1

Critical Analysis of Muslim Family Law

Ordinance 1961

Submitted to: Dr . samia Maqbool Niazi

Submitted By : Amna Mumtaz

Registration Number: 212 FSL/LLMMFL/F23

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Abstract
The Muslim Family Law Ordinance of 1961 has been a pivotal legal instrument within Pakistan's

family law framework, yet its alignment with Islamic Sharia principles has been a subject of

ongoing debate. This critical analysis not only explores the historical context, objectives, and

societal impact of the ordinance but also delves deep into the provisions that are perceived to be

contrary to Sharia principles. Furthermore, the study investigates how Pakistan's judiciary has

interpreted and applied these provisions. A significant portion of the analysis focuses on the

examination of specific provisions within the ordinance, highlighting areas where legal

provisions may be in conflict with Sharia principles. These areas include polygamy, divorce,

maintenance, and inheritance rights, and their compatibility with Islamic jurisprudence is

critically assessed. The study aims to elucidate the gaps and inconsistencies that have arisen due

to the interpretation of these provisions in light of both the ordinance and Sharia. Additionally,

this research investigates how Pakistan's judicial system has grappled with the challenges posed

by provisions that are perceived as contrary to Sharia. By examining selected cases, the analysis

explores the evolving jurisprudential interpretations of these provisions within the framework of

Islamic law, shedding light on the complex and often contentious intersection between statutory

law and religious principle.

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Table of Contents
Abstract.......................................................................................................................................................1
1.Introduction..............................................................................................................................................2
2. Succession under Muslim Family Law......................................................................................................3
2.1 Section 4 of the MFLO: Representational Succession or Circumventing the Islamic Law of
Inheritance..............................................................................................................................................4
2.2 Judicial Interpretations of section 4 by the Higher Courts in Pakistan...............................................6
2.3 Section 4 in the Federal Shariat Court : The Question of Islamicity...................................................7
3. Registration of Marriage under Muslim Family Law................................................................................8
3.1 Prerequisites for a Valid Marriage Under Islamic law.......................................................................8
4. Polygamy under Muslim Family Law.......................................................................................................9
4.1 Islamic Concept of Polygamy:..........................................................................................................10
5. Talaq under Muslim Family Law and Sharia...........................................................................................12
5.1 Analysis of Judicial Interpretations of Section 7 of the MFLO..........................................................14
6. Dissolution of Marriage Otherwise than by Talaq.................................................................................15
6.1 Islamic Concept of Dissolution of Marriage Otherwise than by Talaq.............................................15
7. Maintenance under MFLO.....................................................................................................................16
7.1 Islamic Concept of Maintenance.....................................................................................................17
7.2 Principles Regarding Maintenance of Wife under Fiqh....................................................................19
8. Dower under MFLO and Islamic law......................................................................................................20
8.1 Islamic Concept of Dower and Maintenance...................................................................................20
9. Conclusion.............................................................................................................................................21
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1.Introduction
In the realm of family law in Pakistan, the Muslim Family Law Ordinance of 1961 stands as a

pivotal legal framework governing matters of marriage, divorce, and family relations within the

Muslim community. This ordinance was enacted with the intention of reforming and codifying

Muslim personal law, aiming to harmonize it with modern legal principles and safeguard the

rights and interests of Muslim women in the country. However, its application and impact have

been subjects of extensive debate and scrutiny. This critical analysis endeavors to unravel the

intricate layers of the Muslim Family Law Ordinance, examining its historical context, legal

provisions, societal consequences, and the ongoing discourse surrounding its implementation.

The ordinance, introduced as part of a broader series of legal reforms in the early years of

Pakistan's existence, marked a significant departure from traditional Islamic jurisprudence in an

attempt to address the evolving needs of a modernizing society. By standardizing marriage and

divorce procedures, enforcing restrictions on polygamy, and ensuring financial security for

women, the law aimed to provide a more equitable legal framework within the bounds of Islamic

principles.

However, as time has passed, the Muslim Family Law Ordinance has generated substantial

controversy and debate. Critics argue that while it may have introduced progressive reforms, its

implementation has often fallen short of its intended objectives. This analysis will delve into the

practical challenges faced in applying the ordinance, the complexities surrounding the

interpretation of Islamic principles, and the ongoing tensions between traditionalist

interpretations and modern legal standards.

