islamic law of maintenance for wives in pakistan and afghanistan since area stud y centre

300 Pages·2010·6.6 MB·English

ISLAMIC LAW OF MAINTENANCE
FOR WIVES
IN PAKISTAN AND AFGHANISTAN SINCE
1960
BY
F ayyaz-ur-Rehman
AREA STUD Y CENTRE
(RUSSIA, CENTRAL ASIA, CHINA)
UNIVERSITY OF PESHA WAR
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ISLAMIC LAW OF MAINTENANCE FOR WIVES
IN PAKISTAN AND AFGHANISTAN SINCE 1960
A THESIS
Submitted to the University of Peshawar in partial fulfillment of
the requirements for the degree of Doctor of Philosophy.
AREA STUDY CENTRE
(CENTRAL ASIA, RUSSIA, CHINA)
UNIVERSITY OF PESHAWAR
2003
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Abstract
There appears to be a general consensus among the Muslim jurists that Muslim
women are entitled to maintenance during the subsisting marriage. Though there is
difference of opinion on the quantum of maintenance provisions among the
schools of thought. Nevertheless, all the jurists agree that there is no concept of
post-divorce maintenance beyond the iddat period for Muslim women in Islam.
Whereas, for a widow the agreement is that she is not entitled to any maintenance
once her husband dies. However, the Muslim jurists who developed Islamic law
seem to have defined away the maintenance rights of a divorcee and a widow,
which the Quran clearly established as a moral obligation.
As a result, Anglo-Muhammadan, modem Pakistani and Afghanistan law have
accepted the Muslim wife's right to maintenance during the marriage, but yet have
not fully protected women in case of divorce or death of the husband. Further, the
Muslim women are being deprived even of their mahr and iddat entitlements
sanctioned under the Islamic law. These excesses of patriarchal legal systems in
modem India, have led to legal reforms through so-called secular legislation which
has given rise to important case law and further legal regulations such as the
Muslim Women (Protection of Rights on Divorce) Act of 1986.
In a welfare state, unable to pay for the consequences of marital breakdown,
modem Indian jurisprudence has developed an understanding of the obligations of
divorcing husbands that coincides with the moral guidelines of the Quran. Today,
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in effect, divorced Indian Muslim wives are much better protected against
destitution than Muslim women in Pakistan or Afghanistan.
Based on our finding that the revealed commands of Allah place a duty on
husbands to be concerned about the welfare of women in a situation when they are
divorced or they become widow.
In the light of the Indian evidence, the present thesis considers the potential
strategies for modem Pakistan and Afghanistan in developing the rights of
maintenance for divorced/widowed women. The comparison with Indian
developments shows that, provided the state is willing to protect the legitimate
interests of women, it is possible to introduce legal reforms which require Muslim
husbands to be responsible for maintenance arrangements of their
divorced/widowed wives. It is suggested that by following the secular Indian
model, Pakistan and Afghanistan could introduce relevant refol111s within the
context of Islamisation to achieve the same result.
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Acknowledgement
It would have not been possible to carry out this work without the guidance, help
and advice of respected Professor Ahmed Ali Khan, my supervisor, lowe a great
deal to him. His inspiring guidance, constant encouragement and continuous
interest helped me to complete my work.
The person who remained a source of motivation and inspiration for me is my wife
and our two children, Aisha and Shafi, who demonstrated much patience during
my studies. Words are not enough to express my gratitude to them, without their
unfailing support this work could not have been accomplished.
However, I cannot forget the guidance, help, and support of Professor Dr. Sarfraz
Khan who encouraged me for the present study and gave valuable suggestions for
the improvement of the earlier drafts. I am thankful to my friends Shah Nazar
Khan and Usman Ali for their moral support at the time when it was needed most.
I am also indebted to l1!y friends and colleagues Sohail Shahzad and Inayat Ullah
Khan for their worthy suggestions for the improvement of the earlier drafts ..
I am grateful to Professor Dr. Azmat Hayat Khan, Director Area Study Centre, Dr.
Mohammad Anwar Khan and Dr. Parvez Iqbal Tareen for their encouragement at
every stage of my research. Also worth mentioning are the library and
administrative staff of the Area Study Centre without their support and
cooperation it is not possible to carry out a research.
In the end I must thank Mr. Hidayat Ullah Khan and Mr. Shakeel Ahmad, in the
Faculty of Law, who always helped me in solving my problems relating to the
computer.
