd March, 1940, Quaid-e-Azam Muhammad Ali
Jinnah declared that the Muslims were not in Minority and they were nation by any definition. Further declared
that the Hindus and Muslims belong to two different religious philosophies, social customs,and literatures.
They neither intermarry, nor inter-dine and, indeed, they belong to two different civilizations which are based
mainly on conflicting ideas and conceptions. Their aspects on life and of life are different. It is quite clear that
Hindus and Muslims derives their inspirations from different source of History. They have different epics, their
heroes are different, and different episodes.

3
basic points of our religion, culture and civilization. And we fought for Pakistan because
there was a danger of denial of these human rights in this sub-continent.”8
Pakistan was came into being on August 14, 1947 then the efforts were initiated to
make Constitution for the new born Pakistan. It was the dream of Quaid-e-Azam to make
Pakistan, laboratory of Islam.As he said “The Constitution of Pakistan has yet to be framed
by the Pakistan Constituent Assembly. I do not know what the ultimate shape of this
Constitution is going to be but I am sure that it will be a democratic type, embodying the
essential principles of Islam. Today they are applicable in actual life as they were 1300 years
ago. Islam and its ideals have taught us democracy. It has taught equality of man, justice and
fair play to everybody.”9But before the making of Constitution Quaid-e-Azam was died.
However, in March 1949, an Objective Resolution was passed by the constituent
Assembly, which enunciated the principles on the basis of which the constitution was to be
framed. It was stated therein that the sovereignty over the entire belongs to Allah and it will
be exercised in Pakistan by the people as his sacred trust.10 The objective resolution though
passed could not be brought on Statute Book, even in the Constitution of Pakistan, 1973, it
was missing. It was in 1985 when Presidential Orderwas issued which included objective
resolution to be added as section 2-A in the Constitution of Pakistan, 1973. 11 After addition of
Article 2-A in the Constitution, the Holy Qur’an and Sunnah have become the Supreme law
of Pakistan and every organ of the state is duty bound to act and implement the Islamic
Principles as enshrined in the Holy Qur’an and Sunnah. 12In the same case it was decided that
no law can be enacted against Islam and all existing laws have to be brought in conformity
with the injunctions of Islam.
Family is the basic unit of any society.Common matters of family are marriage,
Talaq, and Succession etc., about these the state has to enact laws and in Pakistan every organ
is to duty bound to act according to the injunctions of Islam and province of Punjab is also
organ of Pakistan therefore all family laws in Punjab must be enacted according to the
dictations of Islam and also existing laws must be according to Islam.

8In a speech delivered by Quaid-e-Azam Muhammad Ali Jinnah at Chittagong on 26th March, 1948.

9Broadcast to the people of USA by Quaid-e-Azam Muhammad Ali Jinnah recorded in February 1948

101st clause of Objective Resolution, 1949.

11P.O. 14 of 1985 w.e.f. 02-03-1985.

12PLD 2001 SC 18.

4
 There are many Family laws are in force in Punjab these are against the Islam having
also been declared non Islamic by the Federal Shariat Court but still not modified. There are
also recommendations by the Barrister Sulaman Khan that there is no need of Muslim Family
Laws Ordinance and also the qualifications of legal enactments contained in the Shariah
Application Act needs to be removed13.
The first reform in the family laws of Pakistan was the Muslim Family Laws
Ordinance (MUSLIM FAMILY LAWS ORDINANCE) of 1961. Previously, in the first
fourteen years of Pakistan’s history no reforms had been made to family law. In May 1954,
the Punjab Legislative Assembly made the first attempt and presented a Marriage Reform
Bill. In August 1955, the government set up a Marriage and Family Law Commission headed
by Justice Abdur Rashid, including three women representatives and a Pakistani philosopher,
Khalifa Abdul Hakim. In June 1956, the commission submitted its report. A dissenting note
by Maulana by MaulanaIhteshamulHaq, was submitted in August, 1956. The note of dissent
presents an orthodox viewpoint on family affairs.14
Many of the recommendations presented by the Commission, especially concerning
the maintenance of wives and the custody and the custody and the guardianship of children,
were not incorporated in the MUSLIM FAMILY LAWS ORDINANCE. The commission’s
report and the dissenting report showed that two viewpoints existed in Pakistan – those of
Modernists and those of Traditionalists. The MUSLIM FAMILY LAWS ORDINANCE
reflects the Compromise between Traditionalists and Modernists. This compromise weakend
the effect of the reforms.15
A Pakistani Scholar, RafiullahShehab, interprets the opposition to the MUSLIM
FAMILY LAWS ORDINANCE not as ideological opposition based on religious tenets but as
opposition based on political exigencies. He says that MaulanaMaudoodi, one of the
opponents of the MUSLIM FAMILY LAWS ORDINANCE, appreciated the family law
reforms of 1929 in Egypt and presented them in his book Huqooq-uz-Zojain. But when
similar reforms were made in Pakistan in 1961 he opposed them16.
The MUSLIM FAMILY LAWS ORDINANCE did not abolish the statute law
concerning family affairs in force before 1961 and which had been made as early as 1929 and

13 Muslim Personal Law Vs State Law – Marriage and Divorce

14 The Islamization of Law in Pakistan

15Espositto, 1977: 299; Pearl, 1969.

16Shehab, 1986b, 1987; Rosenthal, 1965:332-7; Feroze, 1962: 129.

