Many jurist and writers termed it as a conflict between traditionalists and the modernists. Islamic Laws of Inheritance:- This article gives an overview of the Islamic laws of inheritance with the aim of increasing the awareness of the Muslim community living in the west regarding this important aspect of Islamic law. The scope of this article is confined to traditional Sunni Islamic law. When a Muslim dies there are four duties which need to be performed. These are: 1.
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Whereas it is expedient to give effect to certain recommendation of the commission on Marriage and Family Laws. Now, therefore in pursuance of the proclamation of the seventh day of October , and in exercise of all powers enabling him in this behalf, the President is pleased to make and promulgate the following Ordinance:- 1.
Short title, extent, application and commencement 1 This Ordinance may be called the Muslim Family Laws Ordinance, Ordinance to override other laws, etc. In the event of death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes, receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.
Registration of marriage. Whoever contravenes the provisions of such-section 3 shall be punishable with simple imprisonment for a term which may extent to three months, or with fine which may extend to one thousand rupees, or with both.
The form of Nikahnama, the registers to be maintained by Nikah Registrars, the records to be preserved by Union Councils, the manner in which marriage shall be registered and copies of Nikhanama shall be supplied to parties, and the fees to be charged thereof, shall be such as may be prescribed.
Dissolution of marriage otherwise than by talaq. Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolves the marriage otherwise than by talaq the provisions of section 7 shall, mutatis mutandis and so far as applicable, apply.
PUNJAB AMENDMENT In sub-section 2 , the full-stop occurring at the end shall be replaced by a colon and thereafter the following proviso shall be added, namely: Provided that the Commissioner of a Division may, on an application made in this behalf and for reasons to be recorded, transfer an application for revision of the certificate from a Collector to any other Collector, or to a Director, Local Government, or to an Additional Commissioner in his Division.
II of , Section 2]. Where no details about the mode of payment of dower are specified in the nikahnama or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand.
Power to make rules. Amendment of child marriage restraint act, xix of Omitted by Ord. Amendment of the dissolution of muslim marriages act, viii of The plea before the Court is that sections 4,5,6,7 and 12 of the Muslim Family Law Ordinance be declared repugnant to Islam. Section 4 of the Ordinance, after reinterpreting the tradition based on the Quran, had laid down that orphaned grand-children may receive share from the property of their grand-parents.
Section 5 had laid down that a nikah be registered with the union council to be legally valid. Section 7 had laid down that a divorcing husband shall send notice of divorce to the union council and supply a copy of it to the divorcee wife, after which an arbitration council would try for reconciliation between the two parties. Section 12 had banned child marriage and set a minimum age for the marriage of boys 18 years and girls 14 years , although marriageability is still adjudged many different ways in Pakistan.
The petitioners have opposed the above provisions of the Ordinance, in particular the irreducible legal requirement to register nikah and divorce at the union council, holding that unregistered divorce is not be invalid. They also favour the unfettered right of men to contract additional marriages without intercession of the union council and consent of the first wife.
As for the nikah document, they propose that each cleric solemnising the nikah be allowed to issue a personal certificate for legal purposes. The imams differ in their consideration of the family law and have handed down verdicts rendered under different legal philosophies. No state can function without codifying its laws.
And no codification is possible without suiting Islamic legal sources to modern times. This is where the problems arise. Before him, Sir Syed had recommended this kind of reinterpretation. The problems that arose were thus bequeathed to the judiciary to sort out.
Evidence of nikah was established through unreliable sources and divorce was allowed in the chaotic manner that characterised the male-dominated Muslim society. After , after prime minister Muhammad Ali Bogra remarried against the wishes of his first wife who was an APWA activist , an effort was made to codify laws pertaining to nikah, divorce and remarriage. In , the Commission on Marriage and Family Laws prepared a Report safeguarding, inter alia, the rights of the woman.
The Commission was headed by Justice Abdur Rasheed. It comprised seven members, three women and four men. The Commission accepted the principle that Family Laws had to be liberalised in the light of modern times, but when it came to making recommendations it inclined to a conservative interpretation.
But it did rule that nikah, to be of legal value, had to be registered. Its other recommendations have been given above. The Report was passionately opposed by the ulema and orthodox Muslims in for being against Islam. The civilian governments after avoided legislating on the Report, but General Ayub Khan made selected recommendations of the Report into law through an ordinance in A resolution against the Muslim Family Law Ordinance was subsequently presented in the Nastional Assembly but was not passed.
The Ordinance never carried consensus among the ulema and was considered by them as being against Islam. It was never presented in the parliament for proper legislation but stood as an indemnified law by the elected parliament of of the Ayub era, like the Zina Ordinance of the Zia era, as indemnified by the parliament. Non-acceptance of any reinterpretation of Muslim law to suit modern times has been the dominant trend among Indian Muslims.
Marriage of under-age individuals is generally opposed by Pakistanis today who have tacitly superseded the fiqh version of the case, but the ulema have continued to support it as a part of the tradition of the Prophet PBUH.
Errors in the enforcement of hudood laws by civilian governments have given grounds to the ulema, some also organised as militant jehadi outfits, to reject democratically elected governments as being too unacquainted with Islam to enforce real Shariat. Conflicting case law on the Ordinance: Pakistani judiciary has had to set aside the condition of registration of nikah under Section 7 of the Muslim Family Law Ordinance in a number of cases where couples were saved from the punishment of stoning to death not ordained by Quran.
The Sindh High Court in decreed that since an unregistered nikah was acceptable under Shariat, the accused couple were not living in sin. In , the Supreme Court refused to accept the Objectives Resolution as a supra-constitutional provision.
While listening to the defence, the honourable Federal Shariat Court was pleased to set aside the Report of the Council of Islamic Ideology recommending that provisions against polygamy be further strengthened in Section 6 of the Muslim Family Law Ordinance. The ground taken by the Court was that the Report had had no effect and therefore could not be considered as binding. Many scholars, including Syed Abul Ala Maududi who favoured the contents of the Muslim Family Law Ordinance, have inferred from these verses that the state should codify law against polygamy accordingly, but the conservative clergy is of the opinion that the above Quranic verses still do not constitute a clear order.
A retrogressive environment: Instead of reinterpreting the Quranic law and codifying it to suit the circumstances, the trend in Pakistan is to undo the progress made towards codification in the past.
The assault on reform is intense and can be violent. The fundamental problem is that while men are free to be polygamous, women are not.
Under the Ordinance the bride is required to state in the nikah-nama that she is unmarried, but the bridegroom is not. Thus men are not held liable if they misinforms about their marital status. The resistance to reinterpreting the Quranic law is intense but the truth of the matter is that Quranic law has been modified and reinterpreted in the past to suit men.
Allama Iqbal had written to Maulana Suleiman Nadvi to ask if it was right that Hazrat Umar as caliph had suspended the Quranic punishment of cutting of hands. Important social development away from child marriage, slavery and unfettered polygamy may be undone simply because this retrogressive step favours men and further lowers the status of women.
Muslim Family Laws Ordinance, 1961