The Sharīʿah-Based Study of Laws Regulating Family Affairs in the Constitution of the State of Pakistan

Abstract

 It is no secret to any knowledgeable person that every nation and community regards its prevailing marriage and family laws as integral to its religious identity and symbolic emblem, viewing any opposition to them as forbidden and prohibited acts. Even in societies lacking a strong religious foundation, ancestral traditions are deemed profoundly important in every aspect of human life how then can they be disregarded?

The Holy Quran has outlined the fundamental principles of law in general terms, but in the domain of family laws, it has not only provided principles but also explicitly detailed them—a truly extraordinary and unparalleled phenomenon. It is also noteworthy that wherever Islamic Sharia was properly implemented, there was no room for husbands' cruelties against women, even in the pre-court eras in the Indian subcontinent. During that time, women did not face the kinds of issues that emerged purely in the English era and after the establishment of English courts.

Today, when voices are raised against existing family laws on the grounds that they contradict the Quran and Sunnah, many women come to believe that the scholars are indifferent to their hardships and thus perceive the scholars' opposition as stemming from this indifference. On this misguided notion, scholars are targeted with hostility, though this perception is entirely erroneous. The root cause of women's difficulties lies in the non-Islamic laws of the British era and the convoluted judicial procedures, which force the oppressed woman to endure such torment and hardship before obtaining justice that she finds it easier to tolerate every affliction inflicted by her husband.

Nevertheless, a segment of scholars has consistently and vigorously advocated against domestic violence toward women under every era and government. Whenever the British administration in India discussed reforms and formed committees or commissions for this purpose, the scholars presented their proposals publicly for remedying these cruelties and sufferings. Regrettably, due to the lack of support from official institutions, these proposals were invariably ignored, leaving this vulnerable class perpetually subjected to oppression and injustice.

The cruelties and hardships faced by women have continually reached the scholars particularly the muftis in the form of questions, making them the most affected by this issue. Lacking legal authority, they could not provide direct solutions, but within the bounds of Sharia, they offered whatever facilitations were possible through fatwas. However, these measures proved insufficient for completely curbing the cruelties or definitively resolving the issues.