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2. Succession under Muslim Family Law

In the context of inheritance, the issue of disinheritance of orphaned grandchildren has deep

historical roots, dating back to pre-Islamic customs in Arabia. Even the Prophet Muhammad

himself may have experienced exclusion from his grandfather's estate by his uncles. These

customary practices, particularly concerning residuary, have found their way into Sunni Islamic

law of inheritance. Under classical Islamic inheritance law, as upheld by all schools of thought,

the children of a predeceased son of a propitious are typically excluded from any share in the

inheritance in the presence of their paternal uncles. The situation is even more precarious for the

children of a daughter, as they are originally treated as distant kindred under Sunni inheritance

law. In the unfortunate event that a daughter predeceases her parent, her children are not entitled

to inherit anything from their maternal grandparent in the presence of any sharer or residuary.

However, in Pakistan, significant reforms were introduced through Section 4 of the Muslim

Family Laws Ordinance of 1961 (MFLO). These reforms sought to challenge the classical

perspective on the disinheritance of the children of predeceased children, both daughters and

sons of a propitious. The MFLO introduced the principle of representation, a departure from the

obligatory bequest as adopted by many other Muslim countries with some variations

2.1 Section 4 of the MFLO: Representational Succession or Circumventing the

Islamic Law of Inheritance
Section 4 of the Muslim Family Law Ordinance (MFLO) 1961, which introduced

representational succession for orphaned grandchildren, has been a subject of debate and

controversy. This provision deviates from a fundamental principle of Islamic inheritance law,

which is the principle of "a nearer in kinship excludes the remoter from inheritance." Under this
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principle, the children of a predeceased son or daughter are excluded from inheriting their

grandfather's property when the grandfather is survived by a son or sons.1

Supporters of section 4 argue that there is no explicit Qur’an verse or authoritative hadith that

excludes orphaned grandchildren from inheriting their grandfather's property. They contend that

the application of representation in this context aligns with the principles of justice and equity.

They raise the question of why one son should inherit the entire property while the children of

the other predeceased sons are left with nothing. This perspective asserts that Islamic law should

not be irrational or inequitable, and representation serves as a means to rectify this perceived

injustice.

Furthermore, proponents of representation emphasize the Qur’an concern for the welfare of

orphans and their property. They argue that any legislation depriving orphaned grandchildren of

their inheritance rights would contradict the spirit of the Qur'an and the Sunnah of the Prophet

Muhammad (Peace be Upon Him). They also engage in a semantic argument, suggesting that the

term "awlad" (children) in Verse 4:11 of the Qur'an should be extended to include grandchildren

as well, as the Arabic language uses "awlad" to refer to both sons and daughters and their

substitutes, i.e., grandchildren. This perspective views representation as a solution that adheres to

the natural order of family relationships.

Opponents of section 4 of the MFLO 1961 have raised several arguments against

representational succession for orphaned grandchildren. They assert that this provision

contradicts the principles of the Qur'an and the Sunnah, as well as established Islamic inheritance

law.

1
Faruqi Kemal,"Orphaned Grandchildren in Islamic Succession Law: A Comparison of Modern Muslim Solutions."
Islamic Studies 4, no. 3 (September 1965): 253-274, 253.
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First, opponents argue that the Qur'an prescribes shares for those descendants who are actually

alive at the time of the propositus's death. Section 4, on the other hand, allocates shares to the

children of predeceased sons or daughters as if they were alive at the time of the propositus's

death, only to later treat them as deceased. This approach is seen as contrary to the Qur'an's

intent.

Second, opponents question why section 4 selectively designates only grandsons and

granddaughters as eligible heirs while excluding other legal heirs. They argue that the Islamic

law of inheritance does not prioritize assisting the needy, as wealthy heirs are not automatically

excluded. This selectivity is viewed as arbitrary and unjust.2

Third, some opponents argue that the interpretation of the term "awl ad" (children) in Verse 4:11

of the Qur'an to include both sons and daughters, as well as grandsons and granddaughters, is

linguistically unsound. They contend that the term has real and metaphorical meanings, and

when the real meaning (sons and daughters) is applicable, it should not be extended to the

metaphorical meaning (grandsons and granddaughters).

2.2 Judicial Interpretations of section 4 by the Higher Courts in Pakistan

The interpretation of section 4 of the Muslim Family Laws Ordinance (MFLO) 1961 by higher

courts in Pakistan has been a subject of legal debate and controversy. This section deals with

representational succession for orphaned grandchildren. Two conflicting interpretations arose

from different High Courts, leading to a Supreme Court decision.

