Country Table – Pakistan
In 2016, Musawah began compiling country tables containing an overview of legislative frameworks, available case law, policies, procedures and practices…
Islam is the state religion of Pakistan, and about 95-98% of Pakistanis are Muslim. The majority are Sunni (estimated at 85-90%)http://lcweb2.loc.gov/frd/cs/profiles/Pakistan.pdf https://en.wikipedia.org/wiki/Library_of_Congress_Country_Studies https://en.wikipedia.org/wiki/Library_of_Congress Accessed on 23 May 2022. An updated census in 2017 was deemed to be inaccurate by our researchers. , with an estimated 10-15% Shiaibid. Because Pakistan was made on the premise of being an Islamic country, all laws within Pakistan have to comply with Islamic Injunctions, thus Muslims in Pakistan are mandated to follow regulations set out by Islam with respect to their personal lawsConstitution of Pakistan 1973, article 227 .
It is pertinent to note that within Pakistan, a majority of the Muslims follow the Hanafi School of thought, consequently there is a legal presumption that a case falls under the rules of Hanafi jurisprudence (fiqh) unless either party proves to the contrary.
A sizable population in Pakistan also follows the Shia Ithna Ashari school. Pakistan enacted separate laws in 2021 so that the matters related to divorce and inheritance of Shia Muslims are decided according to the personal law interpreted by the Shia school of thoughtMuslim Family Laws (Amendment) Act 2021 <https://na.gov.pk/uploads/documents/1623994515_995.pdf> accessed 19 May 2022; Muslirn Family Laws (Second Amendment) Act 2021 <https://na.gov.pk/uploads/documents/61b302ea4efd7_504.pdf> accessed 19 May 2022. .
Matters regarding marriage and family relations of the Muslim majority population in Pakistan are mainly governed by the following codified laws:
The law is however interpreted through Islamic jurisprudence and Muhammadan law, which is not codified.
The majority of Muslims in Pakistan follow the Hanafi School. Consequently, there is a legal presumption that a case falls under the rules of Hanafi jurisprudence (fiqh) unless either party proves to the contrary.
A sizable population in Pakistan follows the Shia Ithna Ashari school. Pakistan enacted separate laws in 2021 so that the matters related to divorce and inheritance of Shia Muslims are decided according to the personal law interpreted by the Shia school of thoughtMuslim Family Laws (Amendment) Act 2021 <https://na.gov.pk/uploads/documents/1623994515_995.pdf> accessed 19 May 2022; Muslirn Family Laws (Second Amendment) Act 2021 <https://na.gov.pk/uploads/documents/61b302ea4efd7_504.pdf> accessed 19 May 2022.
There are differences in the rights afforded to men and women in a marriage.
Rights in marriage: Pakistani law requires a wife to be ‘obedient’ towards her husband. MFLO does not specifically state gender-stereotypical roles except for its Section 9 which requires a husband to maintain his wife Muslim Family Laws (Amendment) Act 2021 <https://na.gov.pk/uploads/documents/1623994515_995.pdf> accessed 19 May 2022. However, a wife’s right to maintenance has been made conditional upon her obedience to her husbandIsrafeel vs Nekam Zada [2016] Peshawar High Court [2016] YLR 1103. However, he is obligated to maintain her and failure to do so allows us to leave, etc.
There is no consensus among Muslim jurists with regards to the legal definition of “disobedience”. Generally, it is accepted that a wife will be disobedient if sheFayez Qamar, ‘Maintenance of Wives in Islam’, (Courting the Law, 2016). <http://courtingthelaw.com/2016/03/03/commentary/maintenance-of-wives-in-islam/> accessed 19 May 2022:
In case of disobedience, without reasonable grounds, the state penalizes the wife by taking away her right to maintenanceIsrafeel vs Nekam Zada [2016] Peshawar High Court [2016] YLR 1103; Rukhsana Tabassam vs Judge, Family Court [1999] Lahore High Court [1999] CLC 878. In some cases, courts have recognized physical violence, verbal abuse, misbehaviour, disrespect, willful neglect or second marriage without first wife’s consent as reasonable grounds to refuse obedience to husbandSyed Nobahar Shah vs Mst. Salma Bibi [2016] Peshawar High Court [2016] CLC 1668; Nadir Khan vs Zeenat Bibi [1990] Peshawar High Court [1990] CLC 293.
