Law in transformation: Talaq------a case study

LAW IN TRANSFORMATION: LAW IN TRANSFORMATION: TALAQ‑‑‑‑‑‑A CASE STUDY By Tipu Salman Makhdoom, Advocate, Lahore PRELIMINARY This Article is about a confusion that is found in the Pakistan law, as is applicable in the Courts. Law is not a rigid dead principle pronounced by the law‑giver once for all and applicable, as such, for all times to come. Law has a characteristic of development and growth (See A.K, Brohi, Law As An Instrument of Peaceful Change.). The concept of law is enshrined in the concept of society. Law is meant for the betterment of society (Cf. R. VON. JHERING, LAW AS MEANS TO AN END, see LORD LLOYD OF HAMPSTEAD, INTRODUCTION TO JURISPRUDENCE 374 (4th Edn., London, Stevens & Sons, 1979). Also Cf.J. UNTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION, see LORD LLOYD OF HAMPSTEAD, INTRODUCTION TO JURISPRUDENCE 199 (4th Edn., London, Stevens & Sons, 1979).). It is in order to allow and make the society manage, its affairs and the inter se relations of its different units with each other, that law is made. Society being a dynamic institution itself is a constantly changing phenomena and corresponding to it is its laws, which themselves are living organisms. This changing phenomena, in turn requires a constantly developing instrument of social management i.e., constantly developing/transforming laws. The concept of changing law is not a bad concept, provided it remains to be a stable system of law growing alongwith the society. On the contrary, it is one of the few very important and basic ingredients of law. INTRODUCTION Now we come to the basic point of this article. The proposition we are going to discuss is about the confusion regarding the time when, according to law the divorce pronounced by a Pakistani Muslim husband, following the Hanfi School of thought, becomes effective and final. First of all, we would trace an. overview of the historical background of the development of legal system of Pakistan, so that we can identify the origins of the confusion. Then we would discuss different case‑law regarding the point in issue and would, thus, conclude what type of legal confusion we are facing and what are its implications. HISTORICAL BACKGROUND Although Islam and the Muslims have reached the shores of Indo‑Pak Sub‑Continent much before the advent of Muhammad‑bin‑Qasim, yet the first introduction of the Islamic system of law in this area of the world was done by Muhammad‑bin‑Qasim, and that too for a short span of time and in a very limited jurisdiction. It was really the Sultanate of Delhi which introduced the Islamic system of law in this region. After Sultans, the great Mughals also continued to apply the Islamic system of law in this country (CASSANDRA BALCHIN, A HANDBOOK ON FAMILY LAW IN PAKISTAN 11 (Shirkat Gah, 1994).). The Muslim rulers enforced public laws of Islam as law of the land but in the areas of Private law, confined the Islamic law to Muslims. Therefore, the Muslim Personal Law was not the law of the land but had a special status and special limited scope and jurisdiction (See DR. TAHIR MAHMOOD, MUSLIM PERSONAL LAW: ROLE OF THE STATE IN THE INDIAN SUB‑CONTINENT 1 & 2 (2d ed. All India Reporter Ltd., 1983).). However, the application of the Islamic system of law, even in the sphere of public law, was not comprehensive and unexceptionable in the Mughal India and most of the Mughal Emperors allowed masses to have regard to their local and regional customs in ordering their lives (See CASSANDRA BALCHIN, supra, Note 3, at p.12.). When East India Company got established in sub‑continent, it had authority, in order to exercise effective control over the affairs of the Company, to make laws and administer them within its jurisdiction. With the passage of time, the role of the Company got increased in the national politics and it started emerging as an important force. It was during this period when the Company was given Royal Mughal authority to administer law on all subjects of the Empire, under its jurisdiction, in accordance with the different laws applicable to them. The Company started doing this with the help of its local employees (Cf. Warren Hastings Judicial Plan of 1772, section 23 of which states that. In suits regarding inheritance, marriage, caste and other religious usages and institutions, the laws of the Koran with repect to the Mohammedans and those of the Shaster with regard to the Gentoos will be invariably adhered to; and on all such occasions, Maulvis or Brahmins shall respectively attend the Courts or