“Moot Project” “Petitioners”

“Case Brief”

MOOT COMPETITION

Islamic Personal Law II

Submitted to: Ma’am Munazza Razzaq

Memorial of Petitioners (Allah Rakha and others)

Through Counsels:

Rabia Wazir

Maria Malik

Kainat Latif

Sundar Mehmood

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Before

THE HONOURABLE FEDERAL SHARIAT COURT OF PAKISTAN

ALLAH RAKHA AND OTHERS …………………………….……… PETITIONERS

VERSES

FEDERATION OF PAKISTAN AND OTHERS .............….……...... RESPONDENTS

TABLE OF CONTENTS

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Table of Contents.......................................................................................................................3

Index of Authorities...................................................................................................................4

Statement of Jurisdiction............................................................................................................5

Statement of Facts......................................................................................................................6

Questions Presented...................................................................................................................7

Summary of Arguments.............................................................................................................8

Detailed Arguments...................................................................................................................9

Prayer.......................................................................................................................................17

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INDEX OF AUTHORITIES

STATUTES

MUSLIM FAMILY LAWS ORDINANCE:

SECTION 4: SUCCESSION

SECTION 5: REGISTRATION OF MARRIAGE

SECTION 6: POLYGAMY

SECTION 7: TALAQ

CONSTITUTION OF PAKISTAN 1973:

ARTICLE NO. 203-B(C): LAW

ARTICLE NO. 203-D: POWERS, JURISDICTION AND FUNCTIONS OF THE COURT

RULES

INJUNCTIONS OF HOLY QURAN AND SUNNAH

IJTIHAD

CASES

1. 1991 CLC 184

2. Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf

3. Chuhar v. Ghulam Fatima

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STATEMENT OF JURISDICTION

The Petitioners humbly submits this memorial for the shariat petition filed before this

Honourable Court. The petition invokes its civil jurisdiction under Article 203-D of the

Constitution of Pakistan 1973.

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FACTS:
 In early fifties a majority of female sector in male dominated society face certain legal
issues regarding marriage and family laws.
 In this regard Pakistan women association claimed legislation to protect women
rights.
 The government constituted a commission to fulfil the demands and make
recommendations in family system.
 In 1956, commission issued its report on marriage and family laws on the basis of
which various recommendations were inserted in Muslim Family Laws Ordinance,
1961.
 Muslim Family Laws Ordinance,1961 faced criticism by Ulema of different schools
being contradictory to the injunctions of Holy Quran and Sunnah.
 Section No. 4,5,6 and 7 of MFLO, 1961 being contradictory to the injunctions of Holy
Quran and Sunnah.
 Hence Petitioners filed this Shariat Petition.

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QUESTIONS PRESENTED:

1. Whether the Section 4 of MFLO, 1961 is according to the injunctions of Holy Quran?

2. Whether the Section 5 of MFLO, 1961 is according to the injunctions of Holy Quran?

3. Whether the registration of marriage is mandatory for the validity of marriage or

Nikah?
4. Whether there is anything regarding to the registration of Nikah in Holy Quran or
Sunnah ?

5. Whether the Section 6 of MFLO, 1961 is according to the injunctions of Holy Quran?
6. Whether it is compulsory to take permission from Arbitration Council for another
marriage?

7. Whether the Section 7 of MFLO, 1961 is according to the injunctions of Holy Quran?

8. Whether the iddat time period mentioned in Section 7 of MFLO, 1961 is according to
the injunctions of Holy Quran?

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SUMMARY OF ARGUMENTS:
The petitioners contended the various provisions of MFLO 1961 to be against the Islamic
Injunctions. The grandchildren cannot inherit from the property of their grandparents if their
parents died earlier. The rules regarding the inheritance is clear and explicit so the persons are
not allowed to deviate from it. Secondly the registration of marriage is not required in Islam.
Thirdly the husband is not required to get the permission of his wife or wives for contracting
a new marriage and lastly the iddat time period mentioned in section 7 which shall commence
on the time of giving notice shall be against the injunctions of Islam.

