Transnational Islamic Law Journal Explores Global Issues

ISSN 2633-6626
Manchester Journal
of
Transnational Islamic Law & Practice
MJTILP
Volume 17
Issue 1
2021
Published by Electronicpublications.org Ltd
Electronic copy available at: https://ssrn.com/abstract=3946718

Manchester Journal of Transnational Islamic Law & Practice
About:
The MJTILP (formerly the Journal of Islamic State Practices in International Law) was founded in 2005. The
Journal is independent of any State or institutional affiliation with a truly diverse and global editorial board.
It is published once a year by Electronicpublications.org Ltd; and available both in electronic and printed
forms.
Aims of the Journal:

The principal objectives of the Manchester Journal of Transnational Islamic Law & Practice (MJTILP) are to
provide a vehicle for the consideration of transnational forms of Islamic law and practice. Transnationalism in
Islamic law is taken broadly as communications and interactions linking Islamic thoughts, ideas, people,
practices and institutions across nation-States and around the globe. In recent times, research in Islamic law has
shaped narratives based on nation-States, demographics, diasporic communities, and ethnic origins instead of
developing around a central core. Contemporary issues of Islamic law are increasingly linked to geographical
locations and ethnic or parochial forms of religious beliefs and practices. Expressions like American, European,
British, Asian and Arab Islam have widely gained acceptance.
Despite the growing importance of dialogue to develop shared understandings of issues facing Islamic law and
proposing coordinated solutions, the contemporary research and scholarship has not developed harmoniously
and remains piecemeal and sporadic. Researchers and practitioners of Islamic law are drawn from a wide variety
of subjects and come from various regions of the world but have insufficient institutional support for sharing
information and comparing experiences. Innovation in various strands and paradigms of Islamic law and
practice is stifled because there are limited spaces where evolutionary, collaborative and interdisciplinary
discourses can take place. This in turn hampers the ability to build on past research and record best practices,
negatively impacting a consistent and orderly development of the field. There is a need to constitute a world
community of Islamic law scholars based on interactions and aspirations moving across linguistic, ethnic,
geographical and political borders.
The MJTILP is inspired by the need to fill these gaps. It provides a platform to legal and interdisciplinary
scholars and researchers for critical and constructive commentaries, engagements and interactions on Islamic
law and practice that are built upon configurations in contemporary contexts. It welcomes contributions that
look comparatively at Islamic law and practice that apprise and inspire knowledge across national boundaries
whether enforced by a State or voluntarily practiced by worldwide Muslim communities. We are equally
interested in scholarships on encapsulated cultural worlds, diaspora, identity and citizenship that are embedded
and circumscribed by religious ties. As it has been the practice of the journal since its establishment in 2005, it
also has a specific interest in issues relating to the practice of Muslim States in international law, international
law issues that may concern Muslim countries, and all aspects of law and practice affecting Muslims globally.
Printed and bound by Antony Rowe Ltd. Eastbourne UK
ElectronicPublications.Org

MJTILP
Volume 17
Issue 1
2021
ISSN 2633-6626
Editor-in-Chief:
Dr Ahmad Ghouri
Senior Lecturer in Commercial Law & Director of Internationalisation, School of Law, Politics and Sociology,
University of Sussex, UK.
Deputy Editor-in-Chief:
Dr Amna Nazir
Lecturer in Law & Associate Director Centre for Human Rights, Birmingham City University, UK.
Associate Editors:
Dr Muneer Abduroaf, Senior Lecturer, University of the Western Cape, South Africa.
Dr Zubair Abbasi, Associate Professor, Lahore University of Management Sciences, Pakistan.
Dr Bader Aldosari, Assistant Professor, University of Prince Sattam Bin Abdul Aziz, Kingdom of Saudi Arabia.
Dr Milad Dokhanchi, Queen's University, Canada.
Dr Hossein Esmaeili, Associate Professor, Flinders University, Australia.
Dr Oumama Emad Ali Hamasha, Assistant Professor, University of Jordan.
Dr Muhammad Akbar Khan, Assistant Professor, International Islamic University, Pakistan.
Dr Mohammad Hedayati-Kakhki, University of Durham, UK.
Faisal Kutty, Associate Professor, Southwestern Law School and Associate Professor of Law Emeritus, Valparaiso
University.
Dr Sahar Maranlou, Lecturer, University of Essex.
Dr Eleni Polymenopoulou, Assistant Professor, Hamad Bin Khalifa University, Qatar.
Dr Ayesha Shahid, Assistant Professor, Coventry University, UK.
Dr Emine Enise Yakar, Associate Professor, Recep Tayyip Erdoğan University, Turkey.
Dr Abubakri Yekini, Lagos State University, Nigeria.

Assistant Editors:
Diana Carina Azoitei, The University of Law, UK.
Afrin Khan, Assistant Professor, Kirit P. Mehta School of Law, NMIMS, India.
Book Review Editor:

Dr Kahled Bashir
Lecturer, University of Aberdeen, UK.
Editorial Board:
Prof Asma Afsaruddin, Indiana University, USA.
Prof Asad Q. Ahmed, University of California, Berkeley, USA.
Imam Qari Asim MBE, Leeds Makkah Masjid and DLA Piper, UK.
Prof Dr Mohd Ma'Sum Billah, King Abdul Aziz University, Kingdom of Saudi Arabia.
Prof Mohamed Elewa Badar, Northumbria University, UK.
Prof Ilias Bantekas, Hamad Bin Khalifa University, Qatar.
Prof Ann Black, University of Queensland, Australia.
Prof L. Ali Khan, Washburn University, USA.
Prof Bashar H. Malkawi, The University of Arizona, USA.
Prof Nakib Muhammad Nasrullah, University of Dhaka, Bangladesh.
Prof Muhammad Munir, International Islamic University, Islamabad, Pakistan.
Prof Jeff Redding, The University of Melbourne, Australia.
Prof Javaid Rehman, Brunel University, UK.
Prof Ihsan Yilmaz, Deakin University, Australia.

Volume 17 2021 Issue 1
Contents
Editorial:
Transnational Forms of Islamic Law
Ahmad Ghouri 1
Articles:
Post-Islamism: From Making Islam Democratic to the Politics of Myth
Fatemeh Sadeghi 3
Is Taliban Story Going to be the Iranian Story? The Islamic Emirate v. the Guardianship of the
Jurist (Wilayat Faqih)
Haroun Rahimi & Ali Shirvani 19
The Concept of Just-War in Islamic and Modern International Law

Nehaluddin Ahmad, Siti Sara binti Haji Ahmad & Norulaziemah binti Haji Zulkiffle 29
Islamic Law of Armed Intervention for Peace and Humanitarian Purposes

Shahzeb Shahid 59
Neo-Ijtihād: A Hierarchical Process Adopted by Pakistani Judiciary in the Context of Muslim

Family Laws
Muhammad Farooq 95
Overturning the Reform of Polygyny: Shaykh Abu Zahra’s Renewal Thought Caught in the
Tradition
Salah al-Ansari 114

One Step Forward, Two Steps Back: The Unending Twist and Turn Regarding the Law of Khul‘
and its Exposition by the Superior Courts in Pakistan
Muhammad Munir 133
Legal Effects of Muslim States’ Reservations to the 1979 Convention on the Elimination of all
Forms of Discrimination Against Women (CEDAW)
Zaheer Iqbal Cheema & Shahrul Mizan Ismail 150
Implementation of International Human Rights in Pakistan: Finding a Balance between Western

Conceptions and Islamic Law
Sana Khan 168
Liability in Partnerships: A Comparative Analysis of American Common Law and Islamic

