Professional Documents
Culture Documents
Elizabeth Schweitzer
This paper will explore the history of Pakistan, the Islamization of it’s culture,
and its effect on marriage and divorce laws between 1954 to 1989 as well as the positive
changes in favor of women that took place between 1989 and 1999. In it I intend to look
at a number of cases from the two periods and analyze them; as well as look at how,
traditionally, the four different ethnic areas would decide such a case. I intend to compare
the cases from the two periods to show how the positive changes began to appear.
Pakistan was originally part of the large land mass known as India. Islam came to
India with Muhammad bin-Qasim in A.D. 712. Though from 712 to 991 there seems to
have been very little effort made by the conquerors to interfere with the native courts and
religon. From 991 to 1206 very little is known, but from 1206 to 1526, the time of the
slave dynasties, the Muslims permanently settled in India. The reign of the Mughals
(1526-1757) came to an end when the British ‘colonized’ and established power (Mehdi,
1994: 3).
During the latter part of the eighteenth century the Islamic criminal justice system
was replaced by a British-based one. But Hindu and Islamic law continued to be applied
as the personal law of Indian litigants in such matters as inheritance, succession and
religious endowments. This was the first time Islamic law became the object of a
systematic and constitutional legislation. The uniformity provided by the British had been
produced neither by Hindu nor Muslim law in India. But this uniformity and centrality
were provided at the cost of imposing rigid Islamic rules. The British acted as if Islam
consisted of universal rules disregarding the diversity of Islamic law. Because of that the
legalistic form of Islamic law that we see in many Muslim societies is strictly legalistic in
behavior because of the original structure put on it by the colonial British powers. The
legalistic form of Islamic law that we see in many Muslim societies is strictly legalistic in
behavior because of the original structure put on it by the colonial British powers.
In 1947 Pakistan became an independent country from India, since then Pakistan
has been under military dictatorship for more than half of its history, while the
military/bureaucracy has exercised indirect political influence the rest of the time. Since
it’s creation Pakistan has pledged to create an Islamic society. The Islamic Ideology of
the modern state of Pakistan forms an important part of the general social, legal and
political superstructure which has been constructed to justify and preserve the existing
social relationship between the classes and sexes (Haque, Ziaul, 1983: 368). The state
structure inherited from the colonial period an over-developed form of law. Because of
this the law became an instrument of the state, and in some situations the state did not
even hesitate to implement Martial law and abrogate the constitution of Pakistan.
working hours; the review of the textbooks to conform to Islamic teachings; emphasizing
Pakistan’s national Islamic Ideology; making Urdu the official language and medium of
Under Presidential order the month of fasting was legally enforced by prescribing
punishments, if violated publicly; radio and television were made to change their
Until Oct., 1999, when the constitution was suspended, Pakistan was governed by
the constitution of 1973 as amended in 1985, which provided for a federal parliamentary
Musharraf, who seized power in 1999, remained president and unilaterally amended
comprising a 342-member national assembly with 272 members directly elected from
single-seat constituencies and the rest nominated by the parties, and a 100-member senate
chosen mainly either by provincial assemblies or, in tribal areas, by popular election. The
president is the head of state, and the prime minister the chief executive. Each province
has its own legislative assembly whose members are elected by direct popular vote, a
provincial governor appointed by the president, and a chief minister elected by the
The judiciary includes the Supreme Court, provincial courts, and other lesser
courts exercising civil and criminal jurisdiction. The president appoints the chief justice
of the Supreme Court; the president appoints the other Supreme Court judges after
consultation with the chief justice. The Supreme Court has original, appellate, and
advisory jurisdiction. There is also a Federal Shariat Court consisting of eight Muslim
judges, including a chief justice appointed by the president. Three of the judges are
ulama, that is, Islamic Scholars, and are well versed in Islamic law. The Federal Shariat
Court has original and appellate jurisdiction. This court decides whether any law is
repugnant to the injunctions of Islam. The court also hears appeals from decisions of
criminal courts under laws relating to the enforcement of hudood laws that is, laws
The class structure of Pakistan, while still containing elements of the castes of its
Indian heritage, has over the years become more western in its central divisions of
“upper” and “lower” classes based on wealth and education. The “upper” classes and
government tend to use English while the “lower” classes the to use Urdu, the national
language, as well as many other dialects depending on which ethnic group they belong to.
