SUMMARY
We may now, in conclusion, briefly summarize the scope and nature of the Ordinance both as regards its substance and the juristic method on which it rests.
While by far the most radical reform introduced—the rule of representation in succession—affects both sexes equally, it was, of course, the amelioration of the position of women under the family law which was the major objective of the reformers.
There has perhaps been in modem times an understandable tendency to exaggerate the picture of Muslim women labouring under the heavy shackles of the traditional law. For, by the elaboration of such devices as the deferred dower and suspended and delegated repudiation, the law had evinced a positive concern to establish some kind of equilibrium between husband and wife, and the miserable lot of Muslim wives in practice has often been the responsibility of society—inasmuch as the failure to make due use of existing legal machinery may be attributed to the denial of educational facilities to women and their resultant ignorance of their legal rights—rather than the direct result of the terms of Shari‘a law itself. Even so, the doctrines of polygamy and unilateral repudiation obviously constituted formidable obstacles, and here the terms of the Ordinance, requiring the consent of the Arbitration Council for a second marriage and suspending the effect of all forms of repudiation pending attempts at reconciliation, are certainly steps in the right direction. But they are short and hesitant steps. Basically the husband’s right of repudiation, which undoubtedly occasions the greatest prejudice to woman’s status, remains, and the compromise at which the Ordinance aims between the modernist and traditionalist viewpoints seems on balance to favour the latter.Towards the ultimate notion of equality between the sexes the Tunisian reformers, as we have noted, have progressed considerably further.
Yet even here, it may be argued, much remains to be done. For within the structure of traditional Shari'a law polygamy and repudiation appears as derivative rights of the husband stemming from the root concept of marriage as a contract of sale, wherein the husband purchases the right of sexual union by payment of the dower. However offensive this notion may be to modem moral sense, and however extensive the elaborate superstructure of marital rights andduties, this remains the legal foundation of the Shari'a laws of marriage. And if the law is to endorse, logically and satisfactorily, any system of real equality between husband and wife, it is at least debateable whether this basic traditional concept, epitomized by the payment of dower, can be allowed to remain.
Unlike the Muslim countries of the Middle East Pakistan has not attempted any comprehensive codification of Islamic law but has, in the English tradition, simply amended the existing law in a limited number of particulars by direct legislation. Despite the claims of the Commissioners in their report, the Ordinance can scarcely appear as the result of a conscientious application of ijtUuid on the basis of a reinterpretation of the original sources. As has always been the case since the first legislative interference in the domain of Shari'a law in the Indian sub-continent, the problems of the juristic basis of reform, which have so occupied the attention of the Middle Eastern lawyers, have been largely glossed over or ignored altogether. The approach to the problem of polygamy is conditioned not by the Qur’anic injunctions of financial capability and impartial treatment, but by straightforward criteria of social desirability. And it was precisely this attitude which made possible the introduction of the representation rule, for this cannot genuinely rest upon any text of the Qur’an or any precedent of die prophet.1
In short, therefore, the Ordinance continues the particular tradition of Anglo-Muhammadan law.
In so doing it provides yet one more instance of the growing diversity of legal practice in the present world of Islam, a diversity resulting from the varying reaction of the different areas to the stimuli, both indigenous and foreign, provided by modem life. Such divergence, however, is not out of line with Islamic history. The notion that Islam imposes a stereotyped way of life upon its millions of adherents throughout the world is idealistic: its origin lies in the attitude of the medieval jurists and their fictitious expression of each and every detail of the law as the command of Allah. But because of the great variety of peoples and cultural traditions within the orbit of Islam the Shari'a law has always been in practice subject to modification by local influences. Those, then, who think that Pakistan should exploit the common historical heritage ofIslam and, making a clean sweep, formulate a modem code of Islamic family law which will serve as an example for the rest of Islam are perhaps affected by the same detached idealism as their medieval predecessors. The framers of the Ordinance, in remaining faithful to the particular and healthy tradition of the immediate past, have adopted an attitude which is certainly more practical and probably far better suited to the present mood and aspirations of Pakistan.