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DETAILED ARGUMENTS:
SECTION 4 OF MFLO, 1961:

ARGUMENTS:

1. That the section 4 of MFLO, 1961 is un-Islamic.

2. That the provision of section 4 of MFLO 1961 is not acceptable because the bringing
of section 4 on the statute book was the result of the recommendations of the
commission. The recommendation of the commission was based on the so-called
ijtihad. Because the Legal Maxim of Shariah is that where there is a decisive and clear
cut text is available, there no question of Ijtihad arises.1
3. That the human wisdom cannot be equate with the wisdom of the Creator, so the
Islamic law is better than all worldly laws.
4. Maulana Ehteshamul Haq stated that all the four Imams are agreed that the son of
predeceased son or daughter shall be excluded from inheritance.
5. That the Ayahs of Surah Nisa of Quran on the subject of inheritance are mandatory,
clear, explicit and therefore, needed no propitiatory provision for any explanation.
SURAH NISA AYAT 11:
“Allah chargeth you concerning (the provision for) your children: to the male the equivalent
of the portion of two females, and if there be women more than two, then theirs is two-thirds
of the inheritance, and if there be one (only) then the half. And to each of his parents a sixth
of the inheritance, if he have a son; and if he have no son and his parents are his heirs, then
to his mother appertaineth the third; and if he have brethren, then to his mother appertaineth
the sixth, after any legacy he may have bequeathed, or debt (hath been paid). Your parents
and your children: Ye know not which of them is nearer unto you in usefulness. It is an
injunction from Allah. Lo! Allah is Knower, Wise”.

SURAH NISA AYAT 12:

“And unto you belongeth a half of that which your wives leave, if they have no child; but if
they have a child then unto you the fourth of that which they leave, after any legacy they may
have bequeathed, or debt (they may have contracted, hath been paid). And unto them
belongeth the fourth of that which ye leave if ye have no child, but if ye have a child then the
eighth of that which ye leave, after any legacy ye may have bequeathed, or debt (ye may have
contracted, hath been paid). And if a man or a woman have a distant heir (having left neither
parent nor child), and he (or she) have a brother or a sister (only on the mother's side) then
to each of them twain (the brother and the sister) the sixth, and if they be more than two, then
they shall be sharers in the third, after any legacy that may have been bequeathed or debt
(contracted) not injuring (the heirs by willing away more than a third of the heritage) hath
been paid. A commandment from Allah. Allah is Knower, Indulgent”.

Majallatul Ahkamil Adlia, section 14.

1

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SURAH NISA AYAT 33:

“And unto each We have appointed heirs of that which parents and near kindred leave; and
as for those with whom your right hands have made a covenant, give them their due. Lo!
Allah is ever Witness over all things”.

SURAH NISA AYAT 176:

“They ask thee for a pronouncement. Say: Allah hath pronounced for you concerning distant
kindred. If a man die childless and he have a sister, hers is half the heritage, and he would
have inherited from her had she died childless. And if there be two sisters, then theirs are
two-thirds of the heritage, and if they be brethren, men and women, unto the male is the
equivalent of the share of two females. Allah expoundeth unto you, so that ye err not. Allah is
Knower of all things”. 

6. That at the end of this Ayah No. 176 of surah Nisa it has been ordained that Allah has
made the law clear so that none should err and He has knowledge of all the things.
7. That the emphasis is that the Ayahs of Surah Nisa that the directions contained their
in as regards inheritance in all respects have to be followed in letter and spirit and any
deviation therefrom entails punishment of severe nature, establishes the absolute
mandatory nature thereof.
SURAH NISA AYAT 13:
“ These are the limits (imposed by) Allah. Whoso obeyeth Allah and His messenger, He will
make him enter Gardens underneath which rivers flow, where such will dwell for ever. That
will be the great success”.

SURAH NISA AYAT 14:

“And whoso disobeyeth Allah and His messenger and transgresseth His limits, He will make
him enter Fire, where he will dwell for ever; his will be a shameful doom”.

8. That all the Ayahs of Surah Nisa are governing the law of inheritance of Muslims and
also clearly gives its manner, mode and shares of the heirs and therefore, anything
added thereto will be violative of the injunctions of Holy Quran.
9. That the principle of inheritance as laid down in Holy Quran is that the nearer in
degree of relationship excludes the remote.
10. That the inclusion of the grandchildren in the inheritance from the grandfather in the
presence of the sons or daughters at the time of succession opens and to have per
stripes a share equivalent to the share which such predeceased son or daughter would
have received, if alive, is therefore nugatory to the scheme of inheritance envisaged
by Quran.
11. That the right of representation is recognized by Muslim law among ascendants.
12. That there is neither any ambiguity nor any clarification needed as regards devolution
of inheritance and persons to inherit and also about their shares. In the line of