Pakistani laws and customs, as in many other countries, are the result of historical
experiences (colonialism had a substantial impact on statutory law), combined with local
structures of power (notably feudalism and tribalism), and cultural specificity (a broadly
South Asian culture with Islam as the faith of the majority). This combination serves to
produce the ‘living law’ in Pakistan, the rules that, in reality, govern people’s lives.
Islamic revivalism specially affected the legal status of women. Besides the
Islamization of laws which directly affect women, other rules an regulations have been
made; for example: Women in jobs and in the educational institutions are supposed to
wear the chader. Women newsreaders on television are supposed to cover their heads and
opportunities in the foreign service. Women were banned from appearing in public
sports. Approval was given for the establishment of a separate university for women.
Women are no longer allowed to appear as witnesses in hadd cases and the law of
evidence made their testimony worth half of a man’s. The council of Islamic ideology
recommended that in the case of diyat, if the murdered person was a women the
compensation paid to the victim’s family was to be one-half that paid to the family of a
male Muslim victim (Mehdi, Rubya, 1994: 26). The fact that women have fewer rights
patrilineal kinship networks and in the control by the male members of those networks.
Even with the creation and enforcement of these new federal laws the four major ethnic
areas of Pakistan tend to have different ideas about how different cases should be
decided.
Through out the history of India, Indian villages have maintained an important
degree of autonomy. The rule of the king or emperor was felt mainly in the form of local
grants, taxes, and conscription. The king nominally administered Justice, but in actuality
the administration of justice was not centralized. Justice was administered in practice by
village tribunals, which applied local customary law. Overall the scope of Islamic law
was limited, leaving the ancient village organization with all its Hindu institutions intact.
Muslim courts were located in towns where the proportion of Muslims was also much
larger. Communications were primitive and expansion of the system was not desired at
the cost of disturbing the peace of the independent units of justice known as panchayats.
Though a pattern of political centralization was established under British rule and later in
independent India and Pakistan, the local political and legal structure still remained
strong. It is in this history that one can see the where the different ethnic groups
The four major ethnic groups in Pakistan each have their own customs and
traditions, which include their own ways to maintain the Patrilineal networks. Each
Ethnic area has its own customary laws that they tend to follow more than the
authoritarian laws of the Pakistani government. The four main ethnic areas are:
Punjab: On the India-Pakistan border (eastern).
Baluchistan: Border by Afghanistan on the north and Iran on the west (southern).
While Pakistani federal laws dictates how courts should decide cases before 1989
much of the time tradition cames before laws, especially in the ethnic areas dominated by
tribal groups such as Sindh and Baluchistan. An example of this is Pakistan’s official law
on the age of marriage for girls: It is against Pakistani law (the child marriages restraint
act) for girls under the age of 16 to be married off by their parents or guardians; although
if a girl is married off at an age under 16 the married is not invalid in the courts. Provided
that the marriage is not consummated, after the girl turns 16 and before she reaches 18
years of age, she has the option to reconfirm or dissolve the marriage.
Punjab: In most cases, parents decide marriage partners for their daughters; father is the
wali and next most important is elder brother, the paternal or maternal uncles. In urban
areas the consent of the bride is given some respect, especially among highly educated
families. In rural areas, the views of the paternal uncles are given high priority, males are
the decision makers although the views of the mother cannot be ignored. Most marriages
NWFP: Parents decide; bride and groom’s opinion is seldom sought; In the central area
according to local tradition a girl has no right to choose whatsoever. In the urban areas a
girl’s consent is taken into consideration but the parents have final say. Girls cannot
refuse; in some areas girls are severely beaten if they attempt to reject their parent’s
choice. Most marriages are at the ages of 12-18 although in the urban areas it tends to be
18-20.
Sindh: Parents decide all matters relating to the marriage contract; the girl is generally
not consulted and those unwilling are compelled. Marriages are contracted at 14 and
above.
