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Islamization of Pakistani Laws and the Effects on Family and Marriage Courts

Elizabeth Schweitzer

This paper will explore the history of Pakistan, the Islamization of it’s culture,

and its effect on marriage and divorce laws between 1954 to 1989 as well as the positive

changes in favor of women that took place between 1989 and 1999. In it I intend to look

at a number of cases from the two periods and analyze them; as well as look at how,

traditionally, the four different ethnic areas would decide such a case. I intend to compare

the cases from the two periods to show how the positive changes began to appear.

Pakistan was originally part of the large land mass known as India. Islam came to

India with Muhammad bin-Qasim in A.D. 712. Though from 712 to 991 there seems to

have been very little effort made by the conquerors to interfere with the native courts and

religon. From 991 to 1206 very little is known, but from 1206 to 1526, the time of the

slave dynasties, the Muslims permanently settled in India. The reign of the Mughals

(1526-1757) came to an end when the British ‘colonized’ and established power (Mehdi,

1994: 3).

During the latter part of the eighteenth century the Islamic criminal justice system

was replaced by a British-based one. But Hindu and Islamic law continued to be applied

as the personal law of Indian litigants in such matters as inheritance, succession and

religious endowments. This was the first time Islamic law became the object of a

systematic and constitutional legislation. The uniformity provided by the British had been

produced neither by Hindu nor Muslim law in India. But this uniformity and centrality

were provided at the cost of imposing rigid Islamic rules. The British acted as if Islam
consisted of universal rules disregarding the diversity of Islamic law. Because of that the

legalistic form of Islamic law that we see in many Muslim societies is strictly legalistic in

behavior because of the original structure put on it by the colonial British powers. The

legalistic form of Islamic law that we see in many Muslim societies is strictly legalistic in

behavior because of the original structure put on it by the colonial British powers.

In 1947 Pakistan became an independent country from India, since then Pakistan

has been under military dictatorship for more than half of its history, while the

military/bureaucracy has exercised indirect political influence the rest of the time. Since

it’s creation Pakistan has pledged to create an Islamic society. The Islamic Ideology of

the modern state of Pakistan forms an important part of the general social, legal and

political superstructure which has been constructed to justify and preserve the existing

social relationship between the classes and sexes (Haque, Ziaul, 1983: 368). The state

structure inherited from the colonial period an over-developed form of law. Because of

this the law became an instrument of the state, and in some situations the state did not

even hesitate to implement Martial law and abrogate the constitution of Pakistan.

Islamization included steps like compulsory prayers in Government offices during

working hours; the review of the textbooks to conform to Islamic teachings; emphasizing

Pakistan’s national Islamic Ideology; making Urdu the official language and medium of

instruction; and the compulsory wearing of national dress at Government functions.

Under Presidential order the month of fasting was legally enforced by prescribing

punishments, if violated publicly; radio and television were made to change their

programming to conform to Islamic teachings; in order to encourage the observance of


Islamic ethical standards, measures were taken to eliminate obscenity and vulgarity from

audiovisual media, art galleries, newspapers, journals, magazines and films.

Until Oct., 1999, when the constitution was suspended, Pakistan was governed by

the constitution of 1973 as amended in 1985, which provided for a federal parliamentary

form of government. Constitutional government was restored in 2002, although Pervez

Musharraf, who seized power in 1999, remained president and unilaterally amended

(2002) the constitution. Under the constitution, there is a bicameral parliament,

comprising a 342-member national assembly with 272 members directly elected from

single-seat constituencies and the rest nominated by the parties, and a 100-member senate

chosen mainly either by provincial assemblies or, in tribal areas, by popular election. The

president is the head of state, and the prime minister the chief executive. Each province

has its own legislative assembly whose members are elected by direct popular vote, a

provincial governor appointed by the president, and a chief minister elected by the

legislative assembly. There is an independent judicial branch of government.

