Global Repository of Muslim Family Laws

Laws Regulating Marriage and Family Relations

Matters regarding marriage and family relations of the Muslim majority population in Pakistan are mainly governed by the following codified laws:

1. Muslim Family Laws Ordinance (MFLO) ^{Muslim Family Laws Ordinance 1961 <http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-cJyX-sg-jjjjjjjjjjjjj> accessed 19 May 2022.}
2. Dissolution of Muslim Marriages Act (DMMA) ^{Dissolution of Muslim Marriage Act 1939 <http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-cJaW-sg-jjjjjjjjjjjjj> accessed 19 May 2022};
3. Child Marriage Restraint Act^{Dissolution of Muslim Marriage Act 1939 <http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-cJaW-sg-jjjjjjjjjjjjj> accessed 19 May 2022.} ;
4. Dowry and Bridal Gifts (Restriction) Act^{Dowry and Bridal Gifts (Restriction) Act 1976 <http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-bpuUY2Rp-sg-jjjjjjjjjjjjj> accessed 19 May 2022};
5. Guardians and Wards Act^{Guardians and Wards Act 1890 <http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-cJc%3D-sg-jjjjjjjjjjjjj> accessed 19 May 2022} and
6. Family Court Act ^{Family Court Act 1964 <http://punjablaws.gov.pk/laws/177.html> accessed 19 May 2022}.

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 thought^{Muslim 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}.

Equality in Marriage

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 husband^{Israfeel 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 she^{Fayez 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}:

• leaves home without her husband’s consent
• denies bed to her husband

In case of disobedience, without reasonable grounds, the state penalizes the wife by taking away her right to maintenance^{Israfeel 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 husband^{Syed 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.

Minimum Age of Marriage

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 paper^{Understanding’ 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 law^ibid. 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

Divorce rights: Women and men do not have equal rights to divorce. The husband can divorce without reason and without having to go to court^{Muslim 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 contract^{Ali 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}:

• Divorce by way of unilateral repudiation (talaq)^{Muslim Family Laws Ordinance 1961, s 7. <http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-cJyX-sg-jjjjjjjjjjjjj> accessed 19 May 2022.} : The MFLO provides for unilateral repudiation by the husband. The husband must send a written notice of the repudiation to the Arbitration Council and supply a copy to the wife.
• Delegation of the right to divorce^{Muslim Family Laws Ordinance 1961, s 8. <http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-cJyX-sg-jjjjjjjjjjjjj> accessed 19 May 2022; Ali Shaikh, ‘Law of Divorce & Khula in Pakistan’}: A wife cannot divorce herself from her husband without his consent. If a husband delegates his unilateral right to divorce to his wife (isma) through a stipulation in the marriage contract, then the wife can pronounce divorce upon herself (talāq-i-tafwid).
• Redemptive divorce (khul’) ^{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}: A wife can apply to dissolve the marriage by khul’ by filing suit in the Family Court. This can be done without the consent of the husband if she foregoes her financial rights with limited exceptions;
• Divorce by way of judicial decree^{Dissolution of Muslim Marriage Act 1939, s 2. <http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-cJaW-sg-jjjjjjjjjjjj> accessed 19 May 2022}: Where such a right has not been delegated, a wife can apply to dissolve the marriage by filing suit in the Family Court. This can be done without the consent of the husband subject to a husband’s:

1. prolonged absence for more than four years;
2. failure or inability to provide maintenance for more than two years;
3. taking of an additional wife in contravention with the provisions of the MFLO;
4. imprisonment for more than seven years;
5. failure to perform, without reasonable cause, his marital obligations for a period of three years;
6. impotence at the time of marriage and thereafter;
7. severe physical and mental illness.
8. habitual assault on his wife making her life miserable;
9. association with women of evil repute or leading an infamous life;
10. attempts to force his wife to lead an immoral life;
11. attempts to dispossess her wife of her property or preventing her from exercising her legal rights over it; or
12. attempts to obstruct his wife in the observance of her religion profession or practice.

While the legislation requires women to meet certain requirements for divorce by judicial decree, Pakistani courts allow no-fault based divorce to women.

• Divorce by mutual consent (mubarat)^{Muslim Family Laws Ordinance 1961, s 8. <http://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-cJyX-sg-jjjjjjjjjjjjj> accessed 19 May 2022; Ali Shaikh, ‘Law of Divorce & Khula in Pakistan’, p. 3, <https://www.ma-law.org.pk/pdf/Law%20of%20Divorce%20in%20Pakistan%20(Article).pdf accessed 19 May 2022}: In this case,both husband and wife may sign a Mutual Divorce Deed.

Positive Feature(s) Under Muslim Family Law

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 inheritors^{The 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 fault^{Information 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 fault^{Syed Haroon Sultan Bokhari vs Syeda Mubarak Fatima [2014] Lahore High Court [2014] CLC 1270}

Administration Of And Access To Justice On Marriage And Family Matters

Family matters are adjudicated upon within the District Courts, as they are the courts of original jurisdiction^{Interview 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 parties^ibid . 