5
1939. Thus the ordinance of 1961 reaffirmed the reforms made during British rule in India
and made further reforms. However, it should be noted here that Muslim family Law was the
field which has least touched by British Indian legislature, while other branches of law like
criminal law, the law of evidence, the law of transfer of property and the law of contract were
replaced by the modern laws of british origin. In the field of family law, the case law system
of legally binding precedents was adopted, continued after 1947, after the Muslim Family
Laws Ordinance in 1961 and even after the Islamization of the law in the seventies. John
Esposito interprets the reforms in Pakistan as a shift in emphasis from the extended to the
nuclear family.17

17 Esposito, 1982: 91.

6
Chapter 2

Registration of Marriage

Section 5 of the Muslim Family Laws Ordinance, 1961 legislates the compulsory
registration of marriages and sets up the procedures for registration. It requires the
registrations of marriages before Nikah Registrars appointed by the Union Councils under the
basic democracies. If the marriage is performed outside the Pakistan, one copy of the
marriage contract should be sent to the nikah registrar of the ward in which bride is the
permanent resident. Non- registration of marriage is punishable with imprisonment of three
months or fine of one thousand rupees or with both 18. A loophole left in the law of
registration to satisfy the orthodox is that non-registration does not make a marriage invalid
or unlawful. But, in some cases, the court has considered registration an important factor in
proving that a marriage has been taken place 19. For example in a case the court did not
consider the fact that the alleged marriage was not registered a basic factor but dismissed the
appeal on the grounds that the evidence was not sufficient to prove valid marriage 20. I should
be noted here that the Judicial relief is not denied to unregistered marriages in Pakistan, if
they can be proved by other means.
The law regarding registration of marriages is purely Islamic and based on the verse
282 of Surah Al-Baqarah as:
“O People who Believe! If you make an agreement
for debt for a specified time, write it down; and appoint a
scribe to write it for you with accuracy; and the scribe must
not refuse to write in the manner Allah has taught him, so
he must write; and the liable person (debtor) should dictate
it to him and fear Allah, Who is his Lord, and not hide
anything of the truth; but if the debtor is of poor reasoning,
or weak, or unable to dictate, then his guardian must dictate
18Section 5 of Muslim Family Laws Ordinance, 1961.

19 Carroll, 1979: 119-21; Patel, 1979.

20Bagh Ali alias Bagh Din Vs. Almna

7
 with justice; and appoint two witnesses from your men;
then if two men are not available, one man and two women
from those you would prefer to be witnesses, so that if one
of them forgets, the other can remind her; and the witnesses
must not refuse when called upon to testify; do not feel
burdened to write it, whether the transaction is small or big
– write it for up to its term’s end; this is closer to justice
before Allah and will be a strong evidence and more
convenient to dispel doubts amongst yourselves – except
when it is an instant trade in which exchange is carried out
immediately, there is no sin on you if it is not written down;
and take witnesses whenever you perform trade; and neither
the scribe nor the witnesses be caused any harm (or they
cause any harm); and if you do, it would be an offence on
your part; and fear Allah; and Allah teaches you; and Allah
knows everything”21
But According to classical Islamic Law, marriage is contracted by offer and
acceptance in the presence of witnesses. Two Muslim males or one male and two females are
required to witness the contract. There is no need for a contract of marriage to be registered.
In recent years, Muslim countries have felt a need for marriages to be registered in order to
keep records. Therefore, laws have been made for compulsory registration failure to obey the
law makes the parties concerned liable to imprisonment or a fine. But the marriage contract
itself is not is not invalid. The orthodox consider this type of arrangement made by the state
as an interference with sacred law. Thus it becomes a subject of conflict between the
orthodox and modern law reforms in the field of Islamic family law22.
The orthodox ulma of Pakistan agree on the importance of registration but are
opposed to criminal sanctions to enforce its implementation. According to them, Islamic law
is sacred and immutable, and even a small administrative reform is taken as a threat to
classical Islamic law23 the minority report stated:

21Surah Al-Baqarah, Ayat 282 of the Holy Qur’an as translated by Ahmad Raza Khan.

22 Anderson, Norman, 1983

23 Aslam, 1986; Tonki, 1985

8
 As for the registration of marriage, we don’t deny
its advantage. If arrangements for the registration of
marriages are made at various places in the length and
breadth of the country and the people are made cognizant
of its advantages, we are sure that the people will in their
own interest get the marriages registered. But to make the
non-registration thereof an offence punishable with
imprisonment or fine or both, is a wrong step24
In spite all the resistance from the orthodox ulma in Pakistan, compulsory registration
of marriages was made law in Pakistan in Section 5 of the Muslim Family Laws Ordinance,
1961.

I must conclude by saying that compulsory registration of marriages in Pakistan is not

against the Law as the Orthodox Ulema declaring it as it is based on the verse 282, of the
Surah Al-Baqarah of the Holy Quran, recommending that important transactions should be
reduced to writing and the contract of marriage is an important transaction. And in the
absence of a written contract, uncertainty and confusions are created.

24The Islamization of the law in Pakistan by Rubya Mehdi.

9
Chapter 3

Polygamy

“And if ye fear that ye will not deal fairly by the

orphans, marry of the women, who seem good to you, two
or three or four; and if ye fear that ye cannot do justice (to
so many) then one (only) or (the captives) that your right
hands possess. Thus it is more likely that ye will not do
injustice.”25
Polygamy is restricted by section 6 of Muslim Family Laws Ordinance, 1961. Section
6(1) of the ordinance makes it mandatory to refer the case to the Arbitration Council if any
person wishes to contract a polygamous marriage. A marriage contracted without such
permission is not invalid, but it is denied official registration, which means that any grievance
arising from such a marriage would be denied judicial relief.
An application for approval to contract a polygamous marriage should contain the
reasons for contracting the second marriage, along with the consent of the existing wife or
wives26.the chairman is required to organize an Arbitration Council consisting of
representatives of the applicant and his existing wife or wives. If the Arbitration Council is
convinced that the proposed marriage is necessary and just’, permission is granted27. In
deciding whether a marriage is necessary and just, the arbitration council shall consider
circumstances such as sterility, physical infirmity, physical unfitness for conjugal relations,
willful avoidance of a decree for restitution of conjugal rights, or insanity on the part of
existing wife28. Any Person not satisfied with the decision of the Arbitration Council may
appeal to the Collector29.