2
Molvi Mohammad Usmani, “Orphaned Grnadchildren‟s Right to Inheritance in Islamic Law”, Islamic and
Comparative Law Quarterly 3 (1983), 130
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In the case of Mst. Zarina Jan v. Mst. Akbar Jan 3, the lower court initially awarded Zarina Jan

1/2 of the 2/3 of the property, while Mst. Akbar Jan received the other half. The Peshawar High

Court reversed this decision, giving Zarina Jan 2/3 and Mst. Akbar Jan 1/3, asserting that section

4 only applied to the heirs of a pre-deceased son and did not exclude the application of Shariah in

other inheritance matters.

In another case, Kamal Khan v. Mst. Zainab 4, the Lahore High Court interpreted section 4

differently. It concluded that the section aimed to remedy discrimination against a grandchild

whose parent had died before the succession opened. However, the Lahore High Court believed

that the legislation was not intended to provide greater benefits to grandchildren than they would

receive if their parent were alive when the succession opened. According to their interpretation,

the grandchildren would inherit based on the assumption that their parent had died after the

propositus, leading to a different distribution of shares.

The conflict between these two interpretations, as well as the appeal by Mst. Zainab against the

Lahore High Court's decision, reached the Supreme Court of Pakistan. The Supreme Court

upheld the interpretation of the Lahore High Court, stating that section 4 aimed to protect the

interests of orphaned grandchildren without diminishing the shares of other heirs or excluding

them from their rightful inheritance. The Supreme Court affirmed that section 4 should not be

interpreted to decrease the shares of other heirs or exclude them from their inheritance.

This decision by the Supreme Court clarified that the purpose of section 4 was to protect the

rights of orphaned grandchildren but not at the expense of other legal heirs. However, it also

raised questions about whether such significant changes to Islamic inheritance law should be

3
Mst. Zarina Jan v. Mst. Akbar Jan, PLD 1975 Peshawar 252.
4
Mst. Zainab v. Kamal Khan alias Kamla, PLD 1990 SC-1051.
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introduced through legislation rather than judicial interpretation. This case demonstrates the

complex relationship between legislation and interpretation in shaping legal outcomes in

Pakistan.

2.3 Section 4 in the Federal Shariat Court : The Question of Islamicity

In the case of Allah Rakha v. The Federation of Pakistan 5, the Federal Shariat Court in Pakistan

declared section 4 of the Muslim Family Laws Ordinance (MFLO) 1961 as repugnant to the

injunctions of Islam. The court criticized the way the Commission on Marriage and Family Law

had framed the question regarding representational succession, suggesting that it had misdirected

the proceedings. The court proposed an alternative framing of the question, which, if considered,

might have led to a different provision of law.

The Federal Shariat Court emphasized that the principles of Islamic inheritance are based on

nearness and close proximity of relations with the deceased, rather than financial considerations

or humane aspects. It argued against including orphaned children of predeceased children in the

list of inheritors, as it could lead to endless inclusions. The court concluded that section 4 was

incompatible with the scheme of succession outlined in the Quran and declared it nugatory.

Furthermore, the Federal Shariat Court proposed a solution to address the issue of orphaned

grandchildren. It did not favor the Council of Islamic Ideology's recommendation of obligating

uncles and aunts to provide for orphaned nephews and nieces, as it could be seen as charity and

create feelings of inferiority. Instead, the court suggested the creation of a law for mandatory

bequests in favor of orphaned grandchildren, where grandparents would be required to leave a

portion of their estate (1/3) in a will for their orphaned grandchildren. This proposal aimed to

address the socio-economic challenges in Pakistan.

5
Allah Rakha and others v. Federation of Pakistan and others, PLD 2000 FSC 1.
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It's worth noting that the court's recommendation to propose alternative legislation goes beyond

its constitutional mandate of determining whether a law is repugnant to Islamic injunctions. The

government of Pakistan appealed the decision to the Shariat Appellate Bench of the Supreme

Court, where the case remained pending at the time of writing.

3. Registration of Marriage under Muslim Family Law

According to Muslim family Law, every marriage conducted must be registered. To oversee this

registration process, the Union Council is responsible for granting licenses to individuals known

as Nikah Registrars. However, for any given Ward, only one Nikah Registrar can be licensed.

