Daily Times

A newspaper recently reported that women are going to get the right of divorce soon. What it meant to say was that there was a direct mechanism that would now be made available to only those women who had negotiated the delegated right of tal’ aq. Otherwise of course there is the right of Khula under Muslim Family Law Ordinance 1961m as well in addition to the delegated right of tal’ aq that can checked in the Nikahnama.

It goes without saying that marriage is a function which at least in the subcontinent has been directly linked with the idea of religion. Interestingly the founder of Pakistan, Jinnah, had attempted on several occasions to introduce an amendment to the Special Marriage Act 1872, to allow people of different communities to marry without conversion or renunciation of faith. He was ahead of his time and the law was actually amended only in what is India some time after partition. Unfortunately there were no takers for that radical proposition in 191,2 when Jinnah had famously argued that the legislature may even overrule religious dicta as it had done so many times in the past.

Nevertheless Special Marriage Act 1872, exists in Pakistan to solemnize all marriages that might be considered otherwise invalid or contrary to religion under the communal strictures. In many ways it is the best kept secret in Pakistan’s family laws. What one must recommend however is that its scope be expanded to include those individuals of a certain age, those Pakistanis who have risen above their communal and religious identities; to be allowed to get married according to their own choosing with or without renouncing their faiths. It is a question of the choice of laws. Muslims who want to marry under the Muslim Personal Law and dictated by its specific jurisprudence are sufficiently enabled by the Muslim Family Law Ordinance 1961, to do so. It is a sort of a minimum standard legislation to ensure a balance between the dictates of religion and the need to ensure a level playing field between a man and a woman.

However can we deny those Pakistanis who may not want to sever their links with their faith but are nevertheless not in favour of using a specific religious code for matters of the heart and family? Islam recognises marriages that are solemnized under other laws. A provision to allow Pakistanis of whatever faith or religion to marry in accordance with their conscience unfettered by the orthodox view and the conservative opinion would obviously not be a mandatory provision.

Personal regulation was never the point. Islam was there to guide but it was not there to be imposed by force. The ideals we now associate with the west, freedom of religion, conscience and a liberality towards personal freedom, were the heritage of the Islamic World

A modern Muslim majority country so deeply divided along sectarian lines and also having a significant number of non-Muslims as its citizens; cannot help but engage in legal pluralism when it comes to family law. We are talking about several categories here. There are obviously personal laws for Muslims, Hindus, Christians etc. Then there is the Special Marriage Act 1872. Minimal amendments will allow Muslim women to marry Non-Muslim men and vice versa, Christian men and Hindu women, Hindu men and Sikh women, Sikh men and Christian women and so on and so forth. Given that Pakistan is so insistent on the issue of Muslim identity, would it not make sense for Pakistan to also ensure that there is a safeguard for all those citizens of the republic who do not wish, out of their conscience, to conform to their religious and communal identity that is so clearly the preoccupation of our state. Such a measure will be keeping with the tolerant traditions of Islam and Quran’s most important dictum: La Ikra fid deen ie “there is no compulsion in religion”. Islamic History is full of instances where legal pluralism was the norm. Greatest scientists from the History of Islam, including Rhazes or Al Razi and Avicenna or Ibn-e-Sina, who are taught as part of the curriculum, were outright agnostics or even atheists. Yet their scientific contributions were celebrated by early Muslims because academia and scholarship was always championed in Islam. The Islamic civilization was the epitome of tolerance and acceptance in the world and that is when Muslims progressed in science and philosophy — a time when three different Caliphates, two Sunni Caliphates in Baghdad and Spain and one Shia Caliphate in Cairo, were the preeminent super powers of the world. Personal regulation was never the point. Islam was there to guide but it was not there to be imposed by force. The ideals we now associate with the west, freedom of religion, conscience and a liberality towards personal freedom, were the heritage of the Islamic World.

We must recognise that we are the inheritors of these golden traditions and it is time that we translated them into our modern age under the auspices of this great republic of ours. In doing so, we will fulfill our obligations under various international treaties and reclaim our position in the world. Matters of religion and the matters of the heart are personal matters of conscience. These cannot be imposed top down by the state nor does Islam demand this of its adherents. The only legal obligation under Islam is the Maqasid-e-Shariah which is to ensure that there are no hindrances to freedom to practice and live as good Muslims and to ensure the protection of progeny and property. Beyond that Islam does not demand the kind of state that has so falsely been associated with it. We must save Islam and Pakistan from the bigoted misinterpretation of Shariah, Fiqh and Islamic Law that has become commonplace in Pakistan.

The writer is practicing lawyer and was a visiting Fellow at Harvard Law School in Cambridge MA, USA. He blogs at http://globallegalforum.blogspot.com and his twitter handle is @therealylh

Published in Daily Times, October 22^nd 2018.