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Center for Religious Studies Kohat University of Science and Technology, Kohat-26000 Khyber Pakhtunkhwa, Pakistan Comparative Study of Muslim Family Laws of Pakistan and Malaysia: A Shariah Perspective by Fazle Omer Center for Religious Studies Kohat University of Science and Technology, Kohat-26000 Khyber Pakhtunkhwa, Pakistan February, 2014 Comparative Study of Muslim Family Laws of Pakistan and Malaysia: A Shariah Perspective Submitted in partial fulfillment of the requirements for the degree of PhD in Islamic Studies by Fazle Omer Registration No. CRS 420122001 Center for Religious Studies Kohat University of Science and Technology, Kohat-26000 Khyber Pakhtunkhwa, Pakistan February, 2014 CERTIFICATION FROM THE SUPERVISORS This thesis entitled "Comparative Study of Muslim Family Laws of Pakistan and Malaysia: A Shariah Perspective" submitted by Mr. Fazle Omer to Kohat University of Science and Technology, Kohat for the award of degree of PhD in Islamic Studies presents bonafide research work carried out under our supervision. This work (in full or in part) has not been submitted to any other institution for award of any degree/diploma/certificate. Supervisor-I: Dr. Niaz Muhammad Incharge Director (Signature) Centre for Religious Studies Kohat University of Science & Technology Kohat Supervisor-II: Dr. Muhammad Mushtaq Ahmad Research Officer (Signature) The Bank of Khyber Peshawar CERTIFICATION FROM THE EXAMINERS This thesis entitled "Comparative Study of Muslim Family Laws of Pakistan and Malaysia: A Shariah Perspective" presents a bonafide record of original research work carried out by Mr. Fazle Omer in partial fulfillment of the degree of PhD in Islamic Studies, Kohat University of Science & Technology, Kohat. We find the work satisfactory for the award of the degree if other requirements are met. The Viva Voce/ Public Defence was held on / /2015. Internal Examiner Dr. Farhadullah (Name) (Signature) Assistant Professor, Centre for Religious Studies, KUST External Examiner Dr. Janas Khan (Name) (Signature) Assistant Professor, Deptt: of Islamiat, University of Malakand Director: Prof. Dr. Muhammad Shafiq (Name) (Signature) 2.musllms.com Gallery Introduction The term of Shaksī or Aāilī qawanīn (Personal or Family Laws) possess historical background which traces back to British Colonial rule in Indian subcontinent. As a fact, both are not Islamic Jurisprudential terminologies rather both are the translation or substitutes for the Personal and Family Laws, respectively. While studying the books of Islamic Jurisprudence, one can find the topics related with Family Laws in chapters of Nikāh, Talāq, Hadhānah and Farāidh etc. During the British colonial rule, religious matters were separated from the main body of laws, declaring them as Personal Laws. Therefore, the laws related with marriage and divorce were discriminated from other laws being based on religion or any juristic school of thought. This perception resulted in raising two misunderstandings in the general public, firstly, Shariah (Islamic Law) is a kind of personal law and, secondly, marriage and divorce laws are Shariah based, therefore, they are beyond of any further legislation. Principally, the law of any state is concerned with its geographical boundaries regardless of religion, caste, tribe or race. Hence, in the modern legal theory, the Islamic Family Law is purported as a complicated and unsolvable issue. In present age, if a person migrates form one country to another one, he is bound to comply with the laws of new country except his religious matters which do not change with the change of country. Thus, on international level, the Islamic Family Laws have been realized as an issue of international law and Human Rights. On the other hand, the laws of marriage and divorce are not declared religious in every country of the world. It is also a fact that there are many sects and schools of thought in the Muslim world because of which Family Laws differ from country to vi country and sect to sect. Therefore, legislation of family matters has turned into a complicated situation in the Muslim world. The Colonists contracted the Shariah into personal matters, therefore, many other subject were accumulated into personal matters such as Nikāh (marriage), Talāq (divorce), Farāidh (Shares in inheritance), wirāsat (inheritance), auqāf (public trusts), hadhānah (custody) and hebā (gift) etc. These all subjects are described in detail in the books of Islamic Jurisprudence, therefore, they were not legislated during the colonial rule. Only those matters were brought into legislation which were in need of reform from colonial point of view. The legislation in Pakistan, after independence, also followed the same pattern. The Muslim Family Laws Ordinance was promulgated in 1961 but it is not in enough detail rather