Justice And Islam

JUSTICE AND ISLAM (Paper presented at the Conference of the Islamic Philosophical Association of Pakistan on 12th November, 1987.)

By

Mr. Justice Dr. Nasim Hasan Shah, Judge, Supreme Court of Pakistan

Justice in Islam is like an unassailable fortress which can neither be overthrown by the violence of torrents nor demolished by the force of armies. Why this unassailability? It is mainly because justice in Islam is totally impartial. It is no respecter of persons, high or low, prince or peasant, white or black, Muslim or non‑Muslim:

"O, ye who believe, be maintainers of justice, bearers of witness for Allah's sake though it may be against your own selves or your parents or near relations, be he rich or poor. Allah is most competent to deal with them both, therefore do not follow your low desires lest you deviate, and if you serve or turn aside then surely Allah is aware of what you do."

(Al‑Quran, IV:135)

A Hadith of the Holy Prophet (p.b.u.h.) reported both by Bukhari and Muslim reveals the importance which the Holy Prophet (p.b.u.h.) attached to the doing of justice with absolute impartiality and without any discrimination, whatever. It is reported that the Quraish 'were anxious about the repercussions over the punishment to a Makhzumi woman who had committed theft and asked "who will speak to God's messenger about her?" Then they said "who except Usama b. Zaid, the friend of the messenger of God." Accordingly, Usama spoke to messenger of God, who after hearing him‑said "you are interceding against one of the punishments prescribed by God?" He then got up and exclaimed "What destroyed your predecessors was that when a person of rank among them committed a theft they left him alone, but when a weak one of their number committed it they inflicted the prescribed punishment on him. I swear by God that if Fatima daughter of Muhammad should steal I would have her hand cut off."

In the same connection, the following observations of Hazrat Abu Bakr Siddiq, on his election as Caliph, merit attention:

"O, People; I have been made the ‑Ruler amongst you, and I am not the best of you. So if I act rightly, help me, and if I am in error, correct me.

Truth is a (sacred) trust, and falsehood is breach of trust.

The weak amongst you is strong in my eyes till I bring, with the help of God, to him what is his right. And the strongest amongst you is weak (in my eyes) till I take from him, with the help of God, what is due."

Hazrat Umar the second Caliph, enunciated this principle even more emphatically. He said:

"If any one dares to usurp the right of another, I will throw him on the ground and put my foot on his neck, till I get back from him, the right that he has usurped of the other:"

But doing justice in Islam is not merely the concern of the Ruler or the Judge alone. It is the responsibility of the community as a whole. No one can stand apart as a silent spectator in an Islamic Society, while injustice is being perpetrated towards another, simply because he is not personally affected thereby:

"Ye are the best community that has been sent forth to mankind (in that) you enjoin right and forbid wrong and have faith in God."   

(Al‑Quran, III: 110)

If we Muslims were to adhere to the above Quranic concept of justice, the need for establishing Courts far doing justice in the State would not be necessary. But unfortunately being human we are not immune from human weaknesses of viciousness, aggression and jealousy‑‑in short remain sinners:

Human weaknesses being inherent in human nature we are all guilty of wrong doing. As a wrong done affects the rights of another and rave wrongs result in causing dis-equilibrium in Society the State' must of necessity take measures to see that justice is enforced in the Community and order prevails in the Society. The true balance should always be maintained:

"He has set up the balance (of justice), in order that ye may not transgress (due) balance. So establish weight with justice and fall not short in the balance."    

(Al‑Quran, LV: 7‑9)

It is also ordained:

"Lo; Allah commandeth you that ye restore deposits to their owners, and if ye judge between mankind that ye judge justly."

 (Al‑Quran. IV: 58)

At the same time justice must be administered humanely:

"Allah commands justice, the doing of good and liberality to kith and kin."

(Al‑Quran, XVI :90)

In his commentary, under this verse Abdullah Yousaf Ali observes that justice in its comprehensive sense "may include all the virtues of cold philosophy" but Islam asks "for something warmer and more human." This 'Something warmer' is called 'Ehsan or goodness proper.' 'Adl' simpliciter, according to the Islamic concept, is the doing of good for good but 'Ehsan' is the doing of good even where 'Adl' does not strictly demand it and there is no question of receiving any reciprocal benefit. Justice, according to the command of Allah has, therefore, also to be tampered with mercy and it is on this principle that an otherwise legal claim may be withheld or a legal obligation not imposed, upon considerations of hardships or the best interests of the community as a whole.

The above principle also indicates that under the Islamic System, Law and Equity are not different concepts. There are no separate Courts of Equity in Islam nor do different principles govern the grant of equitable remedies. Restitutio in integrum and specific performance are the rule and not an exception. Damages are allowed only where specific performance becomes impossible or to enforce it would result in hardship.

