Muslim Family Laws 1961 Reforms and Muslims Family Laws Modernization in the Islamic world has been

characterized by a continuous tension between a highly institutionalized tradition and vigorous modernist and reformist challenges. The persistence of traditional Islam as an important socio cultural alternative is no where more salient than in the Muslim family laws; hence, the ulama (scholars) have vigorously resisted the efforts of the state to introduce any changes in these laws. This course will examines one such effort by Pakistan's president Ayub Khan to modernize the Muslim family laws a first major and successful attempt to initiate Islamic social engineering, and a model of how to retain the integrity of traditional Muslim family and yet introduce changes reflecting a more liberal interpretation of Ideological Parameters for Constitutional of Pakistan Since its emergence in 1947, Pakistan has been engaged in a national debate on its destiny and ideology. While the view that the raison d^etrc of Pakistan was Islam is shared by most people, the question of the role of Islam in national politics and public policy has been a subject of growing controversy and conflict both at political and religious levels. The constitutional history of Pakistan that laid down the ideological parameters of the state and defined its duties and obligations toward Islam offers an interesting study and explains in some measure the genesis and scope of the current application and interpretation of Islamic laws in contemporary Pakistan. Islam and Pakistan The struggle for a separate homeland for Muslims in the undivided India which culminated in the creation of Pakistan, though deeply rooted in a desire for economic emancipation, was largely perceived at the mass level as a symbol of the Muslim regeneration? A state based on the Quran and Sunnah (tradition of the Prophet). The leaders of the Muslim League, the political party that campaigned for Pakistan, did not explicate clearly the ideological and constitutional contours of the new state, though their statements were replete with references to Islam as the guiding force of the new state. The Objective Resolution Constitution making in Pakistan, however, did not prove to be an easy task. It took tortuous turns and at each stage imprecise and vague concepts and language about the Islamic nature of the state further confused the issue. The first attempt to define the ideological goals of the new state and to link them to public policy was the adoption of the Objectives Resolution in 1949.

The Resolution embodied the main principles on which the future Constitution of Pakistan was to be based. A 25-member Committee of the Constituent Assembly, known as Basic Principles Committee, was set up to report on the principles of the future Constitution, since the politicians differed with the ulama's views on the role of Shariah (Islamic Law) and its institutionalization in the legal system of Pakistan. The divergence led the ulama to join ranks and issue their own 22 points as fundamentals of the Islamic Constitution declaring, inter alia, that the Quran and Sunnah be the basis of legislation and that all laws, including the family laws, repugnant to Islam are repealed forthwith. First Constitution of Pakistan On March 23, 1956, that the first Constitution of Pakistan was adopted, this declared the state as the Islamic Republic of Pakistan. Pakistan was described as a democratic state based on Islamic principles of social justice. Islamic provisions were mentioned in the "Directive Principles of State Policy but were not justice able. There was no provision to make Islam the state religion in Pakistan. The 1956 Constitution made provision for setting up a commission "to make recommendations as to measures for bringing existing laws in conformity with the injunctions of Islam and to compile "injunctions as can be given legislative effect. The most significant feature of the Islamic provisions was the avoidance of the word Shariah. Thus, Article 198 even specified that in application of this article to family laws, the expression "Quran and Sunnah" shall mean the Quran and Sunnah as interpreted by the sect to which the contending parties belong. The 1956 Constitution, however, did not last long. It was abrogated on October 7, 1958, and replaced by another Constitution in 1962. However, before the promulgation of the new Constitution, the government issued the Muslim Family Laws Ordinance (MFLO) in March 1961, which was designed to give effect to certain recommendations of the Commission on Marriage and Family Laws. Muslim Family Laws Ordinance (MFLO) in March 1961 The ordinance covered questions of succession, registration of marriages, polygamy, divorce, maintenance, dower, and dissolution of marriages. The Muslim Family Law Ordinance was the first legal effort in Pakistan to codify Muslim personal law. The Shariah Act of 1937 had earlier laid the foundations for such an effort but, having been promulgated by the British colonial administration, it could not claim any Islamic legitimacy. The 1961 law was also the first step toward the protection of women in matters of marriage, divorce, custody, and inheritance. The women's rights group still considers this legislation as a major move "in promoting the status of women in Pakistan by upholding the need for women to be free economically, socially, and politically. Its main significance, however, lies in the fact that the ordinance became a focal point of conflict between the Muslim modernists, on the one hand, and the orthodox ulama and the fundamentalists, on the other. Although the Muslim modernists, who had authored this legislation, had relied heavily on the classical 2

juristic scholarship on matters pertaining to the family laws, the orthodox ulama, nevertheless, accused them of having been inspired by Western ideas.