Baluchistan: Marriages are arranged by the family with the father as the main
authority. Among settler families the girls is asked but strictly as a formality. Girls
Pakistani law states that after the age of 18 a girl has the right to choose her own
husband. If her parents object to her marriage there is no effective legal action they can
take against her. However, in all of the different ethnic areas the courts tend to be lenient
with relatives who kill women for making their own marriage contracts and accept the
argument of ‘grave provocation’ (ed. Balchin, Cassandra, 1996: 16). This tendency
toward the use of traditional rules before official law stems from Pakistan’s long history
of village autonomy and independence. For while the majority of Pakistanis approve of
the governmental Islamization policies many of those in the outlaying provinces believe
that they have been following strict Islamic policies already and that in those case where
the law can be bent or judges will turn a blind eye to “illegal” uses of traditional law it is
better for the community and for the family structure to use their customary law. The
other reason traditional law is continually used is because many times it is impossible for
women or girls to find out or know about the federal laws that they can use in their favor,
or if they know they are afraid to disobey their family. A case example of this from 1974
is:
An eighteen year old girl Farzana filed charges against her family after arriving at
a women’s shelter nearly beaten to death. She had come from a well to do family in the
Sindh area and wanted to complete her college education before marriage; she also did
not like the boy chosen for her. Her refusal to the marriage was seen as a slight to their
honor as they would be seen as having lost control of their daughter. She ran away to a
state run shelter and refused to go back, she was scared of being killed by her family on
return. She finally agreed to leave the shelter with a cousin ( the brother of the man she
was to be married to) who signed a statement promising that he would not let anyone
marry her off without her consent. Despite the cousin’s assurances, she ended up a virtual
prisoner at this man’s house and found preparations were being made for her wedding.
She attempted to run away again as was severely beaten by her family and left to die; she
was found and taken to a shelter. The court ruled against her accepting her family’s
This is a perfect example of a court ignoring a young women’s rights under the
federal laws in favor of upholding traditional values and rules. The court favored the
family and upheld it’s right to lash out at the daughter because she disobeyed. It is
significant that it took place in Sindh as Sindh is heavily influenced by the cultures
bordering it: China, India, and Afghanistan, all countries that tend to place a heavy
tendency leads to heavy pressure by the community to enforce the male dominated
systems both in the households as well as in the legal levels of the community. This case
shows us that it is a slight on a family’s honor for their daughter to disobey them and that
it is better in the family’s eyes for her to be dead than to have disobeyed them. It also is
important to notice that in this community marriage is more important than the daughter’s
education.
courts vs. federal law is in the matter of the types of marriage contracts. Federal law
states that for a marriage to be valid a nikahnama (marriage certificate/ document) must
be filled in and all conditions of the contract must be recorded in the nikahnama, which
must be registered with the ward Nikah Registrar. With out a nikahnama a couple were
not considered married in the eyes of the law. It is either the groom’s father or bride’s
Punjab: Both written and oral marriage contracts are found. High rates of registration in
NWFP: Most marriages are oral; no registration apart from main urban centers. In
Charsadda nikahnama is only registered if the boy gets some benefit out of documentary
proof of marriage.
Sindh: Most marriages are oral, registration practiced only in urban areas.
Baluchistan: Marriages are oral agreements. More than 90% are unwritten and
unregistered; most Baloch (northern tribe) feel it is against their honor to write down and
This tradition of not filing the nikahnama can be especially hard on women if they
wish a divorce or their husband dies. Under federal law a woman who is not officially
married with a filed nikahnama is unable to file for maintenance in the case of divorce or
has no legal way of obtaining her and her children’s inheritance if her husband dies. If a
woman cannot prove to the court that she and her husband were legally married then
there is almost no way for her to insure her statues. Plus in 1979 the Hudood Ordinances
were passed which carried stiff penalties for Zina (sex outside of marriage), so if a
woman cannot prove that she is married to the man she is living with then she can be
Case Example: In 1960 Almna filed for divorce and maintenance from her husband Bagh
Ali in the province of Baluchistan. Bagh Ali argued that he did not need to pay
maintenance, as they had never been married because no nikahnama had been filed.
