Islamic Legal Reform: The Case of Pakistan and Family Law

Abstract

The fact that Mumtaz Bibi's husband contracted a second marriage is not particularly unusual, as traditional Muslim family law allows a man to marry up to four wives, provided he treats them equally. A strict application of the relevant codified rule, however, would ordinarily prevent Mumtaz from divorcing her husband on these grounds. The significance of this 1995 Pakistani Appellate Court decision is that the Court provides a rationale-a broken heart-to subvert the rule, despite the fact that polygamy is allowed in the family law civil code. In fact, Pakistani family law courts displace codified rules everyday, granting women like Mumtaz Bibi divorces where they might not otherwise be allowed under a strict civil law system. Until recently, divorce in Pakistan was solely a husband's right. The appellate court quoted above is only one of many courts that are subverting this norm and expanding women's rights regarding their own marital fate. During the last forty years, judges have been taking on a kind of legislative role in resistance to fundamentalist attempts to limit women's rights; judges are redefining divorce, a woman's right to divorce, and the methods by which she can preserve that right.