Family Laws in Pakistan (Second Edition)

Muhammad Zubair Abbasi, ,Shahbaz Ahmad Cheema, Professor at University Law College, University of the Punjab in Lahore

Dr Muhammad Zubair Abbasi is an academic who has held positions as a Research Fellow at Oxford University, Senior Research Fellow at Max Planck Foundation in Heidelberg, lecturer at Bradford University, Oxford Brookes University, and Westminster University, Associate Professor at LUMS, and Visiting Professor of Comparative Law at the American University in Cairo. He earned his DPhil from Oxford University, an LL.M in Corporate Governance from Manchester University, and a B.A LL.B (Hons) from International Islamic University, Islamabad. He is the co-author of Democracy under God: Constitutions, Islam and Human Rights in the Muslim World (Cambridge University Press 2023).

Dr Shahbaz Ahmad Cheema is an experienced and accomplished academic, currently serving as a Professor at University Law College, University of the Punjab in Lahore. He holds a PhD from Warwick University, UK, an LL.M from the University of the Punjab, and an LL.B (Hons) from International Islamic University, Islamabad. With over two decades of teaching experience at the University of the Punjab, Dr Cheema specialises in Islamic law and evidence law. He is the author of Islamic Law of Inheritance: Practices in Pakistan (Shariah Academy, International Islamic University, Islamabad 2017).