Additionally, Pakistani men can enter into up to four polygynous marriages, but they can only do so after receiving the written consent of their wives. The penalty for not doing so is minimal and mostly ignored.
Citizenship rights: While Pakistani women cannot automatically pass on their citizenship to their foreign husbands, they are considered the primary parent that custody of children is awarded to after a divorce.
Pakistan has still not been able to develop a nationwide consensus strong enough for the bills to be given the force of law. Between 2013 and 2020, several bills were introduced both at the federal and provincial levels; however, Sindh is the only province that managed to harmonize the marriageable age as 18 for both genders – at least on paperUnderstanding’ to determine ‘marriageable age’ to curb child marriages | Dialogue | thenews.com.pk . Many courts use the conservative interpretations of Islamic law focusing on physical puberty as adulthood and declaring she has a right to marry of her choice.
Child marriage restraint laws merely seek to regulate the solemnization of underage marriages by imposing consequences. This includes imposing fines and penal consequences. However, the law is silent on the legality and the validity of a marriage that may have been convened in contravention of the provisions of the lawibid. This means that the legal status of a marriage that has been contracted in violation of the Act, nevertheless, remains valid. This is because, under Islamic jurisprudence ‘marriageable age’ is often taken to mean the same as ‘the age of puberty’ which can be as early as age 9. Marriages in contravention of these laws will continue to be declared valid leaving their victims with little or no practical recourse against violation of their fundamental human rights until the Shariah Act prevails over the governing statutes.
Divorce rights: Women and men do not have equal rights to divorce. The husband can divorce without reason and without having to go to courtMuslim Family Laws Ordinance 1961, s 7. <http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-cJyX-sg-jjjjjjjjjjjjj> accessed 19 May 2022; Ali Shaikh, ‘Law of Divorce & Khula in Pakistan’. <https://www.ma-law.org.pk/pdf/Law%20of%20Divorce%20in%20Pakistan%20(Article).pdf accessed 19 May 2022; Gul & Gul Law Form, “Pakistan Divorce Law (FAQ)”, <https://gmlaw.wordpress.com/pakistan-divorce-law-faq/> accessed 19 May 2022 unless restrictions have been put into the marriage contractAli Shaikh, ‘Law of Divorce & Khula in Pakistan’, pp. 2-3, <https://www.ma-law.org.pk/pdf/Law%20of%20Divorce%20in%20Pakistan%20(Article).pdf accessed 19 May 2022 . In a 2022 case, court declared limitations on a husband’s absolute right to divorce void arguing that such limitations were against the spirit of Islam. However, the practice continues regardless.
Pakistani law provides for the following mechanisms for divorce Shaqufta Omar, ‘Dissoluation of Marriages: Practices, Laws and Islamic Teachings’ (Institute of Policy Studies), <https://www.ips.org.pk/dissolution-of-marriage-practices-laws-and-islamic-teachings/> accessed 19 May 2022:
While the legislation requires women to meet certain requirements for divorce by judicial decree, Pakistani courts allow no-fault based divorce to women.
Women are often considered to have the best interests of the child and unless there are any major issues or if she has not remarried, it is common for women to be awarded custody of children post marriage, However it is widely asserted and implemented that she loses custody rights if she remarries.
