[Paper presented at a Conference on "Recent Developments in the Islamic Family Law in South‑East Asia," organised by the Shari ah and Law Association of Malaysia. in collaboration with the Islamic Affairs Division. Prime Minister's Department was held in Kuala Lumpur during August 3‑5, 1990 wherein papers on the Recent Developments in Muslim Family Law in (i) Brunei; ii) Malaysia; (iii) Indonesia; (iv) Philippines; (v) Singapore; (vi) Sri Lanka: (vii) Thailand and (viii) Pakistan were presented and discussed by the learned judges, jurists, lawyers and other intellectuals.]
Mr. Justice Dr. Tanzil‑ur‑Rehman,
Chief Justice, Federal Shariat Court of Pakistan
1. When Britishers captured India, and after the Mutiny in 1857, Sultanat‑i-Mughliyah at Delhi fell down and they got complete hold over Indo‑Pakistan sub-continent and established their rule, they promulgated their own laws, like Evidence Act, Civil Procedure, Criminal Procedure and others, but they did not encroach upon the family laws of the inhabitants, irrespective of the fact whether they were Muslims or Hindus, Jains or Sikhs. They were allowed to be governed by their own rules, customs and usages. In fact, a Decree/Regulation by Queen Victoria was issued to that effect. This state of affairs continued till 1913 when, the first legislation was made regarding waqf. The background of this legislation, briefly speaking, was that as a result of a decision in 1904, in a case wherein it was ruled by the Judicial Committee of the Privy Council that the institution of Waqf `alal awlad was not a waqf, there was a protest by Muslims and so the legislation was passed in 1913, in order to nullify the effect of the decision of the Privy Council. With the result that the original law of Waqf `alal awlad as recognised in Islam, was restored. A dispute, however, arose as to the validity of Waqf `alal awlad established or created prior to 1913, because the rule of substantive law takes effect only prospectively unless by a stipulation, either express or by implication, a law is intended to be effective restrospectively. To overcome that difficulty, another statute called Waqf Validiting Act was passed in 1930. This Act reaffirmed that any Waqf, whether created by a Muslim before or after the aforesaid decision, was valid.
2. In 1937, another legislation called Muslim Personal Law (Shari'at) Application Act was passed, whereby it was provided that "in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females,, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula` and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shar'at)". It is noticeable that the said Act excluded the rule of testate succession and more particularly in respect of agricultural property, it was not made applicable as it was to remain subject to custom and usage The main idea behind this exception was to keep on depriving the females from inheriting agricultural property as in most parts of the Indo‑Pakistan sub‑continent the females were not allowed to inherit agricultural land because of local custom. And so the law of Will was also made subservient to custom. This was a central statute. The provinces also passed their respective laws, for example, by Punjab Act of 1948 the females continued to be governed by local custom in matters of testate succession. The Punjab Act, 1948 was, however, repealed by West Pakistan Muslim Personal Law (Shari'at Application) Act, 1961.
3. Now going back to pre‑Partition history of legislation, I would like to refer to another development with regard to marriage and divorce law. In 1929 the Child Marriage Restraint Act was passed whereby it was laid down that no child below the age of 14 would be given in marriage. In 1939, Muslim Married Women's Dissolution of Marriages Act was passed whereby a Muslim married woman was given the right of seeking dissolution of marriage through the Court of Law on various grounds, such as cruelty, husband's whereabouts not known for four years, husband having been sentenced to seven years' imprisonment, husband's neglect to maintain his wife for two years or abstaining from performing marital obligations for three years or for any other cause recognised by Shar'iah. The several statutes were made applicable to and continued in force in the territories now forming Pakistan, after the partition of India in 1947.
4. In 1961 a major development took place in Pakistan in the matter of family law. I mean, the promulgation of Muslim Family Laws Ordinance, by Field Marshall Muhammad Ayub Khan as Chief Martial Law Administrator, at the time when the Constitution of 1956 stood abrogated, National and Provincial Assemblies dissolved and Marital Law promulgated since October 8, 1958. By means of Family Laws Ordinance which was enforced on 15th July, 1961, inter alia, the rule of succession was changed to provide inheritance, that "in the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stirpes receive a share equivalent to the share which such son or daughter, as the case may be, would have received; if alive". The marriageable ages were fixed of both boy and girl at 18 and 16 years respectively. Marriages were, made compulsorily registrable. A restriction on polygamy was placed inasmuch as during the continuance of one's marriage the man could not enter into another marriage without permission of the Arbitration Council. Divorce, if pronounced, was not to become effective until the expiry of 90 days after giving notice to the Chairman of the Union Council. In case no notice is given the divorce would not become effective, as held by the Supreme Court in Pakistan. A period of `iddah of three months' was also fixed in case of divorce, irrespective of the fact that the wife is pregnant and delivers the baby before the expiry of three months.
