Muslim Family Laws’ Ordinance, 1961

The Muslim Family Laws’ Ordinance, 1961

(VIII OF 1961)

[2nd March, 1961]

An Ordinance to give effect to certain recommendations of the Commission on Marriage and Family Laws

Whereas it is expedient to give effect to certain recommendations of the Commission on Marriage and Family Laws;

Now, therefore, in pursuance of the Proclamation of the seventh day of October 1958, and in exercise of all powers enabling him in this behalf, the President is pleased to make and promulgate the following Ordinance:---

1.      Short title, extent, application and commencement.---(1) This Ordinance may be called the Muslim Family Laws Ordinance, 1961.

(2)        It extends to the whole of Pakistan, and applies to all Muslim citizens of Pakistan, wherever they may be.

(3)        It shall come into force on such date as the [Federal Government] may, by notification in the official Gazette, appoint in this behalf.

2.      Definitions.---In this Ordinance, unless there is anything repugnant in the subject or context,---

(a)        “Arbitration Council” means a body consisting of the Chairman * * * and a representative of each of the parties to a matter dealt with in this Ordinance[:]

[Provided that where any party fails to nominate a representative within the prescribed time, the body formed without such representative shall be the Arbitration Council;]

(b)        “Chairman” means the Chairman of the Union Council or of a person appointed by the [Federal Government] in the Cantonment areas, or by the Provincial Government in other areas, or by an officer authorized in that behalf by any such Government, to discharge the functions of Chairman under this Ordinance:

Provided that were the Chairman of the Union Council is a non-Muslim, or he himself wishes to make an application to the Arbitration Council, or is, owing to illness or any other reason, unable to discharge the functions of Chairman, the Council shall elect one of its Muslim members as Chairman for the purposes of this Ordinance];

(c)         “prescribed” means prescribed by rules made under section 11;

(d)        “Union Council” means the Union Council or the Town or Union Committee constituted under the Basic Democracies Order, 1959 (P. O. No. 18 of 1959), and [having jurisdiction in the matter as prescribed];

(e)        “Ward” means a ward within a Union or Town as defined in aforesaid Order.

3.      Ordinance to override other laws, etc.---(1) The provisions of this Ordinance shall have effect notwithstanding any law, customs or usage, and the registration of Muslim Marriages shall take place only in accordance with those provisions.

(2)        For the removal of doubt, it is hereby declared that the provisions of the Arbitration Act, 1940 (X of 1940), the Code of Civil Procedure, 1908 (Act V of 1908), and any other law regulating the procedure of Courts, shall not apply to any Arbitration Council.

4.      Succession.---In the event of the death of any son or daughter of the propositus before the opening of succession the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received, if alive.

COMMENTARY

No doubt, the theory of Mahjub-ul-Irs has been revived by the Federal Shariat Court and section 4 of Muslim Family Laws Ordinance has been declared as repugnant to the Islamic Shariat yet such verdict has been challenged before the Supreme Court of Pakistan and thereby the operation of the verdict stands suspended automatically till the disposal of III as provided under Article 203D of the Constitution of Pakistan, 1973.

The grandson, therefore, can inherit the share of his predeceased father from his grandfather. [P L D 2003 Supreme Court 475]

5.      Registration of marriages.---(1) Every marriage solemnized under Muslim Law shall be registered in accordance with the provisions of this Ordinance.

(2)        For the purpose of registration of marriage under this Ordinance, the Union Council shall grant licence to one or more persons, to be called Nikah Registrars, but in no case shall more than one Nikah Registrar be licensed for any one Ward.

(3)        Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registration under this Ordinance, be reported to him by the person who has solemnized such marriage.

(4)        Whoever contravenes the provisions of subsection (3) shall be punishable with simple imprisonment for a term which may extend to three months, or with fine which may extend to one thousand rupees, or with both.

(5)        The form of nikahnama, the registers to be maintained by Nikah Registrars, the records to be preserved by Union Councils, the manner in which marriage shall be registered and copies of nikahnama shall be supplied to the parties, and the fees to be charged thereof, shall be such as may be prescribed.

(6)        Any person, may, on payment of the prescribed fee, if any, inspect at the office of the Union Council the record preserved under subsection (5), or obtain a copy of any entry therein.

6.      Polygamy.---(1) No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under this Ordinance.

(2)        An application for permission under subsection (1) shall be submitted to the Chairman in the prescribed manner, together with the prescribed fee, and shall state the reasons for the proposed marriage, and whether the consent of existing wife or wives has been obtained thereto.

(3)        On receipt of the application under subjection (2), the Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant subject to such condition, if any, as may be deemed fit, the permission applied for.

(4)        In deciding the application the Arbitration Council shall record its reasons for the decision, and any party may, in the prescribed manner within the prescribed period, and on payment of the prescribed fee, prefer an application for revision, [to the Connector] concerned and his decision shall be final and shall not be called in question in any Court.

(5)        Any man who contracts another marriage without the permission of the Arbitration Council shall,---

(a)        pay immediately the entire amount of the dower, whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall be recoverable as arrears of land revenue; and

(b)        on conviction upon complaint be punishable with simple imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

7.      Talaq.---(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.

(2)        Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

(3)        Save as provided in subsection (5), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under subsection (1) is delivered to the Chairman.

(4)        Within thirty days of the receipt of notice under subsection (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

(5)        If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in subsection (3) or the pregnancy, whichever be later, ends.

(6)        Nothing shall debar a wife whose marriage has been terminated by talaq effective under the section from re-marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.

8.      Dissolution of marriage otherwise by ‘talaq’.---Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq, the provisions of section 7 shall, mutatis mutandis and so far as applicable, apply.

9.      Maintenance.---(1) If any husband fails to maintain his wife adequately, or where, there are more wives than one, fails to maintain them equitably, the wife, or all or any of the wives, may in addition to seeking any other legal remedy available, apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband.

(2)        A husband or wife may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee; prefer an application for revision of the certificate, [to the Collector] concerned and his decision shall be final and shall not be called in any Court.

[Punjab Amendment

In subsection (2) of section 9, the full-stop occurring at the end shall be replaced by a colon and thereafter the following proviso has been added:

Provided that the Commissioner of a Division may, on an application made in this behalf and for reasons to be recorded, transfer an application, for revision of the certificate from a Collector to any other Collector, or to a Director, Local Government, or to, an Additional Commissioner in his Division.]

Ordinance 11 of 1975, section 2

(3)        Any amount payable under subsection (1) or (2), if not paid in due time, shall be recoverable as arrears of land revenue.

10.   Dower.---Where no details about the mode of payment of the dower are specified in the nikahnama, or the marriage contract, the entire amount of the dower shall be presumed to be payable on demand.

11.   Power to make rules.---(1) The [Federal Government in respect of Cantonment areas and the Provincial Government in respect of the other areas] may make rules to carry into effect the purposes of this Ordinance.

(2)        In making rules under this section, the [such Government] may provide that a breach of any of the rules shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to two hundred rupees, or with both.

(3)        Rules made under this section shall be published in the official Gazette, and shall thereupon have effect as if enacted in this Ordinance.

12.   Amendment of Child Marriage Restraint Act, 1929 (XIX of 1929).---[Omitted by Federal Laws (Revision and Declaration) Ordinance (XXVII of 1981)].

13.   Amendment of the Dissolution of Muslim Marriages Act, 1939 (VIII of 1939).---[Omitted by Federal Laws (Revision and Declaration) Ordinance (XXVII of 1981)].