expound the law and they shall sign the report and assist in passing the decree. see DR. TAHIR MAHMOOD, supra Note 4, at p.4, See also Act of Settlement, 1781, which gave statutory recognition by the British Parliament to the principle regarding application of Muslim Personal Law, introduced in 1772 by Warren Hastings. See DR. TAHIR MAHMOOD, ibid at p.8 See also CASSANDRA BALCHIN, supra, Note 3, at p.12.). British gradually replaced the Indian system of administration of justice with a new hybrid system, consisting of a rather unplanned but pragmatic mixture of the two legal systems. They first of all established the Company Courts, which would administer justice on behalf of the Royal authority by applying the then current law, which was Shariah, in the domain of public law, and in case of Muslims, Muslim personal law, custom and usage (See DR. TAHIR MAHMOOD, supra, Note 4, at p.2. also cf. Regulation of 1780, section 27: "That in all suits regarding inheritance, marriage and caste, and other religious institutions, the laws of Koran with respect to Mohammedans, and those of the Shaster with, respect to gentoos, shall be invariably adhered to". See SYED KHALID RASHID, MUSLIM LAW 36 (2d Ed., Eastern Book Co, 1985). Also cf. During the time of Cornwallis, a new Judicial Scheme, contained in various Regulations issued during 1793, was promulgated. Regulation IV of 1793 laid down the following rule in its section 15, derived from Hastings' judicial Plan of 1772 (supra): In suits regarding succession, inheritance, marriage, caste and all religious usages and institutions, the Muhammedan law with respect to Mohammedans and Hindu law with regard to Hindus are to be considered as the general rules by which the judges are to form their decisions. See DR. TAHIR MAHMOOD, supra, Note 4, at p.6.). The basic principles of the locally applicable legal systems were replaced by the general application of the English concept of justice, equity and good conscience. This was the first step towards the infusion of the English Legal Principles in the legal system of the Empire. Slowly and gradually, the Company (When the East India Company started applying English law to Britishers and local laws to the local people, complex questions involving conflict of laws would arise and in these situations English system was started given priority. See PEARL, DAVID AND WERNER MENSKI, MUSLIM FAMILY LAW, Chap. 2.3 (Sweet & Maxwell, 1998).) and then the British, started changing the outlook of the entire legal system. Enactments started appearing on the scene and in the hierarchy of applicable laws, these came above Shariah and customary law (See DR. TAHIR MAHMOOD, supra, Note 4, at p.3.). As has already been stated, one of the basic purposes of law is to sustain the given fabric of society. So, was the intention of the British in transformation of the legal system of the Mughal India. British wanted to sustain the society on their terms and conditions and thus they transformed the local legal system in the manner and to the extent which suited their needs and requirements. As a consequence of this selected change the British did not touch the areas of law to which the locals were sensitive or could be politically motivated. One of such areas enshrined the family laws (See CASSANDRA BALCHIN, supra, Note 3, at p.14. Also see DR. TAHIR MAHMOOD, supra, Note 4, at p.3.). In Punjab, which became part of British India in the 19th century, the system of administration of justice prevalent in most of the other parts of the Colonial India was not extended. Punjab being the stronghold of custom, traditionally, custom was given supremacy over religious laws, and the same course was adopted by the British by making the Courts apply religious laws only in the absence of established custom (See DR. TAHIR MAHMOOD, supra, Note 4, at p.7. Also cf. The Punjab Laws Act, 1872, section 5 of which states: "In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions or any religious usage or institution, the rule of decision shall be: (i) any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been, by this or any other enactment, altered or abolished and has not been declared void by any competent Authority; (ii) the Muhammadan Law in cases where the parties are Muhammadan and Hindu law where the parties are Hindu, except in so far as such law has been altered or abolished by a legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to". DR. TAHIR MAHMOOD, supra, Note 4, at p.10. also see PEARL, DAVID AND WERNER MENSKI, supra, Note 8, at Chap. 2.4. Also cf. In