In the administration of criminal justice, the same principle is adopted. Justice is not adequately done merely by punishing the offender but in order to do complete justice the victim should be compensated for the loss suffered by him. Moreover the principle favoured under the Islamic system is to prevent the commission of crime rather than punish the offender after its commission. The concept that punishment of a criminal would deter others from committing crimes is not accepted. In an Islamic Society the State is under an obligation to create such conditions that crimes should not be committed.

Similarly, torts and crimes, in the Islamic System, come within the same jurisdiction. It is the duty of the State, as indicated already, to see that the culprit is not only punished but that the victim also is idemnified. Diyat (blood‑money) can be realized not only from the culprit but also from his kinsmen and tribe like a collective fine there the culprit is not traceable the head of the local police will be field responsible for making good the loss to the victim.

There are a large number of other legal principles which are decipherable from the Holy Quran, for instance:

(i) No offence can be created retrospectively.

(Al‑Quran; VIII‑‑38

(ii) Self defence is no offence. 4

(Al‑Quran, XLII:41

(iii) No more burden will be placed on one than he can bear.

(Al‑Quran, II: 28C,

(iv) Decide according to the evidence produced.

(Al‑Quran, IV: 10

However principles besides those noticed above can certainly be devised to deal with the problems pertaining to administration of justice arising from day to day. The commands of the Holy Quran that have been expressed in pass terms cover a very small field and by far the much larger area of human activity has been left unspecified wherein the Lawgiver in the State is permitted (mubah) to do whatever is necessary for the common good. Indeed the Almighty, in this field, has left it to us Muslims to provide for whatever may be necessary in the circumstances, through additional legislation by the exercise of our ijtihad (independent reasoning) in consonance with the spirit of Islam. To be more precise, the legitimate field of the community's law‑making activity comprises:

(a) details in cases and situations where the Shariah provides a general principle but prescribes ‑no detailed commands; and

(b) principles and details with regard to matters which are mubah, that is, not covered by Shariah laws at all.

It is this method that the Quran has referred to in the words:,

"For every one of you We have ordained a Divine Law and an open road."

(Al‑Quran, V: 48)

Thus, while the Divine Law (The Shariah) outlines the area within which Muslim life may develop, the Almighty has conceded to Muslims within this area, an "open road" (minhaj) for temporal legislation which would cover the contingencies deliberately left untouched by the nusus of the Quran and Sunnah.

The Prophet's (p.b.u.h.) sanction of a ruler's right to resort to such free ijtihad decisions is illustrated in many Traditions, but perhaps nowhere as lucidly as in the classical report of his conversation with his Companion Mu'adh ibn Jabal:

"When he (Mu'adh ibn Jabal) was being sent (as governor) to the Yemen, the Prophet asked him: "How will you decide the cases that will be brought before you?"

Mu'adh replied: "I shall decide them according to the Book of God."

"And if you find nothing concerning (a particular matter) in the Book of God?"

"Then I shall decide it according to the Sunnah of God's Apostle."

"And if you find nothing about it in the Sunnah of God's Apostle?"

"Then,  replied Mu' adh, "I shall exercise my own judgment (ajtahidu bi‑ra'yi) without the least hesitation."

Thereupon the Prophet slapped him upon the chest and said: "Praised be God, who has caused the messenger of God's Messenger to please the latter."

(Jami Al‑Tirmidhi and

Sunan Abu Daud, on

the authority of

Mu'adh ibn Jabal)

We should never forget that the message of Islam is eternal and must, therefore, always remain open to the searching intellect of man. The very greatness of the Prophet's life example lies in the fact that the more our knowledge of the world progresses, the better we can understand the wisdom of the Law of Islam.

It would not be out of place here to say a few words about the attempt being made in Pakistan to enforce the Islamic System of Justice. The Objectives Resolution which was adopted by the First Constituent Assembly on 7th March, 1949 has become a substantive part of the Constitutions and has afforded an opportunity to Courts in Pakistan to administer justice according to the precepts of the Quran. Until the 30th December, 1985, the Objectives Resolution was nothing more than a preamble to all, the' Constitutions adopted in Pakistan serving the same purpose as any other preamble to a legal instrument namely, that in the case of any doubt as to the intent of the law‑maker, it could be looked at for ascertaining the true intent but could not control the substantive provisions thereof. But its position underwent a dramatic change when on 30th December, 1985 while lifting Martial Law and revising the Constitution of 1973 [by the Revival of Constitution Order, 1985 (P.O. 14 of 1985)] it was incorporated into and made a substantive part of the Constitution itself by inserting therein a new provision, numbered as Article 2‑A.

The impact of this new Article in the administration of justice in Pakistan has already started manifesting itself. As an example I may mention the case relating to the compulsory retirement of civil servants.

