SALIENT FETURES OF MFLO 1961/  IMPORTANT PROVISIONS WHICH BROUGHT READICAL CHANGES IN MUHAMMADEN LAW/ CRITICS ON SOME PROVISIONS OF THE MFLO, 1961 AS VIOLATIVE OF INJUNCTION OF ISLAM.

 

 

APPLICABLE TO ALL MUSLIMS OF PAKISTAN: U/SECTION 1:

The law is applicable to the whole of Pakistan and applies to all Muslim citizens of Pakistan wherever they may be except FATA:

 

PROVIDES THE AGE OF MARRIAGE:

Under this ordinance the age of marriage for both girls and boys extended from 14 to 16 and for the boys 18 to 21 respectively.

 

 

CHILDREN OF PREDECEASED PARENTS TO INHERIT FROM THEIR GRANDPARENTS:U/SEC: 4

The MFLO 1961, for the first time, provided the right of inheritance to orphaned grand children (children of propositus son/daughter) from the properties left by their grandfathers; but a wife could not receive share in the inheritance.

This section was subsequently challenged in the Shariat Court as being repugnant to the Quran and Sunnah and currently an appeal is pending in the Supreme Court of Pakistan.

 

CRITICISM:

 

Allah Rakha v/s Federation (PLD 2000 FSC Page-1)

 

“In line with the inheritance prescribed by the Quran in the presence of sons, the children of the predeceased children have been excluded as heirs”

“according to the Sunnah of our Holy Prophet Mohammad (Peace be upon him) in the Ahadith ------------------the grandchildren has been elucidated and that the grandchildren are to be considered as one’s children in the distribution of inheritance in case none of one’s own children are still alive and grandson has been excluded from inheritance simultaneously with the son of the propositus. This Hadith has been followed by all schools, including Fiqa-e-Jafria”.

 

THE REGISTRATION OF MARRIAGES APPOINTMENT OF NIKKAH REGISTRAR BECAME MANDATORY: U/SEC: 5 (IMPORTANT PROVISION)

It had become a need because the oral evidence was caused to create problems and confusion (MFLO 1961) under section 5 the registration of marriage was made mandatory. This law gave authority to the Union Council to appoint Nikah registrars and it was the duty of the Council to give a register of the Nikahnama in a prescribed form and a seal for the Nikah registrar and the Nikah registrar was bound to give the copies of Nikah to bride and bride groom and a duplicate copy would be forwarded to the union council.

 

CRITICISM:

 

Allah Rakha v Federation of Pakistan [PLJ 2000 (36)]

 

                                                "Non-registration of Nikah ……… does not invalidate marriage/Nikah itself merely on account of non-registration of Nikah, if otherwise Nikah has been performed in accordance with the requirements of Islamic Shariah.

 

“the punishment  prescribed by sub-section (4) of the Section 5 be suitably enhanced as that prescribed presently' is not adequate to attract strict compliance of the provision".

 

DISCOURAGE POLYGAMY BY IMPOSING OBLIGATION: U/SEC : 6

Section 6 of the Act; provides that no man shall during the subsistence of an existing marriage contract another marriage except with the previous permission, in writing, of the Arbitration Council.

 

CRITICISM:

However, in practical terms this provision is hardly adhered to by the male population of  Country, who are desirous of contracting a second marriage during the subsistence of an earlier marriage.

RESTRAIN HUSBAND FROM PRONOUNCING TALAQ IN AN ARBITRARY MANNER/THE IRREVOCABLE TRIPLE TALAQ HAD BEEN ABOLISHED. U/SEC: 7

This Ordinance however in the matter of divorce abolished the traditional and customary practice of declaring the word “Talaq” thrice immedietely.

 

PROVIDES THE PROCEDURE OF DIVORCE IN DETAIL IN ORDER TO SECURE HASTY DISSSOLUTION OF MARRIAGE AND EXPOLIATION OF DIVORCE:

Under the section 7 of the Ordinance it was required that any man who wished to divorce his wife shall, as soon as may be, after the pronouncement of Talaq in any form what so ever, give the chairman notice in writing of his having done so, and shall supply a copy to his wife. After sending the copy to chairman from the time to 90 days period starts. During this time the arbitration Council was set up to pave the way for reconciliation between the parties. If the period ends then the divorce becomes effective. In other condition if the process of reconciliation succeeds the husband took the notice back.

Whoever deny this provision would be punished which can be extended to one year imprisonment or a fine up to five thousand.

 

CRITICISM:

 

In Section 7 no period for Talaq (divorce) has been prescribed within which a husband must inform the competent authority that he has given divorce to his wife.

This has created problems particularly for women who are in most cases uneducated and not knowing that;

the divorce must be intimated

a certificate of divorce must be obtained to get married again; and

violation of the law makes her/him liable to punishment.

 

The husband, who has to report in such cases purposely fail to report in intimating the competent authority and the wife in writing. And in many cases when they find women married again, they file an FIR under Hudood Law against such a couple.

 

Resultantly in several such like cases, The Court held;

In the case of Mirza Qamer Raza v Mst Tahira Begum (PLD 1988 Kar 1697)

“ that ineffectiveness of talaq in absence of notice to Chairmen, as envisaged by section 7 of the Muslim Family Laws Ordinance, is against the injunctions of Islam.”

 

PROVIDE DETAILS OF THE CONCEPT OF “HILALA”: U/SEC: 7(6)

The Muslim family law over led the concept of Hilala (to marry again the same husband after having an intervening marriage with others person) and declared necessary only if a third consecutive divorce of the same people becomes effective.

PROVIDE THE RIGHT OF TALAQ- TAFWEEZ AND TALAQ MUBARAT(BY MUTUAL CONST): SECTION 8

Section 8 of the Ordinance provides that where the right of divorce has been delegated to the wife by the husband or where the parties wish to dissolve the marriage otherwise than through divorce i.e. by mutual consent (also known as ‘Mubaarat’), in such circumstances again the provisions of  Section 7 would apply, mutatis mutandis.

Column 18 in the nikahnama pertains to whether rights of divorce have been given by the husband to the wife.

 

CRITICISM:

In this regard, it would be seen that normally the Nikah Registrar’s oppose the right of divorce being given by the husband to the wife as being un-Islamic even though the husband is willing to do so.

 

PROVIDE THE RIGHT TO RECOVERY THE MAINTENANCE: U/SEC: 9

If any husband fails to maintain his wife adequately, or where there are more wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may in addition to seeking any other legal remedy available apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband.

 

SAFEGUARD THE WOMEN‟S RIGHTS TO HAQ MEHR (DOWER): U/SEC: 10

The aim was to safeguard the women‟s rights to haq Mehr (dower) helping in view that the amount would be payable whenever demanded, If it is not specified in the nikahnama.

 

Section 10 deals with the mode of payment of dower to the wife. In case the same is not specified in the Nikahnama or the marriage contract, the entire amount of dower shall be presumed to be payable on demand.

 

CRITICISM:

Under Section 10, the law should further provide that if the dower amount is not specified in the Nikahnama or in the marriage contract, or it is stated in terms of any definition like Mehr-e-Misal, the amount must be determined by the Court.