Muslim Personal Law
Muslim Personal Law legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
Section 3(2) of the Act clearly indicated that notwithstanding any custom that was in force prior to the 1935 Act coming into force, whenever a question of succession upon the death of a Muslim arose in any Court, the Muslim Personal Law would be applicable with effect from the time of such death
Word 'whenever' contained in S.3(2) was significant; it meant that whenever a question relating to succession of a Muslim was raised in any Court, the Muslim Personal Law had to be applied with effect from the time when the death had taken place irrespective of the fact that at that time some custom was in force
In inheritance matters, even if the predecessor died before the enforcement of the Act ibid, it would still apply mutatis mutandis in accordance with Sharia principles.
Doctrine of res judicata was applicable with regard to Muslim Personal Law (Shariat) Application Act, 1962.
Petitioners/plaintiffs assailed mutation of inheritance of their deceased brother alleging that the deceased was of Sunni faith but impugned mutation was fraudulently sanctioned in favour of respondents/wife and daughter of the deceased showing the deceased to be of Shia faith
Concurrent dismissal
Petitioners contended that Nikah of deceased was solemnized by Sunni Maulana; that Bank statement of deceased revealed that he opted the deduction of Zakat; that respondent had failed to show her knowledge about Shia faith
Validity
As to answer the question of fact whether the deceased was of Sunni faith or Shia faith being a particular fact, onus to prove was on the petitioners, which they had failed to discharge
Petitioners could not be able to point out any evidence wherefrom such aspect could be proved
Petitioners had failed to produce evidence wherefrom it could be proved/presumed that a Maulana who was following Sunni faith was debarred from solemnizing the Nikah of the spouses following Shia faith
Fact that deceased had been paying Zakat form his Bank account did not prove that he was of Sunni faith
Lack of knowledge regarding Shia faith could by no means prove that deceased was not following the Shia faith
Estate of a deceased had to be divided according to his faith and personal law and not according to the faith of the successors
Certificate issued by Jafria Trust highlighting that the deceased was their member and was practicing Shia faith was not challenged by the petitioners in the main suit
Revision petition was dismissed accordingly.
Order XXI, Rr.32 & 33, C.P.C. (which provided a mechanism to the Family Court for execution of its judgment/decree) were not only procedural law but also fell within the category of Muslim Personal law, thus they were excluded from the jurisdiction conferred on the Federal Shariat Court
Shariat petition was dismissed accordingly.
For harmonius construction of provision of Art.128(1)(a) of the Qanun-e-Shahadat, 1984, resort was to be made to S.2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962
Birth during marriage, conclusive proof of legitimacy
Scope
Legal protection and defence against stigmatization of women and children
Declaratory suit was filed by the father in the present case, seeking a declaration to the effect that he was not the natural/biological father of the children born during subsistence of his marriage, and that any official record in such regard was bogus and had been fraudulently prepared
Father also filed an application in the suit praying that a DNA test be conducted to establish his denial of paternity
Said application was allowed by the revisional court, which judgment was upheld by the High Court
Validity
Children, in the present case, were not only conceived but were also born during the subsistence of the marriage
Article 128(1)(a) of the Qanun-e-Shahadat, 1984 was couched in a language which was protective of societal cohesion and the values of the community, which appeared to be the rationale for stipulating affirmatively that a child who was born within two years after the dissolution of the marriage between his parents (the mother remaining un-married) shall constitute conclusive proof of his legitimacy
Otherwise, neither the classical Islamic jurists nor the framers of the Qanun-e-Shahadat, 1984, could have been oblivious of the scientific fact that the normal period of gestation of the human foetus was around nine months