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Table of Abbreviations
AIR All Indian Law Reporter
AP Andhra Pradesh
All Allahabad
Born Bombay
BomLR Bombay Law Reporter
BSOAS Bulletin of the School of Oriental & African
Studies
CJ Chief Justice
CLJ Cambridge Law Journal
CrPC Criminal Procedure Code
CrL J Criminal Law Journal
CLC Civil Law Cases
DLR Dacca Law Reports
FSC Federal Shariat Court
IA Indian Appeals
ICLQ International and Comparative Law Quarterly
ILR Indian Law Reports
lsI C L Q Islamic & Comparative Law Quarterly
J Judge
I P C Indian Penal Code
IJM E S .. International Journal of Middle East Studies
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JI L I Journal of the Indian Law Institute
KLT Kerala Law Times
MFLO Muslim Family Laws Ordinance
MLD Monthly Law Digest
MD Madras
MP Madhya Pradesh
MW Muslim World
NLR National Law Reporter
NUC Notes of Unreported Cases
NY No Year
PLD All Pakistan Legal Decisions
SC Supreme Court
SCMR Supreme Court Monthly Review
WP West Pakistan
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Table of Contents
Page No,
Abstract 3
Acknowledgement 5
Table of Abbreviations 6
Chapter 1 Introduction 11
Chapter 2 The discussion of maintenance provisions for Wives under the
traditional Islamic law 28
2.1 Rclcvant Quranic provisions rcgarding maintenance 28
2.1.1 Wives right to maintenance 32
2.1.2 Widows right to maintenance 35
2.1.3 Divorced wife's right to maintenance 36
2.2 Later developments regarding maintenance 48
2.2.1 The Prophet (PBHU) and thc Companions regarding
mainknMce ~
2.2.2 The Muslim Jurists and maintenance 58
Chapter 3 Maintenance laws for Muslim women in Bl'itish India 80
3.1 Application of Muslim law principlcs during the
British period 85
3.2 Impact of the legislation 92
3.3 Development of case law under section 488 oflhe ('r. PC 9~
Chapter 4 Maintellunce for wives under the laws of Pukistan froll1 1960 103
4.1 The Constitutional framework of family laws in Pakistan 104
4.2 Pakistan criminal law on maintenance of wives
between 1947-61 108
4.3 The Commission on MatTi age and Family Laws 1956 115
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4.3.1 Establishment of the Commission 116
4.3.2 The Commission Report 118
4.3.3 Provisions of maintenance and the qucstionare 123
4.4 Legal developmcnts in Pakistani maintenance laws
after 1960 129
4.4.1 The forum for maintenance suits 130
4.4.2 Maintenance and the MFLO 1961 132.
4.4.3 Casc law on maintenance after 1961 139
4.5 Rccommendations of the recent Commissions/Committees 145
Chapter 5 Maintenance provisions for wives in Afghanistan since 1960 150
5.1 Political changes in Afghanistan 152
5.2 Constitutional Developments and status of womcn in
Afghanistan 159
5.2.1 The Constitution of 1923 and the provisions
concerning women 159
5.2.2 The Constitution of 1931 and the provisions 162
concerning women
5.2.3 The Constitution of 1964 and thc provisions 166
concerning women
5.2.4 The Constitution on 977 and the provisions
concenllng womcn 1( ,8
5.2.5 Decree No.7 of 1978 and the provisions concerning women 169
5.2.6 The Constitution of 1987 and the provisions concerning
women 170
5.3 Marriage and the related issues under the Laws of
Afghanistan 173
5.3.1 Marriage 174
5.3.2 Divorce 176
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5.3.3 Maintenance (Nafqah) 18.t
5.3.4 Inheritance 185
Chapter 6 The issue of maintenance for Muslim women in India 188
llfter 1960
6.1 The Indian ease law under section 488 of the Cr. PC, 18')8 189
6.2 Maintenance provisions for wives under the Cr. PC, 1973 195
6.2.1 Reasons for reforms 195
6.2.2 The relevant provisions and responses to them 198
6.2.3 The case Jaw under the Cr. PC, 1973 209
6.2.3.1 High Court cases 210
6.2.3.2 Supreme Court cases 216
6.2.3.3The SIll.!h Bano case 222
6.3 The Muslim Women (Protection of Rights 011
Divorce) A9J, 1986 234
6.4 Cases under the Muslim Womcn...u:J:otectiOluli
Rights on Divorce) Act, 1986 24.t
Chapter 7 Concluding analysis and recommendations for the
development of the law in Pakistan and Afghanistan 25.t
List of Statutes 267
Table of Cases 2u9
Bibliography 277
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