25 Ayat 3 of the Surah Nissa of the Holy Qur’an as translated by pickthall.

26 Subsection 2 of the section 6 of the Muslim Family Laws Ordinance, 1961.

27 Subsection 3 of the section 6 of the Muslim Family Laws Ordinance, 1961.

28Section 14 of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961.

29 Subsection 4 of the section 6 of the Muslim Family Laws Ordinance, 1961.

10
 The penalty for contracting another marriage without permission from the Arbitration
Council is immediate repayment by the man of the entire dowry to his existing wife or wives;
he can also be imprisoned for up to one year or has to pay fine which may extend to five
thousand rupees or with both30. This goes further to dissolution of marriage for that a wife
had to prove that her husband had failed to treat all his wives equally31.

Polygamy is a very controversial issue in Islamic law. There could be several reasons
for this: firstly, the prophet Muhammad (PBUH) was married to a number of women;
secondly, there is a system of concubinage in Islam according to which, in addition to four
wives, a muslim man can have sexual relations with with his female slaves; thirdly, Quranic
verses on the subject are so vague that they can be interpreted either in favor of or against
polygamy. The vagueness is so great that the Zahiri School considers the possibility of fifth
lawful wife, in the light of Qur’an. Moreover, it should be noted that the IthnaAshari sect of
Shia School also allows a man to have, in addition to four permanent wives, any number of
temporary wives. With such wide scope given to men in matters of sexual cohabitation,
controversies around the subject are natural.

In fact Islam did not invent the system of polygamy. It existed long before Islam came
into the scene of world events. The Bible says that Lamech, the grandson of Adam, “took
unto him two wives: the name of the one was Adah, and the name of the other Zillah.” 32 So
polygamy has existed from the earliest days of human history.

Many holy personalities of the Bible had many wives or concubines at the same time.
Abraham had Sarah and Hajara. Abraham was first blessed with a son through Hajara whom
he named Ishmael, and then he was blessed with another son through Sarah whom he named
Isaac. Look at the example of Jacob; he had four wives and concubines: Leah and Rachel
(both were Jacob’s cousins), and he also had Bilhah and Zilpah (both were slave-girls gifted
to Jacob by his wives). It is from these four ladies that Jacob had twelve sons who became
ancestors of the Twelve Tribes of Israel. David, known in Arabic as Prophet Dawūd, had at
least eight wives whose names are known, he had many others whose names have not been

30Clauses (a) and (b) of the Subsection 5 of the section 6 of the Muslim Family Laws Ordinance, 1961.

31Clause (f) of the subsection (viii) of the section 2 of the Dissolution of Muslim Marriages Act, 1939.

32 The Book of Genesis 4:19.

11
recorded. The Second Book of Samuel (in the Bible) talks about “the wives” of David in
Hebron and also in Jerusalem.33

According to Muslim Modernists, Polygamy is tolerated on the ground of necessity,

for example for the protection of widows and orphans after a war. The Qur’an also
discourages polygamy by insisting that all wives of a man should be treated equally, at the
same time declaring man’s inability to do this. Ash-Shirbeeni from the Shaafi’i School of
jurisprudence, said: "It is a Sunnah not to marry more than one wife if there is no apparent
need.34 Muhammad’s (PBUH) own marriages are described as ‘no act of enjoyment or
pleasure seeking’, but as an example of ‘self-sacrifice and self-denial’, i.e., necessity. 35 So the
modernists justify legal restrictions on Polygamy so that men do not abuse the option of
polygamy.

Whilst traditional Islamic scholarship upholds the notion that Islamic law permits
polygyny and furthermore enforces the divine command to "marry only one" where the man
fears being unable to fulfil the rights of all his wives in a fair manner, a substantial segment
of the Islamic scholarship elaborates further on the ruling regarding men who are able to
ensure complete equality amongst the multiple wives.36

Their opinion was derived from performing ijtihad (independent legal reasoning)
which determined their belief that it is to be deemed preferable (even for the male individual
who is capable of delivering justice to the multiple families) to refrain from joining more than
one wife in the marital bond. This opinion has been codified into the official positions of the
Hanbali and Shaafi’i schools of jurisprudence which assert that it is held recommended for a
Muslim male to have only one wife, even if he may act equitably with more than one woman.
Al-Maawardi, from the Shaafi’i School of jurisprudence, said: "Allaah has permitted a man to
marry up to four wives, saying: (…two or three or four…), but Allaah advised that it is
desirable for man to marry only one wife, saying: (…But if you fear that you will not be just,
then (marry only) one)"37

33 2 Samuel 3:2-5, 13-16; 5:13-16.

34Mughni al-Muhtaj 4/207

35Mahmudunnasir, 1968: 60; Khan, Raja Said Akbar, 1972: 1; Hussain, Syed Jaffer, 1965: 384; Daura, 1969.

36 http://polygamyinislam.com/2014/11/04/opinions-of-classical-islamic-scholars-on-polygyny

37al-Hawi al-Kabir 11/417.

