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Family law, also referred to as matrimonial law or the law of domestic relations, is an area of law that addresses family matters and domestic relations, including adoption, divorce, child custody, support, and more.
At Kakakhel Law Associates, we provide comprehensive information on family law in Pakistan. Our expert team of family lawyers is dedicated to assisting clients in resolving family law matters within the country. The legal framework is influenced by both English common law and Islamic law, with the former being more prominent in commercial law and the latter in personal status laws (and more recently in criminal and tax law).
Following the partition of India in 1947, the legislation concerning Muslim family law, introduced during British India, continued to govern personal status in Pakistan. In 1955, a seven-member Commission on Marriage and Family Laws was established to review the personal status laws applicable in the new state and identify areas for reform. The Commission's report, submitted in 1956, proposed several reforms, including treating all triple talaqs (except for the third in a series) as a single, revocable repudiation.
The report sparked significant debate, with many prominent ulama (including Maulana Abul Ala Maududi, leader of Jamaat-i-Islami) opposing its recommendations. The Muslim Family Laws Ordinance of 1961 incorporated several provisions from the Marriage and Family Laws Commission's report, aiming to reform divorce law and inheritance laws concerning orphaned grandchildren. It also introduced compulsory marriage registration, placed restrictions on polygamy, and reformed laws related to dower and maintenance in marriage and divorce, along with amending existing legislation regarding the legal age for marriage. However, various sectors of the ulama viewed this as undue interference or tampering with classical law. When Pakistan's first Constitution was promulgated in 1956, it included a provision known as the "repugnancy clause," which stated that no law would be enacted that was contrary to Islamic injunctions. All existing laws were to be reviewed in light of this provision, with appropriate amendments made. This clause has been retained and strengthened in subsequent constitutions.
After a military takeover in 1999, the Constitution was once again suspended, and discussions about potential amendments to the Constitution continued throughout 2000.
The dominant madhhab in Pakistan is Hanafi, with significant minorities of Jafari and Ismaili Muslims. The legal status of Ahmadis is somewhat ambiguous. Although they self-identify as Sunni Muslims, they were declared non-Muslims by the state in 1974. This decision followed a long-standing campaign led by conservative religious elements, pushing for the official designation of Ahmadis as non-Muslims. Ahmadis have since advocated for a modified version of the Muslim Family Laws Ordinance of 1961 to apply to their personal status matters. Pakistan is also home to various religious minorities, including Christians, Zoroastrians, Hindus, Sikhs, and Jews.
The third Constitution of Pakistan was adopted on April 10, 1973, suspended in 1977, and reinstated in 1985. Over time, it has undergone several amendments. It was once again suspended in 1999 and remains suspended at the time of writing.
Article 1 of the Constitution declares Pakistan as "the Islamic Republic of Pakistan," while Article 2 designates Islam as the state religion. In 1985, the Objectives Resolution in the preamble was made a substantive provision through the insertion of Article 2A, requiring all laws to align with the teachings of the Quran and Sunnah. Chapter 3A establishes the Federal Shariat Court, which is tasked with examining any law or provision of law that may contradict the "injunctions of Islam as laid down in the Holy Quran and Sunnah." If the Court finds any law or provision to be inconsistent with these principles, it must notify the relevant federal or provincial government, providing the reasons for its decision. The Court is also empowered to review decisions related to the application of hudud penalties made by any criminal court, and may suspend sentences if there are concerns about the legality, propriety, or regularity of the proceedings. The Supreme Court of Pakistan has a Shariat Appellate Bench, consisting of three Muslim Supreme Court judges and up to two ulama, which reviews the decisions made by the Federal Shariat Court. Part IX of the Constitution, titled "Islamic Provisions," mandates the Islamization of all existing laws and reiterates that no laws should be enacted that contradict the principles of Islam. An explanation to Part IX clarifies that for personal law, the term "Quran and Sunnah" refers to the interpretation of laws by each sect, as understood by that sect.
These Islamic provisions also establish the Islamic Ideology Council, consisting of 8 to 20 members appointed by the President. These members must possess knowledge of Islamic principles as enunciated in the Holy Quran and Sunnah or an understanding of Pakistan’s economic, political, legal, or administrative challenges. The Council aims to represent various schools of thought and, where practical, include at least one woman. Its function is to provide recommendations to the Majlis-e-Shoora (Parliament) and Provincial Assemblies on ways to help Muslims in Pakistan live according to the principles of Islam. Additionally, the Council determines whether proposed laws are consistent with Islamic teachings and provides the government with the relevant Islamic injunctions that can be legislated.
