TEACHING OF MUSLIM LAW IN ENGLAND A CRITIQUE OF DAVID PEARL: 'A TEXTBOOK ON MULSIM PERSONAL LAW.' (SECOND EDITION. LONDON:

TEACHING OF MUSLIM LAW IN ENGLAND A CRITIQUE OF DAVID PEARL: <!--[if gte mso 10]> TEACHING OF MUSLIM LAW IN ENGLAND A CRITIQUE OF DAVID PEARL: 'A TEXTBOOK ON MULSIM PERSONAL LAW.' (SECOND EDITION. LONDON: CROOM HELM, 1987) By Lucy Carroll* * B.Sc. (highest honors) Washington State University; M.A., Ph.D., University of California. Berkeley. The Appointments Committee of the Faculty of Law intend to appoint a University Assistant Lecturer in Mohammedan Law to hold office from 1 January 1967 or as soon thereafter as it is practicable for the person appointed to enter on his duties. The person appointed must be qualified in Law, but it is not necessary that he should have a knowledge of Mohammedan Law at the date of his appointment provided that he proposes thereafter to undertake the study of Mohammedan Law. If not already an Arabic linguist, he will be required to qualify in this respect as quickly as possible.... [1] The Appointments Committee of the Faculty of Law have appointed D.S. Pearl, of Queens' College, to be a University Assistant Lecturer in Mohammedan Law in the Faculty with tenure from 1 October 1967....[2] Although the author has purportedly been teaching the subject of Muslim Law (essentially, Muslim Law as applied in South Asia) at Cambridge University for approximately two decades, this 'textbook' unfortunately demonstrates (even more conclusively, than did the first edition [3]) that he has failed to acquire even an elementary competence in the field. The defects of the book are profoundly fundamental and may be enumerated as follows:-‑ (1) The author's ignorance of the classical law and relevant texts. (2) The author's ignorance of relevant statutory law. (3) The author's ignorance of relevant case-law. (4) The author's heavy and uncritical reliance on secondary sources and his pattern of deliberately paraphrasing [4] --often illiterately and inaccurately, and generally without fully understanding the source from which he is working -- the work of real scholars in the field, without citation and acknowledgement. David Pearl's major 'primary sources' are the volumes by Professor N.J. Coulson; [5] and Professor A.A.A. Fyzee; [6] and my numerous articles. [7] His use of this material, without appropriate citation and acknowledgement, is, to put it as mildly as possible, unethical. (5) The author's inability to read with minimal intelligent comprehension even the material he claims to have read--whether statute, judicial decision, or secondary source, and including even the volumes by Professors Fyzee and Coulson from which he derives most of his information and material (without appropriate citation of the source from which he is directly working). [8] These fundamental defects run through the entire book, defacing virtually every page. The only way to deal with this book is to provide examples of the defects enumerated above, and the unfortunate and inaccurate results to which they (not surprisingly) lead. Because of limitations of splice, I content myself with a few examples which form part of, and serve to illustrate, a persistent pattern of ignorance and incompetence. I have selected examples which illustrate the author's ignorance of Pakistani case-law and statutes, and his inability to read Pakistani judicial decisions and legislation with minimal intelligent comprehension. ******* "(1) Islamic Law does not permit revocation of dissolution of marriage through Khula or mubara'at. [9] Subsection (3) of section 7 [of the Pakistan/Bangladesh Muslim Family Laws Ordinance] has not changed the Islamic Law. The expression 'unless revoked earlier' used therein carries the implication that the revocation should be lawful....[SIC!] In this case it is not denied that under Islamic Law, revocation is not permissible.' [Quoted in David Pearl, 'Textbook,' 1979 Edn., p.106; 1987 Edn., p.127; material in brackets added.] David Pearl attributes the above quotation to the decision of the Lahore High Court in Muhammad Nawaz v. Mst. Faiz Eliahi, PLD 1978 Lah. 32E.[10] One wonders just where the 'dots' came from; in the actual judgment the last two sentences read as follows: (Lah.) The expression 'unless revoked earlier' used therein carries the implication that the revocation should be lawful. In this case it is not denied that under Islamic Law, revocation is not permissible. [Muhammad Nawaz v. Faiz Eliahi, PLD 1978 Lah. 328, p.331.] Nothing from the actual judgment he is pretending to quote has been left out in the rendering provided by David Pearl; there is absolutely no occasion for noting the omission of some words or phrases by the inclusion of 'dots'. But David Pearl hasn't read the judgment, he is not quoting from the judgment. He has lifted the passage he pretends to quote from the judgment from my article: 'The Muslim Family Laws Ordinance, 1961; Provisions and Procedures-- A Reference Paper for Current Research,' Contributions to Indian Sociology, 13(1979): 117-143, of which I had gratuitously given him a manuscript copy. The passage from the judgment, as quoted in my article reads:-‑ "(LC) The expression 'unless revoked earlier' used therein carries the implication that the revocation should be lawful [according to Islamic Law]. [SIC!] In this case it is not denied that under Islamic Law, revocation is not permissible. [Lucy Carroll," 'The Muslim Family Laws Ordinance,' Contributions to Indian Sociology, 13(1979): 117-143, p.127, fn.18]. David Pearl lifted his quotation directly from my article, omitted the words I had added in brackets (which appear as underlined above), and substituted the 'dots'. And then fraudulently pretended that he had read and was quoting from the decision. ****** Continuing to speak of the Muhammad Nawaz decision, David Pearl asserts; (2) In Muha mad Nawaz v. Faiz Eliahi, Muhammad Afzal Zullah, J:, stated that the consensual Khula [i.e. a form of divorce by mutual consent] did not fall within the requirement [of Section 7(1) of the Muslim Family Laws Ordinance] to inform the chairman, and that section 8 [of the Ordinance] was not