By Khaled Ahmed

The Federal Shariat Court has started hearing petitions against the 1961 Muslim Family Law Ordinance in Lahore. Three judges, led by Chief Justice Mian Mahboob Ahmad, are hearing objections put forward by three Islamic scholars: Dr Nooruddin Jami of Bahauddin Zakariya University Multan, Maulana Fazlur Rehman, Naib Amir of Jamia Ashrafiya, Lahore, and Dr Mufti Ghulam Sarwar Qadri of Jamia Rizvia, Lahore. The plea before the Court is that sections 4,5,6,7 and 12 of the Muslim Family Law Ordinance (1961) be declared repugnant to Islam.

Section 4 of the Ordinance, after reinterpreting the tradition based on the Quran, had laid down that orphaned grand-children may receive share from the property of their grand-parents. Section 5 had laid down that a nikah be registered with the union council to be legally valid. Section 6 had laid down that no married man contract a second marriage without the permission of Arbitration Council which shall ensure that the man had good grounds for second marriage and had obtained his first wife's permission to do so. Section 7 had laid down that a divorcing husband shall send notice of divorce to the union council and supply a copy of it to the divorcee wife, after which an arbitration council would try for reconciliation between the two parties. Section 12 had banned child marriage and set a minimum age for the marriage of boys (18 years) and girls (14 years), although marriageability is still adjudged many different ways in Pakistan.

The petitioners have opposed the above provisions of the Ordinance, in particular the irreducible legal requirement to register nikah and divorce at the union council, holding that unregistered divorce is not be invalid. They also favour the unfettered right of men to contract additional marriages without intercession of the union council and consent of the first wife. They oppose the ban on child marriage and consider the right of the orphaned children to inherit from grand-parents' property as being against the Quran. As for the nikah document, they propose that each cleric solemnising the nikah be allowed to issue a personal certificate for legal purposes.

Codification problems of Islamic law: Islamic law is embodied in the 'fiqh' (case law) of the various historically revered imams (jurists). The imams differ in their consideration of the family law and have handed down verdicts rendered under different legal philosophies. For instance, the Hanafi fiqh does not mandate a 'wali' (guardian) for a daughter's marriage but the Maliki law does. Hanafi law has an elaborate doctrine about 'kufu' (suitability) under which an incompatible marriage can be undone, while the Maliki law is less developed on 'kufu'. Hanafi law was sought to be codified under Aurangzeb but the work of several hundred jurists, called Fatawa-e-Alamgiri, seems too inclined to favour the Mughal elite to be useful for today's egalitarian society.

No state can function without codifying its laws. And no codification is possible without suiting Islamic legal sources to modern times. This is where the problems arise. Reinterpretation of the Quranic 'nas' (clear edict), as achieved by the revered imams in the case of the Quranic modalities of divorce, is a case in point. (The petitioners before the Federal Shariat Court have objected to three simultaneous 'talaqs' allowed by fiqh, thus underlining a return to the 'nas' of the Quran.) It was the principle of 'nas' of the Quran that Allama Iqbal sought to reinterpret in his Sixth Lecture. Before him, Sir Syed had recommended this kind of reinterpretation. Pakistan's hudood laws suffer from errors of application because they are too literalist: like the law of the cutting of hands, the law about blood-money to be paid for death through accident, and the notorious Zina Ordinance that equates rape with fornication and thus victimises the raped woman.

History of codification through Family Law Ordinance: The British left the Muslim Family Law pertaining to nikah and divorce uncodified. The problems that arose were thus bequeathed to the judiciary to sort out. Evidence of nikah was established through unreliable sources and divorce was allowed in the chaotic manner that characterised the male-dominated Muslim society. After 1947, after prime minister Muhammad Ali Bogra remarried against the wishes of his first wife (who was an APWA activist), an effort was made to codify laws pertaining to nikah, divorce and remarriage. In 1955, the Commission on Marriage and Family Laws prepared a Report safeguarding, inter alia, the rights of the woman. The Commission was headed by Justice Abdur Rasheed. It comprised seven members, three women and four men. The Report was written by Justice Abdur Rasheed while a dissenting note to the Report was appended by Maulana Ehtesham-ul-Haq Thanvi, the cleric member of the Commission. The said 'alim' was descended from the famed author of Bahishti Zevar, a guide-book for the married woman that denies her fundamental rights.

