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PAKISTAN1 OVERVIEW of MUSLIM FAMILY LAWS & PRACTICES (Updated As at 31 May 2017)

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PAKISTAN1 OVERVIEW of MUSLIM FAMILY LAWS & PRACTICES (Updated As at 31 May 2017) PAKISTAN1 OVERVIEW OF MUSLIM FAMILY LAWS & PRACTICES (Updated as at 31 May 2017) Description Family Law Matter Legislative Framework Case Law Policy Procedure Practice Equality of spouses in marriage Article 25 of the Constitution In Resham Bibi vs. Pakistan has a According to the provides for equality before the Muhammad Shafi,16 reservation to Article 2016 UNDP Human Is there a Constitutional provision law and prohibits discrimination the court defined 29(1) of CEDAW. Development on equality and are there excep- on the basis of sex.2 “obedience” to be The Pakistani Report, Pakistan tions? Are there specific laws that submission to rea- government also ranked 147 on the recognise marriage as a partner- Article 35 of the Constitution sonable authority. declared that UNDP Human ship of equals i.e. are family laws obligates the State to protect the The courts often Pakistan’s Development Index and/or other laws relating to mar- marriage, the family, the mother avoid adjudicating accession to and 130 on the riage and family relations codified and the child.3 over matters of cov- CEDAW is subject UNDP Gender or uncodified? If codified, what ert disobedience – to the provisions of Inequality Index.20 are the titles of all the applicable Matters regarding marriage and expressed generally Pakistan’s laws? If codified, do these laws family relations of the Muslim in the intimate de- Constitution.18 According to apply to all citizens irrespective of majority population in Pakistan tails of the married Pakistan’s 2012/13 religion? If not, do these laws ap- are mainly governed by the life of the couple – The Government of Demographic and ply to all Muslims or are there dif- Muslim Family Laws Ordinance and leave for such Pakistan in its 2011 Health Survey, ferent codified laws for different (MFLO)4 and the following matters to be sorted report to the about 11% of sects within Islam? If uncodified, codified laws:5 out personally. CEDAW Committee households in or if codified laws do not suffi- • Dissolution of Muslim Marriages Overt disobedience informed that the Pakistan are headed ciently address a particular issue, Act (DMMA);6 – involving some National by women (Urban: 7 21 how is the issue addressed e.g. • Child Marriage Restraint Act; public action – is Commission on 10%; rural 12%). what Muslim school of law is ap- more easily deter- Status of Women 1 This Musawah project to map Muslim Family Laws globally was led by Zainah Anwar and coordinated by Lead Researcher Sharmila Sharma, with substantive support from Salma Waheedi and students at the International Human Rights Clinic, Harvard Law School. For this Pakistan country table, we would also like to thank Darshana Prakasam and Divya Srinivasan from Harvard Law School, and Dr Zubair Abbasi for their inputs in its preparation. 2 Article 25 of Pakistan’s Constitution (1973), https://www.constituteproject.org/constitution/Pakistan_2015.pdf?lang=en 3 Article 35 of Pakistan’s Constitution (1973), https://www.constituteproject.org/constitution/Pakistan_2015.pdf?lang=en 4 Muslim Family Laws Ordinance (1961), http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-cJyX-sg-jjjjjjjjjjjjj 5 Sharmin Osmarny, “Family Laws and Judicial Protection”, http://www.supremecourt.gov.pk/ijc/articles/21/2.pdf 6 Dissolution of Muslim Marriage Act (1939), http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-cJaW-sg-jjjjjjjjjjjjj 7 Child Marriage Restraint Act (1929), http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-ap%2Bb-sg-jjjjjjjjjjjjj 1 plicable? Do these laws explicitly • Dowry and Bridal Gifts mined and in such has been activated According to a civil state gender-stereotypical roles (Restriction) Act;8 instances the wife with the vision of society 2012 9 between husbands and wives e.g. • Guardians and Wards Act; and can lose her right to achieving objectives Shadow Report to 10 17 the husband is the head of the Family Court Act. maintenance. of gender equality in the CEDAW • 19 household or the wife is the pri- the society. Committee: mary caregiver? The majority of Muslims in “Marriage and family Pakistan follows the Hanafi as institutions hold a Applicable CEDAW Provision School. Consequently, there is a great deal of Article 16(1)(c) legal presumption that a case falls importance in Paras. 17-18 GR21 under the rules of Hanafi Pakistan and are Paras. 