Elimination of Discrimination, A Critical Analysis Of Muslim Family Laws

Woman is one step later to man in creation and continues her march to bridge the gap. Nobody needs to be prejudiced by an act of God. In fact Islam is victim of bias otherwise has a par excellent case of non-discrimination to woman. It was not a Muslim Scholar but Shakespeare who said, “Frailty thy name is woman[1]. Chairman, spokesman, brinkmanship, newspaperman, cameraman, horseman, weakersex, manly hood, man of letters, horsemanship etc. etc. reflecting hegemony of men are all English words.Though, matter their corresponding feminine derivatives have belatedly been introduced for some with the pursuit for the remaining. Perhaps it is only a misunderstanding on part of women, otherwise the word ‘man’ connotes only a genrethat is equally mortal. The issue of discrimination is time old and prevalent in every society, though, at varying degrees. No society can claim to be non-discriminatory right from its inception. Gradual improvement is observed everywhere. Even in United States of America no woman has so far succeeded in becoming the President in more than two hundred years.

In Old and New Testament the position of woman has not been painted as an equal footing with the man. The fact that an angel broke a good news or a glad tiding to Marry (May her soul rest in peace) that a son is going to be born to her itself indicated that the birth of a daughter was not welcomed.[2] Before the advent of Islam, the Arabs used to bury the newly born girls alive. It is revealed in Al Quran “When the female (infant) buried alive, is questioned― For what crime she was killed[3]. Similarly it is revealed, “Yet when news (of a daughter) they had reserved for Al-Rehman comes to one of them, his face is blanked (with shame) and he grieves in silence inwardly”.[4]

Islam raised women from abysmal death and assigned her a very respectable position in human set up, it is disclosed in Quran that Almighty has created everything in pairs, be it zoological,  botanical life or even geologically. “All glory to Him, who created pairs of everything that, grows from earth and out of themselves and other things they do not know[5]. Moiety of Quran is intended to ameliorate the status of women and it is very difficult to reproduce all the Quranic verses in this context. A full chapter, no. 4, is named as AL-NISA (women). Islam has secured her rights as; wife, nursing mother, sister, daughter and reserved her right in heritance in every capacity. “Varily man and woman who has come to submission, men and women who are believers, men and women who are devout, truthful men and truthful women, men and women with endurance, men and women who are modest, men and women who give alms, men and women who observe fasting, and men and women who guard their private parts, and those men and women who remember God a great deal, for them God has forgiveness and a great reward[6]. The question is if the women is not an earning hand and is wholly dependent how she can give alms. It indicates she may become an earning hand. If Custom has marred the Islamic scenario it is not the fault of Islam.

Islam has regularized marital life. Polygamy is allowed but is not an injunction.  There is no verse in Quran or a tradition asking or encouraging men to marry more than one wife. The rule is single wife, “marry off those who are single among you[7]. It is clearly ordained if you fear that you won’t be able to treat your more than one wives equitably then, “marry only one[8]. It is correct that the husband can divorce his wife but the husband can also depute the right of divorce to the wife[9]. She can also get divorce showing her terminal hatred but she will have to return any special financial benefit received from her husband. It is called Khula.[10] It is forewarned in Holy Quran that the man will never be able to treat his wives equitably. “However, you may try you will never be able to treat your wives equally but do not incline to one exclusively and leave the other suspended (as it were)[11].

Mediation has been advised in-between the spouses in case of rift. “if you fear a breach between them, appoint one arbitrator from the people of the man and one from the people of the woman; If they wish to have a settlement then God will reconcile them for God is all knowing and cognisant.”[12] Islam is a composite code and has to be applied as a whole and not piecemeal. “Men are the support of women as God gives some more means than others, and because they spend of their wealth (to provide for them). So women who are virtuous are obedient to God and guard the hidden as God has guarded it. As for women you feel are averse, talk to them suasively; then leave them alone in bed (without molesting them) and go to bed with them (when they are willing). If they open out to you, do not seek an excuse for blaming them. Surely God is sublime and great.[13] The word DHARAB  is taken in Arabic in many meanings i.e. to beat, to travel, to cohabit or to give an example etc.[14] as such some exegetics  have translated it as “to beat” while some as to “cohabit”. Ahmed Ali preferred to translate “to have intercourse”. He has cited a Hadith to support his choice of this translation.[15] Women can earn livelihood. “Men has a share in what they earn and women have theirs in what they earn”[16]. Almighty has given the spouses semblance or dress for each other, “they are your dress as you are theirs”[17]. One can go on thinking the usefulness of dress. It protects from exposure to wind and weather, it is adoration, it covers nakedness and all body deformations and blames also; and lends grace. The equality in utility is also reflected in this verse. The spouses as such are inter dependent and complementary unto each other.

As regards Sunnah, two traditions of Holy Prophet (Peace Be Upon Him) may be referred, “It is incumbent upon every Muslim male and female to obtain knowledge. It is reported, “Better among you are those who are better to their wives”[18].

Now coming to the Family laws of Pakistan, the Constitution has always considered the ground norms in the laws of the land. Article 3 of the Constitution of the Islamic Republic of Pakistan, 1973 envisages that the state shall ensure the elimination of all forms of exploitation and the gradual fulfillment of the fundamental principles; from each according to his ability and to each to his work. According to Article 263 Gender includes both male and female. Under Article 14, the dignity of man and subject to law, the privacy of home shall be inviolable and no person shall be subjected to torture for the purpose of extracting evidence. Under Article 25 of the Constitution all citizens are equal before law and are entitled to equal protection of law and there shall be no discrimination on the basis of sex. Under Article 25A of the Constitution, the State shall provide free and compulsory education of the age of time to sixteen. Under Article 27 no citizen otherwise qualified shall be discriminated in services on the basis of race, religion, caste, sex or place of birth. The aforesaid articles pertained to fundamental rights. As regards the Principles of Policy, the state shall discourage parochial, racial, tribal, sectarian and provincial prejudices among citizens under Article 33 of the Constitution. The steps shall be taken to ensure full participation of the women in all spheres of national life under Article 34.  The state shall protect the marriage, the family, the mother and the child under Article 35 and the state shall promote social justice and eradicate social evils as enshrined in Article 27 of the Constitution.

