Muhammad Zubair Abbasi & Shahbaz Ahmad Cheema
Dr Cheema and I recently published a book Family Laws in Pakistan (Oxford University Press 2018). Before starting this book project, we asked ourselves whether there was a need for a ‘new’ book when several authoritative books were already available in the market. Especially, in the presence of books written by esteemed scholars such as Sir Dinshaw Fardunji Mulla, Assaf Ali Fyzee, Faiz Tyabji and Syed Ameer Ali, why there was a need for a new book on Muslim Personal Law? In this short piece, we provide an answer to this question by introducing ourselves and the background which motivated us to write this book.
We have been studying, researching and teaching Islamic family law for most of our adult lives. We graduated from International Islamic University Islamabad (Dr Cheema in 1998 and Dr Abbasi in 2005), and then went abroad to pursue our doctoral studies (Dr Cheema at Warwick and Dr Abbasi at Oxford). Our research has focused on Islamic family law and we have continued researching and teaching this topic after joining academia. It was during our teaching that we realized the lack of appropriate and up-to-date teaching material to train future legal scholars and practitioners of family law in Pakistan. The available books, written during the British colonial period in India, were not only archaic but they were totally unsuitable for law students of the 21st century. The ‘revised’ and ‘updated’ versions of these books are a mere listing of headnotes of case law under various sub-topics without analysis and commentary. In this respect, we want to specifically mention the so-called Bible of ‘Mahomedan Law’ written by DF Mulla which is widely used by law students, lawyers and judges in South Asia. DF Mulla published it in 1905 for the ‘use of students, as a guide to their study of Mahomedan Law’. However, its comparative simplicity and conciseness made it popular amongst the bar and bench, though it was not meant for them. In his book, Mulla extensively relied on earlier books of Macnaghten (1825), Syed Ameer Ali (1892) and Wilson (1895). These books were written for practitioners for their use in courts as legal commentaries which systematically organized the case law on Islamic family law, inaptly termed as Muhammadan Law. Despite valuable contributions in the form of their treatises by later scholars such as FB Tyabji (1913, 1919 & 1940), Vesey- Fitzgerald (1931) and AAA Fyzee (1949 & 1971), Mulla’s Principles of Mahomedan Law established itself as an ‘authority’ in the field of Muslim Personal Law. Mulla himself published its 10th edition in 1933, one year before his death. After his death, George Rankin, Sajba Rangnekar, M. Hidayatullah, MA Mannan, SA Hassan and M Mahmood continued to publish its updated and revised editions. Professor Iqbal Ali Khan, former dean and chairman of the Department of Law, Aligarh University revised its latest edition which is published by LexisNexis India in 2013.
Despite our view that Mulla’s book was a product of the colonial period and it reflects and perpetuates the erroneous perceptions of colonial judges about Islamic law, we acknowledge the historical importance of this book and in fact plan to publish its updated and revised edition for practitioners, judges and senior year law students. Based on our teaching experience, however, we have found that Mulla’s available editions are inadequate for the law students in Pakistan. This is because since the publication of its 10th edition in 1933, not only that various statutes have been passed regarding Islamic family law but the case law has also replaced the old authorities of the Judicial Committee of the Privy Council and the colonial Indian High Courts. For instance, the Supreme Court of Pakistan in the Khurshid Bibi case (PLD 1967 SC 97) overturned the judgment of the Privy Council delivered a hundred years earlier in the Monshee Buzloor Ruheem case ([1867] 11 MIA 551) which provided that the consent of the husband is mandatory for khula (no-fault judicial divorce). Similarly, in the Abdul Majid Khan case (PLD 1989 SC 362) the Supreme Court of Pakistan applied articles 14 and 25 of the Constitution related to equality and dignity to hold that the principle of the presumption of a marriage based on prolonged and continued cohabitation also applied to a woman who was admittedly a prostitute before her marriage. Even in the latest editions of Mulla’s book, it is written that such presumption does not apply to the woman who was ‘admittedly a prostitute before she was brought to the man’s house’ (section 268). This was not simply the failure of later editors of Mulla’s book to keep it updated which frustrated us a teachers of Muslim Personal Law, but we also found that merely stating of ratio decidendi under the general principles, which are based on outdated case law does not help students appreciate the factual context of each case. Based on our reading of judgments, we realised that many times these were the facts in various cases which informed the laying down of new legal principles or the varied interpretations and applications of already settled principles by the judges.
