PARTICULAR BACKGROUND IN THE INDIAN SUB-CONTINENT

Such had been the progress achieved in the reform of Islamic family law in the Middle East when the Pakistani Commission was appointed in 1955. At this time the state of Islamic family law in the Indian sub­continent was, in substance, broadly similar to that in the Middle East, though such changes as had taken place in the traditional Hanafi law were the result of a process quite different from, and indeed wholly alien to, the Middle Eastern legal tradition.

In India the interaction of English and Islamic law had moulded the latter into a unique form, aptly termed Anglo-Muhammadan law, where the application of the law of the authoritative Hanafi texts was subject to the twin influences of the doctrine of precedent and over­riding legislation, both of which are utterly foreign to pure Shari'a doctrine. Thus, to confine ourselves to the concrete examples already noted, while the Middle Eastern reformers had chosen to apply the Maliki law concerning the possible grounds of a wife’s petition for dissolution, substantially the same reforms were effected in India by the direct and overriding legislation of the Dissolution of Muslim Marriages Act, 1939. But though the terms of the Act are generally parallel with the Maliki law there are some notable differences; and indeed, as its preamble points out, the Act was only necessary because the courts were hesitant to apply Maliki law in these cases. Similarly, where the Middle Eastern reformers had used the indirect procedural device of denying judicial relief, the Indian Evidence Act, 1872,¹ super­ceded the traditional Hanafi law concerning the maximum period of gestation by adopting, broadly speaking, the English law relating to presumptions of legitimacy; while the Child Marriage Restraint Act, 1929, imposed penalties,² in cases of child³ marriage, upon the male party if adult, die celebrant of the marriage and the guardian of the child concerned.

* Section 112.

² Imprisonment of up to one month or a fine of up to 1,000 rupees, or both.

¹ Boys under eighteen and girls under fourteen years of age.

‘ Fyzee, Outlines of Muhammadan Law, O.U.P., 1953, p. 104 et seq. The report of the Pakistani Commission claims ‘a consensus of opinion’ that such conditions are valid and enforceable.

But, notwithstanding such changes, no serious attempt had been made to challenge the husband’s right of polygamy and talaq. Like the Middle East India had also known its advocates of a dynamic reinter­pretation of the Qur’an, but the thesis of scholars like S. Khuda Buksh had remained a matter of theoretical speculation.

At a time, therefore, when a workable equilibrium between tra­ditional Islamic law and modem Muslim society had been gradually established in the sub-continent, and when in the rest of the Muslim world reforms had not seriously disrupted the continuity of the Islamic legal tradition, the advocation by the Pakistani Commission of a sudden and total break with past tradition by the reopening of the door of ijtihad as the foundation for comprehensive reform naturally shocked the conservative element into violent reaction. The particular circumstances prevailing in Pakistan, of course, heightened the controversy. For the State was to be founded on Islamic principles and it was precisely the nature of those principles which was in issue. Furthermore, the majority of the members of the Commission hardly justified their claim to be exercising any genuine form of ijtihad. On the contrary, their often arbitrary and specious reasoning demon­strated only the most superficial familiarity with Islamic legal history.

It was the strength of the traditionalist reaction which brought into stark relief the magnitude of the issues involved in the conflict and which, no less than the unsettled political situation, caused con­siderable delay in Governmental decision on the proposals. In the interim, however, significant events had taken place elsewhere in the Muslim world. New codes of family law were promulgated in Tunisia, Morocco and Iraq in 1957, 1958 and 1959 respectively. The Tunisian code, carrying the thesis of Muhammad ‘Abduh to its logical con­clusion, had outrightly prohibited polygamy and made talaq dependent upon the consent of the court. When, therefore, President Ayub Khan promulgated the Muslim Family Laws Ordinance in March, 1961,¹ the recommendations of the Commission no longer bore the same

* The Ordinance came into force on July 15, 1961. It was published in the Gazette of Pakistan, Extraordinary, March 2, 1961, and now appears as Supplement I—to The Muslim Law of Marriage in All Pakistan Legal Decisions,

1961.

revolutionary aspect. And, as will be observed, the terms of die Ordinance are not only far less extreme than the Tunisian Law: they by no means wholly implement the recommendations of the Commission.

THE MUSLIM FAMILY LAWS ORDINANCE, 1961

To consider, then, the substance of the Ordinance.¹ If there were those who hoped that the Islamic State of Pakistan would set an example for the rest of the Muslim world by a sweeping revision of the existing legal structure and the translation of modernistic Islamic thought into a comprehensive code of family law, those hopes have been disappointed. The codes of family law which have recently appeared in the Islamic world have been notoriously brief.