3.1 Prerequisites for a Valid Marriage Under Islamic law

Under classical Islamic law, the validity of a marriage contract is not contingent on any formal

ceremony or documentation. Instead, it depends on mutual consent, the capacity of the parties

involved, and the presence of witnesses. These are the essential requirements that validate and

bind the marriage contract.

In situations involving marriages conducted abroad, establishing proof of marriage can be

challenging, especially when there is no written documentation. Islamic law offers remedies,

such as presuming a valid marriage when parties have lived together as spouses for an extended

period or when one party acknowledges the marriage without dispute. However, in cases where

there is no legal presumption of marriage, it becomes essential to provide satisfactory evidence

in the conventional manner. In such instances, any written documentation becomes invaluable.
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In Pakistan, the Muslim Family Law Ordinance of 1961 6mandates the registration of every

marriage conducted under Muslim law. Conversely, in India, there is no legal requirement for

compulsory registration of Muslim marriages with government officials. Nevertheless, some

states in India, like Assam, Bengal, Bihar, and Orissa, offer provisions for 'voluntary' registration

of Muslim marriages. Moreover, Qazis maintain records of marriages they officiate, which

include details of the ceremony. Each marriage record is signed by the parties involved, their

guardians or representatives, witnesses, and the Qazi. Copies of this document, commonly

referred to as 'Nikahnama,' are issued to the parties. The Muslim Family Laws Ordinance of

1961 introduced reforms related to marriage registration, imposing fines and imprisonment

penalties for non-registration. However, it is essential to note that Muslim marriages remain legal

and valid if conducted following Islamic requisites, even without registration.

4. Polygamy under Muslim Family Law

In accordance with the Muslim Family Law Ordinance, every marriage solemnized under

Muslim Law is required to be registered. Additionally, a significant provision within the

ordinance stipulates that a husband must seek permission from his existing wife or wives before

entering into a subsequent marriage. The process involves the Chairman, who, upon receiving

the application for permission, solicits the nomination of a representative from both the husband

and the existing wife or wives. Subsequently, an Arbitration Council is convened to assess the

necessity and fairness of the proposed marriage. If the council is satisfied that the proposed

marriage is indeed necessary and just, they grant the permission sought by the husband.

6
Muslim Family Law Ordinance of 1961, Art. 5(1).
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4.1 Islamic Concept of Polygamy:

Islamic teachings regarding polygamy are based on Quranic verses that place distinct limitations

on its practice. The Quran, the holy scripture of Islam, explicitly addresses polygamy and

imposes strict restrictions:

"Marry women of your choice, two or three or four; but if you fear that you shall not be able to

deal justly with them, then only one." 7

This verse establishes that a Muslim man may marry up to a maximum of four wives but with the

condition that he must treat them justly and fairly. It also underscores the principle of monogamy

as the default state of marriage, allowing for polygamy only under specific circumstances.

Islam strictly prohibits a man from marrying another woman if he cannot ensure fair and

equitable treatment of all his wives. The Prophet Muhammad emphasized the prohibition of

discrimination between wives or their children. Consequently, Islamic teachings aim to ensure

that polygamy is practiced with the utmost fairness and justice, while emphasizing the preference

for monogamy when equal treatment cannot be guaranteed.

Polygamy is a practice within the boundaries of Islamic injunctions. However, the requirement

for a husband to seek permission from an arbitration council before marrying another woman has

generated discussion and debate. Addressing this matter, Sheikh M. S. Al-Munajjid, a renowned

Saudi Muslim lecturer and author, offers insights:

According to Islamic principles, if a man is physically and financially capable of taking a second

wife and can treat both wives with fairness and justice, he is allowed to do so. This is in

7
Surat An-Nisaa, 4: 3
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accordance with the Quranic verse: "Then marry (other) women of your choice, two or three, or

four." (Quran 4:3).

It is important to acknowledge that women, by their nature, may feel jealousy and reluctance to

share their husband with other women. Such feelings are not condemned, as even the wives of

the Companions and the Mothers of the Believers experienced these emotions. However, women

should not allow jealousy to lead them to object to what Allah has permitted, nor should they try

to prevent it. Instead, a wife should allow her husband to marry another woman, as it is a form of

cooperation in righteousness and piety.8

It is essential to understand that the first wife's consent is not a prerequisite for a man to take

another wife. The Standing Committee for Issuing Fatwas has clarified this, stating that it is not

obligatory for the husband to obtain the consent of his first wife. However, it is recommended

that a husband deals with the matter gently and kindly, minimizing any hurt feelings that may

arise. This includes discussing the situation with his wife in a considerate manner and being

willing to spend necessary resources to gain her acceptance of the situation.