Registration of Marriage in MFL The modernists, on the other hand, pointed out that they had written nothing in the new law which could be supported by the opinions and precedents of many of the respected classical Muslim jurists and juristic schools. Before the promulgation of this ordinance, marriages solemnized under Muslim law were not required to be registered with state authorities. The ordinance made it a legal requirement to have all marriages solemnized under Muslim law registered with the local authorities. Local government officials were authorized to grant licenses to marriage registrars for this purpose. Polygamy-1 The ordinance provided that the violation of this provision would be punishable with imprisonment up to three months or with a fine of up to 1,000 rupees. The most important aspect of the Muslim Family Laws Ordinance was its section on polygamy. The traditional and orthodox position has been that Islam allows polygamy and that the conditions attached to this permission are not in the form of legal imperatives but is moral prescriptions. The modernists argued, however, that the Quran permit to have more than one wife was qualified with the condition that one must do justice to all of them. Polygamy -2 The modernists further argued that, since the Quran itself warns that "you shall never be able to do justice among wives55 (IV, 129), and that, "if you fear you cannot do justice [among wives], then [marry] only one (IV, 3), it is putting a virtual ban on polygamy. The Muslim Family Laws Ordinance did not go so far as banning polygamy, as had earlier been done in some other Muslim societies, such as Turkey and Tunisia. The ordinance, however, stipulated that a man who wants to have more than one wife is legally obligated to obtain consent of his wife. He was also required to present his request, giving reasons for the second marriage, to an arbitration council, consisting of representatives of each party and headed by the chairman of the local council. Polygamy -3 The final decision whether permission for a second marriage should be granted or not rests with the arbitration council. The ordinance provided, however, that a review petition may be filed with the district officer whose "decision shall be final and shall not be called into question in any court. Divorce in MFLO-1 The ordinance also made a major breakthrough from the orthodox tradition by declaring illegal the customary and much abused practice of divorce by repudiation, i.e., 3

pronouncing the word "divorce three times. This had been a major concern of women, for they were subjected to a constant sense of insecurity in a situation whereby men could instantly divorce them by merely repeating the words divorce three times. Divorce in MFLO-2 The new law required that, in order to obtain a divorce, a husband had to send a written notice to the chairman of the local council with a copy to his wife. But the divorce will not be effective until the expiration of a waiting period of 90 days, which will be utilized to constitute an arbitration council for the purpose of bringing about reconciliation between the parties. Divorce in MFLO-3 The intent of the new law (Article 7/3-4) was to bring the good offices of the arbitration council two families, the elders of the husband Another significant aspect and wife, the local influential's, and of the new law requiring the official authorities to bear on the formal registration of conflict and seek a reconciliation based marriages and providing on understanding and guarantees for a standardized. The law possible for women to also provide that, if the wife is seek enforcement of this pregnant at the time of the notice of contract through the divorce, the notice will remain ineffective, until the time of the delivery of the child. Registration of Marriage Another significant aspect of the new law requiring formal registration of marriages and providing for a standardized marriage contract was that it now became possible for women to seek enforcement of this contract through the intervention of courts. In the absence of such contracts, women had no recourse to take legal action against their husbands in matters of divorce, maintenance, dower, etc. Talaq e Tafweez The standardized marriage contract (nikah nama) now provided clauses which, if agreed upon at the time of marriage, ensured the delegated right of divorce to the wife (talaq etafiwid). According to this, women could dissolve the marriage without going to court, but they were required to send a notice of divorce to the chairman of the local council. The ordinance also provided for divorce by mutual consent {mubaraat). Maintenance of Wife In matters of dower and maintenance, the new law also challenged the tradition and customary practice of South Asian Muslim society. Previously, maintenance could only be obtained through the courts under lengthy and costly criminal procedures. The ordinance provided that, if the husband fails to maintain his wife "adequately, or fails to maintain his multiple wives "equitably, the wife or wives, in addition to seeking any other legal remedy available, can apply to the chairman of the local council. 4

The arbitration council will then specify the amount which shall be paid as maintenance to the wife or wives, as the case may be (Article 9). The ordinance also prescribed that the entire amount of dower (mehr) should be paid to the wife on demand, unless otherwise agreed to between husband and wife. The ordinance, which was the first real test of the ability of the state to effect changes in the traditional domain of the religious establishment, was hailed as progressive legislation by modern educated women and liberal circles, but was severely opposed by the ulama of all schools of thought. Significant Contribution of MFLO-1 In practice, it altered the daily lives of Pakistani women very little, but its significance for the religious establishment was enormous. First, it established an important precedent whereby the state would appropriate the right to legislate public policies in Islamic affairs. Second, in the view of the ulama and fundamentalists, the ordinance had violated the sanctity of the traditional Islamic laws of marriage, divorce, and inheritance by introducing changes of a "fundamental nature. Significant Contribution of MFLO-2 Third, it directly challenged the monopoly of the ulama in Muslim family laws and transferred one of the most important remaining domains of their power to the state. The power to conduct marriages, pronounce judgments on the validity of divorce, and give authoritative views on inheritance and maintenance, was now to be turned over to the secular authorities of the state. Fourth, and probably most important from the point of view of the fundamentalist, it underscored the ascendance of Islamic modernists, albeit under the sponsorship of the state, over both the traditionalists and fundamentalists. Significant Contribution of MFLO-3 The MFLO was thus seen as the first move in a series of measures through which the military regime of Ayub Khan was planning to "modernize Islam55 and to "liquidate55 the traditional champions of Islamic orthodoxy. Finally, the ordinance created administrative and judicial institutions within the structure of the state for adjudicating family disputes, which had been previously decided by the fatwa (religious decrees) of the private ulama.