applicable. [David Pearl, 'Textbook,' 1979 Edn., p.106; 1987 Edn., p.127; material in brackets added.] [11] This may be compared with my statement in my article from which David Pearl is directly working but which he does not cite:--- (LC) .... Justice Muhammad Afzal Zullah ruled that a traditional Khula did not, by virtue of section 8 of the Ordinance, fall within section 7(3) [concerning the right of the husband to revoke the divorce].... [Lucy Carroll, 'The Muslim Family Laws Ordinance,' Contributions to Indian Sociology, 13(1979): 117-143, p.127, fn. 18; material in brackets added.] I certainly am not saying either that Justice Muhammad Afzal Zullah held that section 7(1) was inapplicable, or that he held that section 8 was inapplicable. If David Pearl were confused, he should have actually read the decision, rather than merely pretending to do so. Unfortunately, the result is typical of the calibre of David Pearl's work; his statement in (2) above is patently incorrect. The relevant passage from the judgment reads:-‑ (Lah.) The matter....would fall under section-8 of the Ordinance . [Eleven to this type of dissolution of marriage the provisions of section 7 shall, mutatis mutandis and so far as applicable apply, but... subsection (3) of section 7 (revocation) would [not] be applicable to a dissolution of marriage of the type involved in the present case. [Muhammad Nawaz v. Faiz Eliahi, PLD 1978 Lah. 328, p.330. [12] The Court clearly held (1) that section 8 applied; (2) that by virtue o section 8, section 7, mutatis mutandis and so far as applicable, applied; but (3) that section 7(3) did not apply. David Pearl then proceeds to 'parrot my comments on the Court's arguments concerning irrevocability of an extra-judicial khula, which I termed 'unconvincing'. It is more than a little pretentious for someone who has not even bothered to read the decision, and, as his comments on it conclusively prove, does not even understand what was actually decided, to purport to comment on the reasoning employed by the Court. Of course, my article, from which David Pearl is directly working, is not cited. [13] ****** Because of his confusion over what was actually decided in Muhammad Nawaz (i.e., that while section 7 of the Muslim Family Laws Ordinance does apply to divorces by mutual consent, section 7(3) does not perm the husband unilaterally to revoke a divorce by mutual consent), David Pearl (in the absence of anything to paraphrase and plagiarize) is at a complete loss in attempting to deal with the next case to which he turns, Princess Aiysha v. Maqbool Hussain (PLD 1979 Lah. 241) [14]. (3) The practice in Pakistan is for notice [under section 7(1) of the Muslim Family Laws Ordinance] of the consensual khula to be given to the chairman, and this indeed was done in the Muhammad Nawaz v. Mst. Faiz Eliahi [PLD 1978 Lah. 328] litigation. The whole question was discussed in Princess Aiysha Yasmien Abbasi v. Maqbool Hussain Qureshi [PLD 1979 Lah. 241]. The judgment in Muhammad Nawaz was distinguished on the basis that the Chairman in that former case had conducted proceedings on a notice by the husband of a revocation of a procedure leading toward the divorce and the Chairman had given a certificate of cancellation of the notice. [David Pearl, 'Textbook,' 1987 Edn., p.129]. Of course it is the 'practice' for notice under section 7(1) of the Muslim Family Laws Ordinance to be given of a divorce by mutual consent; the clear wording of the Muslim Family Laws Ordinance so requires; any alleged divorce which was not so notified would be open to (undoubtedly successful) challenge. Since there is no conflict between the Muhammad Nawaz and Princess Aiysha cases on the question of the applicability of section 7(1) to divorces by mutual consent, why should it be necessary for the Judge to 'distinguish' the former case in the course of writing the decision in the latter case? (Incidently, both cases were decided by the same Judge, Muhammad Afzal Zullah.) Of course, the Judge did not make the distinction implied by David Pearl; the term arose in quite a different context. In both Muhammad Nawaz and Princess Aiysha the husband purported unilaterally to resile from his agreement to a divorce by mutual consent. In Muhammad Nawaz, after the divorce had been notified to the local official as required by section 7(1), the husband issued a second notification purporting to revoke the divorce. The official accepted this notification of revocation and issued a certificate confirming that the divorce had been revoked. The issuance of this revocation certificate was challenged in appeal, and it was held that the proceedings of the official in regard to the notice of revocation were not competent and were without lawful authority. I.e., a divorce by mutual consent cannot be unilaterally revoked by the husband; section 7(3) does not confer upon the husband the power, which he claimed to have exercised, of unilateral revocation of this type of divorce. In Princess Aiysha, the husband had again purported to revoke unilaterally a consensual divorce agreement. Since, after the Muhammad Nawaz decision, an argument based on the husband's unilateral revocation of a divorce by mutual consent was destined to fail, the husband tried a new tack. He argued that no proper notification had been given under section 7(1); if this argument were accepted, of course, the divorce would be of no legal effect. What the parties had done as regards notice was to send a copy of the divorce agreement to the official with instructions that the necessary formalities be completed. The local official had accepted the husband's argument that merely sending a copy of the divorce agreement did not constitute proper notice under section 7(1) (a very curious position for him to take, since notification of a talaq is usually in the form of submission of a copy of the divorce deed). In appeal, and in an attempt to counter the argument made by the husband that the divorce was invalid because no proper notification had been given under section 7(1), the wife's counsel attempted to rely on Muhammad Nawaz for the proposition that section 7 proceedings (e.g., the