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 Ibn Qudaamah from the Hanbali School of jurisprudence, said in Ash-Sharh Al-
Kabeer: "It is more appropriate to marry only one wife. The author of Al-Muharrar i.e.
AbulBarakaat Al-Majd ibn Taymiyyah said this, based on the saying of Allaah which means
(…But if you fear that you will not be just, then (marry only) one)."38

These scholars felt that adherence to monogamy would minimize the risk of
oppression because the requirement of meting out justice amongst a plurality of wives would
be immensely challenging for any man. Therefore, they opined that it is preferable to avoid
polygamy altogether, so one does not even come near the chance of committing the forbidden
deed of dealing unjustly between the wives.39

Imam Ahmed ibn Naqib al Masri, from the Shaafi’i School of jurisprudence, said “It
is fitter to confine oneself to just one”40

Imam Ghazali, from the Shaafi’i School of jurisprudence, stated: "It does not call for
two wives, since plurality may render life miserable and disrupt the affairs of the home."41

Imam Shaafi’i offered an additional exegesis for the final clause of the pivotal verse
discussing the divine legislation of polygamy and the divine limitations imposed upon this
ancient institution.42 He espoused that the closing clause of verse 4:3, usually interpreted as
‘that is more suitable that you may not incline to injustice’ should be understood as ‘that is
more suitable that you may not be financially strained by numerous children’.

Imam Shaafi’i reasoned that divine decree had already listed fear of committing
injustice as a reason to not wed more than once, hence it was pointless for the same reason
(for not wedding more than once) to be expounded twice in the same verse.

His alternative interpretation pursued the perception which held that the presence of a
plurality of women in a man's conjugal life would produce undesirably large numbers of
offspring, which could be a potential cause of financial hardship and poverty in the future.

38 Ash-Sharh Al-Kabeer authored by Shams-ud-deen Ibn Qudaamah.

(http://www.islamweb.net/emainpage/index.php?page=showfatwa&Option=FatwaId&Id=257272)

39 http://polygamyinislam.com/2014/11/04/opinions-of-classical-islamic-scholars-on-polygyny

40UmdatuSalik.

41Kitab al Nikah, IhyaUloomud Din

42 http://polygamyinislam.com/2014/11/04/opinions-of-classical-islamic-scholars-on-polygyny

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 Given the emphasis that Islamic law stipulates on the welfare of children and
nurturing children with permitted means of income, Imam Shaafi’i opined that it was
legislated for a man to marry just once as an increase in the population of a family due to
multiple marriages could potentially harbor harmful monetary consequences for the man who
marries more than once.43

Ash-Shaafi’i is of the view that it is desirable to confine oneself to marrying only one
although it is permissible for him to marry more than one. This is to avoid being unfair by
being more inclined to some of them than others, or being unable to financially support
them.44

The traditionalist view is that the polygamy is a husband’s absolute right and that he
is legally free to exercise it at will, provided that he does not exceed the maximum number of
wives at any one time. According to the traditionalists, it is not limited to cases of utter
necessity. The Prophet Muhammad (PBUH), four caliphs and a majority of eminent
personages in Islamic History had more than one wife. They compare the situation with the
West where men have mistresses and girlfriends, and hold that polygamy is better than this
practice. Thus any restrictions on polygamy would in fact be an apology to west, which
severely criticizes polygamy in Islamic Shariat without looking at the problems in its own
society. It would be an interference with revealed religion if the plurality of marriages were
declared unlawful, or any restriction imposed upon polygamy. 45

Many Muslim Countries, such as Syria, Iraq and Morocco, have placed various
restrictions upon the practice of polygamy. Tunisia is, however, the only Muslim Country in
which polygamy is completely prohibited. In the Indian subcontinent, Muslim Modernists
like Sayed Ahmad Khan, Mumtaz Ali, and ChiraghAlihave argued the monogamy is the
marriage ideal in Islam, and that there is therefore a need for reform in family law.46

Conditions in Pakistan have driven even Traditionalists not to recommend Polygamy

to men. Tanzil-ur-Rehman says that polygamy is beyond the reach of the Muslims of

43 http://polygamyinislam.com/2014/11/04/opinions-of-classical-islamic-scholars-on-polygyny

44al-Hawi al-Kabir 11/417. (http://www.islamweb.net/emainpage/index.php?

page=showfatwa&Option=FatwaId&Id=257272)

45Ulema’s critical views about the Muslim Family Laws Ordinance, 1961, 13 March 1961.

46 Esposito, 1982b: 73-5

14
Pakistan because, firstly, the daily conduct of Muslims has so deteriorated that the idea of
mutual obligation has almost become extinct; thus ‘they are expected to neglect criminally
one wife in preference to the other’. Secondly, ‘economic and other complicated matters of
life would make the family prey to famine and misery’. Thus he says that the state should
interfere and put a stop to polygamy. 47

After a long discussion of traditionalists and modernists ulemas it is to conclude that

the law made in Muslim Family Laws Ordinance, 1961 is close to the modernists, and is the
requirement of the age, traditionalists are ignoring the problems of the modern age and giving
arguments in support of polygamy giving examples from the life of Muhammad (PBUH),
caliphates and well known personalities but they are ignoring the basic factor of necessity. As
the Study of the life of Prophet Muhammad (PBUH) shows that the Prophet was a man of
highest character even long before he started preaching Islam. At the age of twenty-five,
Prophet Muhammad married a famous and a highly respected lady of Mecca, by the name of
Khadija bint Khuwaylid, who was older than him in age. (According to the popular opinion,
she was 15 years older than the Prophet, but based on further research into this matter, we can
say that she was only two years older than the Prophet). 48 The important thing is that he
remained married to her for twenty-five years until she passed away in Mecca. Two years
after her death, the Prophet migrated from Mecca to Medina where he founded the first
Islamic society. So for the first 50 years of his life, the Prophet had only one wife, Lady
Khadīja, whom he loved dearly and who was one of the strongest pillars of support in
promoting his cause. During the last 13 years of his life, he married other wives due to
necessity. Therefore the polygamy must only be allowed in case of necessity otherwise it
must be condemned.