Law
Bander Almohammadi 184
The Law and Practice of Islamic Banking in Ethiopia: A Critical Review of Constitutional
Legitimacy and Dispute Resolution
Mohammed Ibrahim Ahmed 205
Transition of Marriage from Sacrament to Contract: Comparative and Critical Reflections on

Women’s Rights in Hindu and Muslim Laws
Shahnaz 228
Justice Delayed is Justice Denied: Post-Conflict Experiences of the Bangladesh War of

Independence
Mohammad Pizuar Hossain 245
The OIC and Women’s Rights: Exploring the Dichotomy of Representation

Richa Chaudhary 264
Book Reviews:
Islamic Finance: Law and Practice
Edited by Craig R Nethercott & David M Eisenberg, Reviewed by Ilias Bantekas 278

Islam and Muslim Resistance to Modernity in Turkey
By Gökhan Bacık, Reviewed by Emine Enise Yakar 281
The Objectives of Islamic Law: The Promises and Challenges of the Maqāṣid al-Sharīʿa
Edited by Idris Nassery, Rumee Ahmed, & Muna Tatari, Reviewed by Walid Ghali 285
Modern Hadith Studies: Continued Debates and New Approaches
Edited by Belal Abu-Alabbas, Michael Dann & Christopher Melchert, Reviewed by Mansur Ali 290

Volume 17, Issue 1: 133-149, 2021
One Step Forward, Two Steps Back: The Unending Twist and Turn Regarding
the Law of Khul‘ and its Exposition by the Superior Courts in Pakistan
Muhammad Munir
Abstract: This article analyses the proactive judicial law making by the Peshawar
High Court while deciding the Fakhar-ud-Din,1 and how the Hon’ble Supreme Court
reversed, through its decision in the Yasmeen Bibi case,2 some of what was achieved
in the former case. The main findings of this article are that in the Fakhar-ud-Din
case, the Peshawar High Court ruled that a Family Court should not order a wife to
return the entire amount of dower if such Court is convinced that a husband has forced
his wife to ask for khul‘ or when she is destitute, has no means and resources, and is
unable to pay back the whole dower/mahr. However, in the Yasmeen Bibi decision, the
Supreme Court has attributed many statements to Fakhar-ud-Din case that were never
stated in it. Such assertions include that:1) the wife shall not return dower/mahr to the
husband because a marriage contract cannot be valid and binding if its consideration
or dower/mahr is not received by the wife; 2) in case of khul‘ the wife is required by
the Qur’an not to return the dower; and 3) she has to return other benefits such as
gifts given to her by husband. The Supreme Court has also described marriage as a
‘civil contract’ and dower/mahr as its consideration. These remarks made by the
Supreme Court have no bases in Islamic law as they are against the Qur’an and the
Sunnah. Additionally, by ruling on the issue of repugnancy to Islam of Section 10(4)
of the Family Courts Act, both the Hon’ble Supreme Court and the Peshawar High
Court have intruded into the jurisdiction of the Federal Shariat Court, which has
already ruled that the said provision was not against the injunctions of Islam.
Keywords: Khul‘; Marriage; Dower/Mahr; S. 10(4) Family Courts Act 1964; Islamic
Law; Peshawar High Court; Supreme Court, Fakhar-ud-Din case, Yasmeen Bibi case
_____________________________________________________________________________
I. INTRODUCTION
One of the most puzzling jurisprudential questions is ‘what is law’? In the common law tradition,
which is followed in Pakistan, decisions of higher courts are binding on lower courts and in some
* Professor at the Department of Law, International Islamic University, Islamabad. Email:

muhammadmunir@iiu.edu.pk. The author wishes to thank Dr. Shafiqur Rahman; Aftab Ahmed Rana (Civil
Judge/Research Officer Lahore High Court; Qaiser Abbas; Farrukh Sohail; Sohail Khan; Hifzur Rahman; Mufti
Asadullah; and Mufti Usman Akbar for their help. Special thanks go to Amr ibn Munir and Talal Munir for proof
reading.
1
Fakhar-ud-Din v Kauser Takreem, PLD 2009 Pesh 92, per Justice Dost Muhammad Khan for Full Bench.
2
Yasmeen Bibi v Muhammad Ghazanfar Khan, PLD 2016 SC 613, per Justice Dost Muhammad Khan for Divisional
Bench.
133
MJTILP Vol. 17 Iss. 1 2021

cases binding on the same courts. This is the doctrine of precedent. Therefore, higher courts in
common law tradition have to be very careful in their decisions, which are treated as an important
source of law in shaping the outcome of similar cases in lower courts. Undoubtedly, issues often
arise where no precedent may exist providing higher courts with the opportunity to decide new
questions of law and create new precedents.3 The main issue under discussion in this article is that
before a good precedent laid down by a High Court, i.e., Fakhar-ud-Din case, was fully applied
and appreciated by the lower courts the same was rendered ineffective by the august Supreme
Court through Yasmeen Bibi case. Thus, the harmony and consistency in judgments by following
good precedents was disturbed once again by the highest court.
On the other hand, family law cases are on the rise in Pakistan, and to minimize delays in
adjudication, a fast-track procedure is provided by the Family Courts Act (FCA) 1964 as amended
up-to-date. Under Section 12-A of the FCA a Family Court shall dispose of a case, including a suit
for dissolution of marriage, within a period of six months from the date of institution and Section
14 of the Act makes it mandatory for the First Appellate Court to decide the case within four
months.
In this regard, the specific questions addressed by this article are as follows: should the wife be
ordered to return the entire amount of dower as mentioned in S. 10(4) of the FCA even if she is
not at fault? Under what circumstances she might be asked to return an amount or property that is
less than the amount of dower/mahr4 to the husband? Whether the provisions of FCA are against
the injunctions of Islam? And whether dower/mahr should not be returned as it is the consideration
for marriage contract which cannot be valid and binding if it is not paid to the wife?
This article has analysed a number of selected cases decided between 2009 to 2017. Only decisions
in which: (a) some new precedents were laid down; or (b) which overruled previous decisions; or
(c) which have either clarified an earlier vague area of law; or (d) have laid down guidelines for
lower courts to follow; or (e) which have rendered the law more puzzling; or (f) which involves a
discussion regarding the quantum of dower; or (g) which highlights the circumstances in which no
dower should be returned by the wife to her husband, are selected in this article. The methodology
used is doctrinal as the focus is on traditional legal sources, especially relevant statutes and case
law about the question listed above.
3
For details of the intricacies of the doctrine of precedent, see, Muhammad Munir, Precedent in Pakistani Law
(Karachi 2014).
4
The Arabic word mahr is usually translated as ‘dower’ but there are other translations too such as dowery, bride
price, or ‘token of respect’ but all these translations do not render into English all the implications of the Arabic word
‘mahr’. Disregarding the question of how accurate the translation is, it is always the property or wealth or assets either
given or promised to be given or partially given and partially promised by the husband to the wife. Anything that is
considered as māl or property and is accepted for legal transaction under Islamic law can be given in mahr. For a
comprehensive treatment of mahr in Hanafi jurisprudence, see, Mona Siddique, ‘Mahr: Legal Obligation or Rightful
Demand?’ (1995) 6 (1) Journal of Islamic Studies 14. In Pakistani legal literature the words mahr, dower and ‘Haq
Mahr’ are used as alternatives and the same tradition is followed in this work.
134