5. Talaq under Muslim Family Law and Sharia

Section 7 of the Muslim Family Law Ordinance (MFLO) deals with regulations pertaining to

divorce (talaq) according to article 7

1. If a man decides to divorce his wife, he must inform the Chairman of the relevant

authority in writing as soon as possible after pronouncing the divorce in any manner. He

is also required to provide a copy of this written notice to his wife.

8
Al_Kholy, D. J. "Ta'addud al-Zawjaat wa Hikmatuhu fil Islam (Multiple Marriages in Islam & Its Wisdom)." Journal
of the Islamic University of Madina 46 (n.d.): 222, 231.
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2. Any individual who fails to comply with the requirements mentioned in the first

subsection may face penalties, which include imprisonment for up to one year, a fine of

up to five thousand rupees, or both.

3. Unless revoked earlier, either explicitly or otherwise, a divorce will not become effective

until ninety days have passed from the date when the notice mentioned in the first

subsection is delivered to the Chairman.

4. Within thirty days of receiving the notice mentioned in the first subsection, the Chairman

must establish an Arbitration Council. This council's purpose is to attempt reconciliation

between the husband and wife, and it must take all necessary steps to achieve this

reconciliation.

5. If the wife is pregnant at the time when the divorce is pronounced, the divorce will not

become effective until either the period specified in subsection (3) has passed or the

pregnancy ends, whichever is later.

6. A wife whose marriage has been terminated by a divorce that is effective under this

section is not prohibited from remarrying the same husband without marrying another

person in between, unless this termination is the third such instance of divorce that is

effective.

Section 7 of the Muslim Family Law Ordinance (MFLO) carries significant implications and

criticisms in the context of divorce procedures. Firstly, it directs divorce matters to an

administrative body for potential reconciliation efforts, altering the traditional Islamic practice of

handling divorces within families and religious circles. Secondly, it introduces a delay in the

effectiveness of divorce, requiring a waiting period of ninety days during which reconciliation is
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attempted. Importantly, this reconciliation effort occurs after the pronouncement of talaq,

deviating from Islamic norms where reconciliation is typically sought before talaq. Furthermore,

Section 7's reference to "talaq in any form whatsoever" includes practices such as ahsan, hasan,

and talaq al-bid‘a (triple talaq), which diverges from Islamic law's reconciliation procedures,

traditionally applicable to single or double pronouncements. Additionally, the section could be

interpreted as implicitly abolishing talaq al-bid‘a, allowing remarriage between the parties

without an intervening marriage or halala, unless it's the third such pronouncement under Section

7. This section has faced criticism, particularly in terms of delaying the effectiveness of a third

divorce, counting 'iddat (waiting period) differently from Islamic law, applying the waiting

period to both consummated and non-consummated marriages, extending 'iddat for non-pregnant

women, and determining the 'iddat period for pregnant women differently from Islamic law.

Lastly, Section 7 links the effectiveness of talaq to notice given to the Chairman and

reconciliation efforts initiated by the Chairman, which has no basis in Islamic law. Consequently,

Section 7 introduces significant deviations from Islamic legal practices, sparking criticism and

complexities in the implementation of divorce procedures in Pakistan.

5.1 Analysis of Judicial Interpretations of Section 7 of the MFLO

The interpretation of Section 7 of the Muslim Family Law Ordinance (MFLO) has been a subject

of judicial scrutiny in Pakistan, particularly concerning the consequences of not giving notice of

talaq (divorce) to the Chairman, as prescribed by the law. Initially, the Supreme Court held in

Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf 9that failure to provide this notice

would imply the revocation of talaq. Subsequent cases, such as the State v Mst. Tauqir Fatima,

9
Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yousuf, PLD 1963 SC 51.
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10
, Abdul Mannan v. Safrun Nessa11, Mst. Ghulam Fatima v. Abdul Qayyum and Others, 12

upheld this view, solidifying it as the "Gardezi rule."

