THE MUSLIM FAMILY LAWS ORDINANCE, 1961
ORDINANCE NO. 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 that 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 [1]as the [2][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 [3][* * * *] and a
representative of each of the parties to a matter dealt with in this Ordinance [4][:]
[5][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;]
[6][(b)
‘Chairman’ means the Chairman of the Union Council or a person appointed by the
7[2[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:
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Provided that where 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, and [7][having
in the matter jurisdiction as prescribed];
(e)
“Ward”
means a ward within a Union or Town as defined in the aforesaid Order.
3. Ordinance to override other laws, etc.⸺(1) The provisions of this Ordinance shall have effect
notwithstanding any law, custom 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.⸺2[(1)] 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.
2[(2)
If a Muslim male from Ahl-e-Teshih
dies, the share of a widow in the immovable property left behind by her
deceased husband shall be as follows:―
(a)
one-fourth
share of the fixed price or value of the property, if there is no child left
behind the deceased husband; and
(b)
one-eighth
share, if there is child left behind.
(3)
If there
are two or more widows, the share, as mentioned in sub-section (2), shall be
divided equally among them.
(4)
The price
or value of the property shall be the price or value existing at the time of
payment and not the price or value which existed at the time of death of the
husband:
Provided that if the legal heirs of
the deceased do not give the widow her share in the above terms, she shall
become entitled to her due share in the corpus of immovable property.
(5)
A widow is
entitled to her share in the corpus of movable property of her deceased husband
provided that the provisions of sub-sections (2) and (3) shall mutatis mutandis apply.
(6)
Fiqah-e-Jafri recognizes
right of a husband to get his share from the property left by his deceased
wife, either movable or immovable, as follows:⸺
(a)
one-half
share, if there is no child left behind; and
(b)
one-fourth
share of the property, if there is child left behind.
(7)
In case of
dispute, the parties or any of the parties may have recourse to a court of
competent jurisdiction or by approaching the Mujtahid-e-Alam from the panel maintained by the Council of Islamic
Ideology. The decision of Mujtahid-e-Alam
shall have a status of an award and the same shall be dealt with in accordance
with the provisions of the Arbitration Act, 1940 (X of 1940).
Explanation.—The expression “Mujtahid-e-Alam (Faqih-e-Azam)” means a
juris-consult, religious scholar or doctor of Shia school of thought well versed with Shariah having international repute and of such recognition. The
Council of Islamic Ideology shall maintain a panel of Mujtahide-Alam having aforesaid qualifications.
(8)
As
enshrined in Article 227 of the Constitution of the Islamic Republic of
Pakistan, the inheritance rights of Ahl-e-Tashih
and matters connected therewith or ancillary thereto shall be decided according
to their personal law interpreted by Fiqah-e-Jafria
(Shia school of thought).]
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 marriages under this Ordinance, the Union Council
shall grant licences to one or more persons, to be called Nikah Registrars, but
in no case shall more than on 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 sub-section (3) shall be punishable with simple
imprisonment for a term which may extent to three months, or with fine which
may extend to one thousand rupees, or with both.
(5)
The form
of nikah nama, the registers to be
maintained by Nikah Registrars, the records to be preserved by Union Councils,
the manner in which marriages shall be registered and copies of nikah nama 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 sub-section (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 sub-section (1) shall be submitted to the
Chairman in the prescribed manner, together with the prescribed fee, and shall
state reasons for the proposed marriage, and whether the consent of the
existing wife or wives has been obtained thereto.
(3)
On receipt
of the application under sub-section (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 conditions, 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, [8][to the Collector] 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 [9][:]
2[Provided that where the parties belong to Fiqah-e-Jafria,⸺
(a)
the man
may voluntarily and with his free will pronounce himself or through duly
authorized attorney (Vakil) Talaq uttering in literal Arabic words (seegha) in
the physical presence of at least two witnesses qualifying the requirements of
clause (1) of Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No. 1 of 1984);
(b)
the
pronouncement of Talaq shall be ineffective if it is done jokingly or under
anger, intoxication, insanity, duress or coercion of any kind and from any
corner whatsoever; and
(c)
in case of
dispute, with reference to clauses (a) or (b) arising due to difference of
opinion, the parties or any of the parties may have recourse to a court of
competent jurisdiction or by approaching the “Mujtahid-e-Alam” and the decision of Mujtahid-e-Alam shall have a status of an award and the same shall
be dealt with in accordance with the provisions of the Arbitration Act, 1940 (X
of 1940).