it has provided some kind of reformative measures in some topics related with Family Laws. Generally, the Courts in Pakistan rely upon the opinions of various jurists over a specific issue. The present judicial system of Pakistan, follows the Doctrine of Precedence, it means; if a superior Court has adopted a specific opinion of any jurist, the lower Court is bound to follow it in the similar case. During the British rule, it was advised to British judges to follow rules of equity, justice and good conscience while adopting a specific opinion from other juristic opinions. The afore mentioned advice is closely related with the social norms and values of any nation. The social norms and values of British judges were different from habitants of Indian sub continent especially, their Muslim subjects. Therefore, in many cases of Nikāh, Talāq, hebā and auqāf, the British judges failed to understand the Islamic norms and values. vii It is a fact that instructions about family matters are discussed in Qur'an in detail, which is the foremost source of Islam, as compared to other aspects of life and actions of submissions. Then, the Holy Prophet (SAW) implemented these instructions in the practical life and solved family related issues in the light of such instructions. Afterwards, the Muslim jurists took the responsibility of guiding the Muslim ummah and provided solution for a number of possible future issues based on the Fiqh Al.Mafrūḍ [the Supposed Jurisprudence]. However, it is an undeniable fact that time changes with a rapid pace continuously resulting in the formation of new issues and situations. Generally, on international level and, especially, on national level, the Muslim Family Laws are facing new challenges. The present technological development has contracted the whole world into a village and chances of utilizing the good experiences of others are doubled, therefore, under such incitement, the research entitled as " Comparative Study of Muslim Family Laws of Pakistan and Malaysia: A Shariah Perspective" has been undertaken. Problem Statement In 1961, General Ayub Khan, the then President of Pakistan, issued an Ordinance namely " Muslim Family Laws Ordinance" in order to bring Muslim Family Laws in line with contemporary demands of the day. Some clauses of the said ordinance are criticized from the beginning and remained controversial. Literature in agreement and disagreement of these Laws has been emerged. Some clauses of the Ordinance remained divisive among national Muslim scholars, hence, those who wrote in disagreement include Mufti Muhammad Shafi (d. 1976 AD), Ihtesham ul Haq Thanvi (d. 1980 AD), Mufti Wali Hassan Tonki (d. 1995 AD) Molana Amin Ahsan Islahi (d. 1997 AD) and Mufti Muhammad Taqi Usmani. Similary, some wrote in favour of these Laws such as Ghulam Ahmad Pervez (d. 1985 AD), Mohi ud Din Ansari and Dr. Kamal Farooqi. Practically, the Muslim Family Laws Ordinance 8 are eyesore for the Pakistani Ulema and they term these Laws against the injunctions of Qur'an, Sunnah and Jurisprudential assets of the past. On the other hand, the parliament of sister Asian Muslim country Malaysia, has legislated the Family Laws and an act namely Muslim Family Law Act 303 has been enacted in the country. This act was promulgated in 1984 and it is supported by public representatives of the parliament. In such scenario, the comparative study of Muslim Family Laws of Malaysia, which are based on the Shafi school of thought can benefit in the Islamization and reform of Muslim Family Laws of Pakistan. Objectives of Research The objectives of this research are as under: 1. Bringing forth the solution of possible deficiencies in the Muslim Family Laws of Pakistan 2. Benefitting from Malaysia in process of Islamization in the country 3. Making the Muslim Family Laws of Pakistan more comfortable and convenient for society through bringing them at par with spirit of Qur'anic Family Instructions and Sunnah of the Prophet (SAW) 4. Ending the insistence over a single juristic school and taking advantage from other juristic schools for public interest 9 Research Methodology 1. As this research is of historical nature, therefore, data collected through visiting various libraries. 2. Muslim Family Laws Ordinance 1961 of Pakistan and Muslim Family Laws of Malaysia Act 303 were kept before for reviewing them comparatively in the perspective of Qur'an and Sunnah. 3. Keeping in view the moderate mode of Qur'an and Sunnah, public interest was preferred than restriction of following a specific school of thought. 4. Concerned Legal experts and lawyers were consulted. 5. For better comprehension and insight of the research problem, researcher visited Malaysia two times and professors of Malaysian Universities were consulted (especially professors from International Islamic University and
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