The judiciary includes the Supreme Court, provincial courts, and other lesser

courts exercising civil and criminal jurisdiction. The president appoints the chief justice

of the Supreme Court; the president appoints the other Supreme Court judges after

consultation with the chief justice. The Supreme Court has original, appellate, and

advisory jurisdiction. There is also a Federal Shariat Court consisting of eight Muslim

judges, including a chief justice appointed by the president. Three of the judges are

ulama, that is, Islamic Scholars, and are well versed in Islamic law. The Federal Shariat

Court has original and appellate jurisdiction. This court decides whether any law is

repugnant to the injunctions of Islam. The court also hears appeals from decisions of
criminal courts under laws relating to the enforcement of hudood laws that is, laws

pertaining to such offenses as intoxication, theft, and unlawful sexual intercourse.

The class structure of Pakistan, while still containing elements of the castes of its

Indian heritage, has over the years become more western in its central divisions of

“upper” and “lower” classes based on wealth and education. The “upper” classes and

government tend to use English while the “lower” classes the to use Urdu, the national

language, as well as many other dialects depending on which ethnic group they belong to.

Pakistani laws and customs, as in many other countries, are the result of historical

experiences (colonialism had a substantial impact on statutory law), combined with local

structures of power (notably feudalism and tribalism), and cultural specificity (a broadly

South Asian culture with Islam as the faith of the majority). This combination serves to

produce the ‘living law’ in Pakistan, the rules that, in reality, govern people’s lives.

Islamic revivalism specially affected the legal status of women. Besides the

Islamization of laws which directly affect women, other rules an regulations have been

made; for example: Women in jobs and in the educational institutions are supposed to

wear the chader. Women newsreaders on television are supposed to cover their heads and

are not to wear make-up. Government directives curtailed unmarried women’s

opportunities in the foreign service. Women were banned from appearing in public

sports. Approval was given for the establishment of a separate university for women.

Women are no longer allowed to appear as witnesses in hadd cases and the law of

evidence made their testimony worth half of a man’s. The council of Islamic ideology

recommended that in the case of diyat, if the murdered person was a women the

compensation paid to the victim’s family was to be one-half that paid to the family of a
male Muslim victim (Mehdi, Rubya, 1994: 26). The fact that women have fewer rights

under Pakistani law indicates a governmental favoritism in the maintenance of extended

patrilineal kinship networks and in the control by the male members of those networks.

Even with the creation and enforcement of these new federal laws the four major ethnic

areas of Pakistan tend to have different ideas about how different cases should be

decided.

Through out the history of India, Indian villages have maintained an important

degree of autonomy. The rule of the king or emperor was felt mainly in the form of local

grants, taxes, and conscription. The king nominally administered Justice, but in actuality

the administration of justice was not centralized. Justice was administered in practice by

village tribunals, which applied local customary law. Overall the scope of Islamic law

was limited, leaving the ancient village organization with all its Hindu institutions intact.

Muslim courts were located in towns where the proportion of Muslims was also much

larger. Communications were primitive and expansion of the system was not desired at

the cost of disturbing the peace of the independent units of justice known as panchayats.

Though a pattern of political centralization was established under British rule and later in

independent India and Pakistan, the local political and legal structure still remained

strong. It is in this history that one can see the where the different ethnic groups

independence comes from.

The four major ethnic groups in Pakistan each have their own customs and

traditions, which include their own ways to maintain the Patrilineal networks. Each

Ethnic area has its own customary laws that they tend to follow more than the

authoritarian laws of the Pakistani government. The four main ethnic areas are:
Punjab: On the India-Pakistan border (eastern).

NWFP: On the Pakistan- Afghanistan border (western).

Sindh: Bordering China, India and Afghanistan (northern).

Baluchistan: Border by Afghanistan on the north and Iran on the west (southern).