II. SHOULD A WIFE SEEKING KHUL‘ RETURN DOWER TO HER HUSBAND?
It is pertinent to note that law of khul‘ had attracted a lot of attention. From the 19th century5 to the
start of the second half of the 20th century the most contentious issue for superior courts had been
whether the consent of the husband is essential in deciding to grant khul‘ by courts. The issue of
consent or no consent was settled judicially by the apex Court in the Khurshid Bibi case6 by ruling
that such consent is not required7 thereby endorsing the view expressed in Balqis Fatima case8 by
the Hon’ble Lahore High Court. Subsequently, S. 10(4) was amended in 2002 which transformed
judicial findings that the consent of the husband is not mandatory in granting khul‘ by the Courts.
After the promulgation of the amendment, the focus of judicial interpretations shifted from consent
of the husband to the quantum of dower to be paid by the wife to her ex-husband but it did not
attract serious attention of academic lawyers. The superior Courts had given only a few noteworthy
decisions in which some fresh interpretations were pronounced on the issue of how much dower/
mahr to be given back by the ex-partner to her ex-husband. The Lahore High Court had ruled in
two identical cases in 2007, that is, Muhammad Rizwan,9 and Ikramullah Khan10 that in the case
of khul‛ the ex-wife must pay back the gains, especially the mahr she received from her husband.
Syed Zahid Hussain, J had relied on Khurshid Bibi case11 in Ikram Ullah Khan wherein the
Supreme Court had declared that in khul‛, if the husband demands, “it is legally permissible for
him to demand something more than the dower.”12
Once again, the Hon’ble Lahore High Court ruled in the Khalid Mahmood case13 that in case the
husband has forced the wife to get khul‛ the Court “can dissolve the marriage on the basis of khula‛
even without any compensation, when i[t] finds that khula‛ is being claimed due to the fault, on
the part of the husband.”14 In Qammar Alam Sheikh v Mst. Robina,15 Justice Mushtaq Ahmed
Memon of the Sindh High Court has nicely explained the principle regarding compensation. He
argued that:
“[T]he principle is that a wife can buy her freedom upon payment of compensation and in
the event of mutual agreement, parties can agree upon any figure. However, once the Court
is approached, the command of Shariah is very clear about the extent of compensation
money. It cannot be fixed at a figure higher than the dower amount and return of benefits
5
Moonshe Buzloor Ruheem v Shamsunnissa, 1861 8 MIA 379.
6
Mst. Khurshid Bibi v Muhammad Amin, PLD 1967 SC 970.
7
For details, see, Muhammad Munir, Islami Shariat Awr Pakistani Qanun Mei Khul‘ Ki Haysiyath: Rasool Akram
Salallahu ‘Alyhi Wasslm Ki Sunnat Ya ‘Adaliti Ijtihad? (Shariah Academy 2017); and Muhammad Munir, ‘The Law
of Khul‘ in Islamic Law and the Legal System of Pakistan’ (2015) LUMS Law Journal 33.
8
Mst. Balqis Fatima v Najm-ul-Ikram Qureshi, PLD 1959 Lah 566.
9
Muhammad Razwan Yousaf v Additional District Judge, 2007 CLC 1712.
10
Ikram Ullah Khan v Maliha Khan, PLD 2007 Lah 423.
11
Mst. Khurshid Bibi v Muhammad Amin (n 6).
12
ibid, 121 per S.A. Rahman, J.
13
Khalid Mahmood v Anees Bibi, PLD 2007 Lah 626.
14
ibid [11] per Syed Hamid Ali Shah, J.
15
Qamar Alam Sheikh v Mst. Robina and Others, 1997 CLC Kar 985.
135

by wife from her husband. However, in the case where fault is found on the part of husband,
the Court can reduce the amount of compensation and may even grant decree for Khula‘
without any compensation at all.”16
This principle was either reiterated or ruled earlier in some cases, especially Dilshad v Mst.
Musarat Nazir,17 Mst. Parveen v Muhammad Ali,18 Mst. Zahida Bi v Muhammad Masood,19 and
Mst. Shagufta Jabeen v Sarwar Bi.20 In Syed Haroon Sultan Bokhri v Syeda Mubarak Fatima,21
the Lahore High Court ruled that if the wife developed hatred or aversion as a result of the conduct
of the husband such as non-maintenance or physical or mental torture then dower shall not be
returned. However, the wife has to forgo her mahr and other gains obtained from the ex-spouse
when khul‘ is claimed without any fault of the husband. It is surprising to note that ‘fault on the
part of the husband’ could be one of the grounds under the Dissolution of Muslim Marriages Act
(DMMA), under which the marriage must be dissolved while the wife has to keep her dower and
other benefits and there is no question that she should return any amount of dower to the husband
in such a case.22
It is true that in many cases the superior courts rule that “one or more of the grounds, such as
cruelty, non-maintenance etc are proved, yet they dissolve the marriage on the basis of khul‛ rather
than under the DMMA.”23 Consequently, the battered wife is ordered by the Court to return her
mahr (dower). The cases in which this had happened include but are not limited to, Bibi Anwar,24
Bashiran Bibi,25 Abdul Majid,26 and Muhammad Sadiq.27
Perhaps one of the finest cases decided earlier is Haseeb Ahmad v Mst. Shaista28 whereby the
Hon’ble Peshawar High Court rendered a refreshing elucidation to section 10(4) of the FCA 1964
when it stated that “the proviso does not tie the hands of Family Court to such an extreme extent”
(that is, dissolving the marriage on the basis of khul‛ only when other grounds, such as cruelty
exist) and that accepting such an interpretation would render “the dissolution of marriage under
the said proviso” “a mechanical process. Additionally, it will deprive a wife to all admissible legal
16
ibid 991.
17
Dilshad v Mst. Musarat Nazir, PLD 1991 SC 779.
18
Mst. Parveen v Muhammad Ali, PLD 1981 Lah 116.
19
Mst. Zahida Bi v Muhammad Masood, 1987 CLC 57.
20
Mst. Shagufta Jabeen v Sarwar Bi, PLD 1990 Kar 239.
21
Syed Haroon Sultan Bokhri v Syeda Mubarak Fatima, 2014 CLC Lah 1270.
22
Dissolution of Muslim Marriages Act, 1939. For details of all these and many other issues, see, Muhammad Munir,
‘The Rights of Women and the Role of Superior Judiciary in Pakistan with Special Emphasis on Family Law Cases
from 2004-2008’ (2009) 3 Pakistan Journal of Islamic Research 271.
23
ibid 286.
24
Bibi Anwar Khatoon v Gulab Shah, PLD 1988 Kar 602.
25
Bashiran Bibi v Bashir Ahmad, PLD 1987 Lah 376.
26
Abdul Majid v Rizia Bibi, PLD 1975 Lah 766.
27
Muhammad Sadiq v Mst. Aisha, PLD 1975 615. For details, see Munir (n 22).
28
Haseeb Ahmad v Mst. Shaista, PLJ 2008 Pesh 205.
136