notification required by section 7(1)) were unnecessary or without lawful authority in regard to a consensual divorce. But it was not the proceedings following the notification of the divorce as required by section 7(1) that had been held to be without lawful authority in Muhammad Nawaz, the proceedings that had been impeached were the subsequent proceedings following the husband's purported unilateral revocation of the divorce. The argument of the wife's counsel in Princess Aiysha was clearly untenable, as the Court rightly held. The passage from the Princess Aiysha judgment which has so confused David Pearl reads as follows: (Lah.) I agree with the learned counsel that dissolution of marriage by way of khula and mubara'at is irrevocable in so far as the authority of the husband to revoke the same is concerned; but the ancillary argument that on account of the stated position of law the proceedings before the Arbitration Council would either be unnecessary or without lawful authority is not acceptable. [i.e., rejecting the argument of counsel, the Court is holding that by virtue of section 8 of the Muslim Family Laws Ordinance, section 7 (mutatis mutandis) is applicable to divorces by mutual consent; this is precisely what had been held in Muhammad Nawaz.] The case of Muhammad Nawaz cited by the learned counsel is distinguishable. The Chairman in the said case had conducted proceedings on a notice of revocation and had given a certificate of cancellation/revocation of the notice of talaq. These proceedings rewarding revocation being against Muslim Law, were held to be without lawful authority. [Princess Aiysha v. Maqbool Hussain, PLD 1979 Lah. 241, p.245.] There is no conflict between the Muhammad Nawaz and Princess Aiysha decisions on the question of whether or not notification of the divorce under section 7(1) is necessary. David Pearl proceeds to 'pad' out his discussion with quotations from the Princess Aiysha judgment, but anyone who can figure out what these two cases determined in regard to divorces by mutual consent from this muddled waffle deserves a medal. Readers should instead refer to my clear and concise statements of a decade previously. Because he doesn't know what the question is, David Pearl has no contribution to make to the discussion. The question is not whether notification of a divorce by mutual consent is necessary under section 7(1) of the Muslim Family Laws Ordinance; the question is whether, in what circumstances, and by whom, such a divorce is revocable under section 7(3). Fortunately, David Pearl did not have access to my discussion of this point, published as 'Consensual Divorces and the Muslim Family Laws Ordinance,' P L D 1987 Journal 121-127. ***** (4) Past maintenance is not easy to claim in classical Hanafi law.... Pakistan cases appear to have adopted the flexible attitude of the non-Hanafi schools. For instance, in Rashid Ahmad Khan v. Nasim Ara [PLD 1968 Lah. 93], it was decided that maintenance which is awarded to the wife after the reconciliation and arbitral procedures implicit in section 9(3) of the Muslim Family Laws Ordinance (1961) [15] can include payment for past maintenance as well as future obligations. [David Pearl, 'Textbook', 1979 Edn., p.65; 1987 Edn., p.70.] In 1987 David Pearl is clearly as unaware as he was in 1979 of the -fact that the Supreme Court of Pakistan pronounced on the matter of arrears of maintenance in Hanafi law as long ago as 1972. What may 'appear' to David Pearl is totally irrelevant; the pronouncement of the Supreme Court is the law of the land. [16] As any one who has read the decision of the Supreme Court will know, the Court did not adopt the position of the non-Hanafi schools; it reinterpreted Hanafi Law. The Lahore High Court in the case cited by David Pearl, Rashid Ahmad Khan v. Mst. Nasim Ara (PLD 1968 Lah. 93), simply followed the earlier decision of the same Court in Sardar Muhammad v. Mst. Nasima Bibi (PLD 1966 Lah. 703), which David Pearl does not cite and clearly has not read (in spite of the fact that the Court in the case he does cite expressly relied upon it). In this previous case the Hanafi law concerning arrears of maintenance was reinterpreted, the decision was endorsed by the Supreme Court in 1972. [17] And, of course, the distinction between reinterpreting Hanafi law and applying the law of a non-Hanafi school to Hanafi litigants is of profound importance. ****** (5) Section 488 of the 1898 Code of Criminal Procedure enables the wife to apply for maintenance if she can prove that her husband, having sufficient means, neglects or refuses to maintain his wife [Sic]. In Pakistan, the Family Court now has exclusive jurisdiction to entertain, hear or [sic; should read 'and'] adjudicate upon matters relating to maintenance. In Hajiran Bibi v. Abdul Khaliq [PLD 1981 Lah. 761] it was held that this Court could award past maintenance. Although this case produced a result contrary to the generally held view of the law under section 488, its effect is certainly welcome. [David Pearl, 'Textbook', 1987 Edn. p.70] Here, with nothing available to copy and paraphrase, David Pearl attempts to read and comment on a short and simple case (the decision is less than five pages), and a couple short and simple statutory provisions. One might have thought that it would not be too much to expect a Combridge 'don' who has been teaching in the law faculty for two decades to be able to read a simple statutory provision; the Code of Criminal Procedure very clearly states in regard to maintenance orders:-‑ (Cr.P.C.) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. [S.488(2), Criminal Procedure Code, 1898.] This provision has been part of South Asian law for nearly a century; the relevant statute is readily available in the Cambridge Law Library. In section 488 proceedings, the Court simply has no power to award arrears of maintenance; it has no power to act contrary to the manner so clearly and explicitly laid down by law. There are three routes available to the Pakistani Muslim wife seeking maintenance from her husband; (a) civil proceedings under the uncodified Muslim Law (i.e., Hanafi law if the parties are Hanafis); (b) arbitration proceedings under section 9 of the Muslim Family Laws Ordinance, 1961, [18] (in which again Hanafi law is applicable if the parties are Hanafis); and summary proceedings under section 488 of the Code of Criminal Procedure, 1898, to which the express terms of that statute apply. Before the establishment of special Family Courts under the Family Courts- Act, 1964, proceedings for maintenance under the Criminal Procedure Code came before Magistrates. The Family Courts Act conferred upon the new Family Courts exclusive jurisdiction in regard to specified matters, including maintenance. The Act also provided for investing the Judges of the Family Courts with magisterial powers for the explicit purpose of enabling them to deal with maintenance applications under the Criminal Procedure Code. Although the Family Courts Act moved civil suits for maintenance from the ordinary civil Courts to the Family Court, and moved applications for maintenance instituted under the Criminal Procedure Code from the Court of the Magistrate to the Family Court, the change was purely procedural and did not affect the substantive law as laid down in the relevant chapter of the Cr.P.C. And the Hajiran Bibi case did not hold otherwise. The husband in that case was arguing in effect that any application or maintenance coming before the Family Court must be assumed to be an application under section 488 of the Cr.P.C., and therefore, arrears of maintenance could not be awarded. This argument clearly has no force. Prior to the establishment of the Family Courts, the Muslim wife had the option of civil or criminal proceedings for maintenance (options which are not mutually exclusive); the procedural changes introduced by the Family Courts Act did not affect her rights of action. The wife could still sue for maintenance under either the summary provisions of the Cr.P.C. or the uncodified Muslim Law; the change introduced by the Family Courts Act merely meant that whichever course she chose, the case would be heard by the Family Courts, which would apply the substantive law applicable to the petition as filed, e.g., in proceedings under the uncodified Muslim Law, maintenance cannot be decreed against a man in favour of his illegitimate child; in proceedings under the Cr.P.C., a maintenance order can be made against the father of an illegitimate child. Similarly, in proceedings under the uncodified Hanafi law (as reinterpreted by the Pakistani Courts), arrears of maintenance can be awarded; in proceedings under the Cr.P.C. arrears of maintenance cannot be awarded. The maintenance application in the Hajiran Bibi case had not been made under section 488 of the Cr.P.C. and there was no justification for treating it as if it had been. The relevant passage from the judgment reads: (Lah.) The conferment of powers under section 488, Cr.P.C. upon the Family Courts under section 20 of the Act of 1964 [19] would not mean that a matter relating to maintenance would be decided by a Judge, Family Court only as a Magistrate under the aforesaid provision of law. Since the suit in the present case was never treated to have been filed [sic] as an application under section 488, Cr.P.C., therefore, the argument advanced by the learned counsel for the respondents has no substance. [Hajiran Bibi v. Abdul Khaliq, PLD 1981 Lah. 761, p.766] Of course, if the woman's application had been one under section 488, Cr.P.C., the law laid down in section 488(2) and set out above would have applied and arrears of maintenance could not have been awarded. The decision is quite straightforward; if David Pearl were confused, he should have read further. Besides the obvious course of actually reading the relevant statutes, there are several reported cases that would have helped him understand the simple point involved. E.g., a general discussion of section 488 applications in the Family Court is found in a decision handed down by the Lahore High Court several years before the second edition of David Pearl's 'textbook'. The following is extracted from the judgment in that case:-‑ (Lah.) [T]hough the Judge Family Court has the exclusive power to entertain, hear and adjudicate upon an application under section 488, Cr.P.C. by virtue of the Notification dated 5-4-4966 issued under section 20 of the West Pakistan Family Courts Act, 1964;[20]... the Judge Family Court passes the order [in section 488 proceedings] in exercise of the power vested under section 488, Cr.P.C. in a Magistrate First Class... The application under section 488, Cr.P.C. as well as all other matters pertaining thereto are to be determined [in] accordance with the provisions of section 488, Cr. P.C. itself despite the fact that now in view of section 5 [21] read with section 20 of the Family Courts Act read with notification dated 5-4-1966 issued thereunder, the Judge Family Court is to entertain and adjudicate the application. [Adnan Afzal v. Sher Afzal, PLD 1982 Lah.755, pp.761-762] The question in this case involved an application for setting aside a maintenance order made ex parte in section 488 proceedings before the Family Court. The Lahore High Court held that section 488(6), Cr.P.C. applied; this section provides that an application for setting aside an ex parte order must be filed within three months of the date of the order. The present application, being out of time, was dismissed. Again the point is clearly made; the Family Courts Act is merely procedural and only changed the forum before which maintenance applications under section 488, Cr.P.C. would come; it did not alter the substantive law govering such applications. ****** The passage quoted in (5) above continues:-‑ (6) It [i.e., the decision in Hajiran Bibi v. Abdul Khaliq] provides consistency between the arbitral procedure under the Muslim Family Laws Act [sic; should read 'Ordinance'] (1961) and the judicial proceedings in the Family Court. [David Pearl, 'Textbook,' 1987 Edn., p.70] I assume that what this confused and muddled statement is supposed to convey is that as a result of the Hajiran Bibi case, there is no difference in outcome, regardless of which the diverse procedure available to her the wife chose