Reaction of Ulma-1 As expected, the ulama of all schools of thought and the fundamental ists joined hands to oppose the MFLO. Fourteen prominent ulama from Lahore issued a joint statement describing the ordinance as "against Islam and asked the government to withdraw it forthwith.

Reaction of ulma-2 The fact that the ulama were much more concerned about the loss of their influence rather than about the changes in the traditional formulation of Muslim family laws is evident from a statement by a group of prominent ulama of Karachi, in which they proposed that, if the government appointed competent ulama as Qazi (judges) and registrars of marriages, "the problems and difficulties of jurisprudence and religion [could] be overcome through mutual discussions. Reaction of the Government on Criticism on MFLO For President Ayub Khan and his modernist associates in the government, however, the MFLO was a test case of their ability and determination to "liberate Islam from the debris of wrong superstition and prejudice; to "make it keep pace with the march of time; and to fight against the obscurantist forces in the religious establishment. The regime, therefore, used the full force of the martial law to curb any criticism of the new legislation by the ulama and the fundamentalists. Reaction of the Government on Criticism on MFLO-1 Mian Tufail Mohammad, the secretary-general of the Jamaat-i-Islami, who had obtained and published the antifamily laws fatwa of the ulama from Lahore, was arrested and the booklet containing the fatwa was confiscated. The government also imposed a ban on any public criticism of the ordinance. In a letter to Mufti Mohammad Shaft, a prominent orthodox Muslim scholar, regarding his objections to the MFLO, President Ayub Khan was firm and blunt, especially on the question of polygamy: "I consider it [polygamy] a barbaric torture of the highest order. As the head of the State, I just cannot close my eyes to it. Reaction of the Government on Criticism on MFLO-2 MFLO has remained a major source of controversy and conflict between the women's rights groups and Muslim modernists, on the one hand, and the orthodox ulama and the fundamentalists, on the other. While women activists welcomed the ordinance as a measure of their success, and as a major step toward protecting the rights of Muslim women given to them by the Quran, the ulama and the fundamentalists continued to agitate for its abrogation, declaring it as an attempt to tamper with the traditional understanding of Islamic personal law as formulated by the four classical schools of Islamic jurisprudence. Attempts to repeal MFLO-1 The ulama made many attempts during the later years of Ayub Khan's regime to have this law repealed. At one point, the West Pakistan Legislature passed a nonbinding resolution asking for the repeal of the ordinance. Since the law was protected by the Constitution, it required a constitutional amendment to have it repealed.

Attempts to repeal MFLO-2 During the martial law regime of President Zia-ul-Haq, there had been rumors many times that the MFLO was being repealed. It was reported in the press, for example, that the religious parties close to President Zia were putting pressure on him and asking him to repeal this law. Attempts to repeal MFLO -3 There were also reports that the ulama members of the Council of Islamic Ideology had recommended drastic revision of this law, especially with regard to its provisions about polygamy. The woman member of the council, however, opposed this recommendation and refused to endorse any changes in the existing law. It is well known that President Zia himself was not convinced of the need to repeal or amend the MFLO and believed that this law was necessary for the protection of women's rights. The Women Action Forum (WAF), a coalition of women's rights organizations in Pakistan, also took immediate initiative to forestall any possibility of attack on this law by the religious groups. Attempts to repeal MFLO -4 The WAF organized a signature campaign demanding that the MFLO be strengthened to protect Muslim women and not be repealed. In conclusion, it may also be pointed out that the mere promulgation of this ordinance did not mean that its provisions became extensively applied, or even effective, as means of ensuring the rights of Muslim women in Pakistan. Attempts to repeal MFLO -5 Because of the entrenched customs and traditions and certain important structural constraints, the actual application of the ordinance has remained limited to urban sectors of society. The majority of women living in the rural areas of Pakistan have not been able to benefit from its provisions. In the rural setting, the provisions relating to the rights of women have frequently been ignored by a coalition of the forces representing local customs and traditions, religious orthodoxy, and local governmental authorities.

Attempts to repeal MFLO -6 In the rural setting, the provisions relating to the rights of women have frequently been ignored by a coalition of the forces representing local customs and traditions, religious orthodoxy, and local governmental authorities. There are instances in which columns of the marriage contract stipulating favorable conditions for the wife are simply left blank.

Attempts to repeal MFLO -7 However, the ordinance has met with considerable success in reducing the incidence of polygamy and in eliminating the much abused institution of instant divorce. The Muslim Family Laws Ordinance, as a first major attempt on the part of Muslim modernists to initiate Islamic social engineering through public policy, continues to provide a model of how to maintain the integrity of the traditional Muslim family and yet introduce changes incorporating the modern understanding of Islamic injunctions on family.