5. A breach of the laws, such as the contracting of a polygamous marriage, or divorcing without notice or contracting boy or girl into marriage before their prescribed ages, and so the non‑registration of marriages were all made penal offences.
6. The most striking feature of this Ordinance has been that its provisions could not be tested on the touchstone of Shari'ah nor could they be declared as void being repugnant to fundamental rights, guaranteed by Pakistan Constitution, as the Constitution of Pakistan, 1962 and so the Constitution of 1973 exempted it from being challenged in a Court of Law on the ground that it infringes fundamental right of a Muslim to profess and practise his religion. It could not, therefore, be attacked or challenged on the basis of violation of fundamental right guaranteed under Article 20 of the Constitution of 1973. The challenging of the provisions of the Ordinance in the light of the Holy Qur'an and Sunnah was also excluded from the jurisdiction of the Courts of Pakistan including that of the Supreme Court under the Constitution of 1962 and of 1973. Reference may be made to the case of Ali Nawaz Gardezi v. Col. Muhammad Yusuf P L D 1963 SC p. 51. The very fact that the Muslim Family Laws Ordinance has been protected is sufficient to contend that the framer of the law was conscious in his mind that the same, being against the fundamental right as guaranteed by Article 20 of the Constitution, will be challenged in a Court of law and the result being obvious, and perhaps, for that reason, protection was afforded to that law from being so challenged since its very inception. Thus, the very inclusion of the Muslim Family Laws Ordinance in the First Schedule, which saved it from the operation of Fundamental Rights, guaranteed under the Constitution, is enough to show that the Legislature was itself, or because there was no Legislature in those days, the sole framer of the Constitution and of the said Ordinance Field Marshall Muhammad Ayub Khan, the President and Chief Martial Law Administrator, was himself conscious of the fact that the said law was apparently opposed to, in conflict and inconsistent with the fundamental right to profess and practise one's own religion. Not only that, no provision of the said Ordinance was challengeable in any Court of law on the ground of its repugnancy to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, under the Constitutions of 1962, 1972 and 1973. The protection seems to be tainted with mala fide intention. This fact is further fortified by further excepting the said Ordinance from the jurisdiction of the Federal Shariat Court, as constituted by General Zia‑ul‑Haq, the Chief Martial Law Administrator and President, in May, 1980, to be tested on the anvil of the Qur'an and Sunnah, in spite of the fact that the exclusion of the Ordinance from the jurisdiction of the Federal Shari'at Court seems to be inexplicable, as to why the application of Shariah to a very important branch of law touching the basic foundation of Muslim society was specifically denied to the Federal Shariat Court?
7. The situation, however, according to me, appears to have changed after incorporating the Objectives Resolution and making it a substantive part of the Constitution, later on, in 1985, by the late President Zia by adding Article 2‑A to the Constitution, which reads as under:‑‑
"The Objectives Resolution to form part of substantive provisions:
Article 2‑A. The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly."
"THE OBJECTIVES RESOLUTION:
In the name of Allah, the Beneficent, the Merciful
Whereas sovereignty over the entire Universe belongs to Allah Almighty alone and the authority which He has delegated to State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust;
This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for sovereign independent State of Pakistan.
Wherein the State shall exercise its powers and authority through the chosen representatives of the people;
Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;
Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and the Sunnah;
Wherein adequate provisions shall be made for the minorities to profess and practise their religions and develop their cultures;
Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their power and authority as may be prescribed;
Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;
Wherein adequate provisions shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;
Wherein the independence of the Judiciary shall be fully secured;
Wherein the intergrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded;
So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity."