in order to pursue her claim for maintenance; that whether she made her claim (a) in arbitration proceedings under the Muslim Family Laws Ordinance, or (b) under the Code of Criminal Procedure, or (c) under the uncodified Muslim Law (the latter two actions. now being heard before the Family Courts), she could be awarded arrears of maintenance. I have already pointed out that this is not true as far as proceedings under the Code of Criminal Procedure are concerned; the clear wording of that statute itself precludes the award of arrears accumulated before the date of the order or, at the earliest, the date of the institution of legal proceedings. Further, the implication that between the date of the decision of the Lahore High Court in the 1968 Rashid Ahmad Khan case (or the 1966 Sardar Muhammad v. Mst. Nasima Bibi case) and the decision of the same Court in the 1981 Hajiran Bibi case there was some 'inconsistency' that needed to be resolved by the latter decision is flagrantly erroneous. As far as the wife's right to claim arrears of maintenance is concerned, there never was any inconsistency between the result that could be obtained through arbitration proceedings under the Muslim Family Laws Ordinance and through proceedings under the uncodified Muslim Law in the civil Courts. The fact that the initial decisions which resulted in the reinterpretation of the classical Hanafi law in regard to the wife's right to collect arrears of maintenance arose from proceedings before an Arbitration Council under the Muslim Family Laws Ordinance is absolutely immaterial. These decisions dealt with the question of what the Hanafi law on arrears of maintenance is; once that law had been defined (or redefined, or reinterpreted), it made no difference whether the claim was made before an Aribitration Council under the Ordinance or in a civil Court, since k(assuming the parties to be Hanafis) it is Hanafi Muslim Law which is applicable in both contexts. The one fact that could have made a difference between the law applicable in ordinary civil proceedings and proceedings under the Muslim Family Laws Ordinance would have been the explicit wording of the latter statute. The Supreme Court of Pakistan -- in an important decision of which David Pearl was still unaware in 1987, although it was handed down seven years before the first (1979) edition of his 'textbook'-- while confirming the reinterpretation of Hanafi law propounded by the Lahore High Court in 1966 (Sardar Muhammad v. Mst. Nasima Bibi, PLD 1966 Lah.703), expressly noted that there was no provision in the Muslim Family Laws Ordinance comparable to that found in section 488(2) of the Code of Criminal Procedure barring the award of arrears of maintenance. [22] And, of course, in 1987 David Pearl was yet unaware of the fact that several years previously Chapter XXXVI of the Code of Criminal Procedure, 1898, had been stricken from the statute books. I have ignored this important development in the discussion above. ***** (7) The powers, jurisdiction and functions of the [Federal Shariat] Court are contained in Article 203(D) [of the Constitution] and are worthy of citation in full. [David Pearl, 'Textbook,' 1987 Edn., p.239] (8) Thus, it has been left to the executive to realise the Islamicisation [sic] of the inherited laws. [David Pearl, 'Textbook,' 1987 Edn., p.241.] Article 203(D) of the Pakistani Constitution as set out 'in full' by David Pearl does not include the important amendment of that Article effected as long ago as 1982 (seven years before the second edition of his 'textbook'). In early 1982 the Federal Shariat Court was given the power to examine suo motu any existing law in terms of its conformity with the injunctions of Islam and to order amendments necessary to bring any law into conformity with these injunctions. Under the enhanced jurisdiction with which it was thus endowed in 1982, the Federal Shariat Court proceeded to undertake the huge task of examining virtually all of the Pakistan Code. By 1986 several hundred laws had been so examined-- a fact which is readily apparent from the decisions reported in All Pakistan Legal Decisions. David Pearl is obviously totally unaware of all of these decisions. According to him, the task of 'Islamicisation [sic] of the inherited laws' is exclusively that of 'the executive'. ***** (9) Perhaps in order to avoid the consequences of being stigmatized as illegitimate, all the Sunni schools recognise gestation periods well beyond the medically proven maximum. [David Pearl, 'Textbook,' 1987 Edn. p.85] I doubt very much that the Sunni schools were worried about 'being stigmatized as illegitimate'. And if they were, they certainly would not have responded by talking about gestation periods. More likely it is that they would have produced some hitherto unknown hadith supporting their position on the doctrinal point at issue. I use this example of illiterate writing merely to introduce the subject of David Pearl's discussion of the statutory law relating to legitimacy. In spite of the fact that he devotes several pages to a discussion of the presumptions concerning legitimacy raised by the Evidence Act of 1872, contrasting them with the rules of classical Muslim Law (1987 Edn., pp.37-39; 86-90), there is no mention at all of Pakistan's new Evidence Act of 1984. The Bill which in 1984 became the Pakistan Evidence Act of that year, was long before the Parliament and was extremely controversial on several grounds; it is absolutely impossible that any serious student of Pakistani Law would not have been aware of it well before it was enacted. Yet in 1987 David Pearl has obviously not even heard of the Bill and is totally unaware of the fact that it became law in 1984. Needless to say, the statute is readily available in the Cambridge Law Library. ****** In the 1979 edition of his 'textbook,' in the context of his discussion of mahr, David Pearl had this to say about the Pakistan Dowry and Bridal Gifts (Restriction) Act-- an Act which, ironically, I had called to his attention in the course of attempting to convince him that jahez is not solely a Hindu practice:-‑ (10) It was felt to be necessary in Pakistan