The Commission accepted the principle that Family Laws had to be liberalised in the light of modern times, but when it came to making recommendations it inclined to a conservative interpretation. For instance, it did not outlaw divorce pronounced by the husband in violation of the Quranic 'nas'. But it did rule that nikah, to be of legal value, had to be registered. Its other recommendations have been given above. The Report was passionately opposed by the ulema and orthodox Muslims in 1956 for being against Islam. The civilian governments after 1956 avoided legislating on the Report, but General Ayub Khan made selected recommendations of the Report into law through an ordinance in 1961. A resolution against the Muslim Family Law Ordinance was subsequently presented in the Nastional Assembly but was not passed. The Ordinance never carried consensus among the ulema and was considered by them as being against Islam. It was never presented in the parliament for proper legislation but stood as an indemnified law (by the elected parliament of 1970) of the Ayub era, like the Zina Ordinance of the Zia era, as indemnified by the 1985 parliament.

Non-acceptance of any reinterpretation of Muslim law to suit modern times has been the dominant trend among Indian Muslims. The famous Sarda Bill (made Act in 1928) against child marriage was supported by both Allama Iqbal and Quaid-e-Azam Muhammad Ali Jinnah in the 1920s while the ulema opposed it (including Maulana Muhammad Ali Jauhar). Marriage of under-age individuals is generally opposed by Pakistanis today who have tacitly superseded the fiqh version of the case, but the ulema have continued to support it as a part of the tradition of the Prophet PBUH. Errors in the enforcement of hudood laws by civilian governments have given grounds to the ulema, some also organised as militant jehadi outfits, to reject democratically elected governments as being too unacquainted with Islam to enforce real Shariat.

Conflicting case law on the Ordinance: Pakistani judiciary has had to set aside the condition of registration of nikah under Section 7 of the Muslim Family Law Ordinance in a number of cases where couples were saved from the punishment of stoning to death (not ordained by Quran). The Sindh High Court in 1988 decreed that since an unregistered nikah was acceptable under Shariat, the accused couple were not living in sin. Subsequently the Federal Shariat Court, accepting the Sindh High Court verdict, ruled against Section 7 of the Ordinance. The Federal Shariat Court didn't have the mandate to adjudicate on Family Laws but in 1985 the 8th Amendment inducted the Objectives Resolution into the main body of the Constitution and gave the Court the justification to consider Family Laws too. In 1993, the Supreme Court refused to accept the Objectives Resolution as a supra-constitutional provision. The PML government wants to make Shariat the supreme law in Pakistan and is therefore in favour of the Federal Shariat Court hearing the Family Law case while defending the Ordinance.

While listening to the defence, the honourable Federal Shariat Court was pleased to set aside the Report of the Council of Islamic Ideology recommending that provisions against polygamy be further strengthened in Section 6 of the Muslim Family Law Ordinance. The ground taken by the Court was that the Report had had no effect and therefore could not be considered as binding. Conservative 'fiqh' inclines to the Quranic reference to polygamy in a number of verses but ignores verses that clearly prefer monogamy to polygamy. In 4:3 the Quran says '...but if ye fear that ye shall not be able to deal justly with them then only one, or that which your right hands possess, that will be more suitable to prevent you from doing injustice'. Then in 4:129, the Quran says, 'Ye are never able to do justice between wives even if it is your ardent desire'. Many scholars, including Syed Abul Ala Maududi who favoured the contents of the Muslim Family Law Ordinance, have inferred from these verses that the state should codify law against polygamy accordingly, but the conservative clergy is of the opinion that the above Quranic verses still do not constitute a clear order.In Tunisia and Turkey polygamy is banned under Muslim Family Law.

A retrogressive environment: Instead of reinterpreting the Quranic law and codifying it to suit the circumstances, the trend in Pakistan is to undo the progress made towards codification in the past. The assault on reform is intense and can be violent. The fundamental problem is that while men are free to be polygamous, women are not. Under the Ordinance the bride is required to state in the nikah-nama that she is unmarried, but the bridegroom is not. Thus men are not held liable if they misinforms about their marital status. The resistance to reinterpreting the Quranic law is intense but the truth of the matter is that Quranic law has been modified and reinterpreted in the past to suit men. The method of 'talaq' accepted by the Ordinance is violative of the method prescribed in the Quran. Allama Iqbal had written to Maulana Suleiman Nadvi to ask if it was right that Hazrat Umar as caliph had suspended the Quranic punishment of cutting of hands. In today's violent environment, it has become almost impossible to defend legal reform in favour of women. Important social development away from child marriage, slavery and unfettered polygamy may be undone simply because this retrogressive step favours men and further lowers the status of women.