grounds of dissolution of marriage, other than khula”.29 The Court ruled that “we cannot imagine
that the proviso has been legislated to indirectly deprive women, of their all legally recognized
grounds of dissolution of marriage, excepting khula.”30 In addition, the Court held that the word
‘shall’ used in section 10(4) FCA31 “is directory in nature and not at all mandatory.”32 This
exposition of S. 10(4) and, especially the word ‘shall’ used therein adds a refreshing interpretation
by the Court.
In Abdur Rashid v Shahida Parveen,33 the husband’s petition for restoration of conjugal rights was
decreed in his favour. The first Appellate Court dissolved the marriage on the ground of cruelty.
On a writ petition, the Peshawar High Court converted the decree to dissolution of marriage on the
ground of khul‘. The husband requested the Family Court for execution of petition to recover
dower which was left unresolved by the High Court. The trial court dismissed the execution
petition and he brought writ petition to the High Court. Mrs. Irshad Qaiser, J. of the Peshawar High
Court relied on many cases, especially Syed Dilshad Ahmed v Mst. Servat Bi,34 where the learned
judge has given a long quote from Bidāyatu al-Mujtahid by Ibn Rushd (d. 1198 C.E./595 A.H.) of
the Mālikī School of thought to reach his conclusion in the case. The Peshawar High Court opined
that since it was the petitioner who created circumstances that forced her to resort to the court to
put an end to her marriage; that she has spent 16 years of her precious life with him during which
she has performed her marital obligations, therefore, in such a situation the life spent by the wife
with her husband can be taken as consideration for khul‘ and no dower was to be returned.35
In Dr. Fakhr-ud-Din case36 the main question before the full Bench of the Peshawar High Court
was that what procedure the Family Court will have to follow to decide a case of khul‘, especially
when paying back the dower/mahr amount to the estranged wife is contested. Under section 10(4)
of the FCA, 1964 as amended in 2002 the Court has to order the wife to return dower while issuing
a decree of separation through khul‘. In other words, in the case of khul‘ the issue of dower is
settled by the Family Court along with khul‘. The Court posed many questions to itself on the issue
and answered them one by one. These questions are:
29
ibid [2]. Also see, Munir (n 22).
30
Haseeb Ahmad v Mst. Shaista (n 28).
31
Here is the full text of section 10 (4) FCA: “[… notwithstanding any decision or judgment of any Court or Tribunal,
the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of
marriage forthwith and also restore the husband the Haq Mehr [mahr] received by the wife in consideration of marriage
at the time of marriage]”.
32
Haseeb Ahmad v Mst. Shaista (n 28) [5] per Syed Yahya Zahid Gillani, J. for the Divisional Bench.
33
Abdur Rashid v Shahida Parveen, 2013 YLR Pesh 2616.
34
Dilshad Ahmed v Mst. Servat Bi, PLD 1990 Kar 239.
35
Abdur Rashid v Shahida Parveen (n 33) [12].
36
Fakhr-ud-Din v Kauser Takreem (n 1). In the instant case a Family Court had dissolved marriage under section 10
(4) of the FCA without stating what steps the wife had taken to bring reconciliation between the parties. The High
Court disapproved the decision with a warning note to the trial judge. However, since the Family Court had dissolved
the marriage already and even the iddat period of the ex-wife was over, therefore, the High Court did not set the
impugned order of the Family Court aside. See, Fakhr-ud-Din v Kauser Takreem (n 1) [35].
137

i. “Whether under section 10(4) of the Family Courts Act, the Judge is not competent to grant
a decree on the basis of ‘Khula’ [khul‘] at pre-trial stage irrespective of the fact as to
whether the dower was paid or not?
ii. Whether the Family Court is under [a] legal obligation to postpone/defer the grant of decree
on the basis of ‘Khula’ if the question of payment or non-payment of dower is disputed
and shall try both the issues in a full dress trial?
iii. Whether the injunctions of Islam and [the] “Sunnah” debar Judge/Qazi from exercising
powers/jurisdiction that the dower/other benefits received by the wife are not returnable in
full or in part to the husband, keeping in view, the duration of marital bond and such other
factors which would cause hardship to the wife in her future life keeping in view her social
and financial status?”37
The Court focused on the word ‘received’ in the sentence in section 10(4), that is, “Haq Mahr
received by the wife in consideration of marriage at the time of marriage” and stated that these
words are of considerable importance and that the word “received” means “that the payment of
dower has either been established or its payment has been admitted by the wife at the time of
granting such a decree. Only in that case, the Family Court has to simultaneously direct the
restoration of dower to the husband. This condition, no doubt, is mandatory but is subject to
proof.”38 However, what procedure the Family Court should follow in case the payment of dower
to the wife is itself contested. “Whether the Family Court has to defer the grant of decree till the
time such [an] issue is resolved/determined after holding full dress trial forcing the spouses to live
in [a] hateful union crossing the limits ordained by Almighty Allah or it may grant a conditional
decree.”39 The Court rejected restricted interpretation of the proviso and mentioned that it would
certainly render it ineffective and useless.40 The Court stated that if the Family Court has to
determine such an issue of dower it has to hold a full trial, scrutinize the evidence presented by
both parties which would consume a long time. Thus, the purpose intended to be achieved by the
proviso would be defeated.41
The Court held that the Family Court “may grant decree for dissolution of marriage on the basis
of ‘khula’ [khul‘] when pre-trial reconciliation efforts fail. However, the Court while granting
decree for dissolution of marriage on the basis of ‘Khula’ shall record sound and cogent reasons
in support thereof and shall also state that after holding trial if the wife is found liable to pay back
the consideration determined by the Court which she had received, the same are to be returned to
the husband. However, the Family Court cannot defer the grant of decree on the basis of ‘Khula’
for disruption of marriage because the parties are not in agreement on the payment or non-payment
37
Fakhar-ud-Din v Kauser Takreem (n 1) [2].
38
ibid [14].
39
ibid.
40
ibid [15].
41
ibid [16].
138

of dower and the decree of ‘Khula’ shall remain effective from the date on which it is
pronounced.”42
While discussing the point whether under the Injunctions of Islam the Court is debarred from
exercising its jurisdiction to decree that the dower “received by the wife in peculiar circumstances
is not returnable in full or a part of it to the husband.”43 The Court approved the ruling in
Karimullah v Shabana44 in which it was ruled that the “Court has the powers to refuse the return
of the dower to the husband or to release him from the liability of its payment to the wife where
cruel treatment given to the wife by the husband is established and decree for dissolution on [the]
basis of ‘Khula’ [khul‘] is to be allowed.”45 It is worth noting, however, that cruelty by the husband
is itself a ground for the dissolution of marriage under section 2(viii) of the DMMA, 1939 and in
that case, the wife is not supposed to return any dower whatsoever to the husband. Secondly, when
cruelty is proven and established then why is the marriage dissolved on the basis of khul‘ under
which the battered wife is supposed to return her dower if received or forgo if not received.
The Hon’ble Court produced translation of the Qur’anic verse 2:229 from three different Urdu
sources and preferred the one in which the meaning of the Arabic phrase, (.‫ )فيما افتدت به‬is given as
“aagr ‘auwrat kuch mu‘awadha deykar…”, that is, if “the wife pays ‘some consideration’ to…”46
and opined that Allah has lessened the amount to be returned to the husband by the wife as she is
ordered to return only some consideration and for that reason, such a woman is under no legal
obligation to give back whatever cash or valuables she has got from her estranged husband in case
of khul‘. The Court reasoned that the absence of the specific words, i.e., dower or ‘Haq Mahr’ in
the said verse and the fact that it does not mention that the wife must return all the benefits she
was presented with or given by the husband. The Court argued that it implies that the judge is left
with some discretion to fix the amount of consideration that wife has to give back to the husband.47
The Court has also cited the case of Thabit b. Qays b. Shamas al-Ansari whose wife sought khul‘
from him through the Prophet Muhammad (Peace be Upon Him) and who returned her entire
dower, which was a garden to Thabit,48 however, the Court did not use it as a precedent. The Court
ruled that, “in our view, in peculiar and exceptional circumstances, the Judge has the authority to
determine that the Haq Mahr/consideration as a whole is not to be repaid by the wife but a part of
it. Similarly, it can also determine as to what extent the husband can be relieved from the payment
of dower, to the wife, if not already paid.”49 The Court laid down some guidelines to be taken into
42
ibid [21].
43
ibid [22].
44
Karimullah v Shabana, PLD 2003 Pesh 146.
45
46
ibid [25].
47
ibid [26].
48
Muhammad Isma‘il al-Bukhari, Al-Jami‘ al-Sahih (Cairo nd), Hadith no 4971, Hadith no 4972 and Hadith no 4973.
49
139