47Tanzil-ur-Rehman, 1967: 38-9.

48 Ibn Kathīr in al-Bidãyahwa an-Nihãyah, vol. 2 (Beirut: Dar Ihyã’ Turathi ’l-‘Arabi, 1408) p. 360 as well as
in his as-Sīrah an-Nabawiyyah, vol. 1 (Beirut: Dar al-Ma‘rifa, 1396) p. 265 states that Khadījah was twenty five
years old at the time of her marriage to the Prophet of Islam, while ‘Ali bin ‘Isa al-Irbilī in Kashfu ’l-Ghumma,
vol. 2 (Beirut: Dar al-Adwã’, 1985) p. 133 and Ibn al-‘Imãd al-Hanbali in Shadharãtu ’dh-Dhahab, vol. 1, p. 14
(Egyptian edition) say that she was twenty-eight years old at that time. Ahmad al-Bulãdhurī and Abu ’l-Qãsim
al-Kufī in their books as well as Sayyid al-Murtada in ash-Shãfī and Abu Ja‘far in at-Talkhīs say that at the time
of her marriage to the Prophet, Khadījah was a virgin; this is further collaborated by the report in al-Anwãrwa
al-Bida‘ thatRuqayya and Zaynab were the daughters of Hãlah, the sister of Khadījah. See ManãqibÃl-I Abi
Tãlib, vol. 1, p. 159. Those interested in studying more on the question whether Ruqayya, Zaynab, and Umm
Kulthûm were real daughters or adopted daughters of the Prophet, see SayyidJa‘farMurtaza al-‘Ãmili, “Banãtu
’n-Nabí am Rabã’ibuhu?” in the quarterly Turãthunã (Qum: Mu’assasatuÃli ’Bayt, 1413) nos. 30-31.

15
Chapter 4

Divorce

The most hated of the Halaal (lawful things) to Allah is divorce.49

Islam has condemned the act of divorce and such an action has been declared as evil
which attracts displeasure of God. However, when the union between husband and wife
becomes hateful and it becomes impossible for the husband and the wife to live in peace
within the limits prescribed by Allah then it is better to revoke the contract of marriage.
A divorce may be affected in the following ways:
1. By the husband at his will; or
2. By mutual consent of the husband and the wife; or
3. By a judicial decree at the instance of the husband or the wife.50
In Islam, an adult and sane husband can divorce his wife at any time without
assigning any cause or reason. Revocation of a marital contract unilaterally at the whim of the
husband is called ‘Talak’. ‘Talak’ may be effected either orally or in writing 51 through a
‘Talaknama’. It must be remembered that a talak in writing operates as an irrevocable divorce
and takes effect immediately on its execution, unless a contrary intention is shown in the
talaknama itself. However, if ‘Talak’ is effected orally then no specific or particular words
are required for ‘Talak’ to be effective and it is sufficient if the words are express or well
understood to imply a ‘Talak’ and no proof as to the intention to terminate the marriage
contract is required. On the other hand a wife cannot divorce herself from her husband
without his consent which may be given either before or after the marriage at any time or she
has a limited right to file a suit for dissolution of marriage in the Family Court.
49Recorded by Abu Dawood, Ibn Maajah and Al-Haakim from Ibn ‘Umar. Al-Albaanee graded it Dha’eef
(weak) in Dha’eeful-Jaami’, #44, Al-Irwaa’, #2040, and Al-Mishkaat, #3280.

50Section 307 of Principles of Muhammadan Law by D. F. Mulla.

51Section 7 of the Muslim Family Laws Ordinance, 1961.

16
 Hanafis School of thought recognizes the following two kinds of ‘Talak’:
1. Talak-us Sunnat
2. Talak-ul-Bidaat or Talak-i-Badai52
Talak-us Sunnat
This kind of ‘Talak’ is based on the principles and rules laid down by the Holy
Prophet Muhammad (may peace be upon him). Talak-us Sunnat may further be divided into
two kinds i.e. TalakAhsan and TalakHasan. TalakAhsan is the most proper form and
TalakHasan is the proper form.
TalakAhsan53
This kind of Talak is affected by a single pronouncement of divorce during a
tuhr followed by abstinence from sexual intercourse for the period of ‘iddat’. Tuhr is
the period intervening between menstruations. A talak in this mode becomes effective
on the expiration of the period of iddat. The period of iddat prescribed by the muslim
law is 90 days.
TalakHasan54
This kind of Talak is effected by a single pronouncement of Talak in one tuhr
followed by another pronouncement of Talak in the next tuhr and then followed again
by another pronouncement of talak in the successive tuhr. Therefore, this kind of talak
is affected by three pronouncements of talak in three successive tuhrs. No intercourse
should take place during any of the aforesaid three tuhrs. A talak in this mode
becomes effective automatically on the third pronouncement irrespective of the iddat.
Talak-ul-Bidaat or Talak-i-Badai55
Talak-ul-Bidaat is a new, irregular or heretical form of Talak which is considered as
good in law but bad in theology. The essential feature of Talak-ul-Bidaat is its irrevocability
and this kind of talak becomes effective immediately it is pronounced. It is pertinent to
mention here that this kind of talak is not recognized in ‘FiqhJafria’. Talak-ul-Bidaat can take
place in the following ways:
 By three pronouncements of talak in a single tuhr; or

52 Amir-ud-Din v. Kaatun Bibi (1917) 30 All.; Muhammad Asad v. HumeraNaz 2000 CLC 1725.

53Clause (1) of Section 311 of Principles of Muhammadan Law by D. F. Mulla.

