The Judiciary-led Islamization of Family Law in Pakistan

An Analysis

Abstract

According to the Constitution of Pakistan 1973, Pakistan is an Islamic Republic in which any law against the Qur’ān and sunnah is void. In Pakistan, Muslim family law is largely based on Islamic law, but the law is not detailed. Lack of detailed legislation gives the courts huge discretion, which sometimes results in contradictory decisions. According to Martin Lau and others, Islamization in Pakistan has been a judiciary-led process. While interpreting the law and exercising discretion, Pakistani courts sometimes differ with the established schools of Islamic law, exercise ijtihād, and occasionally extend or modify Islamic law. The examples include the cases related to the khul‘, legitimacy of children, and custody of children by mother or father after separation between the spouses. While some scholars have criticized the deviations of the courts from the established schools of Islamic law, considering the courts incapable of exercising ijtihād, the court decisions in Pakistan have been pro women and human rights. They take into consideration social needs and values while deciding family law cases. This paper analyzes a number of case law to help us understand the approach of Pakistani judiciary to interpretation and application of Muslim family law.