54-55 GR29 jurisprudence (fiqh) unless either often thought to be party proves to the contrary. A more important than sizeable population in Pakistan the concerned follows the Shia Ithna Ashari individuals. It is school and there is a legal considered presumption that Shia Muslims important for women follow this school.11 to not shame the family and not allow The MFLO adopts a moderate a marriage to fail. interpretation of Muslim family There are many law.12 Marriage is not specifically taboos on divorce defined in the MFLO nor the rights and un-married and obligations of the husband women. Women are 16 [1999] SCMR 2325 18 United Nations Treaty Collection Website, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&clang=_en 20 UNDP, “Human Development Report 2016”, Table 5, pp. 214-217, http://hdr.undp.org/sites/default/files/2016_human_development_report.pdf 21 Pakistan National institute of Population Studies and ICF International, “Pakistan Demographic and Health Survey 2012/13”, Table 2.9, p. 21, http://dhsprogram.com/pubs/pdf/FR290/FR290.pdf 8 Dowry and Bridal Gifts (Restriction) Act (1976), http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-bpuUY2Rp-sg-jjjjjjjjjjjjj 9 Guardians and Wards Act (1890), http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-cJc%3D-sg-jjjjjjjjjjjjj 10 Family Court Act (1964), http://punjablaws.gov.pk/laws/177.html; see also Rizvi Sah, “Composition, Jurisdiction and Powers of Family Courts in Pakistan”, http://www.zklawassociates.com/wp-content/uploads/2012/03/Family-Courts-in-Pakistan.pdf 11 Ghulam Shabbir v Mst Bakhat Khatoon [2009] SCMR 644 12 Martin Lau, “Sharia and National Law in Pakistan”, in Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present, ed. Jan Michiel Otto (Leiden, The Netherlands: Leiden University Press, 2010), p. 415, https://openaccess.leidenuniv.nl/bitstream/handle/1887/21170/file221087.pdf?sequence=1 17 Fayez Qamar, “Maintenance of Wives in Islam”, Courting the Law, 3 March 2016, http://courtingthelaw.com/2016/03/03/commentary/maintenance-of-wives-in-islam/ 19 Pakistan State party report, U.N. Doc CEDAW/C/PAK/4 (2011), para. 2, http://www.ohchr.org/en/hrbodies/cedaw/pages/cedawindex.aspx 2 and wife explicitly detailed except recognised primarily for Section 9. in their roles within the marriage and Section 9 of the MFLO provides family as wives, that if any husband fails to mothers, daughters maintain his wife adequately, or etc. Their identity is where there are more wives than derived from their one, fails to maintain them family.22 equitably, the wife, or all or any of the wives may, in addition to Based on media seeking any other legal remedy, reports, the MLFO apply to the Arbitration Council and other related (consisting of Chairman of the laws are periodically Union Council and objected to by the representatives of each of the Council of Islamic parties) to determine the matter. Ideology (‘CII’), a The Arbitration Council may issue constitutional body a certificate specifying the amount that gives advice to which shall be paid as parliament on the maintenance by the husband.13 compatibility of laws with Shari’ah, for There is expectation that the provisions that wife’s right to maintenance is protect the interest subject to the obedience of the of women and wife to her husband. However:14 children e.g. prohibition of child • Muslim jurists have not marriages, reached consensus as to the procedural accepted legal definition, in- requirements with terpretation and application of regard to “disobedience”. Generally it is polygamous accepted that when a wife marriages and leaving the home without con- prohibition of 13 Section 9 of the Muslim Family Laws Ordinance (1961), http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-cJyX-sg-jjjjjjjjjjjjj 14 Fayez Qamar, “Maintenance of Wives in Islam”, Courting the Law, 3 March 2016, http://courtingthelaw.com/2016/03/03/commentary/maintenance-of-wives-in-islam/ 22 Aurat Foundation, “Pakistan: NGO Alternate Report on CEDAW” Submission to the CEDAW Committee for the 54th Session, 2012, p. 90, http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/PAK/INT_CEDAW_NGO_PAK_13269_E.pdf 3 sent or lawful excuse may domestic violence. amount to disobedience; and Though the advice of the CII is not • Non Hanafi jurists have ar- legally binding, its gued that a healthy wife who statements of denies her bed to her husband usually widely is disobedient and therefore publicised.23 loses her right to mainte- nance. Marriage and family relations of Pakistan’s non-Muslim minority communities are governed by their own laws and customs.15 Minimum and equal legal age Generally, the minimum legal age The courts have The CII have A prospective bride According to for marriage for marriages is 16 for females argued that while advised that must provide her UNICEF’s State of and 18 for males as per Section 2 the marriage of a Pakistani laws age and National the World’s Children Is there a minimum age of mar- of the Child Marriage Restraint female below 16 prohibiting child Identification Card 2016 report, 21% of riage? Are there exceptions to the Act.24 constitutes an marriage are ‘un- number to the women aged 20- 24 minimum age (e.g. min. age at 18, offence, the Islamic’. While the marriage registrar, in Pakistan were with exceptions to 16)? Is there The Act criminalises and marriage is valid if advice of the CII is who in turn, must first married by 18 an absolute minimum age without penalises the following:25 the female has not legally binding, a verify the age of the and 3% were first 36 exceptions? Is there equality in • Males over 18 who contract a attained puberty, as nationwide bill to persons getting married by 15.
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