consideration by the Family Courts while dissolving marriage on the ground of khul‘. These are
given below:
1. If it is proven before the Court that the wife was neither disobedient nor the cause of
discord, rather the husband is to blame for the strained relations;
2. In a case where the wife seeking khul‘ is an orphan lady50 who is penniless and is unable
return any compensation whatsoever;
3. When the husband is in the process of entering into another marriage and is not bothered
to get the permission of the first wife;
4. When the wife has spent with the husband the prime of her life and she would be unable to
marry again after dissolution of her marriage through khul‘ because of her old age;
5. That she might be deprived and needy and is left with no shelter after khul‘ and apparently
she is unable to pay back the dower fully or partially;
6. That she might be compelled to live rough and sinful life to earn money to be able to pay
back the dower amount.51
The Court urged the Family Courts to remember the above guidelines while deciding how much
dower be returned by the wife to the ex-husband. The Court stated again that if the Court:
“genuinely apprehends that the wife would opt to live [an] immoral life to arrange money
for the payment of the dower, then it has to refuse to grant the same so that the
Judges/Courts who are supposed to do substantial justice may not be blamed to be
contributories in such a detestable acts [sic.].”52
The Court’s observations of how to conduct reconciliation efforts to preserve the marriage must
be appreciated in general. However, the first point above is applaudable but point number two
about the orphan cannot be supported by Islamic law. A man or a woman of every age is not
considered an orphan indefinitely under Islamic law. As to point three above the Court cannot put
restriction on the husband to look for another wife if the first one has approached the court for
khul‘. As for point four above the argument may be reversed in favour of the ex-husband who has
equally lived the prime of his life with the wife. The same is true of the husband whose wife seeks
50
This opens another question. Could a lady who is married, stays in marriage for some time, comes to the Family
Court, and asks for khul‘ can still be an orphan under Islamic law? Under Islamic law a boy or a girl remains an orphan
until they reach the age of understanding and marriage. The above description would make a woman of any age an
orphan which is not in accord with Islamic law. Under section 2(a) of The Child Marriage Restraint Act 1929 the
minimum age of marriage is 18 for boys and 16 for girls. As a matter of fact, the 18 th Amendment in 2010 to the
Constitution of 1973 has made the issue of child marriage a provincial subject which is why the provinces of Sindh
and the Punjab have amended their laws and have enhanced the punishments for violators of the laws. For details, see,
Muhammad Munir, Rights of the Child in Islam: Theory, Mechanisms, Practices and Convention on the Rights of the
Child (Islamabad: Iqbal International Institute for Research and Dialogue 2017) 172-73. Therefore, the above remark
does not seem alright under Islamic law.
51
52
ibid [32].
140

khul‘ through a court of law. He might also fail to find another wife and may be devastated. In case
the wife cannot pay back the entire amount of dower because she is destitute might be one of the
reasons to keep the marriage. The last point, that is, she might live an impious life to pay back the
dower, is problematic as for as Islamic law is concerned. Why should a woman confess in a court
of law that she is committing such a grave sin or has to commit such a sin to arrange money?
Wouldn’t this confession bring her punishment and put her in more trouble? Such observations by
the Hon’ble Court are causes for concern. Perhaps some family courts might be taking these
observations seriously but the best way to oblige Family Courts for taking these things into
consideration could be done through legislation rather than adjudication.
The Full Bench outlined the obligations of the Family Courts under section 10(4) of the FCA and
ruled:
“They shall have to make all-out efforts to conduct the [khul‘] proceedings in a professional
investigative manner while probing the subject matter and shall strive to discover the truth
as to who amongst the spouses is at fault and that meaningful attempts must be made to
preserve the marriage because in an Islamic Welfare State, a family is a primary unit, any
sort of disturbance therein or its frequent break up would destabilize the society as a whole.
… In view of the radical changes introduced through the proviso, the reconciliation efforts
now to be conducted must bear fruits.”53
At the end of the judgment, the Court directed the Family Courts and District Courts that “minutes
of the reconciliation efforts must be separately recorded with reasonable details, be read over to
the parties or their agents/counsels and the signatures/thumb impressions of the parties be obtained
thereon so that this Court or [the] Court of appeal is in a position to ascertain the nature of the
efforts made by the Family Court during reconciliatory proceedings and to see as to what were the
respective stances of the parties.”54 Perhaps this would make the job of the Family Court easier to
determine the quantum of dower that might be given back to the ex-husband. Copies of the Fakhr-
ud-Din case have been circulated to all Family Courts for compliance within the jurisdiction of the
Peshawar High Court.
III. REPUGNANCY TO ISLAM AND JURISDICTION IN MATRIMONIAL CASES
In Yasmeen Bibi55 leave to appeal was requested against the decision of the Multan Bench, of the
Lahore High Court. The petitioner had married the respondent, Muhammad Ghazanfar Khan in
1994. The dower deed or Nikahnama stipulated that a dower of Rs. 100,000 shall be payable on
demand. It was further stipulated in column 17 of the Nikahnama that the husband would give
53
ibid [33].
54
ibid [38].
55
Yasmeen Bibi v Muhammad Ghazanfar Khan (n 2).
141

rupees 1000 to Yasmeen Bibi as pocket money. Furthermore, the husband agreed to transfer 200
Kanal56 of land to his wife. With the passage of time relations between the two got strained and
the husband sent a written divorce deed to her. The husband had pronounced irrevocable divorce
three times in the presence of witnesses on 1.3.2005. The petitioner wife brought two suits: one
for the recovery of dowry articles and the other for the recovery of dower and arrears of
maintenance allowance in the local Family Court.
The respondent/husband brought a suit for restitution of conjugal rights and pleaded that he had
pronounced a revocable divorce. The Family Court decided the case in favour of the petitioner
awarding her arrears of maintenance, recovery of dower, as well as the landed property and
recovery of dowry articles. On appeal by the ex-husband, the District Court changed the findings
of the Family Court regarding the land and dowry articles. A single judge of the Multan Bench of
the Lahore High Court in his Chamber gave a rather strange ruling by stating that all the above
issues pertaining to the case were not within the Family Court’s jurisdiction. The learned Judge
relied on Muhammad Akram v Mst. Hajra Bibi.57
Mr. Ghazanfar, the ex-husband, appealed to the Supreme Court which explained the scheme under
the FCA, 1964, and the drastic changes introduced in it from time to time aimed at curtailing
delaying tactics by husbands. The Court referred to Muhammad Tariq v Mst. Shaheen,58 where it
was held by a Divisional Bench of the Peshawar High Court59 that “matrimonial disputes of all
kinds specified/listed in the schedule [to FCA] by now are to be exclusively dealt with and tried
by the Tribunal (Family Court) established and constituted under section 3 of the Act while
jurisdiction of all other Courts, Tribunals including Civil Courts has been expressly ousted.”60 The
Hon’ble Supreme Court held that:
“The jurisdiction and powers of all other courts thus stand excluded in these matters much
less Civil Court therefore, pushing one or the other party to the Civil Court would be in
clear violation of the mandatory provision of the law on the subject and would amount to
reverse the efficacious remedies available to them under the new scheme of law.”61
The Hon’ble Supreme Court treated the landed property as partial dower and held that it is well
under the jurisdiction of the Family Court. The Court opined that both the single Judge in Chamber
as well as the 1st Appellate Court made mistakes by giving wrong views. The Supreme Court
converted the petitions into appeals and allowed them. The cases were sent, however, to the High
Court to decide them on merit.
56
One Kanal has 5445 square feet.
57
Muhammad Akram v Mst. Hajra Bibi, PLD 2007 Lah 515. A similar view was also taken in Allauddin Arshad v
Mst. Nelofer Tareen, 1984 CLC 3369.
58
Muhammad Tariq v Mst. Shaheen, PLD 2006 Pesh 189 [13].
59
Justice Dost Muhammad Khan had authored the decision for the Divisional Bench.
60
Muhammad Tariq v Mst. Shaheen (n 58).
61
Yasmeen Bibi v Muhammad Ghazanfar Khan (n 1) [14].
142