Hirbae and others v. Sonabae, reported in 1847 Perry's OrientaY Cases 110, the view taken was that Quranic law should not be adopted without regard to the usages of the Muslims of India. see PEARL, DAVID AND WERNER MENSKI, supra, Note 8, at Chap. 2.4. Also cf. The North‑West Frontier Law and Justice Regulation VII of 1901 substantially adopted the principle regarding the application of custom and personal law as contained in section 5 of the Punjab Laws Act, 1872. See DR. TAHIR MAHMOOD, supra, Note 4, at p.12.). Although it was a correct view regarding Hindu system, as in the Hindu legal theory, custom has the fullest recognition and it takes precedence over the written text of law, it was not a sound view regarding the Muslim system of administration of justice (See DR. TAHIR MAHMOOD, supra, Note 4, at p.15. Cf. as early as 1868 the Judicial Committee of the Privy Council in a famous case (Collector of Madura v. Mootoo Ramalinga (1868) 12 Moo I.A. 397) had, rightly stated that under the Hindu system of law clear proof of usage would outweigh the written text of the law. DR. TAHIR MAHMOOD, supra, Note 4, at p.16. Probably it had been presumed by the British that the same position of custom was acceptable to Muslims as well (See DR. TAHIR MAHMOOD, supra, Note 4, at p.16.). At the beginning of the 20th Century, attention of Ulema in various parts of Colonial India was drawn to the preference of customary law over Shari'ah. They, therefore, demanded from the Government, statutory enforcement of the Shariah law. These efforts of the ulema brought to the Indian statute book a number of enactments placing the Islamic laws, in the hierarchy, over the customary laws, and one of such enactments was Shariat Application Act, 1937 (DR. TAHIR MAHMOOD, supra, Note 4, at p.17. This Act was applicable to the whole of Colonial India. CASSANDRA BALCHIN, supra, Note 3, at p.32.). The Bill (Moved in the Central Legislature in 1935, see DR. TAHIR MAHMOOD, supra, Note 4, at p.24.) of the Shariat Application Act, 1937, as was introduced in the Legislature, provided for the application of Shariah (Section 21 of the Bill stated: "Notwithstanding any custom or usage to the contrary, in all questions regarding adoption, wills, women's legacies, rights of inheritance, special property of females including personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage (including Talaq, Ila, Zihar, li'an, Khula, Mubara'a), maintenance, dower, guardianship, gifts, trusts, trust properties and Wakfs, the rule of decision in cases where the parties to a case are Muslims shall be the Muslim Personal Law (Shariat) see DR. TAHIR MAHMOOD, supra, Note 4, at p.24.) in the matters of Personal law. However, during the final reading (Gazette of India, Part V (1935). The statement of objects and reasons issued with the Bill explained its background and purposes as follows: "For several years past it has been the cherished desire of the Muslims of India that customary law should in no case take the place of the Muslim Personal Law. The matter has been repeatedly agitated in the press as well as on the platform. The Jami'at al?Ulama Hind, the greatest Muslim religious body, hag supported the demand and invited the attention of all concerned to the urgent necessity of introducing a measure to this effect. Customary law is a misnomer inasmuch as it has not any sound basis to stand upon and is very much liable to frequent changes and cannot be expected to attain at any time in future the certainty and definiteness which must be the characteristic of all laws. The status of Muslim women under the so‑called customary law is simply disgraceful. The Muslim women organizations have condemned customary law as it adversely affects their rights and have demanded that the Muslim Personal Law (Shari'at) should be made applicable to them. The introduction of Muslim Personal Law will automatically raise them to the position to which they are naturally entitled. In addition to this, the present Bill, if enacted, would have a salutary effect on society because it would ensure certainty and definiteness in mutual rights and obligations of the public. Muslim Personal Law (Shariat) exists in the form of a veritable code and is too well‑known to admit any doubt or entail any labour in the shape of research which is the chief feature of customary law". See DR. TAHIR MAHMOOD, supra, Note 4, at p.25.) of the Bill, Quaid‑e‑Azam Muhammad Ali Jinnah proposed a significant amendment to the effect that instead of enforcing the Islamic law compulsorily for all Muslims, every