Foreword xvPreface xviiAcknowledgement xixA Note on Translation, Transliteration, and Terminology xxiIntroduction xxiiiHistorical Context of Muslim Family Law in Pakistan 1Historical Development of Islamic Family Law in Pakistan 1Formative Period of Islamic Law (Shari'a/Fiqh) 1Islamic Law in South Asia 3Transformation of Islamic Law in British India 3Textbooks on Muhammadan Law 5Political Context of Islamic Family Law in British India 8Islamic Family Law in Pakistan 9What is Muslim Personal Law? 11Definition of a Muslim 14Current Debates in Islamic Family Law 16Notes 19PART IMarriage: Formation, Operation, and DissolutionMarriage 25Introduction 25Requirements of Valid Marriage 25Prohibited Degree of Marriage 26Temporary Prohibitions 26Legal Consequences of Marriage 27Stipulations in Marriage Contract 28Registration and Witnessing of Marriage Contracts 28Presumption of a Valid Marriage 29Outline of Case Law 29Nature of Marriage under Islamic Law 29Validity of Marriage 36Consent of the Parties for the Validity of Marriage 36Consent of the Wali 41With Whom is Marriage Valid? 42When is a Marriage Valid? 44Inter-marriages between Muslim Sects 46Proof of Marriage 50Registration of Marriage 52Presumption of Marriage Based on a Continued and Prolonged Cohabitation 53Marriage of Transgender Persons 55Conclusion 56Questions 57Further Reading 58Notes 59Dower and Dowry 61Dower 61Introduction 61Classification of Dower 61Quantum of Dower 62Functions of Dower 63Dowry 63Outline of Case Law 64Nature of Dower 64Specified Dower Without Consummation of Marriage 65Lifetime Interest as Dower 65Deferred Dower 67Change in the Fixed Amount of Dower 72Principle of As-sum'at 75Recovery of Dower 76Limitation Period for the Recovery of Dower 83Recovery of Dowry 84Conclusion 87Questions 88Further Reading 88Notes 90Maintenance of Wives and Children 91Introduction 91Outline of Case Law 93Maintenance of Wife 93Maintenance—a Right of Wife 93Requirement of Evidence for Proving Income of Husband for Maintenance 99Maintenance of Children 101Obligation of a Father to Maintain his Child 101Father has to Maintain his Unmarried and Divorced Daughters 106Father Might be Required to Maintain his Adult Son 110Quantum of Maintenance Allowance 114Procedure 116Conclusion 121Questions 123Further Reading 123Notes 124Dissolution of Marriage 125Introduction 125Talaq 127Tafwid Al-Talaq 128Khula 128mubarat (Dissolution through Mutual Consent) 128Li'an (Imprecation) 128ila (Vow of Continence) 128zihar (Injurious Assimilation) 129Kafa'a 129Notice of Talaq 129Outline of Case Law 130Dissolution of Marriage under the DMMA 130Tafwid al-Talaq 133Mubarat 134Evidence Required under the DMMA 135Khula without the Consent of a Husband and Restitution of Conjugal Rights 136Return of Dower on Khula 142Intervening Marriage (Halala) after Khula 146Triple Talaq 147Notice of Talaq to the Chairman under the MFLO 150Proof of Talaq 155Talaq and Right to Inheritance 156Conclusion 157Questions 158Further Reading 158Notes 160PART IIChildren's RightsParentage and Legitimacy 163Introduction 163Period of Gestation 163Principle of Acknowledgment 164Rights of an Illegitimate Child 164Outline of Case Law 165Legitimacy 165Paternity and DNA Profiling 174Acknowledgement 181Conclusion 185Questions 186Further Reading 187Notes 188Guardianship, Custody, and Welfare of Minors 189Introduction 189Outline of Case Law 191Factors to be Considered for Determining Custody 191Welfare of Minor—Definition 193Power of the Court to Appoint a Guardian-Repugnancy to the Injunctions of Islam 194Relevance of a Compromise Agreement between the Parties in Matters of Custody 196Who will Have the Custody of a Minor? 200Father's Custody 200Mother's Custody 202Maternal Grandparents' Custody 212Real Parents' Custody v Adopted Parents' Custody 216Maternal Aunt's Custody 218Non-Appointment of Relatives as Guardians 219Conclusion 223Questions 224Further Reading 224Notes 225PART IIIPersonal PropertyHiba (Gift) 228Introduction 228Elements of Valid Hiba 228Subject Matter of Hiba 230Mushaa 230Revocation of Hiba 230Hiba Bil-Iwaz 231Hiba Bi-Shart Al-Iwaz 232Legal Formalities 232Outline of Case Law 233Essentials of a Gift and Onus of Proof 233Corpus and Usufruct 239Gift of Mushaa 241Hiba Bil-iwaz 244Preferential Gift 246Gift by a Pardanashin Lady 248Conclusion 250Questions 251Further Reading 251Notes 252Waqf 254Introduction 254Types of Waqf 255Regulatory Framework of Awqaf 255Outline of Case Law 257Definition and Nature of a Waqf 257Modes of the Establishment of a Waqf 262Family waqf 266Legal Effects of the Establishment of a Waqf 275Conclusion 280Questions 281Further Reading 281Notes 282Wills 283Introduction 283Validity of a Will 284Subject Matter of a Will 284Revocation of a Will 284Interpretation of a Will 285Procedural Law Regarding a Will 285Outline of Case Law 285Interpretation of a Will 285Testamentary Powers 290Consent of Legal Heirs 293Revocation of a Will 300Mandatory Will 303Enforcement of Wills 305Conclusion 306Questions 307Further Reading 307Notes 308Death Illness Gifts 309Introduction 309Death Illness or Marz-ul-Maut 310Disease Which Comes Under Marz-ul-Maut 312Transaction with Consideration During Death Illness 312Debt-Related Acknowledgement/Release During Death Illness 313Outline of Case Law 314Nature of Death Illness 314Death Illness and Burden of Proof 319Death Illness and Undue Influence 323Conclusion 326Questions 327Further Reading 328Notes 328Inheritance Law 330Introduction 330Qur'anic Verses on Inheritance 330Occasion of the Revelation of the Verse of Inheritance 331General Principles 332Bar to Inheritance 332Distribution of an Estate under the Sunni and Shia Schools 333Sunni Inheritance Law 333Sharers (Qur'anic Heirs) 333Residuaries (asbat) 334Distant Kindred 335Principle of Exclusion 336Principle of radd (Return) 336Principle of awl (Increase) 336Shia Inheritance Law 337Principe of Exclusion 338Principle of Representation 338Principle of radd (Return) 338Principle of awl (Increase) 339Customary Law of Inheritance in Pakistan 339Legislation on Inheritance 340Letters of Administration and Succession Certificates 341Procedure of Devolution 342Outline of Case Law 342Distribution of Estate 342Determination of Religion and Sect 353Muslim Family Laws Ordinance 1961 359Superior Courts and Women's Right to Inheritance 363Burden of Proof and Acquiescence 369Conclusion 372Questions 373Further Reading 374Notes 375PART IVPersonal Laws and Family Court ProceduresPersonal Laws of non-Muslims 378Introduction 378Personal Law of Hindus 379The Hindu Marriage Act 2017 379The Sindh Hindu Marriage Act 2016 381Personal Law of Christians 382The Christian Marriage Act 1872 382The Divorce Act 1869 383Outline of Case Law 385Marriage of Sui Juris Christians 385Bigamy 386Dissolution of Marriage on the Ground of Irretrievable Breakdown of Marriage 388Standard of Proof for Dissolution of Marriage 392Collusion Between Parties 400Alimony Pendente Lite 402Personal Law for Special Religious Communities 403Conclusion 405Questions 405Further Reading 406Notes 406Conflict of Private/Personal Laws 408Introduction 408Conflict of Law Rules 408Outline of Case Law 409Effects of Religious Conversion on Marriage 409Pronouncement of Talaq 410Second Marriage after Conversion 415Applicable Law for Marriages BetweenMuslims and Christians 419Legal Status of an English Marriage in Pakistan 419Delegated Right to Divorce a Christian Wife 426Legal Status of Foreign Judgments in Pakistan 427Application of the MFLO to Pakistani CitizensLiving Abroad 435Conclusion 438Questions 438Further Reading 438Notes 439Procedures in Family Courts 441Introduction 441Jurisdiction of Family Courts 441Territorial Jurisdiction of Family Courts 442Appeals 442Institution of Suits in Family Courts 443Intimation to the Defendant 443Written Statement 443Pre-Trial Proceedings 445Power of Family Courts to Summon Witnesses 445Recording of Evidence 445Conclusion of a Trial and Cases to be Disposed of within aSpecified Period 446Enforcement of Decrees 446Contempt of Court 446Suit for Maintenance 447Appearance of Pardanashin Lady through Agents 447Court Fee 447Intimation to Arbitration Council 447Outline of Case Law 447Restitution of Conjugal Rights 447Institution of Suits and Additional Evidence 451Setting Aside Ex Parte Decree 454Pre-trial Proceedings 454Recording of Evidence 458Conclusion of Trial 459Enforcement of Decrees 460Appeals 461Conclusion 463Questions 464Further Reading 464Notes 465Conclusion 467Notes 473Glossary 475Bibliography 480Table of Cases 486