Stipulation in Art. 128 of the Qanun-e-Shahadat, 1984, was that the birth of a child within the period stipulated in the said Article was conclusive proof that he was a legitimate child
Once the relevant facts as to commencement and dissolution of marriage and the date of birth of a child within the period envisioned in Art. 128 of the Qanun-e-Shahadat, 1984, were proved, and the date of birth was within the period specified in the said Article, then the Court could not allow evidence to be given for disproving the legitimacy of a child born within the said period
Question then was as to how to deal with a situation where the husband refused to own the child
Muslim Personal Law was clear and well settled on such subject as it provided that legitimacy/paternity must be denied by the father immediately after birth of the child (as per Imam Abu Hanifa) and within the post natal period (maximum of 40 days) after birth of the child (as per Imam Muhammad and Imam Yousaf)
No lawful denial of paternity could be made after said stipulated period
Rationale of the law set out in Art. 128 of the Qanun-e-Shahadat, 1984, read with S.2 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, was quite clear; both said statutes ensured (in specified circumstances) an unquestioned and unchallengeable legitimacy of the child born within the stipulated period notwithstanding the existence or possibility of a fact through scientific evidence
Framers of the law or jurists in the Islamic tradition were not unaware simpletons lacking in knowledge
Conclusiveness of proof in respect of legitimacy of a child was properly thought out and quite deliberate
Much greater societal objective was served by adhering to the said rules of evidence than any purpose confined to the interests of litigating individuals
Many legal provisions existed in the statute book and rules of equity or public policy in the jurisprudence where the interests of individuals were subordinated to the larger public interest
Law did not give a free licence to individuals and particularly unscrupulous fathers, to make unlawful assertions and thus to cause harm to children as well as their mothers
Wisdom of rule of Muslim Personal Law could not be gainsaid, considering in particular the patriarchal and at times misogynistic societal proclivities where women frequently did not receive the benefit of laws and on the contrary faced humiliation and degrading treatment
For the honour and dignity of women and innocent children as well as the value placed on the institution of the family, women and blameless children had been granted legal protection and a defence against scurrilous stigmatization
Appeal, in the present case was allowed and suit filed by father was dismissed with the observation that it was worth to reflect on the belief in (our) tradition that on the Day of Judgment, the children of Adam would be called out by their mother's name, which showed that the Divine Being had, in His infinite wisdom and mercy, taken care to ensure that even on a day when all personal secrets shall be laid bare the secrets about paternity shall not be delved into or divulged.
Zakat and Ushr Ordinance, 1980 was not a Muslim personal law and was amenable to the jurisdiction of Federal Shariat Court.
Zakat and Ushr Ordinance, 1980 was not a Muslim personal law and was amenable to the jurisdiction of Federal Shariat Court.
West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S.2-A [added by West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983), S.21-Muslim Personal Law
Retrospective effect
Scope
Overriding control of custom upon Muslim Law was done away with by promulgation of Punjab Islamic Personal Law (Shariat) Application Act, 1948
With the incorporation of S.2-A in West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, retrospectivity was given to the application of Muslim Personal Law in all matters including succession.
Inheritance of-Entitlement of nominated person to succeed to membership of Co-operative Farming Society and to land originally allotted to deceased
Impugned judgment based on view overruled by Supreme Court
Effect of
Bye-laws of Co-operative Farming Society, whether could override provisions of Muslim Personal Law relating to succession
Leave to appeal granted to examine contentions (i) that High Court had proceeded to record its judgment on the view which had been overruled by Supreme Court, and (ii) that bye-laws of Co-operative Farming Society could not override provisions of Muslim Personal Law relating to succession.