Pakistan's judicial system is structured into three levels of federal courts, three divisions of lower courts, and a Supreme Judicial Council. District courts, located in every district of each province, have both civil and criminal jurisdiction, though they mainly handle civil matters. Each province has a High Court with appellate jurisdiction over the lower courts, while the Supreme Court holds exclusive jurisdiction over disputes between federal and provincial governments, as well as appellate jurisdiction over decisions made by the High Courts. The Federal Shariat Court, established by Presidential Order in 1980, is responsible for reviewing any law that may be inconsistent with the "injunctions of Islam as laid down in the Holy Quran and Sunnah." If the Court determines a law to be repugnant, it must notify the concerned government, providing reasons for its ruling. The Court also has the authority to review decisions made by criminal courts regarding the application of hudud penalties. The Supreme Court includes a Shariat Appellate Bench that is empowered to review the decisions of the Federal Shariat Court. The West Pakistan Family Courts Act of 1964 governs the jurisdiction of Family Courts, which have exclusive jurisdiction over matters related to personal status. Appeals from the Family Courts are heard only by the High Court. Family Courts have exclusive authority in cases involving the dissolution of marriage, dower, maintenance, restitution of conjugal rights, child custody, and guardianship.
This Act repealed the 1937 Muslim Personal Law (Shariat) Application Act as well as provincial legislation regarding the application of Muslim personal law. It directs the application of Muslim personal law, regardless of custom or usage, to all questions of personal status and succession where the parties are Muslims. One key provision states, "the limited estates in respect of immovable property held by Muslim females under the customary law are hereby terminated," marking a shift from the previous law, and it explicitly does not apply retrospectively.
The legal age for marriage is 18 for males and 16 for females. Although there are penal sanctions for contracting underage marriages, such marriages remain valid.
Governed by classical Hanafi law, with a strong influence of custom. In the case of Abdul Waheed v. Asma Jehangir (PLD 1997 Lah 331), the court confirmed that, under current law, an adult Hanafi Muslim woman can contract her marriage without the consent of a wali (guardian), as the woman's consent is the essential requirement for the validity of the marriage, not the wali’s.
The Muslim Family Laws Ordinance (MFLO), 1961, introduced reforms to various aspects of classical law. These reforms include the registration of marriage and divorce, inheritance rights for orphaned grandchildren, restrictions on polygamy, treating every talaq (except the third of three) as a single, revocable repudiation, formalizing reconciliation procedures in disputes regarding maintenance or dissolution of marriage, and recovery of mahr, with specified penalties for non-compliance. There are penal sanctions for failing to comply with mandatory marriage registration, but failure to register a marriage does not invalidate it. The MFLO mandates the registration of marriages and imposes fines or imprisonment for failure to do so. However, a Muslim marriage remains legally valid if it is contracted according to the religious requirements, even if not registered.
The MFLO instituted limited reforms in the law regarding polygamy. It introduced the requirement for a husband to submit an application and pay a fee to the local Union Council to obtain prior written permission for a polygamous marriage. The application must state the reasons for the marriage and indicate whether the consent of the existing wife or wives has been obtained. The Union Council forms an Arbitration Council, consisting of representatives from the existing wife or wives and the husband, to determine whether the proposed marriage is necessary. If a polygamous marriage is contracted without prior permission, the husband must immediately pay the full dower to the existing wife or wives and may be subject to a fine and/or imprisonment. Additionally, any polygamous marriage contracted without Union Council approval cannot be registered under the MFLO. However, the marriage remains valid even if the husband does not seek the permission of the existing wife or the Union Council. The enforcement of the application process is often hindered by the judiciary’s reluctance to apply penalties, leading some to describe the requirement for Arbitration Council approval as a mere formality.
The law restricts polygamy by requiring prior approval from the Union Council, along with penal sanctions for contracting a polygamous marriage without permission. If the husband does not follow the legal procedures, it is grounds for the first wife to obtain a decree of dissolution.
The chairman of the Union Council will also constitute an Arbitration Council to determine the matter in cases where a husband fails to maintain his wife or wives, or fails to maintain co-wives equitably (at the application of one or more wife or wives, and in addition to their seeking any other legal remedy). Any outstanding dower or maintenance not paid in due time is recoverable as arrears of land revenue. Also, where no details regarding the mode of payment of mahr are recorded in the marriage contract, the entire sum of the dower stipulated therein is presumed to be payable as prompt dower.