54Clause (2) of Section 311 of Principles of Muhammadan Law by D. F. Mulla.

55Clause (3) of Section 311 of Principles of Muhammadan Law by D. F. Mulla.

17
  By a single pronouncement of talak during a tuhr making his intention clear
that the talak is irrevocable.
Delegation of the Power of Divorce56
The power to divorce his wife vests primarily in the husband, however, the husband
may delegate this power to the wife or to a third person either for a fixed period or
permanently. Such a delegation of power may either be absolute or conditional and then the
wife or the third person may effect a divorce on behalf of the husband 57. A temporary
delegation of the aforesaid power may be revoked whereas a permanent delegation cannot be
revoked by the husband. Delegation of power of divorce to the wife can be made by an
agreement between the husband and the wife stipulating that on the happening of certain
events the wife can divorce herself from the husband and such an agreement can be made
either before or after the marriage. Such an agreement is valid if it is not opposed to the
policy of Muhammaden Law. On the happening of the stipulated event the wife can divorce
herself from the husband and then the divorce is effected as if a divorce has been pronounced
by the husband. Any such power delegated to the wife is not revocable 58. A talaqeffected
through delegated power is called talaq by tafweez.
Divorce by Mutual consent of the husband and the wife
Divorce can also take place with mutual consent of the husband and the wife and this
can take the form of either Khula or Mubarat.
Khula
Where the aversion is from the side of the wife and she desires a divorce then
the transaction is called Khula.59 In Khula the offer to terminate the marital ties arises
at the instance of the wife who agrees to give consideration for her release from the
bond of marriage. If this offer is accepted then it operates as a single irrevocable
pronouncement of divorce and its operation is not postponed till the execution of the
khulanama.
Mubarat
In Mubarat, the aversion is mutual i.e. both the husband and the wife intend
separation from each other. In Mubarat the offer for divorce may arise either from the

56Section 314 of Principles of Muhammadan Law by D. F. Mulla.

57MehnazMehboob v.Ishtiaq-ur-Rashid 2006 YLR 335.

58QambarMurtazaBokhari v. Zainab Bashir PLD 1995 Lah. 187.

59Fazal Hussain v. HusnaBano 1995 MLD 170.

18
 husband or the wife. However, once the offer is accepted then it operates as a single
irrevocable pronouncement of Talaq.
Dissolution of marriage by a judicial decree
A wife has a limited right to seek dissolution of marriage by a judicial decree. A wife
can seek divorce from a court of law under the provisions of Dissolution of Muslim
Marriages Act, 1939 and the following grounds60 can be urged for divorce by a wife under
the aforesaid Act:
1. Whereabouts of the husband are unknown for a period of 4 years,
2. Failure of the husband to provide maintenance for the wife for a period of 2
years,
3. Sentence of imprisonment on husband for a period of 7 years,
4. Failure without reasonable cause in performing marital obligation,
5. Impotence of husband,
6. Insanity of husband,
7. Repudiation of marriage by wife,
8. Cruelty of husband,
9. Any other grounds recognized by Muslim Law.
The other grounds for dissolution of marriage recognized by Muslim Law are:
1. Ila
2. Zihar

Ila
This divorce is effected by abstinence from sexual intercourse with the wife for a
period of not less than 4 months in pursuance to a vow. According to the Shafi School of
thought the wife has a right in such a case to apply for a judicial decree.
Zihar
This kind of divorce may be effected through a judicial decree at the behest of the
wife if the husband compares his wife to his mother or any of the females in the
prohibited degree and the husband has defaulted in making penance.
Li’an or Imprecation

60Section 2 of the Dissolution of the Muslim Marriages Act, 1939.

19
 The wife can file a suit for dissolution of marriage if her husband falsely accuses
her of adultery. If it is proved that the charges of adultery were false then the divorce may
be effected if is not so proved then no dissolution may be allowed.
In the light of the above stated principles of the Muhammaden Law with respect to
divorce we shall now examine the provisions of S. 7 of the Muslim Family Laws Ordinance,
1961 (hereinafter referred to as the “Ordinance”) and the judgments of the Superior Courts of
Pakistan.
(1) 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 a
notice, in writing of his having done so, and shall supply a copy thereof to
the wife.
(2) Whoever, contravenes the provisions of sub-section (1) 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.
(3) Save as provided in sub-section (5) a talaq, unless revoked expressly or
otherwise shall not be effective until the expiration of ninety days from the
day on which the notice under sub-section (1) is delivered to the
Chairman.
(4) Within thirty days of the receipt of the notice under sub-section (1), the
Chairman shall constitute an Arbitration Council for the purpose of
bringing about reconciliation between the parties, and the Arbitration
Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be
effective until the period mentioned in sub-section (3) or the pregnancy,
whichever later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq
effective under this section from remarrying the same husband, without an
intervening marriage with a third person, unless such termination is for the
third time so effective.61
As far as section 7 is concerned, it is clear that this section is applicable to those cases
only where the husband has made pronouncement of talaq to his wife. In such a case, the
husband shall give a notice, in writing, of such pronouncement to the Chairman. Failure to

61Section 7 of the Muslim Family Laws Ordinance, 1961.