Under laws being implemented in Islamabad, KP and Punjab, the woman may approach the Ombudsperson for issues relating to property^{Khyber 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 them^ibid.

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 case^ibid.

Constitutional Provisions

The Constitution of Pakistan guarantees protection of a person’s liberty, dignity, privacy, the marriage, the family, the mother, and the child^{Constitution of Pakistan 1973, arts 9, 14 and 35}. It guarantees equality before the law and prohibits discrimination on the basis of sex^{Constitution of Pakistan 1973, art 25}. All citizens of Pakistan have a right to freedom of movement and to enter any lawful profession of their choice^{Constitution 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 life^{Constitution of Pakistan 1973, art 34}.

Other National Laws

Pakistan has  adopted laws relating to domestic violence in 3 provinces, with only Sindh criminalizing it while others providing more civil remedies or response mechanisms^{Domestic 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 violence^{Domestic 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.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

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 CEDAW^{Convention 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 

• CEDAW and Muslim Family Laws: In Search of Common Ground^{https://www.oursplatform.org/wp-content/uploads/Musawah-CEDAW-and-Muslim-Family-Laws-In-Search-of-Common-Ground.pdf}
• Civil Society Alternative Report on CEDAW Pakistan 2020^{https://www.af.org.pk/Reports/Civil%20Society%20Alternative%20Report%20on%20CEDAW%20Pakistan%202020.pdf}
• Fifth Periodic Report 2018^{https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2FC%2FPAK%2F5&Lang=en}

Links to Concluding Observations that refer to reform of Muslim family laws and practices 

• https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2FC%2FPAK%2FCO%2F5&Lang=en

Link to Musawah’s CEDAW reports on this country 

• Musawah Thematic Report on Pakistan (2020)^{https://campaignforjustice.musawah.org/resources/musawah-thematic-report-pakistan-cedaw75-2020/}

Any other relevant regional or international treaty or convention signed by Pakistan

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://www.sdgpakistan.pk/

https://sdg.iisd.org/commentary/guest-articles/measuring-progress-through-numbers-pakistans-first-sdg-status-report/

By local researchers, activists and civil society groups

1. Inheritance laws of women (Legal Aid Society) – This short video explains the inheritance laws in Pakistan and also sheds light on the common cultural practices that become roadblocks for women to secure their inheritance. https://youtu.be/RnKbwZTsL-4
   
2. Inheritance laws of Sunni fiqah (Legal Aid Society) –  This short video expands into what the shares will be for legal heirs under the Sunni fiqah. https://youtu.be/-7A-TVhoU4E
   
3. Inheritance laws of Shia fiqah (Legal Aid Society) –  This short video expands into what the shares will be for legal heirs under the Shia fiqah. https://youtu.be/43nbBtI36xk
   
4. Inheritance rights of women in rural areas (Legal Aid Society) – This short video sheds light on the inheritance rights of women belonging to rural areas highlighting their specific context and explaining their rights accordingly. https://youtu.be/jkP5MRr0AtY
   
5. Enforcement of Women Property Rights Act 2020 (Legal Aid Society) – This short video details the routes to redressal available to women under the 2020 Act that has been passed by Punjab, Khyber Pakhtunkhwa, and the Islamabad Capital Territory. https://youtu.be/YhTx2YRsFLg

By government agencies/committees

1. The Impact of Family Laws on the Rights of Divorced Women in Pakistan (National Commission on the Status of Women) Available at: https://ncsw.gov.pk/Detail/ZmEyMGJhODgtMjliMi00OGM1LTg1YzctMjYxNjRiZjc3NzMy  https://sahsol.lums.edu.pk/law-journal/law-custody-children-pakistan-past-present-and-future
2. Women’s Rights of Inheritance and its Implementation (National Commission on the Status of Women) Available at: https://ncsw.gov.pk/Detail/ZmEyMGJhODgtMjliMi00OGM1LTg1YzctMjYxNjRiZjc3NzMy
3. Implementation Status of Punjab Women Empowerment Initiatives 2014 (Women Development Department, Government of Punjab) http://www.wdd.punjab.gov.pk/STATUS_OF_PWEI-2014

By international bodies

1. Child Marriage Around the World – Pakistan (Girls Not Brides) http://www.girlsnotbrides.org/child-marriage/pakistan/
2. Country Profile – Pakistan (OECD Social Institutions and Gender Index) https://www.genderindex.org/wp-content/uploads/files/datasheets/2019/PK.pdf

National Groups

1. Legal Aid Society – https://www.las.org.pk/ (Women’s right to legal property).
2. Aurat Foundation – https://www.af.org.pk/
3. Shirkat Gah – https://shirkatgah.org/