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IPL Assignment BY Qasim

Islamic Jurisprudence I (Bahria University)

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ASS
NO.

ISLAMIC PERSONAL LAW

SUBMITTED TO:
Ma’am Sabeen Arif

SUBMITTED BY:
Qasim Ali Khan
(01-177171-027)

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TABLE OF CONTENT

ABSTRACT.........................................................................................................i

1. INTRODUCTION..........................................................................................1

2. SECTION 7 OF MFLO, 1961........................................................................1

3. IMPLICATIONS OF SECTION 7................................................................2

4. ARGUMENTS IN FAVOUR OF SECTION 7.............................................2

4.1 EFFECTIVE RECONCILIATION........................................................2

4.2 DOCTRINE OF NECCESSITY..............................................................2

4.3 PROCEDURAL REQUIREMENT FOR ADMINISTRATIVE

PURPOSE........................................................................................................3

4.4 NO PROHIBITORY VERSE IN QURAN.............................................3

4.5 PUNISHMENT IS FOR ENFORCEMENT..........................................3

5. ARGUMENT AGAINST SECTION 7..........................................................3

5.1 BLACKMAILING, TORTURING AND HARASSING.......................3

5.2 EFFECTIVENESS DEPENDENT ON NOTICE..................................4

5.3 FLAW IN IDDAT PERIOD OF PREGNANT WOMEN......................4

5.4 FLAW IN IDDAT PERIOD OF NON PREGNANT WOMEN............4

5.5 FLAW IN IDDAT PERIOD OF WOMEN WHO HAVE NOT

CONSUMATED..............................................................................................5

5.6 FLAW IN START OF TIME PERIOD OF IDDAT...............................5

5.7 NO PUNISHMENT SHALL BE GIVEN...............................................5

5.8 FLAW IN EFFECTIVENESS OF THIRD DIVORCE.........................6

6. CASE LAW IN FAVOR OF SECTION 7.....................................................6

Nawaz Gardezi v. Lt. Col Muhammad Yousaf................................................6

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Mst Farah Naz v. Judge Family Court..........................................................6

7. CASE LAW AGAINST SECTION 7.............................................................6

Allah Rakha v. Federation of Pakistan...........................................................6

8. CONCLUSION...............................................................................................7

BIBLIOGRAPHY...............................................................................................8

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ABSTRACT

Muslims attach tremendous significance to issues involving talaq. Section 7 of Muslim

Family Law Ordinance deals with Talaq. However, it is one of the most controversial and
confusing section in Pakistani Laws. The purpose of this assignment is to critically analyse
Section 7 and put forward the arguments in its favour and against it. To achieve this purpose,
the methodology used was researching through different articles and websites as mentioned
in the bibliography. The result of my analysis shows that the arguments against Section 7 are
stronger than arguments in favour of Section 7. So, it is high time that Supreme Court of
Pakistan should clarify the confusion regarding divorce and give a sound interpretation to
Section 7.

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1. INTRODUCTION

The Muslim Family Law Ordinance, 1961 is one of the most controversial reform laws in
Pakistan. This ordinance was made for the protection of female, however, the Section
contained in it are mostly criticized by the scholars and are considered by them as against the
injunction of Islam. This Ordinance is applicable to all the citizen living inside and even
outside of the country.1 The purpose of this assignment is to critically analyse Section 7 of
Muslim Family Law Ordinance, 1961. But before going further into the discussion we need
to discuss the background of Muslim Family Law Ordinance, 1961.

The background of Muslim Family Law Ordinance, 1961 is interesting. In 1955, Muhammad
Ali Bogra, the then Prime Minister of Pakistan, married his secretary while still legally
married to his first wife. His first wife was the member of APWA (All Pakistan Women
Association). Due to this fact APWA organized campaign throughout the country. The
campaign contained elite class citizen, so it was difficult to ignore it. The campaign widely
spread throughout the country due to which on August 4, 1955 the government of Pakistan
announced a seven-member Commission on Marriage and Family Laws, consisting of Dr.
Khalifa Shuja-ud-Din (President), Dr. Khalifa Abdul Hakim (Member Secretary), Maulana
Ihtisham-ul-Haq, Mr. Enayet-ur-Rahman, Begum Shah Nawaz, Begum Anwar G. Ahmad and
Begum Shamsunnahar Mahmood. The commission recommended enactment of family laws
and put forward a report containing certain recommendations in June 20, 1956. In 1961,
Muhammad Ayub Khan, the then President of Pakistan, made an Ordinance in the light of the
report. The Ordinance was named as Muslim Family Law Ordinance, 1961.2

An analysis of all the eleven sections of Muslim Family Law Ordinance, 1961 would take up
a large volume. Here my focus will be only on critical analysis of Section 7 of MFLO which
deals with Talaq. But before the analysis we need to know the Section 7 of MFLO.