During the Martial Law period a new Chapter (Chapter 3‑A) entitled "Federal Shariat Court" was added in Part VII of the Constitution of 1973 by General Muhammad Zia‑ul‑Haq by promulgating President's Order 1 of 1980. By this Order, a Court called the Federal Shariat Court was constituted which was empowered to examine and decide the question whether or not any law or provision of any law presently in force in Pakistan, is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and the Sunnah of the Holy Prophet (p.b.u.h.). Taking advantage of this situation some civil servants challenged, before the Federal Shariat Court, certain provisions of the Civil Servants Act of 1973 whereby the competent authority could retire civil servants who had completed 25 years of service qualifying for pension or other retirement benefits even though the normal retirement age was 60 years.

The Federal Shariat Court in a well‑considered judgment found that the impugned provisions of the Civil Servants Act were indeed repugnant to the Quran and the Sunnah and directed that they be repealed.

The judgment of the Federal Shariat Court was challenged by an appeal before the Supreme Court, which was heard by the Shariat Appellate Bench of the, Supreme Court (consisting of five Judges). The appeal was dismissed (by a majority) but what is relevant here is that one of the Judges (constituting the majority) based his judgment directly on the terms of the Objectives Resolution. The said learned Judge after quoting the opening words of the Objectives Resolution, namely:

"whereas sovereignty over the entire Universe belongs to Allah Almighty alone and the Authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust."

went on to elucidate the concept of a trust in Islam and observed "the concept of Delegated Authority held in trust is enshrined in Verse 58 (of Surah Al‑Nisa) and it has invariably and consistently been given an extended meaning. Additionally, all authority being delegated authority and being trust, and a sacred one for that matter, must have well‑defined limits on its enjoyment or exercise. In the Holy Quran more so, but also both in the Western and the Eastern jurisprudence, delegated authority held in trust has the following attributes

("i) The Authority so delegated to, and held in trust by, various functionaries of the State including its Head must be exercised so as to protect, preserve, effectuate and advance the object and purposes of the trust;      

(ii) All Authority so enjoyed must be accountable at every stage, and at all times, like that of trustee, both in the heirarchical order going back to the ultimate delegator, and at the other end to the beneficiary of that trust;

(iii) In discharging the trust and in exercising this delegated authority, there should not only be substantive compliance but also procedural fairness."

As these attributes were found to be lacking in the impugned provisions of the Civil Servants Act, the learned Judge was pleased to hold them to be unlawful. Thus a most important power vesting in the hands of the Government, namely, the power to remove senior civil servants from service; a power conferred on it by Solemn Acts passed by competent legislatures was found, because of its repugnancy with the Objectives Resolution, to be unlawful.

This is not all. Another Judge, in the same judgment, remarked "Man having been born in the image of Allah cannot be permitted in matters of judgment to do injustice". Mark you this is a remark not made in the discourse of a religious Scholar or in a Speech of a public figure before a milling crowd' but is' an observation to be found in the judgment of the Chairman of Shariat Appellate Bench of the Supreme Court.

A remarkable transformation in the judicial system is undoubtedly taking place in Pakistan. The old Anglo‑Saxon Legal System hitherto in force is being replaced, slowly but surely by the magnificent edifice of the Islamic Shariah. A fresh dawn is rising and with the help of God justice in Pakistan, will not in the too distant future, be administered only and only by the Laws of Islam. May God be with us (Ameen).

SILVER JUBILEE CELEBRATIONS

                        OF

DEPARTMENT OF APPLIED PSYCHOLOGY

UNIVERSITY OF THE PUNJAB

OBSERVATIONS

By

Mr. Justice Dr. Nasim Hasan Shah Judge,

Supreme Court of Pakistan

[16th December, 1987]

I feel highly honoured to have been asked to be the Chief Guest at this function today organised by the Department of Applied Psychology at this magnificent Islamic Centre to celebrate the Silver Jubilee of the establishment of their Department.

This Centre is undoubtedly a remarkable addition to the facilities becoming available to the University of the Punjab which for over a century has been fighting a ceaseless battle for furtherance of knowledge and for overcoming ignorance. It is particularly relevant to repeat from this Islamic Centre the words of the Holy Quran about the curse of ignorance. Ignorance is likened to darkness on a vast, abysmal sea. It is, says the Quran. "Layer upon layer of darkness. When he holdeth out his hand he scarce can see it. And he for whom Allah hath not appointed light, for him there is no light" (Sura 24 Verse 40). Hence, the exhortations of the Holy Prophet to the Muslims to acquire knowledge. The acquisition of knowledge, according to the Holy Prophet "is a duty on every Muslim". "Acquire knowledge" said he for "it enables the possessor to distinguish right from wrong; it lights the way to heaven; it is our companion when friendless; it guides us to happiness; it sustains us in misery; it is a weapon against enemies and an ornament among friends. By virtue of it, Allah exalteth nations and maketh them guides in good pursuits and giveth them leadership, so much so, that their footsteps are followed, their deeds imitated and their opinions are readily accepted and held inviolable".

