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Friday, 10 October 2014

“The black spot on the radiant face of Islam”: Muslim Family Laws Ordinances 1961


by Ayesha Khan


Supreme Court of Pakistan by ImposterTV

Until just recently, when provincial legislatures began to legislate against domestic violence and sexual harassment at the workplace, the most progressive legislation for women in Pakistan was the Muslim Family Laws Ordinances of 1961. The MFLO passed by Ayub Khan became the bete noir of the religious right, who argued noisily that since its provisions fall in the domain of Muslim personal law, they come under Shariah and do not belong in the domain of civil law. When they were promulgated there was only the British
legacy of incomplete codified Muslim family laws to contend with, hence the Rashid Commission was setup in 1953 to examine whether existing laws “give women their proper place in society according to the fundamentals of Islam”.

It took as a point of departure that since “Pakistan is a free and sovereign State created expressly with the purpose of giving Muslims an opportunity to remold their lives and laws according to the fundamentals of Islam there is no excuse for any further delay in converting that aspiration into reality.” The Report stated the manner in which it would engage with religion.

“The members of the Commission are of the firm conviction that the principles of law and specific injunctions of the Holy Qur’ an, if rationally and liberally interpreted, are capable of establishing absolute justice between human beings and are conducive to healthy and happy family life.”

The Commission sent out a few thousand questionnaires to unspecified members of the public, asking their views on many of the subjects to be addressed, (e.g. Whether or not a nikah should be performed by a state-appointed nikah khawan or not.) It then gave its own recommendations, alongside their responses. This resulted in a scathing note of dissent from the single religious scholar on the Commission, Maulana Ihtesham ul-Haque. “Consulting every common man or even the leaders of sects which are by common consent excluded from the pale of Islam, on questions of Shariat which require considerable specialized experience and knowledge of religion, is to open a dangerous door to deliberate alterations in Islamic Shariat.” The Commission persevered.

Its recommendations, released to the public only in 1956, were cautious interpretations of women’s rights within Islam, as Asma Jahangir points out, for they did not suggest a total ban on polygyny and they did not challenge the principle of recognizing the father only as natural guardian of the child. Nonetheless, the Commission was controversial for its time, and Maulana Haque, wrote a strong dissenting note. As a result many of the recommendations were ignored by the government.

Years later, once Zia had re-worked the Constitution to suit his political agenda, the religious right’s lobbying against the MFLO gained a new lease on life. As recently as March 2014, the Chairman of the Council of Ideology declared that one section of the MFLO, which places a limited restriction upon a man’s right to take a second wife, violates Shariah law and should be struck down. Thankfully that has not yet happened.

The MFLO was implemented as an Ordinance in 1961. First among its reforms was that it clarified confusion created by the obfuscation inherited by British colonial law, and it overrode other laws, customs, or usages in force to date. Next, the age at marriage was raised to 16 for girls and 18 for boys, however child marriage remained valid unless it was not consummated — in that event a girl could get her marriage annulled once she reached majority.

It also mandated for the first time that all Muslim marriages and divorces must be registered with the union council, prescribing a light penalty for failing to do so. It outlined procedures for exercise of a delegated right of divorce (from a man to a woman) and court dissolution of marriage; and it allowed women to approach the union council if they are not maintained adequately during marriage or separation. Most unpopular with the religious orthodoxy, polygyny was only permitted with prior permission of an Arbitration Council and the first wife, (but violators were only penalized with a small fine). The traditional concept of hilala was overruled and declared necessary only if a third consecutive divorce of the same two people becomes effective. Finally, it permitted children of predeceased parents to inherit from their grandparents (wife does not receive share of inheritance owed to her from her husband’s share).

As early as 1962, 60 indignant MNAs, including Cabinet Ministers voted to introduce a Bill to annul the MFLO. All six women MNAs voted against the move, and 36 other MNAs, including Zulfiqar Ali Bhutto, opposed it as well. Zia himself had tasked the CII to undo the MFLO but at first it only came up with mild recommendations that did not change it substantially. The Law Ministry was more obliging, and declared it totally un-Islamic. It called the MFLO a “black spot on the radiant face of Islam” and called for its complete abrogation.

The MFLO was protected from being challenged by the 1962 Constitution and remains so until today. Justice Tanzil ur-Rehman, former Chairman of the Council of Islamic Ideology and Justice of the Sindh High Court, wrote ominously that this undue protection was “because of the secular influences working both in and outside the relevant quarters.”

In 1988 the Sindh High Court declared the MFLO repugnant to Islam. On appeal, in 1994 the Supreme Court overturned the judgment that Section 7, requiring registration of marriage and divorce, was repugnant to Islam but it did not refute that the judgment was within the scope of the High Court’s jurisdiction.

Again, in 1999, the Federal Shariah Court heard 37 petitions, some pending from 1993, challenging various substantive sections of the MFLO as violating Islam. In its judgment of January 5, 2000, it declared Section 4 repugnant, arguing that Islam does not provide for direct inheritance by orphans from grandparents, but suggested “the creation of a will in favor of the orphan grandchildren by the grandparent over other solutions”. It stated that Sections 7 (3) and 7 (5) resulted in an “implied violation” of Islamic injunctions, ie that divorce should take immediate effect upon pronouncement, while iddat could be observed subsequently, its length depending upon each individual situation. This means that FSC struck down these two sub-clauses relating to the procedure and registration of divorce.

The appeal against this decision is still pending at the Shariat Appellate Bench at the Supreme Court.

Twice, in 2006 and 2010, women politicians tried to amend the MFLO in the National Assembly to improve its provisions but the bills were rejected.

In March, 2014 the new Chairman of the Council of Islamic Ideology, Maulana Mohammed Khan Shirani said that Section 6 of the MFLO, requiring a husband to seek permission from his first wife to marry a second, was against Shariah. He did, however, say that all wives should be treated equally. In effect, he made a ruling that was more retrogressive than an interpretation of Islam that was seen fit as far back as 1961. In response, the Human Rights Commission of Pakistan called for a review of the role of the CII and justification for its existence.

The CII also declared that children may be married off by their parents and guardians upon reaching puberty.

In June this year the Chief Justice of the Supreme Court proposed a new section (9-A) be added to the MFLO to permit a parent who is unable to maintain himself to claim maintenance from his children.

It is thus a small victory for women’s rights in Pakistan that the MFLO has survived to this day, although in better circumstances it would have been improved upon by now. Given the controversy that it continues to generate more than fifty years after it was passed, this remains politically impossible.

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