The Hon’ble Supreme Court, while referring to Fakhr-ud-Din case62 (discussed above) stated that
the Peshawar High Court “while interpreting and construing all these new provisions introduced
in the Family Courts Act held that relevant provisions of the Family Courts Act, 1964 and that of
the Muslim Family Law Ordinance, 1961 (MFLO) were ultra-vires to the extent that the wife has
to return the dower in case of dissolution of marriage on the basis of “Khula” because under the
Islamic injunctions and according to the relevant verses of [the] Holy Qur’an, the wife has only to
return the other benefits, given to her by way of gift etc. and not the dower amount because that is
[the] most essential consideration for [a] valid contract of marriage being a civil contract, which
cannot become binding and valid unless the consideration is paid.”63
The Hon’ble Supreme Court has made many assertions in this case that are mystifying and
puzzling:
1. First, that the Full Bench of the Peshawar High Court in Fakhr-ud-Din case64 has declared
various provisions of FCA 1964 and MFLO 1961 as ultra-vires, especially the returning
of dower by the wife to her ex-husband in case of khul‘65. It is noteworthy that the Hon’ble
Peshawar High Court in that case never declared any provision of FCA as ultra-vires and
no section of MFLO got mentioned in that discussion at all.
2. Secondly, the Hon’ble High Court ruled in that case that the Family Court may properly
investigate the matter and record all the steps for reconciliatory efforts and get the minutes
of such steps signed by the parties and so on.
3. Thirdly, the Hon’ble High Court also mentioned that the entire amount of dower may not
be returned, rather something less than the dower amount may be ordered by the Court in
peculiar circumstances.
4. However, the Hon’ble Supreme Court has gone one step further by stating that according
to the Qur’an, ‘the wife only has to return other benefits, given to her by way of gifts etc.’66
This assertion is neither given in verse 2:229 discussed at length with Urdu translation from
three sources by the Hon’ble High Court67 nor is it supported by any other verse of the
62
Fakhar-ud-Din v Kauser Takreem (n 1). It is interesting that the author of Fakhar-ud-Din case, Muhammad Tariq
case, and Yasmeen Bibi was Justice Dost Muhammad Khan.
63
Yasmeen Bibi v Muhammad Ghazanfar Khan (n 2) [15].
64
Fakhar-ud-Din v Kauser Takreem (n 1).
65
See, Yasmeen Bibi v Muhammad Ghazanfar Khan (n 2) [15].
66
67
In Fakhar-ud-Din v Kauser Takreem (n 1) the Hon’ble Peshawar High Court has given three Urdu translations and
has given the source of two of them but has not given the source of the one on which the Court has relied. It is
interesting to note that the exact translation in question cannot be found in the entire list of 178 Urdu translations
available at <http://www.easyquranwahadees.com/> last accessed 25 July 2021.
143

Qur’an or ahadith of the Prophet Muhammad (peace be upon him). One should be
extremely careful while making such a statement regarding the Qur’an and the Sunnah.
5. Indeed, the Federal Shariat Court has already declared in Saleem Ahmed v Federation of
Pakistan68 that the exact proviso of the FCA, i.e. S.10(4) was not “in conflict with any
specific injunctions”69 of Islam. It is true that the decision of the FSC has focused on the
consent of the husband and in fact the quantum of dower to be returned by the wife to the
husband was never considered against Islam and, therefore, no petition has addressed this
exact issue. Arguendo, it is for the FSC to rule on the validity of this issue, that is, whether
the return of ‘Haq mahr’ in the said proviso is against Islam or otherwise. The decisions
reveal that one constitutional court has in the Yasmeen Bibi case crept into the jurisdiction
of another constitutional court. Such an exercise raises constitutional issues that could be
rectified only through a constitutional amendment.
6. Furthermore, the Hon’ble Supreme Court has mentioned that as per the Qur’anic injunction
the wife is not supposed to return the “dower amount because that is [the] most essential
consideration for [a] valid contract of marriage being a civil contract, which cannot become
binding and valid unless the consideration is paid.”70 First, declaring marriage as a ‘civil
contract’ and applying the ‘law of contract’ to a Muslim marriage is extremely problematic.
Secondly, describing dower as consideration for a marriage contract is another influence
from the Anglo-Indian judgments of the Crown Period, that is, 1857-1947 in which many
judicial innovations and (mis)interpretations of Islamic law took place. Thirdly, I have
thoroughly discussed elsewhere all the problems associated with the concept of calling a
Muslim Marriage as a ‘civil contract’. In our view, a Muslim marriage can only be called
as a ‘sacrosanct contract’ and not a ‘civil contract’.71
7. Dower is never a consideration for marriage. Should it be a consideration, then why is a

marriage perfectly valid when dower is not even fixed or is not prompt but is deferred?
The above concept is wrong both in its understanding of marriage as well as dower. In the
majority of cases dower only becomes an issue when the woman is divorced or gets khul‘
on her request or either the husband or the wife dies and the question of division of assets
of the deceased arises. If dower would be consideration, then there would be no
classification of mahr into deferred and prompt as no marriage would be valid unless and
until dower would be prompt. This would amount to the re-writing of basic tenets of
marriage in Islamic law. This description of dower and of marriage and the averment that
68
Saleem Ahmed v Federation of Pakistan, PLD 2014 FSC 43.
69
ibid [15] per Dr. Justice Fida Muhammad Khan.
70
ibid.
71
See Muhammad Munir, ‘Marriage in Islam: A Civil Contract or a Sacrosanct Contract’ (2008) XXXI (1) Hamdard
Islamicus 77.
144

