The Muslim family Law Controversy (Daily Times)

Like an astute trade union, recently, the Council of Islamic Ideology (CII) fired at their favourite target—Women. Mark the timing. They are asserting pressure on the government when their militant flank—TTP–is demanding imposition of Sharia through the barrel of the gun. CII moved to declare that the law requiring a man to seek permission from the existing wives to marry again is contrary to Sharia and the law stating that a girl cannot be married if she is under 16 years is also unIslamic.

So when the government says it would negotiate remaining within the remit of the constitution, the TTP can turn around and ask ‘okay why don’t you first implement the recommendations of the CII which is a constitutional body under article 230?’

Mind you though the constitutional role of CII is advisory only, regarding suggesting which laws are repugnant to Islam, the present government susceptible to accept the recommendations that are anti-women and anti-girl child marriage. For other issues like abolition of interest which is detrimental to the economy, the government can buy time saying that it is in the freezer of the Supreme Court. This is not a fantasy, but could be the logical move of the government which wants to appease the militant Islamists. Remember, the liberal Bhutto, had given in to the many demands of the political Islamists thinking he would be able to win the second term on Islamists’ agenda. This government has never claimed to be socialist’ or liberal in any case.

Coming back to the Muslim Family Laws Ordinance 1961, which later became an Act; braving a strong movement launched against it by the religious leaders. Let’s see what it says on the two issues raised by the CII. In a paper “Family Laws and Judicial Protection” written by a noted Supreme Court lawyer Naheda Mehboob Ellahi, it explained that “this law is based on the recommendations of the Commission on Marriage and Family Laws set up in 1955, which submitted its report on the matter in 1956. Five years later their recommendations were considered and the Muslim Family Laws Ordinance was promulgated. This Ordinance advanced women’s legal rights to some extent. For the first time, a uniform mode of divorce, marriage etc., were prescribed. Khula and the delegated right of divorce for women were also recognized, the latter being incorporated as an option in the standard Nikahnama. Secondly, polygamy was restricted, making it binding on the husband seeking a subsequent marriage to submit an application for permission to contract another marriage to the Chairman Arbitration Council, besides seeking the permission of his existing wives. In the event of the husband contracting such a marriage, the Ordinance made him immediately liable to pay the existing wife/wives her/their dower. In addition, the Muslim Family Laws Ordinance amended the Child Marriage Restraint Act by raising the legal age of marriage for females from 14 to 16 years.” (Source: http://supremecourt.gov.pk/ijc/articles/21/1.pdf)

 The clergy in Pakistan mostly relies on the issue of polygamy while rejecting this on Surah IV An-Nisa “women’s rights” which came after the Ahud war. According to Mohammed Marmaduke Pickthal’s translation of the ‘Holy Quran’ verse 3 says: “and if ye fear that ye will not deal fairly by the orphans, marry of the women, who seem good to you, two, three or four; and if ye fear ye cannot do justice (to so many) then one (only) or the captives your right hand possess. Thus it is more likely you would not do justice.”

 Further down in the same Surah verse 129 it has been said: “Ye will not be able to deal equally between (your) wives, how much you wish (to do so). But turn not altogether away (from one), leaving her as in suspense. If ye do good and keep evil, lo! Allah is ever forgiving, Merciful.” This verse is often conveniently forgotten by the clergy who act like Papacy, which has no place in Islam.

 Analyse this as in the presence of the Quranic verses and there’s hardly any need to look for Ahadith. In both verses the emphasis on ‘justice’ and in verse 129 it has been clearly said that “Ye will not be able to deal equally between your wives, how much you wish (to do so). The clergy can then be asked how ‘JUSTICE’ will be done with the existing wife if the terms of the marriage contract with her are changed, without her consent. Wouldn’t her share in the love and physical assets be halved in case of a second marriage without her consent and quartered if a husband takes a fourth wife? Wouldn’t the share of her children if she has some be divided? The justice to the first wife cannot be done after a fait accompli.

 The clergy proclaims such edicts unreasonably and cannot quote a single verse which says permission should not be taken. It is also silent on the issue of keeping and taking the slave women, knowing well that it is considered immoral in present times. They must be dreaming to bring back the age of slavery when after each conquest the women of the conquered were distributed among the warriors as booty just as the camels and goats were shared by them. Will such treatment to prisoners of war acceptable by the community of nations?

 While proposing that marriage age restriction should be abolished they are forgetting that the bride’s consent is important and a child is not expected to make a right decision, just as they do not permit the child to decide in other temporal matters. Pakistan is signatory to the Universal Declaration of Human Rights (UDHR) which says in Article 16(b) “Marriage shall be entered into only with free and full consent of the intending parties.” Early marriage takes away a child’s right to education, right to be protected from child sexual abuse, right to “enjoyment of the highest attainable standards of health…” This children’s right was accepted in1929 Act.

 The problem with the clergy is that they are caught in the 7th century time and tribal Arabia space wrap. They do not realise that social values have evolved in the world. Polygamy is dying by itself because the world has changed, the values of knowledge age have evolved and so have the economic and social relations between men and women. No rational religion can be static in its thinking it has to build on the spirit of reforms ushered in by the Prophets and shun bigotry. No society can prosper by-passing the age of reason. We are slow on that by almost 300 years when Thomas Paine wrote ‘The Age of Reason.’

 The writer is the author of ‘What’s Wrong with Pakistan. He can be reached at ayazbabar@gmail.com

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