Muslim should, for the time being, be given a discretion to opt between the Islamic law and Customary law (See DR. TAHIR MAHMOOD, supra, Note 4, at p.25.). The Bill was enacted on 16‑9‑1937 as the Muslim Personal Law (Shariat) Application Act, 1937, and came into force on 7‑10?1937, incorporating the amendment suggested by Quaid‑e‑Azam Muhammad Ali Jinnah in respect of a few subjects only. Consequently, in the matters regarding adoption, wills and legacies the Act gave option to the Indian Muslims, either to adopt Muslim law or the customary law. However, in the other matters of personal law, Muslim law was the only law applicable (See DR. TAHIR MAHMOOD, supra, Note 4, at p.26.). At the time of creation of Pakistan, the applicable law regarding family laws would be governed by the Muslim Personal Law (Shariat) Application Act, 1937. Section 2 of this Act would say that in matters of family laws, applicable law would be Shariat and the Shariat was to be traced from the sources of laws are recognized by Islamic legal system, i.e., Quran, Sunnah, Ijma and Qias. However, in 1962 (The Gazette of West Pakistan (Extraordinary), December 15, 1962 at pages 4275 and 4276, while giving a statement of objects and reasons for the presentation of the West Pakistan Muslim Personal Law (Shariat) Bill, 1962 states that the Bill is in furtherance of the requirements of the Constitution that the Muslims of Pakistan should be enabled individually and collectively to order their lives in accordance with the teachings and requirements of Islam.) this law was repealed by another Act, the West Pakistan Muslim Personal Law (Shariat) Application Act. 1962. Section 2 of this Act says much the same, in principle, as was pronounced by the Act of 1937, but with the addition that the Shariat would not be applicable to such family matters where the legislature has enacted a law. It is precisely for this reason that the Muslim Family Laws Ordinance, 1961 (hereinafter Muslim Family Laws Ordinance) is the law which is governing the matter of mode and the validity of divorce by way of Talaq. MUSLIM FAMILY LAWS ORDINANCE WHY WAS IT PROMULGATED AND UNDER WHAT CONDITIONS On 4‑8‑1955, a Commission on marriage and Family Law (Rashid Commission) was established to review Muslim Family Law, in order to determine whether changes were necessary in the existing law (Cf. In May. 1954, the Punjab Legislative Assembly presented a Marriage Reform Bill. See IHSAN YILMAZ, DYNAMIC LEGAL PLURALISM IN THE AGE OF POST‑MODERNITY: THE RECONSTRUCTION OF UNOFFICIAL MUSLIM LAWS IN THE UK, TURKEY AND PAKISTAN Chap. 5 (London: SO AS (Ph D thesis in progress)). Such law, in case of divorce was Shariah, under Shariat Application Act, 1937. The Commission consisted of three men, three women and one Alim. The Commission published its report in June 1956, which was supported by its six members, whereas Maulana lhtisham‑ul‑Haq (Thanvi), the dissenting member, published a dissenting report in August, 1956 (JOHN ESPOSITO, WOMEN IN MUSLIM FAMILY LAW 83 (New York, 1982); as quoted in PLD 1989 Kar. 513. Also see CASSANDRA BALCHIN, supra, Note 3, at p.33. Also see IHSAN YILMAZ, supra, Note 21, at Chap. 5. Cf. In the report of the Commission, it was said that family laws as presently applied were the result of misinterpretation of Islam and the resultant laws were tin‑Islamic, and that existing judicial machinery was slow and dilatory, see IHSAN YILMAZ, ibid at Chap.5). This report could never be authorized as a law because of the Ulema protest, However, Field Marshal Ayub Khan, Chief Martial Law Administrator and the then President of Pakistan promulgated, under the cover of Martial Law, and during the period when the National Assembly stood dissolved and the state of emergency proclaimed, the Muslim Family Laws Ordinance, 1961 on 2‑3‑1961, and which came into force on 15‑7‑1961. This Ordinance was an adoption of the report of the Commission published in June. 1956. This promulgation was strongly supported by the All Pakistan Women's Association (APWA), which was then headed by Begum Rana Liaqat Ali Khan. However, the Ulema Community resented the law as against the Injunctions of Islam.?????????? WHAT IS MUSLIM FAMILY LAWS ORDINANCE (Cf. Bengal Muhammadan Marriages and Divorces Registration Act, 1876. It was a law providing the facility of voluntary registration of marriages and divorces with Registrars appointed by the Provincial Government. See DR. TAHIR MAHMOOD, supra, Note 4, at p.59.) The Muslim Family Laws Ordinance (VIII of 1961) is an Ordinance, which is protected