Abstract
This paper proposes to offer specific examples of some multicultural challenges to family law of an on-going nature by focusing on (i) the Ahmadiyya communities to whom Muslim family law is no longer formally considered applicable since they were declared non-Muslim in 1974, and (ii) transgender communities known variously as hijra, khusra or khwajasara, whose claims for civil and political rights as well as application of family laws to them have in recent years met with some success. Using legislation (or lack thereof) and case law from Pakistani courts, this report will highlight the erratic and ad-hoc manner in which claims are made and responded to by courts and state institutions. It will advance the argument that Muslim family law in Pakistan is of a porous, amoebic nature, plural, diverse and often inconsistent in its responses. Finding answers to challenging questions such as what family law governs the Ahmadiyya communities and on what basis, or how, to calculate inheritance rights of transgender persons falls almost invariably to the judiciary, who then direct the government to legislate accordingly (A third example relates to Hindu and Christian communities where federal and provincial legislatures have recently passed laws, including the Sindh Hindu Marriage Act 2016 and the Hindu Marriage Act 2017. Due to constraints of space, this example will not be dealt with in any detail, but it is flagged up here as an example of how the state and her institutions respond to family law matters of religious minorities.). The report concludes through these selected examples that Pakistan’s family law is a complex multi-layered phenomenon: clear at times, opaque at others. Whilst the Pakistan judiciary has taken upon itself the interpretation and application of Muslim family law, it is treading cautiously and stops short of offering solutions on sensitive and potentially explosive issues such as application of Muslim family law to the Ahmadiyya communities, leaving significant numbers of Pakistanis in ‘lim**’ situations (Tanveer, Ahmadi, Christian marriages not being registered, 2016). On the other hand, in the case of transgender communities and their access to rights and entitlements in family law, Pakistani courts have demonstrated a robust and courageous approach, moving well beyond conventional positions on the subject. The concluding reflections will also highlight some implications for private international law.
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Notes
- 1.
Under the present (1973) constitution, Pakistan is a federal Islamic republic comprising five provinces: Baluchistan, Punjab, Sindh, Khyber Pukhtunkhwa and Gilgit Baltistan, as well as Federally Administered Tribal Areas (FATA) and the (contested) area of Azad Jammu and Kashmir (AJK). All laws of Pakistan do not apply uniformly across the various provinces. Ali (2000), p. 98; Shahid and Khan (2017), p. 170.
- 2.
Pakistan Bureau of Statistics—6th Population Housing Census, www.pbscensus.gov.pk.
- 3.
This figure is contested as the Ahmadiyya communities have boycotted the census in Pakistan since the constitutional amendment declaring them non-Muslims in 1974.
- 4.
Pakistan Bureau of Statistics—6th Population Housing Census, www.pbscensus.gov.pk.
- 5.
Ibid.
- 6.
Ali (2002), p. 317.
- 7.
See Jung (1980), pp. 57–88, for details regarding the administration of justice in India during early Muslim and Mughal rule.
- 8.
- 9.
Ibid, p. 209.
- 10.
For example, Code of Civil Procedure (Act VIII of 1859); Indian Penal Code (Act XLV of 1860); Criminal Procedure Code (Act XXV of 1861); Indian Evidence Act (Act I of 1872).
- 11.
- 12.
Waghela v Sheikh Musludin [1887] 14 IA 89, 96, as cited in Anderson (1990), p. 209, note 18.
- 13.
This is a puzzling contradiction in terms. Historically, the common law legacy is celebrated for its responsiveness to society; hence the difficulty in understanding why this undue emphasis was placed on the ‘written law’. It may well be that imperial and colonial imperatives drove this approach.
- 14.
Ali (2016), p. 88.
- 15.
A 12th-century text of Central Asian origin that relied mainly on Abu Yusuf and Al-Shaybani.
- 16.
A collection of fatāwā (legal opinions) in the fiqh tradition commissioned by the Mughal Emperor Aurangzeb was translated as Baillie (1965).
- 17.
Some of the most well-known texts include the Tagore Law Lectures of 1891–1892, Abdur Rahim’s Muhammadan Jurisprudence, and Mulla’s Principles of Muhammadan Law. These ‘textbooks’ of Anglo-Muhammadan law have now became part of a definitive, textual Islamic law as inherited by postcolonial Pakistan. Siddique (2013).
- 18.
Kugle (2001), p. 304.