20
give the aforesaid notice by the husband is considered a crime punishable with imprisonment
or fine or with both. Sub-section (3) is of utmost importance in our analysis. According to
this sub-section, a talaq shall not be effective until after the expiration of 90 days from the
delivery of notice to the Chairman. This provision together with sub-section (5) has invited
some criticism from various sections of the society and since the promulgation of the
Ordinance ulema have voiced their concerns over these provisions and have held the same to
be against the injunctions of the Holy Quran and Sunnah of the Prophet Muhammad (may
peace be upon him). In addition to this, there is a plethora of judgments on this issue and the
Superior Courts have expressed divergent views on the subject.
The main issues in respect of these provisions are as follows:
1. That the period of iddat prescribed by the Holy Quran is different for different
situations whereas sub-section (3) of section 7 has made it uniform.
2. That under the Muhammaden Law no notice is required to be given to the
Chairman for talaq to be effective.
3. That the period of iddat has been made to run under sub-section (3) from the
date of notice to the Chairman and not from the date of pronouncement of
talaq which is against the injunctions of Islam.
4. In a case where husband has pronounced talaq to his wife, however wilfully or
due to neglect has failed to give notice to the Chairman; would talaq be
ineffective in such a case and the husband be allowed to take advantage of his
own neglect?
In a relatively recent decision the Hon’ble Federal Shariat Court has held the
provisions of section 7(3) and (5) to be repugnant to the injunctions of Islam.
With respect to issue no. 1 the Hon’ble Shariat Court observed that there is no period
of iddat for a marriage which has not been consummated. Similarly, in case of talaq during
period of pregnancy the iddat stands terminated on the delivery of the child. Keeping a period
of 90 days in such situations is clearly violating the injunctions of Islam.
On the second and the third issue, the Court stated that the period of iddat is to
commence from the date of pronouncement of talaq and not from the day of delivery of
notice to the Chairman as the talaq takes effect from the date of pronouncement of talaq by
the husband.
In view of the aforementioned, the Court declared that section 7 of the Muslim Family
Laws Ordinance, 1961 as a whole cannot be declared violative of the injunctions of Islam.

21
However, the provisions contained in sub-sections (3) and (5) of the said section 7 cannot be
maintained.
The President of Islamic Republic of Pakistan was directed to amend the law so as to
bring it in conformity with the injunctions of Islam and the aforesaid provisions of law were
to cease to have effect on 31st day of March, 2000.
With respect to issue no. 4, the following pronouncements have been made by the
Apex Court:
“In view of the provisions of section 7(3) of the Ordinance talaq would become
effective only after notice of talaq is given to the Chairman and the period of three months
provided for bringing out reconciliation between the parties has expired. Where the husband
does not give the notice of talaq to the Chairman, it can be deemed that he has revoked the
talaq.”62
Nevertheless, the Hon’ble Supreme Court has made a very significant and important
statement in the above case with respect to section 7 in the following words: “Whether the
result achieved is in strict conformity with Islamic Law is a question which does not fall
within the province of this Court by reason of articles 5 and 6 of the Constitution”
“The learned counsel for the petitioner concedes that no notice of the alleged divorce
was given to the Chairman as required by section 7(1) of the Muslim Family Laws
Ordinance. That being so the alleged divorce, in view of the express provision of the sub-
section (3) of section 7 of the said Ordinance, is yet to become effective”63
The above stated view in PLD 1963 SC 51 and 1970 SCMR 845 was supported in
1984 SCMR 583 and NLR 1987 SCJ 239.
Now, the position which emerges is that according to the Supreme Court talaq in any
mode whatsoever, does not take effect unless a notice is delivered to the Chairman. On the
other hand, the Federal Shariat Court directly saying nothing about the service of notice to the
Chairman, however, holding that the period of iddat should run from the pronouncement of
talaq rather than the delivery of notice and this period is to be calculated strictly in
accordance with the rules of Islamic Law. There is an inherent contradiction between the
verdicts of the two respectable Courts because if the period of iddat is to run from the
pronouncement of talaq and is to be calculated in accordance with the Islamic Law then the

62 PLD 1963 SC 51

63 1970 SCMR 845

22
talaq would become effective on the expiry of such Islamic period of iddat and not from the
delivery of notice. In other words, the requirement of notice to the Chairman in order for the
talaq to be effective has been done away by the Hon’ble Shariat Court.
I would like to end this discourse with a judgment of the Hon’ble Supreme Court of
Pakistan wherein the addition of Chapter 3-A in the Constitution of Islamic Republic of
Pakistan was taken into consideration and on conjunctive reading of Articles 203-A to 203-J
it was held as under:
“These provisions when read together would mean that findings of the Federal Shariat
Court, if the same is either not challenged in the Sharaiat Appellate Bench of the Supreme
Court or challenged, but maintained, would be binding even on the Supreme Court.”64

Chapter 5

Inheritance

Section 4 of the Muslim Family Laws Ordinance, 1961 deals with the problem of a
grandchild inheriting from a deceased grandfather. All schools of fiqh agree that an orphaned
grandchild does not inherit from a deceased grandfather (paternal or maternal) if there are
other children. This has created problems for Muslims; Lucy Carrol explains:

“In a tribal society where the surviving sun

took over responsibility for the children of his
deceased brother in the extended family group, the
traditional rules of succession may not have
occasioned much hardship. But in a society where
nuclear families are more common, the total
exclusion of one line of the deceased’s

64 1993 SCMR 1718

23
 descendents appears both unjust and
unjustified.”65

A famous Oriental expert organizes the problems in the following words:

“The family has also been increasingly

affected by the changing nature of the society
produced by the growth of impersonal cities, an
industrial civilization, and a constant movement of
population, which changes have adversely
affected the protection afforded to orphaned
children by their deceased parents, brothers and
sisters as was normal in the larger family groups
of the past.”66

As for the appropriate solution of this modern problem, there is a difference of

opinion between the Muslims. Two contrasting solutions have been adopted: obligatory
bequests and a system of inheritance by right. Both solutions try to find justification in
Islamic sources and legal principles; both solutions have their advantages and disadvantages
as discussed by different writers.67 It is agreed by all that the Pakistani Solution i.e.,
inheritance by right I the more radical. Traditionalists in Pakistan oppose this concept on the
grounds that it violates the spirit and the structure of the Islamic Law of Inheritance.
Everybody agrees that orphaned grandchildren should be protected and there is no third
acceptable solution; therefore traditionalists in Pakistan prefer the solution of obligatory
bequest.