Following the recommendations of the Commission, the regis­tration of marriages, on a standard form of marriage contract or nikahnama, is made compulsory under pain of penalties—three months imprisonment or a fine of 1,000 rupees, or both—much heavier than those suggested by the Commission,¹ though marriages not so regis­tered are still valid. This is perhaps the one occasion where reform appears as genuine ijtihacL For whereas the same reform in Middle Eastern countries was invariably regarded as a species of adminis­trative regulation, the proposal was based by the Commission on a verse of the Qur’an,³ ignored by thirteen centuries of Muslim jurisprudence, which enjoins that contracts should be made in writing.

However, the outstanding reform which does follow closely the spirit and letter of the Qur’an is contained in Section 2 of the Ordinance. This provides for the setting up of Arbitration Councils, consisting of the Chairman of the Union Council constituted under the Basic Democracies Order, 1959, provided such a person is a Muslim, and a representative of each of the parties to any one of the three principal matters dealt with in the Ordinance, i.e. a second marriage, a repudiation or a wife’s claim for maintenance. A verse of the Qur’an does, in fact, as we have noted, order the appointment of arbitrators

* J. Roussier, of Algiers, has analysed the Ordinance, with customary clarity, in the French periodical Actualitis et Informations, 1962, pp. 799-808.

¹ For infraction of registration provisions the Commission had suggested only a fine of 500 rupees.

³ Sura II, Verse 282.

in case of ‘discord’ between spouses. And though the system of arbitration has previously operated only in cases where a wife sought dissolution of her marriage on the grounds of her husband’s cruelty which she was unable to prove,¹ obviously ‘discord’ equally exists between the spouses in the three cases mentioned.

We turn now to the three principle matters which will occupy the attention of the Arbitration Councils. The Ordinance gives effect to the recommendations of the Commission on the subject of polygamy in toto. A second marriage during the subsistence of an existing marriage is prohibited without the written permission of the Arbi­tration Council, and such permission may only be given where the Council is ‘satisfied that the proposed marriage is necessary and just’, and may be given ‘subject to such conditions, if any, as may be deemed fit’. There are limited provisions for appeal from the Council’s decision.² As to when a second marriage will be considered ‘necessary and just’ it is obvious from the Ordinance that the consent or other­wise of the existing wife or wives will be a highly relevant factor. Apart from this the rules made under the authority of the Ordinance³ by the Provincial Governments afford the necessary guidance and criteria. ‘The Arbitration Council may, without prejudice to its general powers to consider what is just and necessary, have regard to such circumstances as the following, amongst others: Sterility, physical infirmity, physical unfitness for the conjugal relation, wilful avoidance of a decree for restitution of conjugal rights, or insanity on the part of an existing wife.’ The rules made by the Provincial

¹ This is the system of traditional Maliki law, and it has now been adopted in certain Hanafi countries, e.g.

¹ In West Pakistan the appeal lies to the Collector and in East Pakistan to the Sub-Divisional Officer, whose decisions are final.

¹ Section 11.

Governments of West and East Pakistan respectively in this regard are couched in identical terms. Indeed, the only point upon which the two sets of rules as a whole differ is on the question of the fee which must accompany the application for the Council’s permission for a second marriage. It is 25 rupees in East Pakistan and four times that amount in West Pakistan.

Failure to obtain the Council’s permission before contracting a second marriage does not render such marriage invalid, but entails a threefold sanction. The husband becomes liable to imprisonment for up to one year or a fine of up to 5,000 rupees, or both; he is obliged to pay forthwith the entire dower of his existing wife or wives, even where the payment of a portion of the dower was specifically deferred;¹ and finally the existing wife has a right to the dissolution of her marriage, an express clause to this effect being added by the Ordinance to the Dissolution of Muslim Marriages Act, 1939.

By contrast with the provisions concerning polygamy those relating to falaq by no means follow the Commission’s recommendations. It may be recalled that the Commission had suggested that a (alaq should require the permission of the court, and that such permission should only be granted after any outstanding dower had been paid to the wife and, in cases where the husband had no legitimate motive for repudiation, when suitable provision had been made for the maintenance of the divorced wife. Section 7 of the Ordinance, how­ever, merely requires that the husband, after pronouncing a falaq, shall give notice in writing of his having done so to the Chairman of the Arbitration Council, and to his wife. Failure to comply with this provision makes the husband liable to imprisonment for a term of up to one year or a fine of up to 5,000 rupees, or both?