Consideration of every talaq uttered in any form whatsoever (except the third of three) as single and revocable; formalisation of reconciliation and notification procedures, and procedures for recovery of mahr and penalties for non-compliance; talaq was generally rendered invalid by failure to notify in the 1960s and 1970s, but the introduction of the Zina Ordinance led to changes in judicial practice so that failure to notify does not invalidate talaq.
Efforts were also made to reform the classical law as it relates to the exercise of talaq. The MFLO requires that the divorcing husband shall, as soon as possible after a talaq pronounced "in any form whatsoever", give the chairman of the Union Council notice in writing. The chairman is to supply a copy of the notice to the wife. Non-compliance is punishable by imprisonment and/or a fine. Within thirty days of receipt of the notice of repudiation, the chairman must constitute an Arbitration Council in order to take steps to bring about a reconciliation. Should that fail, a talaq that is not revoked, either expressly or implicitly, takes effect after the expiry of ninety days from the day on which the notice of repudiation was delivered to the chairman. If the wife is pregnant at the time of the pronouncement of talaq, the talaq does not take effect until ninety days have elapsed or the end of the pregnancy, whichever is later. The classical law regarding the requirement of an intervening marriage in order to remarry a former husband who has repudiated the same woman three times is retained. Failure to notify invalidated the talaq until the late 1970s and early 1980s, but the introduction of the Zina Ordinance allowed scope for abuse as repudiated wives were left open to charges of zina if their husbands had not followed the MFLO’s notification procedure. Thus, judicial practice has, since the early 1980s, recognised as valid repudiations in contravention of the notification procedure. The rules regarding notification and arbitration apply, mutatis mutandis and so far as applicable, to delegated divorce (talaq al-tafwid), or to marriage dissolved other than by talaq.
Grounds on which women may seek divorce include: desertion for four years, failure to maintain for two years or husband’s contracting of a polygamous marriage in contravention of established legal procedures, husband’s imprisonment for seven years, husband’s failure to perform marital obligations for three years, husband’s continued impotence from the time of the marriage, husband’s insanity for two years or his serious illness, wife’s exercise of her option of puberty if she was contracted into marriage by any guardian before age of 16 and repudiates the marriage before the age of 18 (as long as the marriage was not consummated), husband’s cruelty (including physical or other mistreatment, unequal treatment of co-wives), and any other ground recognized as valid for the dissolution of marriage under Muslim law; judicial khula may also be granted without husband’s consent if wife is willing to forgo her financial rights; leading case Khurshid Bibi v. Md. Amin (PLD 1967 SC 97)
Continues to govern divorce in Pakistan. The Act has been amended by the Muslim Family Laws Ordinance 1961 to include the contracting of a polygamous marriage in contravention of the MFLO in the grounds entitling a woman to a decree for the dissolution of her marriage. Another amendment raises the age at which a woman has to have been married by her father or other guardian to exercise her option of puberty from 15 to 16; thus, the option of puberty may be exercised if the girl was married before the age of 16 if she repudiates the marriage before the age of 18 so long as the marriage was not consummated. The "judicial khula" is a significant feature of divorce law in Pakistan. It is welcomed by some as giving women the right to divorce regardless of grounds, provided that she is prepared to forgo her financial rights (i.e., repaying her dower). It is criticized by others who point out that judges may rule for a judicial khula in cases where women are clearly entitled to a judicial divorce under the terms of the DMMA without losing their financial rights. In Khurshid Bibi v. Mohd. Amin (PLD 1967 SC 97), the question for the Supreme Court to determine was stated as follows: "(Is) a wife, under the Muslim law, entitled, as of right, to claim khula, despite the unwillingness of the husband to release her from the matrimonial tie, if she satisfies the Court that there is no possibility of their living together consistently with their conjugal duties and obligations." The Supreme Court stated that the Muslim wife is indeed entitled to khula as of right, if she satisfies the Court that she would be forced into a hateful union if the option of khula was denied her by her husband.
Governed by classical law In terms of maintenance during and after marriage, the classical law is applied. The post-independence changes to the Indian Criminal Procedure Code that allow a divorced wife who is unable to support herself to claim maintenance from her former husband have not been reflected in the Criminal Procedure Code of Pakistan. While the Indian Criminal Procedure Code was extended so as to apply to divorce, no such reforms have been made to section 488 of the Criminal Procedure Codes of either Pakistan or Bangladesh.