While Pakistani federal laws dictates how courts should decide cases before 1989

much of the time tradition cames before laws, especially in the ethnic areas dominated by

tribal groups such as Sindh and Baluchistan. An example of this is Pakistan’s official law

on the age of marriage for girls: It is against Pakistani law (the child marriages restraint

act) for girls under the age of 16 to be married off by their parents or guardians; although

if a girl is married off at an age under 16 the married is not invalid in the courts. Provided

that the marriage is not consummated, after the girl turns 16 and before she reaches 18

years of age, she has the option to reconfirm or dissolve the marriage.

Punjab: In most cases, parents decide marriage partners for their daughters; father is the

wali and next most important is elder brother, the paternal or maternal uncles. In urban

areas the consent of the bride is given some respect, especially among highly educated

families. In rural areas, the views of the paternal uncles are given high priority, males are

the decision makers although the views of the mother cannot be ignored. Most marriages

for girls are contracted between the ages of 16-20.

NWFP: Parents decide; bride and groom’s opinion is seldom sought; In the central area

according to local tradition a girl has no right to choose whatsoever. In the urban areas a

girl’s consent is taken into consideration but the parents have final say. Girls cannot

refuse; in some areas girls are severely beaten if they attempt to reject their parent’s
choice. Most marriages are at the ages of 12-18 although in the urban areas it tends to be

18-20.

Sindh: Parents decide all matters relating to the marriage contract; the girl is generally

not consulted and those unwilling are compelled. Marriages are contracted at 14 and

above.

Baluchistan: Marriages are arranged by the family with the father as the main

authority. Among settler families the girls is asked but strictly as a formality. Girls

normally enter into marriage as soon as they reach puberty

Pakistani law states that after the age of 18 a girl has the right to choose her own

husband. If her parents object to her marriage there is no effective legal action they can

take against her. However, in all of the different ethnic areas the courts tend to be lenient

with relatives who kill women for making their own marriage contracts and accept the

argument of ‘grave provocation’ (ed. Balchin, Cassandra, 1996: 16). This tendency

toward the use of traditional rules before official law stems from Pakistan’s long history

of village autonomy and independence. For while the majority of Pakistanis approve of

the governmental Islamization policies many of those in the outlaying provinces believe

that they have been following strict Islamic policies already and that in those case where

the law can be bent or judges will turn a blind eye to “illegal” uses of traditional law it is

better for the community and for the family structure to use their customary law. The

other reason traditional law is continually used is because many times it is impossible for

women or girls to find out or know about the federal laws that they can use in their favor,

or if they know they are afraid to disobey their family. A case example of this from 1974

is:
An eighteen year old girl Farzana filed charges against her family after arriving at

a women’s shelter nearly beaten to death. She had come from a well to do family in the

Sindh area and wanted to complete her college education before marriage; she also did

not like the boy chosen for her. Her refusal to the marriage was seen as a slight to their

honor as they would be seen as having lost control of their daughter. She ran away to a

state run shelter and refused to go back, she was scared of being killed by her family on

return. She finally agreed to leave the shelter with a cousin ( the brother of the man she

was to be married to) who signed a statement promising that he would not let anyone

marry her off without her consent. Despite the cousin’s assurances, she ended up a virtual

prisoner at this man’s house and found preparations were being made for her wedding.

She attempted to run away again as was severely beaten by her family and left to die; she

was found and taken to a shelter. The court ruled against her accepting her family’s

argument of ‘grave provocation’.

This is a perfect example of a court ignoring a young women’s rights under the

federal laws in favor of upholding traditional values and rules. The court favored the

family and upheld it’s right to lash out at the daughter because she disobeyed. It is

significant that it took place in Sindh as Sindh is heavily influenced by the cultures

bordering it: China, India, and Afghanistan, all countries that tend to place a heavy

emphasis on male dominated families and tend to be Patrilineal to an extreme. This

tendency leads to heavy pressure by the community to enforce the male dominated

systems both in the households as well as in the legal levels of the community. This case

shows us that it is a slight on a family’s honor for their daughter to disobey them and that

it is better in the family’s eyes for her to be dead than to have disobeyed them. It also is
important to notice that in this community marriage is more important than the daughter’s

education.

