Daily Times

In an unanticipated move, the Federal Shariat Court (FSC) jurisconsult has issued a progressive statement on the status of children born out of wedlock in Pakistan.

Dr Aslam Khaki has said that Islamic jurisprudence does not recognise children as being “illegitimate”. Indeed, he goes on to contend that this stigma should apply to the fathers given that they have committed the original sin and not the child.

This is to be welcomed. For a start, it paves the way to revisit the issue of punitive measures for adultery. Dr Khaki has suggested that the existence of a child from such a union is not enough to prove this. Rather, the traditional prerequisite of four witnesses to the act still stands. This is because Islamic jurisprudence does not recognise the use of DNA to prove paternity.

This, however, throws up questions of maintenance and inheritance. For it is not enough to simply rule that the father is at ‘fault’ for producing a child out of wedlock. This does not guarantee the rights of the child. After all, as things currently stand, Hanafi law does not permit an out-of-wedlock child to inherit form the putative father. And when it comes to Shia law, the child is barred from inheriting from either parent. Though Dr Khaki points out the validity of a secret or verbal Nikkah.

Thus maybe the time has come for a comprehensive review of both Islamic and civil law to set forth the rights of every child here in Pakistan. Indeed, the country has rightly patted itself on the back for putting legislation on the books that protects the rights of transgender persons; also covering inheritance. The state did not cower before the religious right. And it must be applauded for this. Especially considering how much space has already been to the latter.

That being said, if Pakistan can do this why can it not take a stand for women, their bodies and their children? It is long overdue.  *

Published in Daily Times, June 15^th 2018.