However, two exceptions to this rule emerged in unique cases. Mst. Kaneez Fatima v. Wali

Muhammad13 marked the first time the Supreme Court overruled the Gardezi rule, stating that

failure to send notice to the Chairman does not necessarily revoke talaq but may render it

ineffective. Unfortunately, in Mst. Farah Naz v. Judge Family Court 14, the Supreme Court upheld

the Gardezi rule once more, despite Kaneez Fatima's contrary decision. This inconsistency arose

because the cases were decided by different bench compositions, with Kaneez Fatima involving

a larger panel of five judges.

In Kaneez Fatima, the parties mutually dissolved their marriage, and the court determined that

when both parties agree to divorce, and it is confirmed in writing with their undisputed

signatures, Section 7 should not be strictly enforced. They noted that the notice could be sent

afterward to comply with Section 7's provisions.

In Farah Naz, the wife claimed maintenance, but the husband alleged he had orally pronounced

talaq years prior. While both lower courts accepted the oral talaq, the Supreme Court disagreed,

emphasizing that oral talaq was neither effective nor valid without proper notice to the

Chairman. However, the Court did not reference the Gardezi case or Kaneez Fatima in its

decision.

10
The State (petitioner) v. Mst. Tauqir Fatima (respondent), PLD 1964 Karachi 306.
11
Abdul Mannan v. Safrun Nessa, 1970 SCMR 845.
12
Ghulam Fatima v. Abdul Qayyum, PLD 1981 SC 460.
13
Kaneez Fatima v. Wali Muhammad, PLD 1993 SC 901.
14
Mst. Farah Naz v. Judge Family Court, Sahiwal, PLD 2006 SC 457.
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The Farah Naz decision seemingly reactivated the Gardezi rule, suggesting that failure to provide

notice to the Chairman results in revocation. Notably, a Divisional Bench decision like Farah

Naz cannot overturn a unanimous decision by a larger Bench, such as Kaneez Fatima.

Given the multiple objections raised against Section 7 from an Islamic law perspective, it is

imperative for the Supreme Court of Pakistan to provide clarity and a coherent interpretation of

this section to resolve the existing legal confusion surrounding divorce cases.

6. Dissolution of Marriage Otherwise than by Talaq

In cases where the right to divorce has been appropriately delegated to the wife, and she wishes

to exercise that right, or when any party involved in a marriage seeks to dissolve the marriage

through means other than Talaq (divorce), the provisions outlined in section 7 shall apply, with

necessary modifications and adjustments, as applicable.

6.1 Islamic Concept of Dissolution of Marriage Otherwise than by Talaq

The inherent right to divorce, is exclusively vested in the husband. However, the husband can

delegate this power of divorce to his wife. This delegation of authority can either be general or

restricted to specific circumstances agreed upon beforehand. To make it irrevocable, this clause

is included in the marriage contract, granting the wife the authority to dissolve the marriage

under the specified, pre-agreed circumstances.

Since ancient times, it has been a common practice for women who have concerns about their

husband's behavior to insist on including such a clause in the marriage contract. They can then

exercise the authority delegated to them if necessary. Therefore, according to Islamic law, while

a woman does not possess the natural right of divorce, she can acquire a contractual right to
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dissolve the marriage. Hence, it is not accurate to claim that the right of divorce is solely

unilateral and granted only to men in Islam

7. Maintenance under MFLO

According to section 9 of MFLO

(1) In the event that a husband fails to adequately support his wife, or if there are multiple wives,

fails to provide equitable support, the wife or any of the wives can seek redress by applying to

the Chairman. The Chairman will then convene an Arbitration Council to resolve the matter,

which may issue a certificate specifying the amount the husband must pay as maintenance.

(2) Both husband and wife can file an application for the revision of the maintenance certificate,

following the prescribed procedure, within the specified timeframe, and upon payment of the

required fee. The decision of the Collector in this regard will be final and not subject to challenge

in any court.

(3) Any unpaid amounts determined under Sub-sections (1) or (2) can be recovered as arrears of

land revenue.

7.1 Islamic Concept of Maintenance

The Islamic concept of maintenance is based on the following Quranic injunctions:

1. Quran 2:233 states that mothers should breastfeed their offspring for two years, and it is

the father's responsibility to bear the cost of their food and clothing equitably.15

2. Quran 2:236 allows for the bestowal of a suitable gift upon divorced women, according

to the husband's means.16

15
Surah Al-Baqarah Ayat,233
16
Surah Al-Baqarah,236-23
 19

3. Quran 2:241 emphasizes the duty of providing reasonable maintenance for divorced

women, which is considered an obligation for the righteous.17

4. Quran 4:34 designates men as the protectors and maintainers of women, highlighting

their responsibility to provide for women from their means.18

5. Quran 65:1 specifies the rules for divorce, including not expelling women from their

homes without just cause.