Another example of the discrepancies before 1980 in the rulings of community

courts vs. federal law is in the matter of the types of marriage contracts. Federal law

states that for a marriage to be valid a nikahnama (marriage certificate/ document) must

be filled in and all conditions of the contract must be recorded in the nikahnama, which

must be registered with the ward Nikah Registrar. With out a nikahnama a couple were

not considered married in the eyes of the law. It is either the groom’s father or bride’s

father who is responsible for filing the nikahnama.

Punjab: Both written and oral marriage contracts are found. High rates of registration in

urban areas; in rural areas less registration is found.

NWFP: Most marriages are oral; no registration apart from main urban centers. In

Charsadda nikahnama is only registered if the boy gets some benefit out of documentary

proof of marriage.

Sindh: Most marriages are oral, registration practiced only in urban areas.

Baluchistan: Marriages are oral agreements. More than 90% are unwritten and

unregistered; most Baloch (northern tribe) feel it is against their honor to write down and

register the contract.

This tradition of not filing the nikahnama can be especially hard on women if they

wish a divorce or their husband dies. Under federal law a woman who is not officially

married with a filed nikahnama is unable to file for maintenance in the case of divorce or

has no legal way of obtaining her and her children’s inheritance if her husband dies. If a

woman cannot prove to the court that she and her husband were legally married then
there is almost no way for her to insure her statues. Plus in 1979 the Hudood Ordinances

were passed which carried stiff penalties for Zina (sex outside of marriage), so if a

woman cannot prove that she is married to the man she is living with then she can be

tried and convicted of Zina.

Case Example: In 1960 Almna filed for divorce and maintenance from her husband Bagh

Ali in the province of Baluchistan. Bagh Ali argued that he did not need to pay

maintenance, as they had never been married because no nikahnama had been filed.

Almna’s father brought forth a number of witnesses who had been at the wedding

ceremony when the oral vows had been said and the court agreed to grant the divorce and

maintenance. Bagh Ali appealed it to the high court where the court over turned the

previous decision deciding in favor of Bagh Ali as there had been no nikahnama filed and

then tried and convicted Almna of Zina.

This case demonstrates both how local courts will uphold traditional laws over

federal laws as well as how not filing nikahnama can adversely effect the wife. This case

also shows how the different legal levels of the court system will decide things differently

based on which set of laws they uphold. It is unfortunet that in his efforts to avoid paying

maintenance Bagh Ali managed to get his wife convicted of Zina; a crime which carries

the maximum sentence of death. It is important to notice that even with Almna’s father’s

witnesses the court declared the marriage invalid and stuck as strictly to the law as

possible.

Although both these cases turned out badly for both of the girls involved a

significant event happened in Pakistan in 1989 the helped push the issue of women’s

rights to the forefront. After 1989 elections it soon became clear that Benazir was entitled
to be Prime Minister. The religio-political parties raised the tirade that a women cannot

be Head of State in Islam. This was debated by her party as well as a number of political

women’s organizations which pointed out that there is nothing in the Pakistani

constitution that says a woman cannot be the head of state. They also pointed out that

there is nothing in the Quran that places a bar against a women from being a ruler of an

Islamic state. On the contrary in the Quran in Sura 27, there is the narration where a

messenger reported to King Solomon that:-

I found there a woman.

Ruling over them and provides –

With every requisite, and she

Has a magnigicent throne. Sura 27 Verse 23.

It is significant that the Quarnic verse does not criticize or give any indication of

debarring or restricting a woman from being a ruler. And luckily enough when a no-

confidence motion was proposed by the combined opposition parties it was defeated.

Thus, Making Pakistan one of the first Islamic countries to have a female head of state.