General rule is that divorced wife is entitled to custody until 7 years for males (classical Hanafi position) and puberty for females, subject to classical conditions, though there is some flexibility as best interests of the ward are considered paramount according to Guardians and Wards Act, 1890.
Governed by classical law; reform introduced in post-independence legislation allows for orphaned grandchildren through sons and daughters to inherit the share their father / mother would have been entitled to had they not predeceased the grandparents.
Replaced the Evidence Act 1872, though it essentially restates the original legislation, but as it was intended to bring the law of evidence closer to Islamic injunctions, there were changes which specifically impacted upon women. The Order introduced changes to the law as it relates to the presumption of legitimacy. The original Evidence Act did not provide for a minimum period of gestation, and the maximum was 280 days. Now, the minimum gestation period is set at six months and the maximum at two years, bringing the provision into accordance with the majority position in classical Hanafi fiqh. With regard to the changes introduced relating to women's testimony, practice since the Orders issuance has been for instruments pertaining to financial or future obligations to be attested by two men, or one man and two women while courts may accept or act on the testimony of one man or one woman in all other cases.
Introduced the concepts of fornication and adultery into criminal law. The Pakistani Penal Code had not afforded any recognition to fornication as a crime, and adultery was only defined as an offence under section 497 if a man had intercourse with the wife of another man without his permission; the woman involved bore no criminal liability. The Zina Ordinance provides for severe penalties for committing adultery or fornication, and reiterates the classical distinction between married and unmarried parties in determining punishments. Thus, the hadd punishment for a married person convicted of zina is rajm, stoning to death, a penalty that has not been carried out by the state, and the hadd for an unmarried person found guilty of zina is one hundred lashes in a public place. The Ordinance also makes a distinction between tazir and hadd punishments for zina, as hadd punishments are generally more severe and require a more rigorous standard of proof. If the accused confesses to the crime, or if there are four pious adult Muslim male eye-witnesses to the actual act of penetration, the hadd penalty may be applied. Often the higher standard of evidentiary requirements is not met, and if there are other complications as well (appeals, retractions of confessions, etc.), the usual course has been to apply tazir punishments, defined as imprisonment for up to ten years, thirty lashes, and a fine.
Affirms the supremacy of the sharia, (defined in the Act as the injunctions of Islam as laid down in the Holy Quran and Sunnah) as the supreme law of Pakistan. The Act states that all statute law is to be interpreted in the light of sharia and that all Muslim citizens of Pakistan shall observe the sharia and act accordingly. Section 20 of the Act states that notwithstanding anything contained in this Act, the rights of women as guaranteed by the Constitution shall not be affected.
The decisions of Pakistani courts are published in Pakistan Legal Decisions (PLD), Civil Law Cases (CLC), Monthly Legal Digest (MLD) and a number of other law reports.
Pakistan signed the CRC in 1990, and ratified the Convention the same year. The reservation made upon signature regarding the CRC being interpreted in light of Islamic legal principles and values was withdrawn in 1997.
Pakistan acceded to the CEDAW in 1996, with a general declaration to the effect that Pakistan’s accession to the Convention is subject to the provisions of the national Constitution.
The court system of Pakistan is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature while others are provincial.
Pakistan has three levels of federal courts, three divisions of lower courts, and a Supreme Judicial Council. District courts exist in every district of each province, with civil and criminal jurisdiction. The High Court of each province has appellate jurisdiction over the lower courts. The Supreme Court has exclusive jurisdiction over disputes between and among provincial governments, and appellate jurisdiction over High Court decisions.
The Federal Shariat Court was established by Presidential Order in 1980. This Court has a remit to examine any law that may be repugnant to the “injunctions of Islam, as laid down in the Holy Quran and the Sunnah." If a law is found to be 'repugnant', the Court is to provide notice to the level of government concerned specifying the reasons for its decision. The Court also has jurisdiction to examine any decisions of any criminal court relating to the application of hudud penalties. The Supreme Court also has a Shariat Appellate Bench empowered to review the decisions of the Federal Shariat Court.
The West Pakistan Family Courts Act 1964 governs the jurisdiction of Family Courts. These courts have exclusive jurisdiction over matters relating to personal status. Appeals from the Family Courts lie with the High Court only.