6. Quran 65:6 instructs men to provide for women during the waiting period (Iddat),

including financial support for pregnant and nursing women.19

7. Quran 65:7 emphasizes that individuals should provide maintenance according to their

means, with Allah not burdening anyone beyond their capacity.20

Hadiths of the Prophet (PBUH) The Hadiths of the Prophet further elucidate the rights of women

regarding maintenance

1. The Prophet (PBUH) stressed the importance of treating women with kindness and

fulfilling their rights in terms of food, clothing, and lodging.

2. He emphasized that husbands have rights over their wives, such as not allowing anyone

on their beds whom they dislike, but also that wives have rights over their husbands,

including proper clothing and food.

3. The Prophet (PBUH) advised that husbands provide for their wives, and even a small

amount spent for the family is highly rewarded.

17
Surah Al-Baqarah,2:236-242
18
Surah An-Nisa , 34
19
Surah At-Talaq 65:1-7
20
Surah At-Talaq. 65
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4. Ayesha reported that even if a husband is miserly, a wife is allowed to take what suffices

for her and her children according to their means.

Rights in the Light of Quran and Hadith In light of the Quran and Hadith, the principles

regarding a woman's right to maintenance include:

1. The Quran and Sunnah emphasize that men are responsible for providing for their wives,

ensuring they have food, clothing, and shelter.

2. Maintenance is considered a fundamental right of women, even if they are financially

well-off.

3. Maintenance obligations extend to divorced women during the waiting period (Iddat),

and husbands must provide for them, particularly if they are pregnant or nursing.

4. The Quran and Hadith provide guidance on maintenance but do not specify fixed

amounts. Instead, they emphasize providing according to one's means and not burdening

individuals beyond their capacity.

7.2 Principles Regarding Maintenance of Wife under Fiqh

"Nafqah," a term in Arabic that is equivalent to the concept of maintenance, encompasses

various expenses crucial for an individual's well-being, including those related to food, clothing,

and lodging. Under Islamic law, there are specific provisions regarding the responsibility for and

entitlement to maintenance:

1. Husbands bear the obligation to provide maintenance for their wives, irrespective of the

wife's wealth or property. This obligation is considered a fundamental duty, and it

underscores the principle of financial support within the marital relationship.

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2. In cases where a husband neglects or unjustly refuses to provide maintenance without

lawful cause, the wife has the right to seek redress through legal channels. This can

include applying to an Arbitration Council or relevant legal authorities, which are

designed to address such disputes and ensure the wife's rights are upheld.

3. After divorce, women are entitled to receive maintenance during the Iddah period, which

is the waiting period observed immediately after the dissolution of the marriage.

However, it's important to note that widows do not typically receive maintenance during

this period as they are no longer in the state of marriage.

4. While Islamic law does not prescribe a fixed scale for maintenance, various

interpretations and guidelines exist to determine fair and reasonable amounts. When

deciding the amount of maintenance, considerations should include the financial situation

of both spouses, aiming to strike a balance that ensures the well-being of the wife. In Shia

law, for example, maintenance encompasses the wife's essential requirements, which

encompass not only food, clothing, and lodging but also other needs based on local

customs and practices.

The concept of "nafqah" in Islamic law is rooted in principles of equity and support, ensuring

that both spouses' financial well-being is taken into account within the context of marriage and

divorce. These principles help maintain fairness and social justice within the framework of

Islamic family law.

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8. Dower under MFLO and Islamic law

Under section 10 of MFLO When the Nikahnama or marriage contract lacks specifics regarding

the payment mode of dower, the entire dower amount will be presumed to be payable upon

demand.

8.1 Islamic Concept of Dower and Maintenance

The concept of dower outlined above, as associated with the fifth stage of marriage, is not an

innovation introduced by the Quran. Rather, the Quran's role was to reinstate this practice to its

original and natural form. In its beautifully elegant language, the Quran states:

"Give to the women a free gift of their marriage portions"21

This implies that the dower is the exclusive right of women, and it is a gift directly given to

them. It has no connection with their fathers or brothers.