Women’s rights was one of Benazir’s main issues and right away she began to push to

make federal law known and enforced in rural and tribal areas. Even though the courts

were slow in changing there is substantial evidence that women were beginning to gain

more legal power. One example is in the case of divorce, Under Muslim Family laws

Ordinance, husbands may unilaterally exercise the right of Talaq (husband’s unilateral

and unconditional right of divorce), but the Talaq must be written and notification

provided to the Union Council and to the wife. Khula (a woman’s right to judical divorce

under Muslim jurisprudence) proceeds the same as Talaq once the court has granted
decree and notified the Union Council. Different judges accept different grounds for

Khula but usually declaration of hatred for the husband is sufficient.

Punjab: In rural areas Talaq and Khula are not at all common, although it is more

prevalent among lower income groups where it can occur without much social stigma. If

it does happen then the terms of the divorce settlement are determined by family elders.

There is a saying “ A women’s place is either in the Kor ( home) or Gor (grave).”

Divorce is not a third option.

NWFP: Divorce is very rare. Among the upper caste urban families there is some

divorce and a very few Khula cases. In the rural areas Khula is inconceivable, women are

not allowed to go to court for it and might be killed for trying as it is a social offense.

Life long separation is looked on more favorably.

Sindh: Divorce and Khula are very rare; highest and lowest castes sometimes have

divorces but among the middle castes there may be life-long separation but no divorce

except where the wife is unfaithful. They say “You’re going away on the dolee (bridal

chair) only come back if you’re in a coffin.”

Baluchistan: Divorce and Khula very rare. High rates of watta satta marriage, so if one

couple chooses to divorce the other must as well. In the very southern region of Makran,

which is non-tribal divorce and Khula are possible, and women do go to court.

In almost all of the different ethnic areas divorce is looked down upon, whether

its initiated by the husband or wife. This stems from the need to keep property in the

family and not have it be divided by divorce. Also divorce upsets the alliances marriage

creates between families and creates problems with the bringing up of children as well as

their inheritance.
Case Example: Naziran and Khadim in Lahore’s Kot Lakhpat were married for seven

years and had four children. Khadim was a daily wage laborer in a factory. From the

beginning of the marriage he used to physically abuse his wife and would give her

maintenance as and when it suited him. Naziran put up with all the abuse and much

against her will was constantly pregnant. As soon as the eldest child was able to look

after the younger ones she began to look for work outside of the home while Khadim was

gone at his job. As a result she was able to save some money, and as soon as she felt she

had enough she started protesting against Khadim’s treatment of her. This resulted in

serious disagreements and ended by Naziran leaving the house with the children and

successfully filing for Khula.

This case, apart from the obvious actual use of the federal law instead of the local

traditional law, has a number of interesting references about the culture. Obviously birth

control is either not known or unavailable to Naziran, even of the most primitive kind

also based on the facts it seems as if Naziran is basicly her husband’s property: he abuses

her, he can deny her money, and doesn’t have to listen to what she wants, if she hadn’t

been able to make the extra money she probably would have had to live like that forever.

In Pakistan there are five ways to get a divorce, each with their own requirements

and with their own processes. Below is a chart explaining the five different ways to get a

divorce under federal law. While all of them are used Talaq, Talaq-e-tafweez, and Khula

are the most common. The chart lists who files for divorce, what court hears the suit, if

you need a lawyer, how long the period is until you are considered divorced, the length of

time it takes to process the divorce, weather or not the dower is recoverable, if evidence

is required, and weather or not the divorce can be overturned.


Type of Talaq Mubarat Talaq-e- Khula Judicial
divorce tafweez divorce
Who Husband Both Wife with Wife wife
initiates the
divorce husband’s
permission
Forum Union Union Union Family court Family court
council Council Council
Is a lawyer No No No Yes Yes
needed?
Iddat 90 days 90 days 90 days 90 days after 90 days after
after after after court notifies court notifies
notification notification notification Union Union
council council
Usual length 90 days 90 days 90 days 4-18 months 6 months to
of procedure + 90 days many years +
iddat 90 day iddat
Is dower Yes Yes Yes Often not Yes
recoverable?
Evidence None None None Hatred of Detailed
required husband evidence
sufficient required
Can a court No, only if No, only if Only if the Yes Yes
overturn the the husband the couple wife fails to
divorce? fails to fails to follow
follow follow correct
correct correct procedure
procedure procedure