2. SECTION 7 OF MFLO, 1961

Section 7, in simple words, states that any man who wishes to divorce his wife shall after the
pronouncement of Talaq, give the chairman of the Union Council, a notice in writing of his
having done so and shall supply a copy to his first wife. If he fails to do so, he must be
1 Section 1(2) of Muslim Family Law Ordinance, 1961.
2 Munir, M. (2013). Reforms in triple talaq in the personal laws of Muslim states and the Pakistani legal system:
Continuity versus change. International Review of Law, 2013(1), 2. doi:10.5339/irl.2013.2.
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punished. Moreover, if the Talaq is not revoked it shall not be effective until the expiration of
ninety days from day on which notice is delivered to the Chairman. Also, if the wife is
pregnant and Talaq is pronounced, Talaq shall not be effective until the period of 90 days or
the pregnancy, whichever later, ends.3 Thus, Section 7 has following implications.

3. IMPLICATIONS OF SECTION 7

The three most important implications of Section 7 are

1. It refers the issue of divorce to an administrative body.

2. Talaq is not effective for ninety days during which reconciliation shall be attempted
between the parties.

3. Section 7 has impliedly abolished Talaq al Bida.

4. ARGUMENTS IN FAVOUR OF SECTION 7

4.1 EFFECTIVE RECONCILIATION

The procedure given in Section 7 provides an effective way for husband and wife to
reconciliate. Talaq is considered one of the most hated but legal act by God. Due to effective
reconciliation process many couples can be stopped from divorcing each other.

4.2 DOCTRINE OF NECCESSITY

Doctrine of necessity says that what otherwise is unacceptable, necessity makes it acceptable
because the sole purpose of law is well being of Human Being. In modern world, thing need
to be regulated by a procedure, although not prescribed in Holy Quran, to solve complex
issues.

4.3 PROCEDURAL REQUIREMENT FOR ADMINISTRATIVE

3 Halim, A. Muslim family laws: With Muslim family laws ordinance and rules: Lahore: P.L.D.
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PURPOSE

This is just a procedural requirement for administrative purpose. It has nothing to do with the
validity of act. So, it is not against Quran and Sunnah.

4.4 NO PROHIBITORY VERSE IN QURAN

If there is no favourable verse in the Holy Quran, then there is also no prohibitory verse.
According to Islam anything which is not prohibited is permitted.

4.5 PUNISHMENT IS FOR ENFORCEMENT

The purpose of giving punishment if the person fails to give notice to the Chairman is to
make this law enforceable. A law cannot be enforced until there is no sanction provided for
its violation.

5. ARGUMENT AGAINST SECTION 7

The argument against Section 7 of Muslim Family Law Ordinance are

5.1 BLACKMAILING, TORTURING AND HARASSING

Husband can easily blackmail, torture and harass the divorced wife by withholding the notice
which is to be given to Chairman. It has often been observed, in the case of remarriage by the
divorced wife, that the validity of such marriage is challenged by the ex-husband on the
ground that he had not divorced the wife or that she has contracted the second marriage
without going through the process under Section 7 of the Muslim Family Law Ordinance,
1961.4

5.2 EFFECTIVENESS DEPENDENT ON NOTICE

4 Altaf Hussain Langrial. A CRITICAL REVIEW OF PAKISTANI MUSLIM FAMILY LAWS ORDINANCE 1961 IN THE
LIGHT OF ISLAMIC FAMILY LAWS. Gomal University Journal of Research.
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Under Section 7, effectiveness of talaq is dependant on the notice of talaq to the chairman.
This has no basis in Islamic Law. Same argument can be seen in the opinion of Moulana
Ihtisham ul Haq who says that

“To put a restriction on the exercise of this right by making it ineffective if

talaq is not registered or not authorized by the Matrimonial and Family
Laws Court, not only amounts to tampering with the injunctions of the
faith but also putting obstacles in the way of dissolution even when it
becomes necessary and desirable.”

5.3 FLAW IN IDDAT PERIOD OF PREGNANT WOMEN

Under Section 7 the iddah period of pregnant women is the end of pregnancy or ninety days,
whichever is later but according to Quran, it ends with the end of pregnancy. Allah says in
the Holy Quran that

“For those who are pregnant, their waiting period is until they deliver their
burden”5

5.4 FLAW IN IDDAT PERIOD OF NON-PREGNANT WOMEN

According to Islam the iddah period of a women who is not pregnant and got divorced is
three monthly courses but under Section 7 it is not more than ninety days. Allah says in the
Holy Quran that

“Such of your women as have passed the age of monthly courses, for them
the prescribed period, if ye have any doubts, is three months, and for those
who have no courses (it is the same).”6

The same thing is said in another verse of Holy Quran that

“Divorced women shall wait concerning themselves for three monthly

periods”7

Here three months mean three monthly courses and not ninety days.