¹ A minor reform introduced by the Ordinance, on the recommendation of the Commission, is that, where the dower is not specifically divided into prompt and deferred portions, the whole amount will be presumed to be payable promptly. Hanafi law decides the apportionment in these cases on the basis of local custom, and failing proof of such custom presumes half the dower to be prompt and half deferred.

* According to section 8 these provisions are also to apply where a wife exercises a duly delegated power of or ‘where any of the parties to a marriage wishes to dissolve the marriage otherwise than by falaq. This last phrase certainly includes divorce by mutual consent (known as khul' in Shari'a law) but I find it difficult to suppose, as Roussier does (op. at., p. 803), that it was also intended to cover proceedings under the Dissolution of Muslim Marriages Act, 1939. In these cases the requirement of additional notice would seem to serve litde useful purpose. It was the extra-judicial forms of divorce which were the concern of the framers of the Ordinance.

The falaq is not to be effective until ninety days after the delivery of notice to the Chairman or, where the repudiated wife is pregnant, until delivery of the child, whichever period be longer. This is, of course, substantially the traditional 'idda. period of Shari'a law, and since it is to apply after the pronouncement of a talaq ‘in any form whatsoever’ the immediate effect of the various forms of irrevocable falaq known to traditional Shari’a law is thereby nullified.¹ During the said period the function of the Arbitration Council, which must be constituted within thirty days of the receipt of notice of the repudiation, is confined to attempting a reconciliation between the parties. And though the Council is empowered to ‘take all steps necessary to bring about such reconciliation’ this cannot conceivably include effecting such safeguards for the position of the repudiated wife as were suggested in the Commission’s report. In sum, therefore, the husband’s traditional power of unilateral repudiation at his discretion is left substantially unimpaired.

It may finally be remarked, on the general subject of divorce, that the Ordinance does not attempt to implement the suggestion of the Commission that incompatability of temperament should give a wife the right to demand a divorce in the khul‘ form. The Commission, indeed, had stated that ‘there is a consensus of opinion that Islam has granted this right (of khul' divorce) to the woman if she forgoes the mahr (dower) or part of it, if it is so demanded by the husband’. It remains to be seen whether the courts of Pakistan will endorse this statement or whether they will adhere to the true Shari‘a law under which khul‘ divorce is entirely dependent upon the consent of the husband.

Equally disappointing to the Commission and their supporters must be the terms of the Ordinance in regard to the matter of a wife’s maintenance. When Section 9 enacts that in cases of dispute under this head the Arbitration Council may determine what maintenance is adequate for the wife or wives concerned and may issue a certificate to this effect, and that any arrears of maintenance specified in—and, presumably, accruing after the issue of—such a certificate may be

¹ This applies, in particular, to the so-called ‘triple’ form of talaq, i.e. where the husband repeats the words ‘I repudiate you’ three times or where he says ‘I repudiate you three times’. It is also noteworthy that the principal effect of such a repudiation, namely the prohibition of remarriage between the divorced couple until the wife has contracted and consummated an intervening marriage, is also abolished by the terms of Section 7, sub-section 6, though the rule still applies in the case of a wife who is effectively repudiated for the third time under the provisions of this Section.

recoveted as arrears of land revenue, it simply provides additional alternative machinery for the application of traditional Hanafi law. Under this law arrears of unpaid maintenance cannot be claimed by the wife unless a mutual agreement between the spouses or a judicial decree has fixed the amount of such maintenance; and it was this rule, admittedly the cause of considerable hardship to abandoned wives,¹ which was the primary concern, in this context, of the Commission. But the Ordinance contains no reference at all to their proposal that a wife should in all cases be able to claim past maintenance for a period of three years prior to the institution of the suit.

In the final aspect of the marriage laws dealt with in the Ordinance —the subject of child marriage—two relatively minor modifications only of the existing law are introduced. The age below which it is prohibited, under the Child Marriage Restraint Act, 1929, to contract a girl in marriage is raised from fourteen to sixteen by amendment of the Act.² Marriages of minors concluded by their guardians exercising their traditional powers in defiance of these provisions remain valid, but the child concerned may repudiate the marriage, provided it has not been consummated, on the attainment of puberty and before the age of eighteen under the terms of the Dissolution of Muslim Marriages Act, 1939. Under this Act the option was exercisable by a girl who had been given in marriage before she was fifteen. Accordingly this Act also is amended by the Ordinance and the age of sixteen sub­stituted. The second modification is procedural only and consists of a further amendment to the Child Marriage Restraint Act which provides that no court shall take cognizance of any offence under the Act except on a complaint made by the Union Council.