for some Governmental intervention in this area; thus a ceiling of R [sic] 5,000 has now been created for mehr by the Dowry and Bridal Gifts (Restriction) Act 1976. [David Pearl, 'Textbook,' 1979 Edn., p. 59.] No one of even the most limited intelligence could possibly believe that the Government of Pakistan would set a maximum limit of Rs.5,000 on mahr. The very idea is patently absurd. Yet this ridiculous proposition was uncritically and unquestioningly accepted and asserted by David Pearl. One might have thought that even a Cambridge-trained lawyer could read .a short and simple statute with more intelligence than David Pearl demonstrated in this (unfortunately, not isolated) instance. As I pointed out in my Critique of the first edition of his 'textbook':-‑ (LC) Section 3(1) of the Dowry and Bridal Gifts (Restriction) Act 1976 (DBGRA) -- and the Act's title itself gives the game away -- provides:-‑ Neither the aggregate value of the dowry and presents given to the bride by her parents nor the aggregate value of the bridal gifts or of the presents given to the bridegroom shall exceed five thousand rupees. On the faceof it, this provision would not appear to have anything at all to do with mahr or dower. The matter, however, is definitely settled by looking at the definitions set out in section 2 of the same Act; (a) 'bridal gift' means any property given as a gift... by the bridegroom or his parents to the bride in connection with the marriage but does not include mehr; (b) 'dowry' means, any property given ... to the bride by her parents.... On a clear and unambiguous reading, the statute has absolutely nothing to do with mahr, which is, in terms, excluded from its provisions. In thus excluding mahr, the DBGRA follows its South Asian predecessors in the field of anti-dowry legislation: e.g., the West Pakistan Dowry (Prohibition on Display) Act of 1967 (see section 2(ii)(a)); the North-Western Frontier Province Dowry Ordinance of 1972 (see section 2(ii); the Indian Dowry Prohibition Act of 1961 (see section 2(b)). The DBGRA is concerned, not with dower (mahr), but with dowry (jahez)-- i.e., money and gifts which move in the opposite direction as does the mahr. Dowry (jahez) comes from the wife's family to the bridegroom, his family, the bride, and/or the bridal couple (local custom defining recipients) and is given at the time of the marriage. Mahr goes from the husband or his parents to the bride and is usually payable in part on demand after the marriage and in part at the time when the marriage is dissolved by death or divorce. [Lucy Carroll, Islamic Quarterly, 24(1980); 35-47,, pp.37-38.] In the second edition of his 'textbook,' David Pearl has rewritten the passage extracted in (10) above and now states:‑ (11) It is important to distinguish the dower (mehr) from 'dowry and bridal gifts'. The latter are sums of money and presents given either by the bride's family (jahez or dowry) or by the groom's family (bridal gifts). In Pakistan, under the Dowry and Bridal Gifts (Restriction) Act, 1976, S.5, all such property vests absolutely in the bride [David Pearl, 'Textbook,' 1987 Edn., p.63.] Although there can be no doubt that the error would not have been corrected in the second edition had it not been for my work, my work is not cited. However, David Pearl still manages to get it wrong. The passage quoted in (11) above continues:-‑ (12) Furthermore, section 3 [of the Pakistan DBGRA, 1976] places a restriction on the amounts that can be given as dowry presents and bridal gifts [sic], and there has to be a display of these articles. [David Pearl, 'Textbook,' 1987 Edn., p.63]. In 1987 David Pearl is totally unaware of the 1980 amendment of the Act in question; this amendment, inter alia, removed section 7 of the original Act which required the display of dowry items. [23] Further, even in the 1987 edition, the discussion of the (Dowry and Bridal Gifts Restriction) Act, extracted above in (11) and (12), occurs in the midst of a paragraph dealing with mahr. I.e., David Pearl has not relocated or expanded the discussion; he has merely mechanically corrected the error which I called to his attention (without citing my work). The resulting muddled paragraph necessarily leaves the impression that Pakistan is the only country of South Asia to enact anti-dowry legislation. This is not the case, as anyone familiar with South Asian legislation will immediately perceive. In the result, David Pearl's discussion is inaccurate and misleading. ***** Concluding remarks In my Critique of the first edition of this 'textbook' I remarked:-‑ (LC) Clearly the book would... have greatly benefited from the careful attentions of an editor familiar with the subject, the sources, and the protocol of scholarly prose. Serious as such literary and scholarly failings undoubtedly are, criticism at this level may perhaps be laid aside on the assumption that considerations of literary and grammatical style and the ethics and responsibilities of scholarly writing are beyond the purview of a lawyer. But surely statutes and cases are grist for the lawyer's mill or so one might assume. Unfortunately, this assumption is convincingly rebutted in the instant case. These remarks are equally applicable to the second edition. In spite of putting himself forward as an 'expert' on Muslim law, and particularly on Pakistani law, David Pearl repeatedly demonstrates that he is grossly uninformed and out-of-date. Because he relies upon secondary sources, appropriating without acknowledgement the work of active scholars in the field, he will always be years behind the time. [24] Further, in spite of purporting to teach the subject at an institution which considers itself a world-class university for two decades, David Pearl repeatedly demonstrates that he cannot read simple cases and statutes in English with minimal intelligent comprehension. [25] To thoroughly critique this 'textbook' would result in a manuscript much longer than the 'textbook' itself. I hope that the illustrations provided above will suffice to put readers on their guard one should not expect to find accurate information between the covers of this volume, and (in the absence of independent confirmation) should not regard as accurate any statement contained therein. More than anything else, David Pearl's 'textbook' constitutes irrefutable evidence of the crisis of educational standards in England, particularly education in law, and at Cambridge University. This is a matter that must be investigated at the highest level in England. Meanwhile, South Asian readers must be particularly alarmed to learn that Oxford University Press is apparently planning to bring out a revised edition of Professor Fyzee's Outlines of Muhammadan Law under the editorship of David Pearl. It is difficult to imagine a greater insult to Professor Fyzee than that his work should be allowed to fall into the hands of David Pearl, who clearly has not even yet managed to read with intelligent comprehension the book it is apparently proposed that he should edit.