Islamisation of Restitution of Conjugal Rights by the Federal Shariat Court of Pakistan
A Critique
Abstract
In Pakistan’s constitutional dispensation, the Federal Shariat Court (FSC) is empowered to ascertain the invalidity of laws from the perspective of Islamic injunctions. The paper problematises the constitutional authority of the FSC by exploring the process of Islamisation of the suit for restitution of conjugal rights (RCR). The RCR was grafted during British colonial era onto Muslim personal law (Anglo-Muhammadan Law) as applied in Indian subcontinent. This has recently been held by the FSC to be in consonance with injunctions of Islam. In this background, the paper raises some questions as to the jurisdiction of the court and how that jurisdiction/authority is exercised. It posits that the “default legal system” is placed at a privileged position and its Islamic validity is presumed to be well established, unless it is questioned on the basis of definitive verses of the Qur’an and unequivocal sayings of Prophet Muhammad (peace be on him). It is the outcome of this judicial approach that the FSC has sanctified from Islamic perspective an instrument (i.e., RCR) that is peculiar to the Christian ideal of monogamous and indissoluble marriage, without having any plausible foundation in Islamic legal sources.
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