Almna’s father brought forth a number of witnesses who had been at the wedding
ceremony when the oral vows had been said and the court agreed to grant the divorce and
maintenance. Bagh Ali appealed it to the high court where the court over turned the
previous decision deciding in favor of Bagh Ali as there had been no nikahnama filed and
This case demonstrates both how local courts will uphold traditional laws over
federal laws as well as how not filing nikahnama can adversely effect the wife. This case
also shows how the different legal levels of the court system will decide things differently
based on which set of laws they uphold. It is unfortunet that in his efforts to avoid paying
maintenance Bagh Ali managed to get his wife convicted of Zina; a crime which carries
the maximum sentence of death. It is important to notice that even with Almna’s father’s
witnesses the court declared the marriage invalid and stuck as strictly to the law as
possible.
Although both these cases turned out badly for both of the girls involved a
significant event happened in Pakistan in 1989 the helped push the issue of women’s
rights to the forefront. After 1989 elections it soon became clear that Benazir was entitled
to be Prime Minister. The religio-political parties raised the tirade that a women cannot
be Head of State in Islam. This was debated by her party as well as a number of political
women’s organizations which pointed out that there is nothing in the Pakistani
constitution that says a woman cannot be the head of state. They also pointed out that
there is nothing in the Quran that places a bar against a women from being a ruler of an
Islamic state. On the contrary in the Quran in Sura 27, there is the narration where a
It is significant that the Quarnic verse does not criticize or give any indication of
debarring or restricting a woman from being a ruler. And luckily enough when a no-
confidence motion was proposed by the combined opposition parties it was defeated.
Thus, Making Pakistan one of the first Islamic countries to have a female head of state.
Women’s rights was one of Benazir’s main issues and right away she began to push to
make federal law known and enforced in rural and tribal areas. Even though the courts
were slow in changing there is substantial evidence that women were beginning to gain
more legal power. One example is in the case of divorce, Under Muslim Family laws
Ordinance, husbands may unilaterally exercise the right of Talaq (husband’s unilateral
and unconditional right of divorce), but the Talaq must be written and notification
provided to the Union Council and to the wife. Khula (a woman’s right to judical divorce
under Muslim jurisprudence) proceeds the same as Talaq once the court has granted
decree and notified the Union Council. Different judges accept different grounds for
Punjab: In rural areas Talaq and Khula are not at all common, although it is more
prevalent among lower income groups where it can occur without much social stigma. If
it does happen then the terms of the divorce settlement are determined by family elders.
There is a saying “ A women’s place is either in the Kor ( home) or Gor (grave).”
NWFP: Divorce is very rare. Among the upper caste urban families there is some
divorce and a very few Khula cases. In the rural areas Khula is inconceivable, women are
not allowed to go to court for it and might be killed for trying as it is a social offense.
Sindh: Divorce and Khula are very rare; highest and lowest castes sometimes have
divorces but among the middle castes there may be life-long separation but no divorce
except where the wife is unfaithful. They say “You’re going away on the dolee (bridal
Baluchistan: Divorce and Khula very rare. High rates of watta satta marriage, so if one
couple chooses to divorce the other must as well. In the very southern region of Makran,
which is non-tribal divorce and Khula are possible, and women do go to court.
In almost all of the different ethnic areas divorce is looked down upon, whether
its initiated by the husband or wife. This stems from the need to keep property in the
family and not have it be divided by divorce. Also divorce upsets the alliances marriage
creates between families and creates problems with the bringing up of children as well as
their inheritance.
Case Example: Naziran and Khadim in Lahore’s Kot Lakhpat were married for seven
years and had four children. Khadim was a daily wage laborer in a factory. From the
beginning of the marriage he used to physically abuse his wife and would give her
maintenance as and when it suited him. Naziran put up with all the abuse and much
against her will was constantly pregnant. As soon as the eldest child was able to look
after the younger ones she began to look for work outside of the home while Khadim was
gone at his job. As a result she was able to save some money, and as soon as she felt she
had enough she started protesting against Khadim’s treatment of her. This resulted in
serious disagreements and ended by Naziran leaving the house with the children and
This case, apart from the obvious actual use of the federal law instead of the local
traditional law, has a number of interesting references about the culture. Obviously birth
control is either not known or unavailable to Naziran, even of the most primitive kind
also based on the facts it seems as if Naziran is basicly her husband’s property: he abuses
her, he can deny her money, and doesn’t have to listen to what she wants, if she hadn’t
been able to make the extra money she probably would have had to live like that forever.