- 19.
Ali (2000), p. 92.
- 20.
For a detailed overview and analysis of local dispute resolution forums, see Ali and Rehman (2001).
- 21.
In 1914, a split occurred in the Ahmadiyya community. The ‘Lahori group’, as it came to be known, referred to Mirza Ghulam Ahmed as a reformer and not a prophet but continued to call him the promised messiah.
- 22.
The Organisation of Islamic Cooperation (OIC) adopted a resolution drafted by the OIC Fiqh Academy declaring Ahmadiyya as non-Muslims.
- 23.
Constitution (second amendment) Act 1974. Amendment of Article 260 of the Constitution.In the Constitution, in Article 260, after clause (2) the following new clause shall be added, namely-- (3) A person who does not believe in the absolute and unqualified finality of The Prophethood of MUHAMMAD (Peace be upon him), the last of the Prophets or claims to be a Prophet, in any sense of the word or of any description whatsoever, after MUHAMMAD (Peace be upon him), or recognizes such a claimant as a Prophet or religious reformer, is not a Muslim for the purposes of the Constitution or law.
- 24.
PLD 1978 Lah 113.
- 25.
1986 MLD 1010.
- 26.
2005 YLR 29.
- 27.
2009 CLC 1057 [Kar].
- 28.
Basharat Ahmed v Mst Shamim PLD 2016 Lahore 271.
- 29.
1998 SCMR 816.
- 30.
Ibid., 13.
- 31.
1996 CLC 1963 [Lah].
- 32.
W.P. No. 49 of 2010.
- 33.
Ibid., p. 17.
- 34.
Ibid., p. 20.
- 35.
Bashir Ahmed v Muhammad Boota 1991 CLC 1153.
- 36.
Mst Bhagari v Khia 2006 YLR 394.
- 37.
Mst Bhagari v Khia 2006 YLR 394.
- 38.
Saleemudin, a Jamaat Ahmadiyya spokesperson, told The Express Tribune that they had established their own system for registering marriages. ‘After some effort, we were able to convince NADRA to acknowledge our marriages. Nevertheless, our people still face problems when they are asked to prove their marital relationship to embassies and consulates while applying for visas,’ he said, see Tanveer (2016).
- 39.
There is a growing body of academic literature as well as newspaper articles, blogs and case law on the rights and status of transgender persons in South Asia. They include: Chowdhury (2016), pp. 43–60; Zainuddin and Mahdy (2017), pp. 353–360; Pamment (2010), pp. 29–50; Bukhari (2016), Kapur (2016).
- 40.
There are a variety of complex themes and aspects of the study of transgender identity in Pakistan. The present report engages with the subject from the perspective of family law only.
- 41.
The Criminal Tribes Act, 1871. Act XXVII. British Library, Oriental and India Office Collections, shelfmark V/8/42. There is a rich body of literature adopting a postcolonial approach. Spearheaded by the late Edward Said, Orientalism (Penguin Books 1978), it has a significant following, too numerous to cite here.
- 42.
For an interesting exposition of this line of argument, see Piliavsky (2015), pp, 323–354.
- 43.
Ali (2007), pp. 77–78.
- 44.
Ali (2016), p. 89.
- 45.
Sections 24–31 of the Criminal Tribes Act of 1871 are devoted to ‘eunuchs’.
- 46.
Section 29, the Criminal Tribes Act of 1871.
- 47.
This Act was repealed in India in 1952, leading to the decriminalization of 2.3 million members of tribes.
- 48.
As cited in Pamment (2010), p. 29.
- 49.
Ibid.
- 50.
This ‘work’ has now decreased and high numbers of transgender persons are in the sex trade, particularly in Pakistan.
- 51.
Dr. Muhammad Aslam Khaki and others vs. SSP (Operations) Rawalpindi and others (Petition No. 43 of 2009), https://www.icj.org/wp-content/uploads/2012/07/Khaki-v.-Rawalpindi-Supreme-Court-of-Pakistan.pdf.
- 52.
Nauman (2016).
- 53.
Bukhari (2016).
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Ali, S.S. (2022). Pakistan: Challenges and Prospects. In: Yassari, N., Foblets, MC. (eds) Normativity and Diversity in Family Law. Ius Comparatum - Global Studies in Comparative Law, vol 57. Springer, Cham. https://doi.org/10.1007/978-3-030-83106-6_3
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