Family law confusion
LAST year, the Supreme Court of Pakistan affirmed that a woman is entitled to dissolve her marriage on the grounds that her husband, without her permission, married another woman. Recently, the Council of Islamic Ideology released a statement rejecting this decision, asserting that it is against Islamic law to permit a woman to dissolve her marriage because she did not consent to her husband’s marriage to another woman. The CII is an advisory body and cannot overrule the Supreme Court, but is deemed to be an authority on the requirements of Islamic law.
The fact that in 2024, the Supreme Court had to author a detailed judgement to clarify very straightforward statutory provisions in the Muslim Family Law Ordinance (MFLO), 1961, and the Dissolution of Muslim Marriages Act, 1939 — which was then repudiated by the CII — is an indication of the manufactured confusion around family laws in Pakistan.
Why does this confusion persist? Muslim personal law covers matters related to marriage, divorce and inheritance for the majority of Pakistan’s population. Personal law is partially codified in the form of statutes derived from religious jurisprudence. Courts and religious bodies often misinterpret the plain meaning of statutes to conform to their own views of Islamic jurisprudence. For example, courts have repeatedly misread the 1961 ordinance’s provisions on talaq, often refusing to enforce the notice and registration requirements in the law. They also tend to fill in the gaps in codified laws with conservative interpretations of Islamic law.
The origins of Muslim personal law lie in the British colonial era. As the colonial government began to introduce legislation regulating political and economic spheres, it carved out exceptions for matters related to marriage, divorce and inheritance, declaring that these would be dealt with in accordance with the custom and religious laws of each community.
The gap between codified law and court interpretations continue to create uncertainty.
Muslim political groups were keen to secure the primacy of the Sharia over custom in matters of family law and inheritance. In 1937, Muslims secured legislation that declared that personal law derived from the Sharia alone rather than custom would govern family matters and inheritance for Muslims.
Prior to independence, Muslims secured another codified law — the Dissolution of Muslim Marriages Act passed in 1939. While this law established the right of Muslim women to dissolve their marriage in certain circumstances, the motivation behind the law was not the promotion of women’s rights. In fact, it was passed to prevent Muslim women from renouncing their faith and marrying non-Muslims. Prior to this law, Muslim women seeking to end a marriage could only do so after they converted to another religion, which would lead to the automatic termination of their marriage to a Muslim man. This would also enable Muslim women to marry outside their faith after their marriage to the Muslim man stood terminated.
Muslims in the subcontinent, like other religious communities, were extremely concerned about losing their members, especially women, to marriage outside their communities. The Dissolution of Muslim Marriages Act, 1939, specifically stated that renunciation of their faith by a married Muslim or her conversion to another faith shall not by itself dissolve her marriage.
After independence, Muslim personal law continued to govern family matters for Muslims in Pakistan. When, in 1955, Prime Minister Bogra entered into a second marriage, protests by prominent women led to the formation of the Rashid Commission, whose objective was to recommend reforms to Muslim personal law and “give women their proper place in society according to fundamentals of Islam”. The commission’s recommendations included limitations on polygamy and compulsory registration of the nikahnama. Its cautious recommendations were opposed by conservative forces and it was not until 1961 that Field Marshal Ayub Khan promulgated the MFLO, which incorporated some of the commission’s recommendations.
The MFLO fell short of demands of women’s rights activists as it permitted polygamy as well as unilateral divorce, while introducing some safeguards for women. Even these limited protections were subsequently watered down through judicial interpretations. The Zina Ordinance, imposed by Gen Ziaul Haq, introduced strict penalties of adultery and fornication, making enforcement of MFLO even more complicated. Divorce or talaq that did not meet the MFLO’s requirements was validated by the courts to protect women who remarried after they thought they had been divorced by their husbands.
The gap between codified law and court interpretations, contradictory decisions by courts, and pronouncements by religious authorities continue to create uncertainty around family laws. Women and children suffer the most due to this confusion.
How do we move beyond this confusion? In place of fragmented and incoherent family laws, we should adopt codified laws related to marriage, divorce and inheritance that take precedence over non-codified interpretations of religious jurisprudence. A central objective behind framing these civil laws should be consistency with fundamental rights in the Constitution, including the right to equal protection under the law and prohibition of discrimination on the basis of sex.
The Supreme Court should provide clear directions to the judiciary on application of family laws and specify that courts are bound to enforce statutes, judicial precedent and the Constitution. Courts cannot selectively impose their interpretations of religious jurisprudence.
Efforts to improve family laws so far prove that reforms relying on progressive interpretations of Islamic law tend to fall short. They are further weakened by conservative enforcement. Recognising this hurdle, women’s rights activists, in particular the Women’s Action Forum, have recommended a more enlightened approach towards all matters related to marriage and inheritance. It is high time our lawmakers accepted their recommendations.
The writer is a lawyer.
Published in Dawn, April 18th, 2025