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 .~ '" ~ \ -... J i rI) ;:, I 't:::ii <;) 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 ~ .. 2 ~.:, . ~. > .[ \.. .. ) 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, 3 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. 4 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. 5 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 6 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 7 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 8 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 9 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 10