Tanzil-ur-Rehman, former chairman of the Council of Islamic Ideology, who has

played an important role in Islamizing the law in Pakistan, feels that only a small group of
modern individuals holds section 4 to be in accordance with Islamic Law. He says:

“I hold that Quranic injunctions, Prophet’s

traditions, and the verdicts of the companions and

65 Carroll, 1979: 139

66Faruki, 1965: 271-2

67 Hamid Khan: 1980.

24
 practice of the Ummah easily easily establish the
conclusion that section 4 the Family Laws of the
Ordinance VIII of 1961 is contrary to the
collective viewpoint of the Ummah.”68

He proposes the adoption in Pakistan of a law of obligatory bequest. He strongly

condemns the system of inheritance by right and calls the reformists’ interpretations
fallacious, ‘a mental obfuscation unworthy of any serious discussion’. He further says the
section 4 is inspired by not Islamic Law, but by Roman law and Hindu Law, being an
adaption of the repealed customary law of the undivided Punjab.

In 1980 a petition, Mst. Farishta v. the Federation of Pakistan, came before the
Shariah Bench of Peshawar High Court. The Bench to the Qur’an, Sunnah and also the works
of Tanzil-ur-Rehman, and came to the conclusion that section 4 of the law was repugnant to
the injunctions of Islam and should, therefore, be repealed. However, the case came up before
the Shariah Bench of the Supreme Court in 1981. The Supreme Court set aside the judgment
of the High Court on the ground that the High Court had no jurisdiction in the matter,
because it was a matter of Muslim Personal Law which, according to article 203B of the
Constitution of Pakistan, 1973, is outside the jurisdiction of the courts. That decision might
not be followed today after he passing of Ninth Amendment and the Shariat Bill in 1988, as
the jurisdiction of the Federal Shariat Court seems to have been enlarged. But since the death
of General Zia, the process of Islamization is not proceeding with the same intensity.
Nevertheless, if the process continues, there is a possibility that the issue will come up again,
and the judgment of Peshawar High Court could then become relevant.

In 1983, the court decided a case in accordance with section 4 of the Ordinance of
1961. A more liberal writer, while commenting on the case of Mst. Farisht, said:

“It is humbly submitted that when the

object of both the solutions is the welfare of the
orphan grandchildren, then why not retain the one
which is more in harmony with the rules of
succession that succession is a matter of right and
not need. The Pakistani reformers have hit the nail

68Tanzil-ur-Rehman, 1982: 101.

25
 on the head, as the rule of representation under
section 4 of the Muslim Family Laws Ordinance
gives the Orphan grandchildren the right of
inheritance irrespective of the fact whether they
are needy or not. The credit goes to the reformers
who have boldly cut the Gordian knot.”69

David Pearl rightly says that, after Islamization in Pakistan, the Muslim Family Laws
Ordinance, 1961 will inevitably be interpreted in such a way as to reflect the fundamentals of
Hanafi distribution in cases involving Hanfis.70

It is to conclude that the Section 4 of the Muslim Family Laws Ordinance, 1961 is
totally against the injunctions of Islam therefore it must be removed from the said Ordinance.

69 Ahmad Ali, 1986: 82

70Kamal Khan V. Zainab; Mai v. Falak Sher; Muhammad Fikree v. Fikree Development Corporation.

26
Bibliography
1. The Holy Quran
2. The Bible
3. The Constitution of Pakistan, 1973.
4. Commentary on the Constitution of Pakistan, 1973 by M. Mahmood.
5. Objective Resolution, 1949.
6. Speeches of Quaid-e-Azam Muhammad Ali Jinnah
7. Muslim Personal Law vs. State Law – Marriage and Divorce by Barrister Suleman
Khan.
8. Dissolution of Marriage: Practices, Laws and Islamic Teachings by
ShaguftaOmar.Policy Perspectives, Vlm 4, No.1
9. http://www.historytoday.com/ian-talbot/jinnah-and-making-pakistan
10. The Islamic Law of Inheritance by Hamid Khan.
11. PLD 1976 Lah. 930
12. PLD 2001 S.C. 18
13. P.O. 14 of 1985 w.e.f. 02-03-1985.
14. The Islamization of Law in Pakistan by Rubya Mehdi
15. The Muslim Family Laws Ordinance, 1961.
16. The Dissolution of Muslim Marriages Act, 1939.
17. http://polygamyinislam.com
18. http://www.islamweb.net
19. Kitab al Nikah,
20. IhyaUloomud Din
21. al-Hawi al-Kabir
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23. Principles of Muhammadan Law by D. F. Mulla.
24. Amir-ud-Din v. Kaatun Bibi (1917)
25. Muhammad Asad v. HumeraNaz 2000 CLC 1725.
26. MehnazMehboob v. Ishtiaq-ur-Rashid 2006 YLR 335.
27. QambarMurtazaBokhari v. Zainab Bashir PLD 1995 Lah. 187.
28. Fazal Hussain v. HusnaBano 1995 MLD 170.

27
 29. PLD 1963 SC 51
30. 1970 SCMR 845
31. 1993 SCMR 1718
32. Kamal Khan V. Zainab
33. Mai v. Falak Sher
34. Muhammad Fikree v. Fikree Development Corporation.

28