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inheritance prescribed by Quran in the presence of a son, the children of the deceased
children have been excluded as heirs and this position has been aptly taken care of by
the Sunnah of our Holy Prophet in the Ahadith in which the precise position of the
grandchildren has been elucidate that the grandchildren are to be considered as one’s
children in the distribution of inheritance in case none of one’s own children are still
alive and grandson has been excluded from the inheritance simultaneously with the
son of the propositus. This hadith is followed by all schools including Fiqa-e-Jafria.
“Narrated Ibn e Abbas the Holy Prophet said: give the shares of inheritance as prescribed in
the Holy Quran to those who are entitled to receive it, than whatever remains, should be
given to the closest relative male relative of the deceased”.2
“The grandchildren ate to be considered as one’s own children in the distribution of
inheritance) in case none of one’s own children are still alive a grandson is as son, a
granddaughter is a daughter, inherit (their grandparents) property as their own parents
would (where they are alive) and they prevent the sharing of the inheritance with all those
relatives who would have been prevented from the same, where their parents are alive. So
one’s grandson does not share the inheritance with one’s own son ( if the son is alive)”.3
The Shia’a Ithna Asharia also support this contention on the authority of a tradition reported
by Abi Jafar al Sadiq which is as follows:

(While distributing the property of the deceased person)

“Your real son shall be preferred over your grandson and your grandson shall be preferred
over your brother”.4

13. That the inheritance principles of Islam are not based on financial position.
14. That in order to meet situations of financial inequality in the society, it is not merely
the law of inheritance ordained through Quran which should be tampered with.
15. That the children of predeceased son or daughter appear to have been purposely
excluded and there appears to be a justification therefore that they are not to share the
burdens and responsibilities which a son as a heir would have to take undertake on
the demise of his father.
16. That it is a settled principle of man made law that in any law there is a manner and
mode prescribed for doing anything and not doing anything in that prescribed manner
will be illegal and will have no effect. If this principle is being adhered to as regards
2
Sahih Bukhari, hadith no. 724, Vol. 8, page 477.

3
Sahih Bukhari, English, Vol.8, page 479.

4
(Wasail ul Shai’a, Vol. 17, p.452, Print Beruit).

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the man made law, how can one think of deviating from the law of Allah which law is
the base of all laws and there can be no other law better than that.
17. That the philosophy of law contained in Quran is the most just and in consonance
with all equitable principles that could possibly be conceived.

SECTION 5 OF MFLO, 1961: REGISTRATION OF MARRIAGE:

ARGUMENTS:

1. That As Marriage has been defined as a civil contract which has its object. Muslim
women can only marry a muslim male and it is essential for the validity of marriage.
2. That according to the Hanafi school of thought the offer and acceptance from both the
parties is enough for a valid marriage. That there should be a proposal made by or on
behalf of one of the parties to the marriage, and acceptance of the proposal by or on
behalf of other in the presence and hearing of the two male or one male and two
female witnesses, who must be sane and adult Muhammadan. The proposal and
acceptance must both be expressed at one meeting a proposal made at one meeting
and a acceptance made at another.
3. That the Federal Shariat Court also recommended that the non-registration of nikkah
under section 5 of MFLO 1961 does not invalidate marriage or nikkah itself,
otherwise Nikkah has been performed in accordance with the requirements of Islamic
Shariah.
4. That religious ceremony is in some cases is essential for the validity of marriage
under Islamic law but the registration of marriage is not necessary, non-registration of
nikkah under Muslim Family Law of an adult girl is not invalid and registration of
nikkah as in Muslim Law can be performed by offer and acceptance in presence of the
witnesses.
5. That it the admitted position that there is no Quranic verse and for that matter any
Hadiths which prohibit the registration of nikkah or for bringing into writing the
performance of a nikah.
6. That there is no penalty for the non-registration of marriage under Islamic law or in
Quran and Sunnah.
7. That therefore non-registration of nikkah does not invalidate marriage or nikkah
because nikkah is a civil contract and also a contract of high social status. It can be
performed orally in presence of witnesses.
8. That non registration of Nikah does not makes the Nikah invalid, the government
should clarify this position in the provision itself.