marriage cannot become binding and valid unless the consideration is paid should be
considered as an aberration or innovation rather than interpretation.
8. According to Marghinānī (d. 596/1200) of the Hanafi school of thought, “The contract of
nikāh is valid even if no mahr (dower) is named in it. The reason is that nikah is a contract
of joining and union in its literal meaning and is, therefore, complete with two spouses.
Therefore, mahr is obligatory (wājib) according to the shari‘ah, as an expression of the
sanctity of the subject-matter. Consequently, there is no need of mentioning it for the
validity of nikah. The same rule applies when a man marries the woman with the stipulation
that there is no mahr for her.”72 In his commentary on al-Hidāyah Kamāl Ibn Humām (d.
1457 C.E.) argues that dower has not been enjoined as a consideration like a price or a
wage, otherwise it would have been set as a prior condition….”73 He compares dower to
an implied condition which is always read into a contract even if it is never expressly
mentioned by both the parties and asserts that “just like possession (of the commodity) is
not stipulated for the validity of sale agreement” same is dower.74
9. It is pertinent to note how the concept of marriage as well as dower, were distorted by the
Anglo-Indian judges which have influenced these concepts in Pakistan and India as the
same can be seen in courts’ judgments till today. In Abdul Kadir v Saleema Justice
Mahmood of the Allahabad High Court had ruled that “Dower, under the Muhammadan
Law, is a sum of money or other property promised by the husband to be paid or delivered
to the wife in consideration of the marriage …”75 Sir Dinshaw Fariduji Mulla who
attempted arbitrarily to compile precedents by Anglo-Indian judges in his Principles of
Mahomedan Law is to blame for perpetuating the distortion of Islamic law. Mulla defines
marriage as “a contract which has for its object the procreation and the legalizing of
children.”76 Mulla has attributed this description of marriage again to Abdul Kadir case.77
Justice Mahmood has spiced up this statement by proclaiming that “Marriage among the
Muhammadans is not a sacrament, but purely a civil contract.” 78 Mulla had never studied
Islamic law which is why his book has many wrong concepts. He states that “No
Mahomedan marriage, either among Sunnis or Shias, is permanent in the sense in which a
Christian or a Parsi marriage is, for the husband may divorce the wife at any time he
likes.”79 In addition, he also argues that “A marriage, however, [of a Mahomedan man]
72
Imran AK Nyazee (trans) Burhan al-Din al-Marghinani, Al-Hidayah (The Guidance) (Amal Press 2006) 1:507. With
some difference, the same is also available at <http://www.muftisays.com/qa/question/2915/mehr-issue.html>
accessed 31 July 2019.
73
Kamal al-Din Muhammad b ‘Abdul Wahid, Fath al-Qadir (Dar al-Fikr nd) 3:316.
74
ibid.
75
Abdul Kadir v Saleema, ILR (1886) 8 Al 149 per Mahmood J.
76
M. Hidayatullah and Arshad Hidayatullah (eds), Sir Dinshaw Fariduji Mulla, Principles of Mahomedan Law (19th
edn, Lexis Nexis Butterworths 2005) 223.
77
Abdul Kadir v Saleema (n 75).
78
ibid [8].
79
Mulla (n 76) 232.
145

with an idolatress or a fire-worshiper, is not void (batil), but merely irregular (fasid).”80
The above quotes are enough to know the lack of Mulla’s knowledge of Islamic law.
Unfortunately, courts in Pakistan and India continue to rely on this work. The Supreme
Court has not referred to Mulla’s book directly, but it is clear that it has adopted Mulla’s
concept of dower and marriage in the Yasmeen Bibi case discussed above.
10. It is important to mention that in some old cases the superior courts have given the true
nature and place of dower. In Anwarul Hassan Siddiqui v Family Judge the Sindh High
Court has opined that “The dower, therefore, is a right which comes into existence with the
marriage contract itself except that in case the dower is deferred its enforcement is held in
abeyance till a certain event, i.e. dissolution of marriage by death or divorce, occurs.”81 In
Zarin Qaisha v Arbab Wali Mohd the Peshawar High Court has described dower as “a mark
of respect” to the wife.82 If dower would be a bride-price, then how could half of it be
payable when it is just fixed and the marriage is never consummated; and why it is payable
in its entirety if the marriage is over just after consummation?83
11. Mulla’s concepts of marriage and dower are deeply woven into our legal system. What
started as wrong concepts were transformed into legal formulations in the judgments of our
superior courts which became not only precedents but are considered as legal doctrines.
Similarly, Mulla’s treatise is not treated as a textbook or a compilation of precedents but
as a ‘statute book’.
12. The Yasmeen Bibi ruling attempts to open the Pandora box as most husbands in Pakistan
do not pay the entire amount of dower as it remains a deferred dower. As per the ruling in
Yasmeen Bibi case above a marriage in which mahr is not given to the married partner is
not valid and binding. In addition, dower may not be very valuable as in the Shāfi‘i’ school
anything that is valuable or has a price or could be paid as rent could be fixed as dower
whether it is more or less.84 The Shāfi‘i’ jurists refer to the saying of the Prophet
Muhammad (Peace be upon him) in which he is reported to have said to one of his
companions who requested the Prophet to marry him to a certain woman, “look (for
something) even if it is an iron ring….”85 The iron ring has no value as such in monetary
terms. Thus, if dower would be a consideration for marriage it wouldn’t be the equivalent
of an iron ring as per the formulations of jurists of the Shāfi‘i’ school.
80
ibid 226.
81
Anwarul Hassan Siddiqui v Family Judge, PLD 1980 Kar 477.
82
Zarin Qaisha v Arbab Wali Mohd, PLD 1976 Pesh 128.
83
For a comprehensive legal analysis of mahr under the Hanafi jurisprudence, see Siddique (n 4).
84
See ‘Ali b. Mohammed Al-Baghdadi, Al-Hawi fi al-Fiqh al-Shafi‘i’ (Dar al-Kutub al-‘Ilmiyah 1414 AH) 9:397.
85
See Malik b. Anas, Al-Muwatta, Hadith no 1096; Bukhari (n 48), Hadith no 4742; and Muslim b. al-Hajjaj, Sahih
Muslim, Hadith no 3553.
146

13. The Yasmeen Bibi case was about talāq (divorce) and the jurisdiction of the Family Courts.
It was not about Khul‘ or how much dower amount the wife has to return to the husband
and whether such a return was or was not allowed as per the Qur’anic provision, however,
the Hon’ble Supreme Court’s discussion of Fakhar-ud-Din case and its ruling about the
legality and Islamic validity of dower under section 10(4) of the FCA raises more questions
rather than answering them.
IV. DOES CONSUMMATION AFFECT THE AMOUNT OF DOWER?
In Muhammad Akbar v Shazia Bibi86 the Honourable Supreme Court has given the correct position
of Islamic law regarding the amount of dower to be paid in case the marriage was not
consummated. This case was also decided by a single Judge of the Lahore High Court, Multan
Bench in Chamber whereby the full amount of dower was awarded to the woman although the
marriage was not consummated. In this case, the main dispute was about landed property
measuring 99 Kanals which the District Appeal Court has awarded to the wife. The ex-husband
had challenged it in a writ petition in the Multan Bench of the Lahore High Court. The High Court
dismissed the same.
The Hon’ble Supreme Court referred to the Qur’anic verse 237 of Surat al-Baqarah (2:237) which
says, “And if you divorced them before you have touched them, and you have already settled a
dower on them, then pay them one-half of what you have settled…” and also relied on its own
previous decision of Ali Ahmad v Mst. Gulshan87 where leave was refused with the observation
that the wife shall be entitled to half of the land in lieu of mahr if the marriage is not consummated.
The Court, therefore, ruled that “according to Islamic law, it is a well-settled principle that where
the marriage has not been consummated, the wife is entitled to only half of the fixed dower and
the remaining half is to be returned/restored to the husband, unless such right is waived by him
voluntarily.”88 The appeal brought by the ex-husband was dismissed and the Court partly allowed
the appeal by the ex-wife entitling her to 49 Kanals and 10 Marlas of land in lieu of the dower.
In Islamic law, three things confirm mahr: sexual intercourse, valid retirement, or death of either
wife or husband irrespective of the type of mahr. No part of mahr can cease after this. The case
above, that is, Muhammad Akbar v Shazia Bibi, involves divorce taken place before
consummation, in which case the wife is still entitled to half of her mahr. The juristic debate is,
should wife be given anything at all since the marriage is not consummated, or whether she be
paid full mahr since the husband has opted not to have intercourse with her. But the command in
Qur’an (2:237) is clear and she is entitled to half of dower fixed dower or mahr al-mussama. In
case the husband divorces his wife without fixing her any dower, the wife is entitled to a gift called
86
Muhammad Akbar v Shazia Bibi, PLD 2014 SC 693.
87
Ali Ahmad v Mst. Gulshan, 1998 SCMR 2347.
88
ibid [9] per Anwar Zaheer Jamali for the Divisional Bench.
147