In Pakistan there are five ways to get a divorce, each with their own requirements
and with their own processes. Below is a chart explaining the five different ways to get a
divorce under federal law. While all of them are used Talaq, Talaq-e-tafweez, and Khula
are the most common. The chart lists who files for divorce, what court hears the suit, if
you need a lawyer, how long the period is until you are considered divorced, the length of
time it takes to process the divorce, weather or not the dower is recoverable, if evidence
As you can see from this chart the easiest way to get a divorce is to have the husband file
it or for both of the parties to be involved. It is much harder for a woman to get a divorce
on her own, and even if the suit is accepted clerks tend to put off the suit so the procedure
can drag on forever. This is because there is less respect for a woman who wants a
divorce and women are less pushy about demanding that their suit be heard quickly. Also
a divorce initiated by the woman, even if it is filed correctly, is the only type that can be
overturned. The ability of men to achieve a divorce easier than women again shows the
legislative and legal support for male dominance in the society. In cases where the
husband files the suit or both do the case is heard at the Union Council, which is a group
of men who hear divorce suits in an informal setting, it is a much more congenial setting
then the family court which hears those suits filed by women where a lawyer is needed
and half the time hard evidence. But this doesn’t mean that women aren’t slowly filing
Another example of a case that could have gone badly and ended up well is that of
Mst. Nasim Akhtar vs. the State. Mst. Nasim was tried for the alleged murder of her
husband. The local judge convicted and sentenced her to transportation for life. On
appeal to the High Court Mst. Nasim argued that she had never been married to the
deceased and was able to produce documentation that a marriage between her and the
deceased had never been recorded. She denied all the other allegations and pleaded that
she was sleeping on the night of the incident when at about 2:30am she felt that
somebody was picking at her clothes. When she woke up she saw that the deceased
wanted to criminally assault her, whereupon she raised alarm and other persons of the
neighborhood came to her rescue and beat on the deceased until he died. The court
looked over the evidence and decided that Mst. Nasim and the deceased had never been
married, they questioned the relationship between the two and wondered about Mst.
Nasim’s morals concluding that they believed the two had a liaison, but finally decided in
In this case unlike the one before 1989, although Mst. Nasim’s values are
questioned, Mst. Nasim is not charged with Zina even though the court concluded that
she had sex outside of marriage. Also in this case the higher court found in favor of the
woman, although it should be pointed out that because the deceased could not speak for
himself little evidence was heard from his side. This case also shows that even though the
neighbors did the actual beating because Mst. Nasim called to them she was charged with
the murder. The high court found her not guilty of murder and decided in self-defense,
Since 1989 Pakistani women have slowly been gaining in the fight to be allowed
to exercise their rights. The Islamization of Pakistani law was not necessarily detrimental
to the fight for women’s rights but because it went unused for many years in favor of the
provincial living laws, which tend to make decisions that supports the local patrilineal
network, they didn’t necessarily help either. By the 1990’s feminists all around the world
were rejoicing at the strides Pakistan was taking in creating a sexually equal legal system.
Unfortunately Pervez Musharraf cut much of the progress made between 1989 and 1999
short with his seizure of power and suspension of the constitution in 1999.
In our first class we were given a definition of law that defined it as “the central
part of every culture because it deals with those behaviors which people think must not
take place.” I think that this is an appropriate definition of law for Pakistan and not only
its federal laws but the living law of the ethnic areas as well. A majority of the living law
supports the continuation of the patrilineal systems, that means deciding against
daughters who disobey or attempt independence. This can be seen clearly in the first two
cases. It is obvious that the legal structure in place in the different provinces is more
concerned with continuing the way of life as the community knows it and uphold the
values of the male dominated systems that has been in place for centuries then making
sure that the sexes have equal rights under the law. The Islamization of Pakistani federal
laws also set about attempting to continue Pakistan’s pledge to create a totally Islamic
country. Laws were modified to express Muslim morals and Quaranic teachings.