under the Constitution and has an overriding effect on other laws. It deals with, and tries to develop certain aspects of the law of succession, registration of marriages, polygamy, divorce, maintenance and dower. MUSLIM FAMILY LAWS ORDINANCE AND ITS PROTECTION .IN CONSTITUTION The Constitution of 1962 protected the Ordinance (Fourth schedule, item No. VI under "Ordinances promulgated by the President".) by keeping it outside the ambit of the authority of the Courts of Pakistan from being challenged as violative of Fundamental Rights and repugnant to Islam (Infra, Note 37, at p.74.). This protection to the Ordinance was extended by the Interim Constitution of 1972 (Article 7(3), First Schedule, Part III, Item No.3 under "Ordinances promulgated by the President".). The said protection continued in the Constitution of 1973 as provided in the First Schedule under Article 8(1) and (2), The Constitution of 1973 was suspended by General Muhammad Zia‑ul‑Haq, who on 5th July, 1977 promulgated Martial Law in the Country which remained in force till 29‑12‑1985. During suspension of the Constitution, Federal Shariat Court was established under the Constitution by Presidential Order, but the consideration of the Ordinance was excluded from its jurisdiction (Under Article 203‑D, Federal Shariat Court can declare a law either against or in accordance with the Injunctions of Islam. However, under Article 203‑B, Federal Shariat Court cannot exercise jurisdiction over Muslim Personal Law and Courts have declared MFLO to be included in Muslim Personal Law. Cf. P L D 1981 SC 120.) as to whether it was repugnant to the Injunctions of Islam as laid down in Qur'an and Sunnah, which position still continues. In the Constitution of Pakistan, 1973, as revived on 30‑12‑1985, Muslim Family Laws Ordinance again finds place in the First Schedule, Part II, item III under 'Ordinances promulgated by the President' in the list of laws exempted from the operation of Article 8(l) and (2), under clause (3)(b) of Article 8. An argument states that Muslim Family Laws Ordinance was protected by the Constitution because the framer of the law was conscious in his mind that it is against the fundamental right as guaranteed in Article 20 of the Constitution. The need to give protection to this Ordinance is the opposition it has to face. Although the Ulema Community of Pakistan has always been against this Ordinance, yet it seems that no politically motivated opposition from the masses has ever been launched against it, in spirit. One of the examples supporting this conclusion is the fact that in early 1986 Senate passed the 9th Amendment Bill to the Constitution giving jurisdiction to Federal Shariat Count to declare Muslim Personal Law (which includes Muslim Family Laws Ordinance), for the time being in force, as against Qur'an and Sunnah. However, this Bill could not become Amendment as the National Assembly never passed it till it was dissolved by the President by his proclamation, dated 29‑5‑1988. On 15‑6‑1988, the President of Pakistan promulgated the Enforcement of Shariah Ordinance, which gave powers to Supreme Court and the High Courts to examine whether Muslim Personal Law (including Muslim Family Laws Ordinance), is in accordance with Islam, and if it is not, to declare it void/ineffective/not applicable. Though the Ordinance (Ordinance being valid for 4 months only. See Article 89 of the Constitution of Pakistan 1973.) was revised on 15‑10?1988, died its natural death on 15-2‑1989, as it was not placed before the National Assembly, newly elected in November, 1988. MUSLIM FAMILY LAWS ORDINANCE AND THE CONTROVERSY OF NOTICE The controversy of the Notice, which has been taken as the central theme of this article arises from the difference of procedure as is provided in the Ordinance from the one provided in the Shariah Law, applicable before coming into force of this Ordinance. The provision of section 3 of Muslim Family Laws Ordinance implies that any law or custom or usage stands impliedly repealed by the provisions of this Ordinance. This controversy is to the effect that the divorce pronounced, according to the Quran and Sunnah, becomes operative on pronouncement, whereas tinder section 7(3) of Muslim Family Laws Ordinance, the divorce will not take effect at all unless 90 days elapse after the service of notice on the Chairman Union Council. CONTROVERSY ARISES (For the analysis of the relevant case‑law, see PEARL, DAVID AND WERNER MENSKI, supra, Note 8, at Chap. 9.) The first important controversy that arose due to the promulgation of