"Muslim Personal Law", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/14917
Precedents & Case Laws citing "Muslim Personal Law"
1992 S C M R 82
SARDAR‑‑‑Appellant Versus Mst. NEHMAT BI and 8 others‑‑‑Respondents
Court: High Court2002 C L C 689
Mst. NOOR FATIMA ‑‑‑Petitioner Versus SHAH JI‑‑‑‑Respondent
Court: Lahore1990 SCMR 72
GHULAM MUHAMMAD and 6 others‑‑Appellants Versus MUHAMMAD BAKHKH and 4 others‑‑Respondents
Court: ‑‑‑S.3‑A as inserted by Punjab Muslim Personal Law (Shariat) Application (Amendment) Act (XI of 1951)‑‑‑West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) S.2‑A as inserted by Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance (XIII of 1983)‑‑‑Last male owner's will, providing for two legatees succeeding his property one after the other‑‑‑First legatee died in 1957 after the insertion of S.3‑A in the Punjab Muslim Personal y Law (Shariat) Application (Amendment) Act 1951‑‑‑By operation of law, property left by last male owner thus would devolve on the heirs of the testator under the shariat as they would have inherited the property had the testator died intestate‑‑‑Last male holder under the provisions of S.2‑A of Act V of 1962, was competent only to make a will of 1/3 of his property, the remaining devolving on his Muslim Law heirs‑‑‑Legatee was thus allowed to get 1/3 of the property under the will and the rest 2/3 of the property would devolve on the heirs of last male holder‑‑‑Appeal accepted.P L D 1984 Supreme Court 394
MUZAFFAR KHAN-Appellant Versus Mst. ROSHAN JAN AND OTHERS — Respondents
Court: -- S. 3(2) - West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), .S. 2 as amended by West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XI1I of 1983)2020 S C M R 346
FAQIR AHMED KHAN (DECEASED) through L.Rs. — Appellant Versus RIAZ AHMAD and others — Respondents
Court: Supreme Court of PakistanP L D 1981 Supreme Court 120
[Shariat Bench] Versus Mst. FARISHTA‑Respondent
Court: Shariat Bench1886 M L D 437
TALIB KHAN and 6 others‑‑Petitioners Versus COLLECTOR, LYALLPUR and others‑‑Respondents
Court: LahoreP L D 1962 (W
Mst. RABIA‑Appellant Versus AKBAR AND OTHERS‑Respondents
Court: West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) as amended by West Punjab Muslim Personal Law (Shariat) Application (Amendment) Act (XI of 1951), S. 2‑Pro perty coming into possession of widow under Customary Law‑Does not at once become subject to Muslim law on passing of West Punjab Muslim Personal Law (Shariat) Application Act, 1948‑ Widow under Customary Law competent to make valid gift of property ‑Power of gift after passing of Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951, not abrogated (Akbar and others v. Mst. Rabia Bibi P L D 1957 Lah. 588 reversed.2013 M L D 1724
Mst. SAKINA BIBI — Petitioner Versus GOVERNMENT OF PUNJAB — Respondent
Court: Peshawar1988 S C M R 293
HAKIM ALI and others — Appellants Versus BARKAT BIBI and others — Respondents
Court: ---S.2-A as inserted by West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983) --Custom (Punjab)- Succession--Will--Suit by respondent, daughter of last male-holder, for possession of land equal to less than 1/20th part of entire property left by her father on the basis of a Will executed on 30-10-1940 in her favour, dismissed by Trial Court holding that her father was not competent to make a gift of any part of his property in her favour- District Judge on appeal decreeing suit holding that under the Custom there was no restraint on the last male-holder in giving a small portion of his property to his daughter by way of gift and High Court in second appeal affirming the finding of District Judge--West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 coming into force during pendency of appeal by which S.2-A was inserted in Ordinance of 1962--Provision of S.2-A being retrospective in effect, last male-holder had to be treated as one who at time of his death was governed by Muslim Personal Law- Respondent, under Muslim Personal Law, being one of the heirs, could not take advantage of the Will without the consent of other heirs--Claim of respondent to the land in dispute on basis of Will, in absence of consent of other heirs, must be rejected--Applying Muslim Personal Law, respondent would have been entitled from estate of her father to more land than what was given to her in the Will--Parties having been engaged in litigation for more than 30 years, it would not be appropriate to drive them to another round of litigation--Case, in circumstances, held, was not a fit one for Supreme Court to interfere with judgment and decree under appeal