the mut‘a. It is a type of compensation given to the wife which must not be more than half the
mahr al-mithl or standard dower. The Qur’an mentions the quantum of mut‘a when it says, “Give
her a present, the rich according to his wealth, and the poor according to his poverty.” 89 Thus,
where the marriage is ended without consummation, half of the mahr must be paid to the wife,
whereas consummation, incurs full mahr because it confirms the woman legal position as the
sexual partner of her husband.
V. CONCLUSIONS
To sum up this discussion the important points are summarized. In Fakhr-ud-Din case,90 the
Hon’ble Peshawar High Court has laid down detailed guidelines for Family Courts of the province
in determining the amount of compensation to be returned to the ex-husband if the marriage is
dissolved through khul‘. Should the wife be forced by the husband to resort to khul‘ and when she
is destitute and has no means to pay the compensation to her husband then the court may not order
her to return him anything. The Fakhr-ud-Din case91 is a good example of judicial law-making
in which courts play the role of the legislature under the weak disguise of interpretation.92 Some
of the guidelines by the Hon’ble Court are however problematic, especially the observations of
treating a married woman of any age as an orphan and that a woman seeking khul‘ might be
compelled to live rough and sinful life to earn money to be able to pay back the dower amount93,
from the perspective of Islamic law.
Although the decision of the Hon’ble Peshawar High Court is complied with by the Family Courts
of the province the Hon’ble Supreme Court’s decision in Yasmeen Bibi case94 has rendered the
Fakhr-ud-Din’s case useless by ruling that the proviso of section 10(4) of the FCA, 1964, that is,
ordering the ex-wife to pay back the dower to her ex-partner, is ultra vires to the extent of payment
of dower to the husband in case of khul‘. The observations of the Hon’ble Supreme Court in
Yasmeen Bibi’s case that certain provisions of the FCA and the MFLO were declared ultra-vires
by the Fakhr-ud-Din’s case are factually not true as no provision of both Statutes were declared
ultra-vires. The ruling in Yasmeen Bibi’s case means that the good guidelines laid down in the
Fakhr-ud-Din’s case are no more binding on the Family Courts under the jurisdiction of the
Hon’ble Peshawar High Court.
Moreover, Family Courts throughout the country should treat the said proviso, that is, returning of
dower amount by the wife to the husband, as ultra vires and should not order any wife to return
89
Qur’an 2:236.
90
91
92
For details, see Muhammad Munir, ‘Are judges the Makers or Discoverers of the Law? Theories of Adjudication
and Stare Decisis’ (2013) 21 Annual Journal of International Islamic University Islamabad 7-40.
93
94
148

any amount of dower to the husband in cases of separation through khul‘ by Family Courts. The
Yasmeen Bibi ruling is highly problematic as the vast majority of husbands in Pakistan do not pay
the entire amount of dower, and in most cases at least half of it remains a deferred dower. As per
the ruling in Yasmeen Bibi’s case discussed above a marriage in which mahr is not given to the
married partner is not valid and binding. It means that marriages of the overwhelming majority of
couples in Pakistan are neither valid nor binding. This observation puts the Islamic law of marriage
upside down as far as the consequences of prompt and deferred dower are concerned. The Hon’ble
Supreme Court has gone one step further by asserting that the Family Courts should not ask the
ex-wife to pay back any part of dower to her ex-husband because dower is consideration for
marriage and when consideration is not paid the marriage is not complete. Asking a woman by
Family Courts not to return any dower whatsoever would be against the Injunctions of the Qur’an,
the Sunnah of the Prophet Muhammad (Peace be upon him), and the formulations of eminent
Muslim jurists of all schools of thought. On the one hand by ruling on the issue of repugnancy to
Islam regarding the proviso in S. 10(4) of the FCA both the Hon’ble Supreme Court as well as the
Hon’ble Peshawar High Court seem to have assumed the jurisdiction of the Federal Shariat Court.
On the other hand, the observations of the Hon’ble Supreme Court in the Yasmeen Bibi case
regarding the place of marriage and dower under Islamic law are not grounded in Islamic law. It
is interesting to know that hundreds of cases under section 10(4) are decided every day by the
Family Courts across the country in which wives are ordered to return dower to their husbands in
utter disregard of Yasmeen Bibi’s judgment.95
95
See Muhammad Munir, ‘Fast-track Procedure and Slow-track Results: Time Frame of Family Law Case Disposals
in Pakistan’ (2021) 7 (1) LUMS Law Journal 1, where the author has analysed data collected from Family Courts in
different districts of the country to determine whether the strict time frame is practically followed or not.
149

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Transnational Islamic Law Journal Explores Global Issues

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ISSN 2633-6626

Published by Electronicpublications.org Ltd

Electronic copy available at: https://ssrn.com/abstract=3946718

Aims of the Journal:

Printed and bound by Antony Rowe Ltd. Eastbourne UK

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Electronic copy available at: https://ssrn.com/abstract=3946718

Book Review Editor:

Prof Asad Q. Ahmed, University of California, Berkeley, USA.

Prof Mohamed Elewa Badar, Northumbria University, UK.

Prof Ilias Bantekas, Hamad Bin Khalifa University, Qatar.

Prof Ann Black, University of Queensland, Australia.

Prof L. Ali Khan, Washburn University, USA.

Prof Bashar H. Malkawi, The University of Arizona, USA.

Prof Nakib Muhammad Nasrullah, University of Dhaka, Bangladesh.

Prof Muhammad Munir, International Islamic University, Islamabad, Pakistan.

Prof Jeff Redding, The University of Melbourne, Australia.

Prof Javaid Rehman, Brunel University, UK.

Prof Ihsan Yilmaz, Deakin University, Australia.

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Volume 17 2021 Issue 1

The Concept of Just-War in Islamic and Modern International Law

Islamic Law of Armed Intervention for Peace and Humanitarian Purposes

Neo-Ijtihād: A Hierarchical Process Adopted by Pakistani Judiciary in the Context of Muslim

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Implementation of International Human Rights in Pakistan: Finding a Balance between Western

Liability in Partnerships: A Comparative Analysis of American Common Law and Islamic

Bander Almohammadi 184

Mohammed Ibrahim Ahmed 205

Transition of Marriage from Sacrament to Contract: Comparative and Critical Reflections on

Justice Delayed is Justice Denied: Post-Conflict Experiences of the Bangladesh War of

Mohammad Pizuar Hossain 245

The OIC and Women’s Rights: Exploring the Dichotomy of Representation

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By Gökhan Bacık, Reviewed by Emine Enise Yakar 281

Modern Hadith Studies: Continued Debates and New Approaches

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* Professor at the Department of Law, International Islamic University, Islamabad. Email:

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III. REPUGNANCY TO ISLAM AND JURISDICTION IN MATRIMONIAL CASES

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7. Dower is never a consideration for marriage. Should it be a consideration, then why is a

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IV. DOES CONSUMMATION AFFECT THE AMOUNT OF DOWER?

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