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SECTION 6 OF MFLO, 1961: POLYGAMY:

ARGUMENTS:

1. That the principles of Islamic Law related to polygamy clearly explain that Muslim
men are allowed to practice polygamy, that is, they can have more than one wife, but
not more than four at the same time. With the reference of Quranic Verse,

“If ye fear that ye shall not be able to deal justly with the orphans, Marry women of
your choice, Two or three or four; but if ye fear that ye shall not be able to deal justly
(with them), then only one, or (a captive) that your right hands possess, that will be
more suitable, to prevent you from doing injustice”.
Qur'an, Sura 4 (An-Nisa), Ayah 3
2. That the MFLO has also introduced some reforms in the law relating to polygamy that
submit an application and pay a prescribed fee to the local union council in order to
obtain permission for contracting a polygamous marriage. Thereafter, the chairman of
the union council forms an arbitration council with representatives of both husband
and wife/wives in order to determine the necessity of the proposed marriage. The
application must state whether the husband has obtained consent of the existing wife
or wives. Contracting a polygamous marriage without prior consent is subject to
penalties of fine and or imprisonment and the husband becomes bound to make
immediate payment of dowry to the existing wife or wives.

“It is not obligatory for the husband, if he wants to take a second wife, to have the
consent of his first wife, but it is good manners and kindness to deal with her in such
a manner that will minimize the hurt feelings such thing might produce. So it’s
incumbent on the husband to be kind to his wife, discuss the matter with her in a
gentle and pleasant manner, and this should be coupled with spending whatever
money may be necessary in order to gain her acceptance of the situation.”

3. That in Islamic law, as the above verse clearly show that having the consent of wife is
a good gesture but it is not mandatory if the husband has not obtained consent of the
existing wife or wives the subsequent marriage remains valid.
4. That the section 6 of MFLO 1961 creates penalties of fine on them and these penalties
and punishments are against Islamic rules and laws.
5. That according to Quran and Sunnah, a right of another marriage is given to men but
on a condition that he will maintain the justice between all the wives. But Section 6 of
MFLO 1961 explain that No man, during the subsistence of an existing marriage,
shall, except with the previous permission in writing of the Arbitration Council,
contract another marriage. Without Permission of council according to Section 6 men
would not allowed entering in a new contract of marriage.

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6. That this section 6 of MFLO 1961 is against the Islamic Injunctions because in Islam
permission from any council is not necessary. Men have a right and that right is
clearly explained in different verses of Holy Quran.
7. That the punishments that are given under Section 5 of MFLO 1961 that if another
marriage is not registered and permission from arbitration council is not taken then
that person should be fined and imprisoned. All these punishments that are given in
Section 5 and 6 of MFLO 1961 are against Islamic Injunction because in Islam only
justice between wives is necessary no permission, no registration, no application is
required.
8. That men cannot be questioned and punished if he married to another women and he
is maintain justice between them. Islam gave him a right of marriage but Islam also
restrict the men that if he is able to maintain justice then he will enter into a new
marriage.

“That dealing justly with one’s wives is an obligation. This applies to housing, food,
clothing, kind treatment. etc., for which the husband is fully responsible. If one is not
sure of being able to deal justly with them, the Quran say: “then(marry) only one.”
(Qur’an 4:3)

CASE LAWS:
In this case it was held that husband can enter into new marriage contract without the consent
of the wife according to Islamic Injunctions.5

SECTION 7 OF MFLO, 1961: TALAQ:

ARGUMENTS:

ISLAMIC STATUS:

“Divorced women shall wait concerning themselves for three monthly periods. Nor is it
lawful for them to hide what Allah Hath created in their wombs, if they have faith in Allah
and the Last Day. And their husbands have the better right to take them back in that period,
if they wish for reconciliation. And women shall have rights similar to the rights against
them, according to what is equitable; but men have a degree (of advantage) over them. And
Allah is Exalted in Power, Wise.” (Surah Al-Baqara, 228)

1. That as section 7(3)(5) of MFLO,1961 is repugnant to injunctions of Islam. Divorce is

operative from the pronouncement. Hence pending it for 90 days is repugnant to
Islamic teachings. Because if failure to notify, in the above stated manner, invalidated
Talaq. But introduction of the Zina Ordinance allowed scope for abuse as repudiated
5
1991 CLC 184