Infringing upon a woman’s right to inheritance was criminalized, with penal punishments introduced to safeguard this right in the Pakistan Penal Code 1860. In Punjab, additional measures were created to ensure automatic measures to have the woman’s name included in list of inheritorsThe Punjab Land Revenue (Amendment) Act of 2012
Although the Dissolution of Muslim Marriages Act 1939 requires women to fulfil certain requirements for divorce by judicial decree, Pakistani courts allow women to get divorce without identifying faultInformation obtained from Pakistani advocate, February 2017; Balqis Fatima vs Najam-ul-Ikram Chaudhry [1959] Lahore High Court [1959] PLD 566; Khurshid Bibi vs Baboo Muhammad Amin [1967] Supreme Court [1967] PLD 97; Saleem Ahmad vs Government of Pakistan [2014] PLD Federal Shariat Court [2014] 43; Zariya Mushtaq, ‘The Impact of Islamisation of Laws on Muslim Family Law, especially the Khula Law, in Pakistan’, (Courting the Law 2015). <http://courtingthelaw.com/2015/07/31/commentary/the-impact-of-islamisation-of-laws-on-muslim-personal-law-especially-the- khula-law-in-pakistan/> accessed 19 May 2022
Generally, women must give up their financial rights to obtain a no-fault divorce, however, the courts have recently protected women’s financial rights where divorce was sought due to the husband’s faultSyed Haroon Sultan Bokhari vs Syeda Mubarak Fatima [2014] Lahore High Court [2014] CLC 1270
Family matters are adjudicated upon within the District Courts, as they are the courts of original jurisdictionInterview dated 23.05.2022 with lawyer from the Legal Aid Society. It is not necessary to approach the court for all matters related to family law, as some matters can be regulated by agreements negotiated and agreed upon between the concerned partiesibid .
Under laws being implemented in Islamabad, KP and Punjab, the woman may approach the Ombudsperson for issues relating to propertyKhyber Pakhtunkhwa Enforcement of Womens Property Act 2019; Enforcement of Womens Property Act 2020; Punjab Enforcement of Womens Property Act 2021.
In terms of money, Family Courts do not charge fees in family cases, however, lawyers generally charge fees according to what the clients can afford. Lawyers have generally observed that those litigants who can afford to pay a relatively decent fee to lawyers find it easier to get justice from courts. Lawyers, who charge a negligible fee, take numerous adjournments from the court simply because the case is not a priority for themibid.
Apart from unnecessary delays, there are also issues associated with knowledge gaps, wherein lawyers of the judges themselves may not be aware of recent developments in law which may lead clients not benefitting from some progressive jurisprudence needed to substantiate their caseibid.
The Constitution of Pakistan guarantees protection of a person’s liberty, dignity, privacy, the marriage, the family, the mother, and the childConstitution of Pakistan 1973, arts 9, 14 and 35. It guarantees equality before the law and prohibits discrimination on the basis of sexConstitution of Pakistan 1973, art 25. All citizens of Pakistan have a right to freedom of movement and to enter any lawful profession of their choiceConstitution of Pakistan 1973, art 18. The Constitution further obligates the State to take steps to ensure that women can fully participate in all spheres of national lifeConstitution of Pakistan 1973, art 34.
Pakistan has adopted laws relating to domestic violence in 3 provinces, with only Sindh criminalizing it while others providing more civil remedies or response mechanismsDomestic Violence (Prevention and Protection) Act 2013; Punjab Protection of Women against Violence Act 2016; Balochistan Domestic Violence (Prevention and Protection Act 2014; Khyber Pakhtunkhwa Domestic Violence Against Women (Prevention and Protection Act 2021 Pakistan’s Penal Code contains some general prohibitions that are applicable to domestic violence including assault and battery, rape and use of criminal force or intimidation. However, while it does not specifically criminalize marital rape, the legal amendments between 1970 – 2016 omit the protection extended to rapists if the victim was his wife. This indicates that marital rape is in fact included in the definition of rape. The recently enhanced definition also includes no exceptions based on marriage.Section 375, Pakistan Penal Code (as amended by the Criminal Law (Amendment) Act 2021
Provinces have enacted their own legislations criminalizing domestic violenceDomestic Violence (Prevention and Protection) Act 2013; Punjab Protection of Women against Violence Act 2016; Balochistan Domestic Violence (Prevention and Protection Act 2014; Khyber Pakhtunkhwa Domestic Violence Against Women (Prevention and Protection Act 2021. All these laws recognize psychological abuse as a form of domestic violence and establish protection mechanisms to support victims of violence. Baluchistan’s law however does not extend to tribal areas of the province.