We find that the most challenging and also disappointing aspect of the current state of scholarly material including the books on family law in Pakistan is the absence of any discourse or explanation regarding conflicting judicial authorities especially regarding the various sections of the Muslim Family Laws Ordinance 1961 (MFLO). For instance, the notice requirement under section 7 of the MFLO has been a bone of contention since the Gardezi case (PLD 1963 SC 51) in which the Supreme Court held that talaq shall be deemed to have been revoked in the absence of such notice. After the promulgation of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, this ostensibly pro-women dictum of the Supreme Court led to the prosecution of divorced wives who entered into another marriage after the divorce albeit that their first husbands did not give notices of talaq as required under section 7 of the MFLO. In its various decisions such as Shoukat Ali case (2004 YLR 619) the Federal Shariat Court held that a talaq without fulfilling the notice requirement under the MFLO is still valid and the Supreme Court in the Kaneez Fatima case (PLD 1993 SC 901) laid down the principle that the requirement of the notice under the MFLO has to be taken into account on case by case basis. To add further complexity to the issue, in the Manzoor Ahmad case (PLD 2004 SC 132) and the Farah Naz case (PLD 2006 SC 457), the Supreme Court held that a talaq is invalid without notice under the MFLO. So, what is the correct law regarding the notice requirement of talaq under the MFLO? Closely connected to this issue is the question about the validity of triple talaq in Pakistan. Is it valid or invalid under Pakistani law? We have mentioned some of the conflicting judicial authorities and none of the available books address these crucial issues.
It is in this context that we embarked upon the task of writing a book titled ‘Family Laws in Pakistan’ five years ago and are pleased to present to our students and legal community a comprehensive treatise which deals with the various aspects of family laws in Pakistan. Not only that we present systematically organized case law but also evaluate various judgments by rationalizing conflicting judicial authorities. For instance, based on our analysis of case law we have developed a guiding principle which explains the conflicting judicial authorities regarding the validity of triple talaq and the notice requirement of talaq under the MFLO. According to this principle, whenever courts come across conflicting, ambiguous, or unsettled legal rules, they decide in a way that protects and promotes the interests of women. Therefore, courts accept the validity of triple talaq if it protects the divorced wife’s right to dower, dowry and maintenance or saves her from prosecution under the Offence of Zina (Enforcement of Hudood) Ordinance 1979 but reject the validity of triple talaq if it jeopardizes her right to inheritance and maintenance. A similar principle applies regarding the evidence based on a DNA test which is accepted in cases of rape as a circumstantial evidence but rejected to question the paternity and legitimacy of a child.
Apart from this, we highlight the areas of family law where, we believe, the courts could have adopted a progressive approach such as the Supreme Court judgment in the Saadia Usman case (2009 SCMR 1458) where the court held that a wife cannot demand deferred dower during the subsistence of her marriage and it is payable upon dissolution of marriage or death of either spouse. The Supreme Court could have, as the Lahore High Court actually did in the Muhamad Sajjad case (PLD 2015 Lah 405) but without referring to the Supreme Court judgment, that deferred dower is an obligation of a husband and it can be demanded during the subsistence of marriage. On a separate issue, we are of the view that the Federal Shariat Court judgment in the Farooq Siddiqui case (PLD 2013 Lah 254) directing the legislature to criminalize surrogacy by inserting a new section in the Pakistan Penal Code, fails to take into account the interests of vulnerable surrogate mothers and surrogate children. Similarly, we find it unfortunate the Federal Shariat Court did not declare the restitution of conjugal rights remedy as un-Islamic in its two related judgments delivered in 2016 in Nadeem Siddiqui v Islamic Republic of Pakistan (PLD 2016 FSC 1 & 4). This remedy, which is frequently abused by husbands to counter the legitimate claims of their wives to divorce, maintenance and custody of children, has canon law origins and is a colonial implantation upon Islamic family law.
We do not shy away from claiming that our book is unique both in its style of presenting family laws in a comprehensive and systematically organized form but it is also the first book which covers personal laws of non-Muslims in Pakistan and engages with legal issues relating to conflict of personal laws. We chose family law as the first topic for our forthcoming series of textbooks on laws in Pakistan because of its wide applications and complex interactions with other areas of law such as contract law, property law, employment law, constitutional law, criminal law, or private international law. We are grateful to our students and colleagues at the Lahore University of Management Sciences (LUMS), Punjab University Law College, American University of Cairo, Punjab Judicial Academy, and Shariah Academy International Islamic University, Islamabad for their valuable comments and feedback on various chapters of this book. We strongly hope that both the bar and bench will also find this book useful though they may have to wait a little longer for our forthcoming international edition of Mulla, Abbasi and Cheema’s Principles of Mahomedan Law.
For an online link to the description of the book at the website of Oxford University Press click here.