As you can see from this chart the easiest way to get a divorce is to have the husband file

it or for both of the parties to be involved. It is much harder for a woman to get a divorce

on her own, and even if the suit is accepted clerks tend to put off the suit so the procedure

can drag on forever. This is because there is less respect for a woman who wants a

divorce and women are less pushy about demanding that their suit be heard quickly. Also

a divorce initiated by the woman, even if it is filed correctly, is the only type that can be

overturned. The ability of men to achieve a divorce easier than women again shows the

legislative and legal support for male dominance in the society. In cases where the
husband files the suit or both do the case is heard at the Union Council, which is a group

of men who hear divorce suits in an informal setting, it is a much more congenial setting

then the family court which hears those suits filed by women where a lawyer is needed

and half the time hard evidence. But this doesn’t mean that women aren’t slowly filing

and winning more suits as in the case of Naziran.

Another example of a case that could have gone badly and ended up well is that of

Mst. Nasim Akhtar vs. the State. Mst. Nasim was tried for the alleged murder of her

husband. The local judge convicted and sentenced her to transportation for life. On

appeal to the High Court Mst. Nasim argued that she had never been married to the

deceased and was able to produce documentation that a marriage between her and the

deceased had never been recorded. She denied all the other allegations and pleaded that

she was sleeping on the night of the incident when at about 2:30am she felt that

somebody was picking at her clothes. When she woke up she saw that the deceased

wanted to criminally assault her, whereupon she raised alarm and other persons of the

neighborhood came to her rescue and beat on the deceased until he died. The court

looked over the evidence and decided that Mst. Nasim and the deceased had never been

married, they questioned the relationship between the two and wondered about Mst.

Nasim’s morals concluding that they believed the two had a liaison, but finally decided in

Mst. Nasim’s favor and dropped the charges.

In this case unlike the one before 1989, although Mst. Nasim’s values are

questioned, Mst. Nasim is not charged with Zina even though the court concluded that

she had sex outside of marriage. Also in this case the higher court found in favor of the

woman, although it should be pointed out that because the deceased could not speak for
himself little evidence was heard from his side. This case also shows that even though the

neighbors did the actual beating because Mst. Nasim called to them she was charged with

the murder. The high court found her not guilty of murder and decided in self-defense,

which indicates a higher regard for a women’s right to defend herself.

Since 1989 Pakistani women have slowly been gaining in the fight to be allowed

to exercise their rights. The Islamization of Pakistani law was not necessarily detrimental

to the fight for women’s rights but because it went unused for many years in favor of the

provincial living laws, which tend to make decisions that supports the local patrilineal

network, they didn’t necessarily help either. By the 1990’s feminists all around the world

were rejoicing at the strides Pakistan was taking in creating a sexually equal legal system.

Unfortunately Pervez Musharraf cut much of the progress made between 1989 and 1999

short with his seizure of power and suspension of the constitution in 1999.

In our first class we were given a definition of law that defined it as “the central

part of every culture because it deals with those behaviors which people think must not

take place.” I think that this is an appropriate definition of law for Pakistan and not only

its federal laws but the living law of the ethnic areas as well. A majority of the living law

supports the continuation of the patrilineal systems, that means deciding against

daughters who disobey or attempt independence. This can be seen clearly in the first two

cases. It is obvious that the legal structure in place in the different provinces is more

concerned with continuing the way of life as the community knows it and uphold the

values of the male dominated systems that has been in place for centuries then making

sure that the sexes have equal rights under the law. The Islamization of Pakistani federal
laws also set about attempting to continue Pakistan’s pledge to create a totally Islamic

country. Laws were modified to express Muslim morals and Quaranic teachings.