Explanation.⸺The expression “Mujtahid-e-Alam (Faqih-e-Azam)” means a
juris-consult, religious scholar or doctor of Shia school of thought well versed with Shariah having international repute and of such recognition. The
Council of Islamic Ideology shall maintain a panel of Mujtahide-Alam having aforesaid qualifications.]
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[10][(1A) As enshrined in
Article 227 of the Constitution of the Islamic Republic of Pakistan, the
divorce and matters connected therewith or ancillary thereto shall be decided
according to the personal law interpreted by Fiqah-e-Jafria (Shia
school of thought).]
(2)
Whoever
contravenes the provisions of sub-section (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 sub-section (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 sub-section (1) is delivered to the Chairman.
(4)
Within
thirty days of the receipt of notice under sub-section (1), the Chairman shall
constitute an Arbitration Council for the purpose of bringing about a
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 sub-section 2[(3)] or the
pregnancy, whichever be later, ends.
(6)
Nothing
shall debar a wife whose marriage has been terminated by talaq effective under this 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 than 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, 3 [to the Collector] concerned and his decision shall
be final and shall not be called in question in any Court.
(3)
Any amount
payable under sub-section (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 dower are specified in the nikah nama, or the marriage contract, the entire amount of the
dower shall be prescribed to be payable on demand.
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11.
Power to make rules.⸺(1)
The [11][[12][Federal
Government] in respect of the Cantonment areas and the Provincial Government in
respect of other areas] may make rules to carry into effect the purposes of
this Ordinance.
(2)
In making
rules under this section, the 1[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 extent 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 the Federal Laws (Revision and declaration) Ordinance,
1981 (XXVII of 1981), s. 3 and Sch., II.
13. [Amendment of the Dissolution of Muslim Marriages Act, 1939 (VIII of 1939)]. Omitted by the Federal Laws (Revision and declaration) Ordinance, 1981 (XXVII of 1981), s. 3 and Sch., II.
[1] The 15th day of July, 1961, see Gaz. of P., S.R.O. 56 (R), 1961, Ext., p. 1128.a.
[2] Subs.by F.A.O., 1975, Art. 2 and Table, for “Central Government”.
[3] The words “of the Union Council” omitted by the Muslim Family Laws
(Amdt.) Ordinance, 1961 (XXI of 1961), s. 2.
[4] Subs., ibid, for semi-colon.
[5] Proviso added, ibid.
[6] Subs ibid, for the original clause (b). 7Subs. by A.O.,
1964, Art. 2 and Sch., for “Central or a Provincial Government”.
[7] Subs. by the Muslim Family Laws (Amdt.) Ordinance, 1961 (XXI of
1961), s. 2, for “having jurisdiction in the area concerned”. 2Renumbered
as sub-section (1) and added new sub-sections from (2) to (8) by Act, XXVIII of
2021, s. 2.
[8] Subs. by F.A.O., 1975, Art. 2 & Sch., for certain words.
[9] Subs. and ins. by the Muslim Family Law (Second Amendment) Act,
2021 (XXIX of 2021), s. 2.
[10] Ins. new sub-section (1A) by the Muslim Family Law (Second
Amendment) Act, 2021 (XXIX of 2021), s. 2. 2Subs. by the Muslim
Family Law (Second Amendment) Ordinance, 1961 (XXX of 1961), s. 2 for “(2)”. 3Subs.
by F.A.O., 1975, Art., 2 and Sch., for certain words.
[11] Subs. by A.O., 1964, Art. 2 and Sch., for “Provincial Government”.
[12] Subs. by F.A.O., 1975, Art., 2 and Table, for “Central Government”.
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