Coming to subsidiary Legislation the family laws should be taken in wider perspective i.e. civil, criminal, evidentiary and personal laws touching upon women. Under Section 497 Criminal Procedure Code 1898 (Cr. P.C.), a woman may be granted bail in non-bailable cases.  Further, all offences are treated as bailable for a woman except murder, financial corruption and terrorism. Moreover, under section 167 Cr. P.C. a woman except in murder or dacoity can only be interrogated in prison and no physical remand is given to be kept at the Police Station. In civil cases i.e. of Proprietary and contractual nature she has equal rights of appearance and litigation in civil courts vide the provisions of Code of Civil Procedure 1908. Pure personal law is followed in all Family matters like marriage, divorce, dower, guardianship, custody of minor, gifts, will, inheritance, maintenance, dowry, restitution of conjugal rights etc. Dissolution of Marriage Act 1939 provides the grounds for dissolution of Marriages. Apart from cruelty, insanity, non-maintenance, infamous life led by husband, impotence, misappropriation of wife’s property, imprisonment for 4 years, missing for seven years, second marriage without Union Council’s permission, suffering from venereal disease are all kinds of other grounds recognized in Islamic Law are available like Kula (incurable hatred), Tafweez (delegated authority) Lian (imprecation), Zihar (that she is just like his mother). Section 2 of the aforesaid Act 1939 deals with the subject. Many reformative steps were taken to regulate marriages and divorces through promulgation of Muslim Family Laws 1961. A woman is free to marry any other person 90 days after divorce becomes effective.[19] West Pakistan Family Courts Act 1964 had been promulgated for expeditious disposal of all family disputes. Under Section 10 (4) of the Said Act if the first attempt for reconciliation fails the court shall pass a decree for dissolution of Marriage subject to return of dower to the husband.

Section 17 of Qanun-e-Shahadat Order No X of 1984 provides:

“Competence and number of witnesses:

(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law, —

(a) In matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly ; and

(b) In all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant.”

It is quite clear that only in financial matters the testimony of one man or two women is required. So that one woman may facilitate the other. Otherwise in all matters her testimony is equal. A woman has a lot many domestic occupations and normally her bedrock is home so to save her from any embarrassment in a public place it had been provided as such. In section 8 of Offence of Zina Ordinance VII of 1979 regarding “proof of Zina-bil-jabr liable to Hadd” the evidence of at least four Muslim adult male witnesses is required. It appears to be against a Quranic verse (24:4) wherein only the words “four witness” are mentioned. Anyhow it appears to be for the benefit of women. It is reported in a Hadith that a person asked the Holy Prophet (Peace Be Upon Him) that if he himself sees his wife lying with a stranger still he is supposed to bring four witnesses, the Holy Prophet (P.B.U.H) said, “yes”.[20]

Overall there is no gender discrimination in Pakistan. There are multiple mechanisms provided in the Constitution to update the situation. Under Article 8 of the Constitution any law repugnant to aforementioned Fundamental Rights is void to the extent of repugnancy. Under Article 228 of the Constitution there shall be a council of Islamic Ideology which shall make recommendations to bring the laws in consonance with Quran and Sunnah. Under Article 227 the personal laws of non Muslims shall not be affected by Muslim Laws. The Federal Shariat Court under Article 203D can strike down any law which is against the injunctions of Islam. The rights of women are amply fortified in the Constitution as also in subordinate legislations.

[1]Hamlet Act 1,Scene 2,142-146

[2] Holy Bible, Matti Urdu Translation Pakistan Bible Society p 2

[3] 81:8-9The holy Qurantrn. by Yousif Ali

[4] 43:17Al-Qur’an, A Contemporary Translation. By Ahmed ‘Ali.

[5] 36:36 ibid

[6] 33:35 ibid

[7] 24:32 ibid

[8] 4:3 ibid

[9]See 33:28 ibid.  The doctrine is called Talaq-i-Tafwid, It originates from the Tradition that Prophet Muhammad SWT delegated his wives right to choose either him or a separation.

See Also Lucy Carroll. L and Kapoor. H Talaq-i-Tafwid: The Muslim Woman’s Contractual Access to Divorce: An Information Kitavailable at http://www.wluml.org/sites/wluml.org/files/import/english/pubs/pdf/misc/talaq-i-tawfid-eng.pdf

[10] 2:229 ibid 4

[11] 4:129 ibid

[12] 4:35ibid

[13] 4:34 ibid

[14]Mufradatul Quran by RaghibIsfahani

[15] Ahmed Ali under the verse 4:34

[16] 4:32 ibid 4

[17] 2:187 ibid 4

[18]Narrated by al-Tirmidhi, 3895; IbnMaajah, 1977; classed as saheeh by al-Albaani in Saheeh al-Tirmidhi. 

[19] D.F. Mulla Principles of Muhammadan Law Section 336

[20]Sahih Muslim Urdu Tr. ShGhufar Ali and Sons, Lahore at p. 1030

Author: Jawad Riaz

The writer is an Assistant Professor at University Law College, University of the Punjab and is an expert in Constitutional Law.

Author: Zaheer Cheema

The writer is an Assistant Professor at University Law College, University of the Punjab and is an expert in Constitutional Law.