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wives were left open to charges of Zina if their husbands had not followed the
MFLO's notification procedure. Since early 1980s, the practice of the Courts in
Pakistan is that they validate a Talaq despite a failure to notify as provided under the
MFLO.
2. That as far as the Islamic concept of effectiveness of the Talaq is concerned, Talaq is
effective from the time of utterance of the word Talaq by the husband. Registration is
only subjected to the country law and it has nothing to do with Islamic law of Talaq.
3. That as Islam is the protector of rights of all human beings and is the first religion
which has conferred all possible rights that could be bestowed upon a woman. So, the
period of 90 days for to notifying the chairman is clearly violation of injunction of
Islam in the view of Ayat no 1 of Surah Talaq.
“O Prophet! When ye (men) put away women, put them away for their (legal) period and
reckon the period, and keep your duty to Allah, your Lord. Expel them not from their houses
nor let them go forth unless they commit open immorality. Such are the limits (imposed by)
Allah; and whoso transgresseth Allah's limits, he verily wrongeth his soul. Thou knowest not:
it may be that Allah will afterward bring some new thing to pass”.

4. That under Islamic law, ‘iddat (waiting period) is counted from the time of the
pronouncement but, under section 7 it is counted from the time the notice is received
by the chairman. Furthermore, problems arise when no notice is sent to the chairman.
Under Islamic law, divorce of a couple who have not yet consummated their marriage
becomes effective immediately and no ‘iddat is required for the woman. But, under
the MFLO, every divorce, whether or not the marriage is consummated, will be
effective only after the expiry of ninety days following the receipt of its notice, by the
chairman. According to section 7, the ‘iddat of a woman who is not pregnant is over
ninety days but under Islamic law, her ‘iddat is three monthly courses. Under section
7, the ‘iddat of a pregnant woman is the end of pregnancy or ninety days, whichever is
later. According to the Qur’an, it ends with the end of pregnancy, a period which may
be less than ninety days. Under section 7, effectiveness of talaq is dependent on the
notice of talaq to the chairman and reconciliatory efforts by him. This has no basis in
Islamic law.
CASE LAWS:

 In Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf, 35 the Supreme Court
of Pakistan held that where the husband did not give notice of talaq to the chairman,
he would be deemed to have revoked the talaq.
 In Chuhar v. Ghulam Fatima, 48 Boota had divorced Ghulam Fatima but had not
sent the notice of talaq to the chairman of the Union Council, as required. Ghulam
Fatima married Muhammad Ramzan, and a son, Fakir Hussain, was born of this
wedlock. After Ramzan’s death, his cousin, Chuhar, filed a suit in January 1976
claiming the deceased Ramzan’s estate as his sole heir. He alleged that his cousin,
Ramzan, was not legally married to Ghulam Fatima since her divorce from the first
husband was ineffective under section 7 of the MFLO because he had not sent any

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notice of talaq to the Council’s chairman, although the first husband asserted before
the court that he had not revoked the talaq. The court held that failure to give notice of
talaq might give rise to an irresistible presumption that the talaq has been revoked
impliedly but the presumption is rebuttable and that each case should be decided on
its own facts. In the present case, the talaq was pronounced some fifteen to eighteen
years earlier, and the first husband never revoked it expressly or impliedly. The court
ruled that section 7 of the ordinance was meant for the benefit of women and it should
not be interpreted in a manner which might ruin their lives. On the facts of the case,
the court held that not giving a notice did not render the talaq ineffective.
5. That section 7(3) it keeps the woman suspended animation and cause her torture by
keeping her bound, although according to the Islamic Injunctions she would stand
released of the bond and under no obligation towards husband. This will certainly be a
cruelty to the woman who by virtue of this provision it exposes hazards of litigation
by an unscrupulous husband, if she marries after the expiry of Iddat as enjoyed by
Holy Quran but before the expiry of period prescribed by sub-section 3. Such a
situation of uncertainty entailing peril to a party should not be allowed to continue.
6. That some subsections of section 7 are in clear contravention of Islamic law.

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PRAYER

With due respect it is humbly prayed that in the light of arguments stated above, the
Honorable Court may give decision in favor petitioners and that:

1. The provisions of sections 4,5,6 and 7 of the MFLO 1961 is against the
Islamic injunctions.
2. The registration of marriage is not compulsory under the Islam.
3. The husband is not bound to take the permission of his existing wife or
wives for contracting a new marriage.
4. The iddat time period which is 90 days which shall commence from the
time period of serving of the notice is against the Islamic Injunctions.

And any other order as it deems fit in the interest of equity, justice and
good conscience.

For This Act of Kindness, the Petitioners Shall Duty Bound Forever Pray.

Sd/-

(Counsels for the Petitioners)

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