[26] There are scholars in South Asia [27] incomparably better qualified than David Pearl to undertake the responsibility of revising Professor Fyzee's important book. It is quite impossible to comprehend why David Pearl would even be considered for such an assignment.[28] If rumors to the effect that Oxford University Press is actually considering such a proposal' are true, the international scholarly community in general, and the South 'Asian scholarly community in particular, must make their objections to such a proposal emphatically and immediately known to Mr.R. Dayal, General Manager, Oxford University Press, 2/11 Ansari Road, Daryaganj, New Delhi 110 002, India. [1] Cambridge University Reporter, 17 August 1966, p.2407. [2] Ibid., 26 April, 1967, p. 1520. [3] See Lucy Carroll, 'Muslim Family Law in South Asia: a Critique of David Pearl, "A Textbook on Muslim Law"', "Islamic Quarterly, 24(1980); 35-47; and Lucy Carroll, 'Comment on Tahir Mahmood's Review of David Pearl, "A Textbook on Muslim Law"', Islamic" and Comparative Law Quarterly, 3(1983); 34-48. I am aware of no favourable review of this book by anyone qualified to review it. [4] His attempts at paraphrase derive from the fallacious belief that if he 'does not use the exact words of the scholar whose research he is appropriating, there is no need to cite the source from which he is directly working. This struggle to paraphrase is responsible for at least some of David Pearl's illiterate writing and, ironically, for many of his errors. [5] Succession in the Muslim Family, Cambridge; C.U.P., 1971. [6] Outlines of Muhammadan Law. Delhi; O.U.P., 1974. [7] Not a single one of which is cited, in spite of the fact that so many have been so obviously used. [8] E.g., many of his errors are clearly traceable to a misreading of the books by Professors Coulson and Fyzee, and an inability to understand material directly copied or paraphrased from these volumes. At the same time, he has, equally clearly and in spite of purportedly devoting more than twenty years to the task, not even attempted to read beyond Fyzee and Coulson. [9] Forms of divorce by mutual consent of the spouses. [10] Actually, he gives the citation-- each time the case is cited in a footnote as well as in the case-list at the end of the volume and in both editions--as PLD 1978 Lah. 38. Too many of the'case-citations in the volume (both editions) are incorrect. [11] Section 7 of the Muslim Family Laws Ordinance, 1961, lays down rules concerning talaq divorces: section 7(1) requires that every talaq be notified to a designated public official; section 7(3) provides that no talaq shall become effective until 90 days have elapsed from the date of the notification required by section 7(1), and that for this period of 90 days the talaq pronouncement is revocable. After receiving the notice issued under section 7(1), the official is enjoined to constitute an Arbitration Council, which shall attempt to effect a reconciliation between the parties (section 7(4)). Section 8 states that 'where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq, the provisions of section 7 shall, mutatis mutandis and so far as applicable, apply'. A divorce by mutual consent is a divorce 'otherwise than by talaq'. [12] In case anyone wishes the full and unedited passage from the judgment, here it is:-‑ The khula in the present ease was by agreement of both the spouses. It would not strictly fall Under subsection (1) of section 7 of the Muslim Family Laws. Ordinance, 1961, which deals with an ordinary divorce given by a husband. The matter, however, I agree with the learned counsel, would fall under section 8 of the Ordinance, which deals with other types of divorce or dissolution of marriage. I also agree with the learned counsel that even to this type of dissolution of marriage 'the provisions of section 7 shall, mutatis mutandis and so far as applicable apply but I do not agree with him that subsection (3) of section 7 (revocation) would be applicable to a' dissolution of marriage of the type as is involved in the present case. Section 8 clearly places a condition on the application of section 7, namely, that it would apply 'so' far as applicable' and that also with necessary changes (mutatis mutandis). Islamic Law does not permit revocation of dissolution of marriage effected through Khula or Mubara'at. Subsection (3) of section 7 has not changed the Islamic Law. The expression 'unless revoked earlier' used therein [i.e., used in section 7(3)] carries the implication that the revocation should be lawful. In this case it is not denied that under Islamic Law, revocation is not permissible. Therefore, if the expressions 'so far as applicable' and 'mutatis mutandis' used in section 8, are applied, the above reasoning would show that subsection (3) of section 7 would not provide any scope of revocation in this case. [13] If David Pearl is so foolish as to deny that in his discussion of the Muhammad Nawaz case he is not deliberating plagiarizing my work, it is then incumbent upon him (in addition to explaining just where the 'dots' came from in the passage he pretends to quote from the judgment) to explain why -- given the 'expertise' which he claims-- he is incapable of reading a short, simple decision, of less than three pages accurately