With regards to the availability of support mechanisms for the victims of violence, civil society’s alternative report on CEDAW suggests “these mechanisms only serve temporary immediate needs and are numerically inadequate”Civil Society’s Alternative Report on CEDAW 2020 (Legal Aid Society and Aurat Foundation 2020) <https://www.af.org.pk/Reports/Civil%20Society%20Alternative%20Report%20on%20CEDAW%20Pakistan%202020.pdf> accessed 19 May 2022
There is no law banning female circumcision in Pakistan.
Pakistan ratified the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) in 1996. Pakistan has a reservation to Article 29(1) of CEDAWConvention on the Elimination of All Forms of Discrimination against Women (CEDAW) (adopted 19 December 1979, entered into force 3 December 1981) <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&clang=_en> accessed 19 May 2022. The Pakistani government also declared that Pakistan’s accession to CEDAW is subject to the provisions of Pakistan’s Constitution. In its 2018 periodic report to CEDAW, Pakistan claimed that it has successfully dealt with “most daunting challenges” related to women rights.file:///C:/Users/USER/Downloads/N1833575.pdf
Links to CEDAW reports that refer to Muslim family laws and practices
Links to Concluding Observations that refer to reform of Muslim family laws and practices
Link to Musawah’s CEDAW reports on this country
https://sdg.iisd.org/commentary/guest-articles/measuring-progress-through-numbers-pakistans-first-sdg-status-report/Other treaties
CRC-OP-SC – Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography.
Others treaties are available at:https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=131&Lang=EN
Sustainable Development Goals
Pakistan has prioritized the Sustainable Development Goals (SDGs) which will enable us to join the league of upper middle-class countries by 2030. Pakistan was the first country to adopt SDGs 2030 agenda through a unanimous resolution of the Parliament of Pakistan.
https://sdg.iisd.org/commentary/guest-articles/measuring-progress-through-numbers-pakistans-first-sdg-status-report/
By local researchers, activists and civil society groups
By government agencies/committees
By international bodies
The following statutes give a brief outline of the major legislations within the area of Muslim Family Law in Pakistan. The statutes enacted before 1947 were drafted by the British Empire. It is pertinent to note that many of the advancements within law have come through precedents – which are not necessarily reflected within the codified statutes that regulate family law.
After decolonization, however, the following statutes were enacted which tied our laws more closely with Islamic injunctions.
It is pertinent to note that, overtime, a plethora of judgments have made obtaining a ‘unilateral divorce’ or (Khula) easier for women.Balqis Fatima vs Najam-ul-Ikram Chaudhry [1959] Lahore High Court [1959] PLD 566; Khurshid Bibi vs Baboo Muhammad Amin [1967] Supreme Court [1967] PLD 97; Saleem Ahmad vs Government of Pakistan [2014] This finally settled the controversy surrounding the requirement of a husband’s consent for the dissolution of marriage initiated by a wife.
British Colonial Law – Matters related to the welfare of children
British Colonial Laws – Matters related to child marriage
British Colonial Laws – Matters related to inter-alia divorce
In 2016, Musawah began compiling country tables containing an overview of legislative frameworks, available case law, policies, procedures and practices…
This country page was prepared by Ibrahim Mehmood, Mashal Gilani, and Shumaila Shahani from the Legal Aid Society under the Campaign for Justice in Muslim Family Laws.