SHARIAsource

Amendments to the Muslim Family Laws Ordinance 1961

In December 2021, the National Assembly in Pakistan introduced two amendments in sections 4 and 7 of the Muslim Family Laws Ordinance 1961. Both these amendments relate to Shia school (Fiqh-e-Jafaria). Under the first amendment a childless widow of a Shia husband is given inheritance right in immovable property. The second amendment clarifies the Shia law on talaq (divorce) by providing that the husband must pronounce Arabic words (seegha) in presence of two witnesses to make divorce effective. It further provides that the pronouncement of talaq (divorce) shall not be effective if it is done “jokingly or under anger, intoxication, insanity, duress or coercion of any kind”.

Both amendments provide that in case of dispute, the parties may have a recourse to “a court of competent jurisdiction or by approaching the Mujtahid-e-Alam from the panel maintained by the Council of Islamic Ideology.” Mujtahid-e-Alam is defined as “a juris-consult, religious scholar or doctor of Shia school of thought well versed with Shariah having international repute and of such recognition.” The decision of Mujtahid-e-Alam shall have a status of an award under the Arbitration Act 1940.

Contributed by Zubair Abbasi.

In response to the decision that the Federal (civil) High Court holds jurisdiction over syariah courts on the matter of legal custody in Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & ORS (2013), Pathmanathan Krishnan successfully appealed his case in 2015 to the Civil Court of Appeals in Pathmanathan Krishnan v. Indira Gandhi Mutho & Other Appeals (2015). The Court of Appeals held that first, the Judicial Commissioner had no jurisdiction to determine the issue of the children’s conversion to Islam as the validity of the conversion of any person to the religion of Islam and status of whether a person is a Muslim or not was “a matter falling under the exclusive jurisdiction of the Shariah Court under section 50 of the Administration of the Religion of Islam (Perak) Enactment 2004.” Secondly, the court held that the learned Judicial Commissioner had “committed a grave error when he approached the jurisdiction issue” by venturing into the constitutional construct of the fundamental liberties.

University of Washington, School of Law

University of Kansas School of Law

Examines the history, doctrine, texts, and role of Islamic law throughout the world. The course focuses on the background and birth of the Arab-Islamic Empire, the life and times of the Prophet Muhammad, the development of Islam, the Moghul and Ottoman Empires, the Qurʾān and Sunna and other sacred texts, the principal schools of Islamic law, the status of women and religious minorities, and basic principles of some of the substantive areas of law, including criminal, family, inheritance, contract, business, and banking law.

University of Pennsylvania

This ordinance gives effect to certain recommendations of the Commission on Marriage and Family Laws.

As part of their sharīʿa implementation programs, a number of sharīʿa states established new official Councils of Ulama or Sharia Commissions, sometimes with advisory and sometimes with administrative or regulatory functions. Other states established Ministries of Religious Affairs or Offices of Special Advisors to the Governors on Religious Matters, with similar functions. These new bodies were added to older ones, such as the Religious Preaching Boards established in many states in the 1970s and 1980s to regulate Islamic religious preaching in particular. The materials gathered here document all these bodies and their work, including the older Preaching Boards. The materials include all relevant statutes, plus official reports where available, and reports of interviews conducted during fieldwork over a number of years.

These materials are a part of The Nigeria Papers – a SHARIAsource Special Collection, compiled and edited by Independent Scholar Philip Ostien and others. 

A legislative act produced under British India that consolidates and amends the law relating to the solemnization of the marriages of Christians. Broken into nine sections, it also includes legal forms related to marriage, such as a marriage certificate and notice of marriage.

An excerpt from the book al-Maqsad al-Mahmūd fī Talhīs al-'Uqūd, this section details the legality on issues pertaining to marriage, paternity, and children. 

This fatwa supports the implementation of family planning (keluarga berencana) methods and programs for the sake of maternal and infant health, but does not condone vasectomies, unless pressing circumstances prevail. The fatwa asks the government to prohibit vasectomies, tubectomies and abortions for all Muslims, and to increase surveillance of the misuse of contraception for immoral purposes.

The fatwa also acknowledges the significant impact family planning can have on the environment and how it can facilitate national development.

This article provides an overview of the judgments of the Judicial Committee of the Privy Council, the highest court of appeal in the British Empire regarding Islamic Endowments (awqāf). The cases originated from all over the Muslim-populated areas of the British Empire. The first judgment was delivered in 1840 and the last in 1968. An analysis of the judgments shows that the Judicial Committee of the Privy Council made significant developments in Islamic law of Endowments (awqāf), though its decision to declare family endowments invalid was controversial.

For the full text of the judgments mentioned on page 2, please click here. 

An excerpt from the book al-Muqni' fī 'ilm al-Shurūt, this section details the legality on issues of marriage, paternity, and children. 

This Supreme Court jurisprudence pertains to inheritance law. It states that a dispute over the estate of a deceased person between beneficiaries (ahli waris) with a familial connection to the deceased cannot also include an ownership dispute, and, when strengthened by information provided by witnesses, must be dismissed.

A child born out of wedlock is typically not entitled to paternity recognition in Morocco. In an unprecedented move, the First Instance Family Court in Tangiers recognized the familial relationship connecting a father to his biological daughter. The Court also required the man to pay 100,000 MAD (10,500 USD) to the child through her mother for the material and moral harms caused to the child from denial of paternity or familial relations. The defendant appealed the judgment. On October 9, 2017, the Tangiers Court of Appeals overturned the First Instance Court decision, rejecting the DNA tests and any recognition of familial relation. The Court also invalidated the lower court’s use of international conventions, explaining that the child is so foreign to her father that the possibility of their future marriage would not be overruled.

In Danial Latifi & Anr v. Union of India, the Supreme Court of India (the “Court”) considers whether the Muslim Women Protection of Rights on Divorce Act, 1986 (“the Act”) abrogates its ruling in Mohd. Ahmed Khan v. Shah Bano Begum and Others (“Shah Bano”).[1] In Shah Bano, the Court held that divorced Muslim women unable to support themselves have a right to lifetime maintenance under Section 127 of the Indian Code of Criminal Procedure, which does not conflict with Muslim Personal Law[2] ostensibly limiting rights to mahr[3] and maintenance during the period of iddat.[4] [5] In Danial Latifi, the Court holds that the Act did not overturn Shah Bano, but instead that divorced Muslim women who are unable to maintain themselves are entitled to receive a one-time lump sum payment during the period of iddat sufficient for lifetime maintenance. The Court chiefly justifies this ruling by arguing that abrogating Shah Bano, would violate various constitutional rights of Muslim women. The Court also makes prudential arguments concerning the impact of abrogating Shah Bano on divorced Muslim women’s economic circumstances, and moreover holds that abrogation would be contrary to Islamic law.

[1] Danial Latifi & Anr v. Union of India (2001) 7 SCC 740 (India).

[2] India has a uniform criminal code, but different personal codes addressing family law for various religious communities. This dual system is very controversial in India.

[3] A sum agreed upon prior to marriage to be given to a wife in two parts (one deferred and one immediate).

[4] The roughly three-month period where re-marriage is forbidden to divorced women.

[5] Shah Bano produced political backlash resulting in the passage of the Act referenced above, with the intention of overturning the ruling. See supra note 1.