and intelligently enough to ascertain what the Court actually decided. Unfortunately, however, such gross reading disabilities are repeatedly demonstrated by David Pearl -- so often, in fact, that I' have listed 'The author's inability to read with minimal intelligent comprehension even the material he claims to have read' as one of the 'fundamental defects' of this so-called 'textbook'. [14] This case was reported shortly before my article, 'The Muslim Family Laws Ordinance' (Contributions to Indian Sociology, 13(1979); 117-143), went to press; I noted it in the following terms in a 'postscript':-‑ (LC) [A]nother case concerning the traditional khula/mubara'at has been heard before Justice Muhammad Afzal Zullah of the Lahore High Court in which it was held: (1) that notice to the Chairman of the Union Council is necessary in regard to traditional consensual divorces; (2) that such a divorce becomes effective on the expiration of 90 days after the receipt of such notice by the Chairman; and (3) that a consensual divorce cannot be revoked unilaterally by the husband during the 90 days interval. (Princess Aiysha v. Maqbool Hussain, PLD 1979 Lah. 241) Lucy Carroll, 'The Muslim Family Laws Ordinance,' Contributions to Indian Sociology, 13(1979): 117-143. p.142. The copy of my manuscript which I provided to David Pearl did not contain this 'postscript', and the case was not noticed by him in the first edition of his 'textbook'. His muddled and confused attempt to deal with this short (four page) decision in his second edition may be compared with my summary nearly a decade earlier. [15] Section 9 of the Pakistan/Bangladesh Muslim Family Laws Ordinance affords a simple and expeditious means through which a neglected wife may claim and enforce payment of maintenance. It provides that if the husband 'fails to maintain his wife adequately, or where there are more wives than one, fails to maintain them equitably', the wife or wives may apply to the designated official of the local Government. Upon receipt of such an application, the official is to constitute an Arbitration Council which has the power to issue a certificate specifying the amount which the husband shall pay as maintenance. If the husband fails to remit the maintenance as ordered, it will be recoverable as arrears of land revenue. [16] See Lucy Carroll, 'Muslim Family Law in South Asia: Important Decisions Concerning Maintenance for Wives and ex-Wives', Islamic and Comparative Law Quarterly, 1(1981): 95-113. [17] See Lucy Carroll, ibid. [18] See fn. 15 above. [19] Section 20 of the Family Courts Act reads:-- 'Government may invest any Judge of a Family Court with powers of Magistrate First Class to make order for maintenance under section 488 of the Code of Criminal Procedure, 1898.' [20] Section 20 of the Family Courts Act has been set out in fn. 19 above. The Notification of 1966 invested all Judges of the Family Courts with magisterial powers. [21] Section 5 of the Family Courts Act states that the new Family Courts will have exclusive jurisdiction 'to entertain, hear and adjudicate upon matters specified in the Schedule.' One of the enumerated matters is 'maintenance'. [22] See Lucy Carroll, 'Muslim Family Law in South Asia: Important Decisions Concerning Maintenance for Wives and ex-Wives,' Islamic and Comparative Law Quarterly, 1(1981): 95-113. [23] See Lucy Carroll, 'Anti-Dowry Legislation in Pakistan and Bangladesh', Islamic and Comparative Law Quarterly, 3(1983): 249-260. [24] E.g., he was unaware of the 1963 Pakistani amendment of the Caste Disabilities Removal Act until I called it to his attention in my 1980 Critique of the first edition of his textbook. See David Pearl, 'Textbook,' 1979 Edn., pp.140, 177; and Lucy Carroll, Islamic Quarterly, 24(1980): 35-47, pp.41-42. The error has been corrected in the second edition only because of the unacknowledged appropriation of my research. [25] See e.g. the misreading of the Child Marriage Restraint Act, 1929, the Muslim Family Laws Ordinance, 1961, and the Dowry and Bridal Gifts (Restriction) Act, 1976; and of the Maina Bibi v. Chaudhri Vakil Ahmad (1924/25 LR 52 IA 145), and Parveen Chaudhry v. VIth Senior Civil Judge, Karachi (PLD 1976 Kar. 416) cases to which I drew attention in my Critique of the first edition of this 'textbook'. See Lucy Carroll, Islamic Quarterly, 24(1980) 35-47. To the extent that these errors have been corrected in the second edition, they have been corrected through the unacknowledged appropriation of my research. [26] Exactly how David Pearl proposed to go about this task is evident from the fact that David Pearl came to my house in Cambridge asking to borrow my copy of Mulla's Muhammadan Law. He explained that he was planning to bring out a new edition of Fyzee's Outlines of Muhammadan Law, and wanted to use Mulla's footnotes to revise Fyzee. I quite emphatically said that that was no way to go about the project he had in mind and flatly refused to loan him my copy of Mulla. David Pearl went off in huff, asserting that it didn't matter, he could easily obtain a copy of Mulla from his Inn of Court. It is worth remarking that the last edition of Fyzee had come out in 1974; the (then) most recent edition of Mulla was 1977. Rather than going through approximately a decade of case-law -- which would have been a new, and undoubtedly useful, experience for him David Pearl proposed to use (without citation one can be sure) the work of the latest editor of Mulla's book. [27] Including members of Professor Fyzee's family, who it seems only appropriate should be given priority in the selection of an editor for the work of their distinguished relative. [28] The only explanation that occurs to me is that curious relict of colonialism which causes the formerly-colonized to continue to believe, at least at some level of consciousness, that things English are inevitably better than things Indian; that by definition an Englishman could do a job better than could an Indian. The Raj is dead; India, Pakistan, and Bangladesh are independent States; and the time has long past when the colonized mentality should have been replaced by more objective patterns of thought. ***