Family law is an area of law related to family matters and domestic relations, such as adoptions, divorces, child custody, and maintenance, etc. Muslim family law introduced in British India continued to govern personal status after the partition of India in 1947. In 1955, a seven-member Commission on Marriage and Family Laws was created with the mandate to examine the personal status laws applicable in the newly formed state and determine the areas in need of reform. A few provisions in the Report of the Marriage and Family Laws Commission were adopted by the Muslim Family Laws Ordinance, 1961. According to the report, divorce laws and inheritance laws for orphaned grandchildren should be reformated. In addition to the implementation of compulsory marriage registration, it also introduced restrictions on polygamy and reform laws on dower and maintenance after a divorce. The laws on marriage age were also amended. In 1956, the first constitution of Pakistan was promulgated. A repugnancy clause was included in this act. The clause stated that no law would be enacted in violation of Islamic injunctions. To implement any necessary amendments, all existing laws would be reviewed in light of this provision. In subsequent constitutions, this repugnancy provision has been retained and has even been strengthened. Family law encompasses all the family matters such as marriage, divorce or talaq, khula, wife maintenance, child custody, and child maintenance, etc. Following is the detailed analysis of these mentioned family laws.
In 1961, the Muslim Family Laws Ordinance (MFLO), introduced changes to various aspects of classical Muslim law. As part of this reform, marriages and divorces will be registered, orphaned grandchildren’s inheritance rights secured, polygamy will be restricted, all talaq (except the third of three) will be deemed, single and revocable court procedures regarding maintenance and divorce will be formalized, and mahr will be recoverable if it has been misappropriated. A marriage that fails to register is not invalid. Penal sanctions may be applied to those who violate the registration requirement. Marriage registration, under the MFLO, is mandatory, and failure to register is punishable with fines or imprisonment. Muslim marriages are still legal if they are arranged only in accordance with religious rites.
The legal age of marriage in Pakistan is 18 years for males and 16 years for females. Underage marriages are strictly prohibited according to the law. As far as the matter of marriage guardianship is concerned, an adult Hanafi Muslim woman can enter into a contract for marriage without her wali’s consent because one of the prerequisites for a valid contract is the consent of the woman, not that of the wali, according to the court.
To treat every talaq uttered in any form (except the third of three) as a single and revocable. Formalizing reconciliation, notification, and recovery procedures for mahr. Due to lack of notification, most Talaqs were rendered invalid during the 1960s and 1970s. A reform of the classical law concerning the exercise of talaq was also undertaken. According to the MFLO, the divorcing husband must notify the chairman of the Union Council in writing as soon as possible after a talaq has been pronounced.
The dissolution of marriage can be filed by the wife if the husband is away for more than 2 years or he is insane and abnormal. The wife can file a dissolution of marriage (tanseekh e nikah) in court. Khula can also be filed by the wife in case she is not happy with her husband.
It is not clear whether the Criminal Procedure Code of Pakistan reflects 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.
Minors in Pakistan are given legal custody by their mothers, which is known as ‘Hizanat’. As a child reaches the age of seven, a mother’s right over him ends, but the right to raise him continues. As opposed to absolute rights, this right is created in the interest of the child. A girl is given to her mother until she reaches puberty. The conduct of the mother plays a very significant role in this law. She may lose custody of her child if she is found ‘objectionable’. A court of law has the right to grant the father custody after the mother’s term has ended. Unless both parents are present, the child’s grandparents are awarded custody.
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