The Federal Shariah Court of Pakistan (the apex Islamic Court in the country) has ruled on four important elements of the Muslim Family Law of 1961 suggesting modifications of the sections under challenge to bring them into conformity with the principles of Islam.
The court has ruled on sections dealing with inheritance of orphaned grandsons while grandfather is alive, registration of marriage, polygamy and also commencement of period of iddat (seclusion of women) after divorce.
A full bench comprising Chief Justice Mahboob Ahmed, Justice Chaudhry Ejaz Yousuf and Justice Dr Fida Muhammad Khan gave up to March 31 this year for the government to amend sections four and seven according to the principles of Islam through new legislation.
The landmark judgement on the nearly 38 years old law that had divided the nation sharply, the conservatives criticising it while the modernists applauding, was delivered by Chief Justice Ahmed on Wednesday, just two days before he is to lay down the robes and mace of his office. Another judge, Justice Ejaz is also due to complete his three years' term early next month.
Twenty-seven petitions before the court concerned the inheritance of the orphans while ten others questioned the restrictions on taking of second wife, compulsory registration of a marriage and issues related with divorce.
Addressing a medium sized court room packed with lady activists of women rights groups and human rights forums and representatives from several Non-governmental organisations (NGOs), journalists and some lawyers, Chief Justice Mahboob Ahmed said he would not be reading out the 108-page judgement but only quote from the its operative parts to explain the conclusions the court had reached.
The judgement, according to an official press release issued on Tuesday was scheduled for announcement at 9 a.m. or "thereafter" but 10 a.m. Earlier today a court official said that it had been postponed to 1 p.m. A division bench headed by the Chief Justice assembled at 1.50 p.m. to announce a short order on convictions under the Hudood Ordinance, after which Justice Mahboob Ahmed said the judgement on the Muslim Family Law was under scrutiny by his peers on the bench and they would need another quarter of an hour or so. Finally the three Judges returned to the court room at 2.30 p.m. and after recitation from the Holy Quran and its translation were rendered by a lawyer, the Chief Justice read out its salient features explaining some expects of the law and the effect of the court order on it.
To the great surprise of all, no one, from amongst the 37 petitioners or their counsel, except one, was present to hear the results of their legal battle initiated several years ago. Even the government side was not represented.
Dealing with the inheritance of the children orphaned during the lives of their grandparents, the Court said the current provision was repugnant to Islam, and the judges recommended that the creation of a will in favour of such children by the grand parents may be permitted so that they have "fruits from the assets of their grand parents without any inhibition."
In the eventuality of a grandparent dying without such a will, one-third of the estate with a ceiling that it did not go beyond the share of "their predecessor shall be deemed to have been created by their grandparents in their favour".
However, the judges asked the government to give shape to their suggestion in a way that it "excludes all possible complications of litigation that may crop us as a result of a loose provision of law.
The court accepted Section 5 of the Family Law Ordinance making it necessary to register a marriage with a government agency and said it was a positive check on litigation on marriages or paternity suits or where attempts were made to deny inheritance. The judges did not find anything un-Islamic in the registration of such contracts but said that non-registration did not annul a marriage and asked the government to clarify this situation very specifically.
However, the court wanted an effectual compliance of the provision and recommended that the punishment currently at three months jail or a fine of one thousand rupees to be enhanced suitably.
The Court said though there was no ban in Islam on taking a second wife, the Shariah Bench did not disapprove of Section 6 that subjects second marriage to the approval of the incumbent wife. The court observed that the spirit of the section was reformative and desired prevention of injustice to the existing wife or wives.
The court recommended that suitable measures should be taken to put an end to possible injustices "being found abundantly in the prevalent society". They did not visualise a role for the Arbitration Councils in getting involved with permission for subsequent marriage except to look into disputes in a family when agitated by a wife or her parents.
On the question as to the beginning of Iddat, period when a women has to go into seclusion while under divorce, the judgement held that it should start from the time a husband pronounced divorce and not from the day a Chairman of the Family Court issued a notice.
The court did not accept a sub-section saying that if the wife was found to be pregnant the divorce would not be effective and urged the government to replace it with a 'comprehensive sub-section".
The court has given up to end of March this year when the suggested sub-section has to replace the existing clause on the period of iddat.
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