In this brief sentence, the Holy Quran touches upon three fundamental aspects:

The Quran uses the term "saduqatehinna" to refer to the marriage portion or dower, signifying

truthfulness and sincerity, rather than the term "mehr." Therefore, the dower symbolizes the

sincerity of the man paying it. Several commentators of the Holy Quran, such as Zamakhshari

and the renowned philologist Raghib Isfahani, have explicitly noted that the dower is called

"saduqah" because it signifies the sincerity of faith.

It is evident from the Quranic verse mentioned above that the dower is to be directly given to the

woman, and her parents have no entitlement to it. It is not compensation for the efforts they

made in raising their daughter.The dower is unequivocally portrayed as a gift, devoid of any

other connotations.

21
Surah an-Nisa, 4 : 4
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9. Conclusion
In conclusion, a critical analysis of the Muslim Family Law Ordinance reveals both its strengths

and shortcomings in the context of family law within Muslim-majority countries. This ordinance,

introduced in various forms across different countries, represents an attempt to harmonize

traditional Islamic law with modern legal principles and rights.

On the positive side, the ordinance has introduced several significant reforms, particularly in

terms of women's rights and protections within the family. It has sought to address issues such as

child marriage, divorce, and polygamy, placing restrictions on these practices and offering legal

safeguards for women. The provisions regarding maintenance, the right to consent in marriage,

and the registration of marriages are commendable efforts aimed at ensuring fairness and equity

within the family unit.

However, critical analysis also highlights certain limitations. Enforcement of these laws can vary

significantly across different regions and communities, and social norms and customs often play

a significant role in shaping the practical application of the ordinance. Furthermore, issues of

interpretation and implementation can arise due to varying schools of Islamic jurisprudence and

local cultural practices. Additionally, the potential for women to encounter obstacles when

seeking justice within the legal system remains a challenge, as the ordinance does not guarantee

uniform enforcement and can be influenced by patriarchal biases.

In essence, the Muslim Family Law Ordinance represents a significant step towards aligning

Islamic family law with contemporary legal norms. However, its effectiveness and impact

depend on the willingness of governments, legal institutions, and societies to uphold its

principles and ensure that it is implemented in a manner that protects the rights and dignity of

women. While the ordinance may serve as a valuable foundation for further reforms, it also
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highlights the importance of continuous evaluation and adaptation to address the evolving needs

and rights of Muslim women and families. In this regard, it is crucial for stakeholders to work

collaboratively in order to bridge the gap between legal provisions and their practical application,

with the aim of promoting greater gender equality and justice within the family unit.
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10. Bibliography
Allah Rakha and others v. Federation of Pakistan and others, PLD 2000 FSC 1.

Al_Kholy, D. J. "Ta'addud al-Zawjaat wa Hikmatuhu fil Islam (Multiple Marriages in Islam &
Its Wisdom)." Journal of the Islamic University of Madina 46 (n.d.): 222, 231.

Abdul Mannan v. Safrun Nessa, 1970 SCMR 845.

Faruqi Kemal,"Orphaned Grandchildren in Islamic Succession Law: A Comparison of Modern

Muslim Solutions." Islamic Studies 4, no. 3 (September 1965): 253-274, 253

Ghulam Fatima v. Abdul Qayyum, PLD 1981 SC 460.

Kaneez Fatima v. Wali Muhammad, PLD 1993 SC 901.

Molvi Mohammad Usmani, “Orphaned Grnadchildren‟s Right to Inheritance in Islamic Law”,

Islamic and Comparative Law Quarterly 3 (1983), 130

Mst. Zarina Jan v. Mst. Akbar Jan, PLD 1975 Peshawar 252.

Mst. Zainab v. Kamal Khan alias Kamla, PLD 1990 SC-1051.

Muslim Family Law Ordinance of 1961, Art. 5(1).

Mst. Farah Naz v. Judge Family Court, Sahiwal, PLD 2006 SC 457.

Surat An-Nisaa, 4: 3

Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yousuf, PLD 1963 SC 51.

Surah Al-Baqarah Ayat,233

Surah Al-Baqarah,236-23

Surah Al-Baqarah,2:236-242

Surah An-Nisa , 34

Surah At-Talaq 65:1-7

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Surah At-Talaq. 65

Surah an-Nisa, 4 : 4

The State (petitioner) v. Mst. Tauqir Fatima (respondent), PLD 1964 Karachi 306.
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