8. The question whether any provision of the Family Laws Ordinance comes into conflict with the principles and provisions of the said Objectives Resolution was examined by me in the case of Shaukat Hussain v. Robina PLD 1989 Karachi p. 513. It seems convenient to quote below the relevant portion from the judgment in the said case:
In the face of Article 2‑A, subsequently added, it would not, perhaps, be possible to extend recognition to the said protection in so far it derogates or comes into conflict with the principles and provisions underlying the Objectives Resolution, which would ultimately affect the religio‑social guarantee given to the people of Pakistan which the Constitution so solemnly proclaims, envisages and secures. The Muslim Family Laws Ordinance, when examined from the point of view of the infringement of fundamental rights, in my humble view, it comes into conflict with Article 20 of the Constitution inasmuch as it prevents Muslims to practise their religion according to their belief and faith. (See my Article "Constitution and the Freedom of Religion" P L D 1989 Journal 17). It also negatives the express provision as contained in Article 227 which, inter alia„ provided that in the application of clause (1) as contained in Article 227, in so far it relates to the personal law of any Muslim sect, the expression "Qur'an and Sunnah" shall mean Qur'an and Sunnah as interpreted by that sect. In other words, the interpretation of the Qur'an and Sunnah will be recognised and' applied in accordance with the belief of every Muslim sect. It is true that the right as guaranteed under Article 20 is subject to law and morality, but these two expressions law and morality, will now be subjected to the interpretation in the light of Explanation to Article 227 and Article 2‑A; with the result that the said Ordinance, if found against law and morality, judged by Islamic standards, it will amount to transgressing the limits and will not be saved merely because it comes within the expressions of law and morality simpliciter used in Article 20 or clause (6) of the Objectives Resolution as referred to in Article 2‑A of the Constitution, as the law and morality should nevertheless be in conformity with the provisions of Article 2‑A or, to be more precise, so far as the law and morality relate to Muslims, it would mean conformable to the law and morality as laid down in the Qur'an and Sunnah of the Holy Prophet. (See my Article "Law, Morality and Society". P L D 1989 Journal 94)".
9. In an earlier case, Qamar Raza v. Tahira Begum P L D 1988 Karachi 212, the point as to the testing of the provisions of Muslim Family Laws Ordinance, 1961 on the touchstone of Article 2‑A of the Constitution, has also been discussed in some detail. The cases of Bank of Oman v. Eastern Trading Co. P L D 1987 Karachi 404, and Habib Bank Ltd. v. Muhammad Husain PLD 1987 Kar. 612 are also relevant as to the power of the Courts of general jurisdiction to declare a law un‑Islamic if found repugnant to the Injunctions of Islam as laid down in the Qur'an and Sunnah, not falling within the jurisdiction of the Federal Shariat Court. These are some of the cases decided by me on the above question, for the first time in Pakistan.
The abovesaid judgments arc in appeal before, the Supreme Court of Pakistan, and so I should stop here; it is now for others to say on the point at issue.
MR JUSTICE FAZAL ELAHI KHAN, CHIEF JUSTICE, PESHAWAR HIGH COURT
Mr. Justice Fazal Elahi Khan was born at village Baizu Kharki, Tehsil and District Mardan on 1st January, 1933. Got Primary education in his village and passed Matriculation examination from Islamia High School, Peshawar City in the year 1949 which was then affiliated with the Punjab University. Graduated from Edwards College, University of Peshawar in the year 1954. Qualified the Punjab N. W.F.P. Joint Public Service Commission Competitive Examination for the post of Naib Tehsildar in the year 1953. Joined service in the Settlement Department as Sub‑Assistant Rehabilitation Commissioner at Peshawar but resigned after serving for a short period of four months to continue his studies further. Joined Khyber Law College, Peshawar University and passed the LL.B. examination in the year 1956. Was enrolled as a Pleader in the District Courts at Peshawar on 23‑8‑1956 and started practice at Peshawar in the year 1957. In the year 1959, appeared in the P.C.S. "Judicial Branch" examination and qualified the same but due to limited posts could not be accommodated. Enrolled as an Advocate of the erstwhile High Court of West Pakistan, Peshawar Bench, Peshawar on 24th June, 1959 and Advocate Supreme Court of Pakistan on 28th April, 1976. Appointed as Additional Judge of the Peshawar High Court on 8‑4‑1982 and as Judge of the Peshawar High Court on 8‑4‑1984. Worked at High Court Circuit Bench Abbottabad from 1‑12‑1982 to 31‑12‑1983 and then at Circuit Bench D.I. Khan from 1‑1‑1986 to 31‑12‑1987. Also worked as Election Tribunal, Banking Judge N.‑W.F.P., Peshawar and Chairman of the N: W.F.P. Labour Appellate Tribunal. Appointed as Chief Justice, Peshawar High Court on 9‑2‑1991.