A court is a public forum used by a power base to adjudicate disputes and dispense civil, labour, administrative and criminal justice under its laws. In common law and civil law states, courts are the central means for dispute resolution, and it is generally understood that all persons have an ability to bring their claims before a court. Similarly, those accused of a crime have the right to present their defense before a court.
Court facilities range from a simple farmhouse for a village court in a rural community to huge buildings housing dozens of courtrooms in large cities. A court is a kind of deliberative assembly with special powers, called its jurisdiction, to decide certain kinds of judicial questions or petitions put to it. It will typically consist of one or more presiding officers, parties and their attorneys, bailiffs, reporters, and perhaps a jury.
The term "court" is often used to refer to the president of the court, also known as the "judge" or the "bench", or the panel of such officials. For example, in the United States the term "court" (in the case of U.S. federal courts) by law is used to describe the judge himself or herself.
In the United States, the legal authority of a court to take action is based on three major issues: (1) Personal jurisdiction; (2) Subject matter jurisdiction; and (3) Venue.
Jurisdiction, meaning "to speak the law" is the power of a court over a person or claim. In the United States, a court must have both personal jurisdiction and subject matter jurisdiction. Each state establishes a court system for the territory under its control. This system allocates work to courts or authorized individuals by granting both civil and criminal jurisdiction (in the United States, this is termed subject-matter jurisdiction). The grant of power to each category of court or individual may stem from a provision of a written constitution or from an enabling statute. In English law, jurisdiction may be inherent, deriving from the common law origin of the particular court.
Courts may be classified as trial courts (sometimes termed "courts of first instance") and appellate courts. Some trial courts may function with a judge and a jury: juries make findings of fact under the direction of the judge who reaches conclusions of law and, in combination, this represents the judgment of the court. In other trial courts, decisions of both fact and law are made by the judge or judges. Juries are less common in court systems outside the Anglo-American common law tradition.
The two major models for courts are the civil law courts and the common law courts. Civil law courts are based upon the judicial system in France, while the common law courts are based on the judicial system in Britain. In most civil law jurisdictions, courts function under an inquisitorial system. In the common law system, most courts follow the adversarial system. Procedural law governs the rules by which courts operate: civil procedure for private disputes (for example); and criminal procedure for violation of the criminal law.
The Federal Shariat Court (FSC) of Pakistan consists of 8 Muslim judges including the Chief Justice. These Judges are appointed by the President of Pakistan choosing from amongst the serving or retired judges of the Supreme Court or a High Court or from amongst persons
Of the 8 judges, 3 are required to be Ulema who are well-versed in Islamic law. The judges hold office for a period of 3 years, which may eventually be extended by the President.
The FSC, on its own motion or through petition by a citizen or a government (federal or provincial), has the power to examine and determine whether or not a certain provision of law is repugnant to the injunctions of Islam. Appeals against its decisions lie to the Shariat Appellate Bench of the Supreme Court, consisting of 3 Muslim judges of the Supreme Court and 2 Ulema, appointed by the President. If a certain provision of law is declared to be repugnant to the injunctions of Islam, the government is required to take necessary steps to amend the law to bring it in conformity with Islamic principles.
The court also exercises revisional jurisdiction over the criminal courts, deciding Hudood cases. The decisions of the court are binding on the High Courts as well as subordinate judiciary. The court appoints its own staff and frames its own rules of procedure.
Since its establishment in 1980, the Federal Shariat Court has been the subject of criticism and controversy. Created as an Islamization measure by the military regime and subsequently protected under the controversial 8th Amendment, its opponents question the very rationale and utility of this institution. It is argued that this court merely duplicates the functions of the existing superior courts and operates as a check on the sovereignty of Parliament. The composition of the court, particularly the mode of appointment of its judges and the insecurity of their tenure, is criticized, and it is alleged that this court does not fully meet the criterion prescribed for the independence of the judiciary. It is not immune to pressures and influences from the Executive.
In the past, this court was used as a refuge for recalcitrant judges. While some of its judgments, particularly those relying on the Islamic concept of equity, justice, and fair play, have expanded and enlarged the scope and contents of individual rights, others that tend to restrict the rights of women are severely criticized. In brief, there is a need for a serious discussion on the status, utility, and functions of this Court.
Kakakhel Law Associates is well acquainted with the above Family Laws and is fully capable of representing you at any level of proceedings.