5 Surah al-Talaq: 4.
6 Ibid.
7 Surah al-Baqara: 228
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5.5 FLAW IN IDDAT PERIOD OF WOMEN WHO HAVE NOT

CONSUMATED

Under Islamic law, divorce of a couple who have not yet consummated their marriage
becomes effective immediately and no iddat is required for the women. But under Section 7,
every divorce whether the marriage is consummated or not consummated will be effective
until ninety days of the receipt of the notice by the Chairman. Allah says in the Holy Quran
that

“O ye who believe! When ye marry believing women, and then divorce

them before ye have touched them, no period of 'Iddat have ye to count in
respect of them: so give them a present. And set them free in a handsome
manner.”8

5.6 FLAW IN START OF TIME PERIOD OF IDDAT

Under Islamic Law iddat is counted from the time of pronouncement but under Section 7 it is
counted from the time the notice is received by the Chairman. Allah says in the Quran

“O Prophet! When ye do divorce women, divorce them at their prescribed

periods, and count (accurately), their prescribed periods”9

5.7 NO PUNISHMENT SHALL BE GIVEN

There shall be no punishment if a person fails to give notice in writing to the Chairman
because it is the requirement of law of land and not requirement of Islam.

5.8 FLAW IN EFFECTIVENESS OF THIRD DIVORCE

Under Islamic Law a third divorce becomes effective as soon as it is pronounced but under
Section 7 a third divorce will be effective after ninety days are passed from the date of receipt
of the notice by the Chairman and not from the date of pronouncement of Talaq.

8 Surah al-Ahzab: 49
9 Surah al-Talaq: 1
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6. CASE LAW IN FAVOR OF SECTION 7

Nawaz Gardezi v. Lt. Col Muhammad Yousaf

“Where the husband did not give notice of talaq to the Chairman, he
would have deemed to have revoked the Talaq”10

Mst Farah Naz v. Judge Family Court

“If husband does not send a written notice of divorce to union council and
to his wife, then there is no such divorce in law”11

7. CASE LAW AGAINST SECTION 7

Allah Rakha v. Federation of Pakistan

“Muslim Family Law Ordinance, 1961, as a whole is not violative of

injunctions of Islam. Provisions of Section 7(3)(5) of Ordinance are
repugnant to Injunctions of Islam.”12

8. CONCLUSION

To conclude that I must say that there exist many controversies surrounding Section 7 of
Muslim Family Law Ordinance. This section is highly criticized by Muslim Scholar.
However, there are certain arguments in favour of this section. This Ordinance was
challenged in Federal Shariat Court and the Court has declared Subsection 3 and 5 of Section

10 PLD 1963 SC 51
11 PLD 2006 SC 457
12 PLD 2000 FSC 1
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7 as repugnant to injunctions of Islam but this section cannot be declared full null and void
until the decision of Supreme Court comes. So it is high time that Supreme Court of Pakistan
should clarify the confusion regarding divorce and give a sound interpretation to Section 7.

BIBLIOGRAPHY

A CRITICAL REVIEW OF PAKISTANI MUSLIM FAMILY LAWS ... (n.d.). Retrieved from
http://gu.edu.pk/New/GUJR/PDF/June-2014/12-A Critical Review of The Muslim Family
Laws Ordinance 1961 Final.pdf

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Ali, S. A. (1966). Law of family courts. Karachi: Syed Publications.

Carroll, L. (1979). The Muslim Family Laws Ordinance, 1961. Contributions to Indian
Sociology,13(1), 117-143. doi:10.1177/006996677901300105

Halim, A. (n.d.). Muslim family laws: With Muslim family laws ordinance and rules: ...Lahore:
P.L.D.

Mahmood, S. (1960). Commentary on Muslim family laws ordinance (VIII of 1961) with West
Pakistan & East Pakistan rules and forms. Lahore: Pakistan Law Times Publications.

Munir, M. (2013). Reforms in triple talaq in the personal laws of Muslim states and the Pakistani
legal system: Continuity versus change. International Review of Law,2013(1), 2.
doi:10.5339/irl.2013.2

Serajuddin, A. M. (2001). Shariʻa law and society: Tradition and change in South Asia. Oxford:
Oxford University Press.

Talak under Muslim Family Law Ordinance , divoce in family law | Study Bix. (2018, May 12).
Retrieved from https://www.studybix.com/talak-under-muslim-family-law-ordinance/

The Muslim Family Laws Ordinance 1961. (n.d.). Retrieved from

http://punjablaws.gov.pk/laws/777a.html

Case laws:

Nawaz Gardezi v. Lt. Col Muhammad Yousaf (PLD 1963 SC 51)

Mst Farah Naz v. Judge Family Court (PLD 2006 SC 457)

Allah Rakha v. Federation of Pakistan (PLD 2000 FSC 1)

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