Applied Psychology is an important branch of knowledge as its concern is to describe those , phases of psychology which deal with practical problems. In pure psychology, as you all know, the researcher is never asked whether his investigations are designed for useful ends whereas the applied psychologist endeavours to find solutions to the problems confronting men and women in their every day practical affairs. Thus, while the pure psychologist will work on such problems as how we learn new skills, why square tables look square when the image of the eye is not square, and how people judge the lapse of time because investigations on such topics provide him with a systematic analysis of human behaviour; the applied psychologist would, on the other hand, work on such problems as how to select taxi drivers, how long to make a line of type, and how to make airplane instruments more readable. Some of his work is done in the laboratory, but much of it must be done in the field. Wherever he works, he is interested in useful outcomes. He may be doing research in a factory on the causes of labour turnover; he may serve in a school or college as a counsellor on the choice of vocations; he may be called on to advise officials of the army or navy on problems of limitations of human sight and adapting gunships. The applied psychologist may, no doubt, use the facts and methods developed by the pure psychologists‑‑he may, for example, utilize the known laws of learning in writing a manual for salesmen or take what the pure psychologist has discovered about colour‑‑vision and use this knowledge to prevent confusion between the colours of jerseys on the basket‑ball court. But he may, and often does, develop his own methods and discover his own facts. In this way applied psychology, while receiving help from pure psychology, contributes in its own right to the over‑all growth of psychology as a science concerned with the study of human behaviour.

It is heartening to learn for the Introduction in your brochure that ever since its inception in 1962 the Department of Applied Psychology has been engaged in producing students who are trained to shoulder responsibilities in various fields in order that they may be in a position to provide answers to important psycho‑social and psychobiological questions in a precise and empirical way and that your alumni are already working with various organisations like the Army, Mental Health and rehabilitation institutions and providing guidance in vocational administration, education, police and prisons and child care areas. May the efforts of your Department prosper and endure. Indeed, I have a special corner in my heart for your Department. How can I ever forget my bright and lovely niece Miss Kaukab Saadat, the highly talented and brilliant teacher of Applied Psychology but so brutally done to death in the flower of her youth. Her dedication, devotion and selfless attachment to the Department was unsurpassable and will serve as a beacon of light to all who will follow her.

Another fact that brings me closer to you is that I see a high proportion of womenfolk in your Department. Both in the staff as well as amongst the students they are not only well‑represented but are headed by an eminent woman scholar, Dr. Rafia Hasan. In Sura 2 Verse 188 of the Quran, men and women are described as each other's garments implying that each sex compliments the other and neither is inferior in status anal dignity to the other. Islam, in fact, accords a very special place to women and Allah's grace and His benevolence towards women is reflected in a story recounted in "Le Livre des bons usage en matiere de mariage" which is a translation, in French, of a work of Ghazali. He writes:

"When the Prophet Muhammad was walking towards paradise one day, he saw an old woman preceding him to the gates. Muhammad was hurt, since God had promised that he would be the first of Adam's children to enter heaven. 'What does this woman have that she goes before me? he asked, '0 Muhammad', came the thundering voice from the clouds, 'this woman was beautiful and graceful. But when she became a widow, she devoted herself fully to her two daughters until their future was assured. God wanted to show her that he was grateful."

In fact, the Holy Prophet himself was a great protagonist of the equality of men and women. According to him "women are the twin halves of men" and he took steps that they were accorded equal treatment in practice. It is reported that some women approached the Holy Prophet and told him that owing to housework they could not follow his sermons and requested him to set up separate classes for them on religion at a mutually convenient time. This request was gladly acceded to considering that they were as much entitled to this privilege as were men. At one of their meetings some women pointed out to the Holy Prophet that God's words were always addressed to men and asked whether they were not worthy of being addressed directly. He made no answer immediately. However, shortly thereafter he was favoured with the following revelation by the Almighty Allah: "The men who resign themselves to God and the women who resign themselves and the believing men and the believing women and the devout men and the devout women 'and the men of truth and the women of truth and the patient men and the patient women and the humble men and the humble women for them hath God prepared forgiveness and a rich recompense" (xxxiii, 35). Thus, it was made clear that the words of Almighty Allah were both for men and women.

In a remarkable book written icy Naila Minai, a Turkish lady, entitled "Women in Islam", the position of women throughout the history of Islam is recounted. In the part relating to the role of women in early Islam, she points out that a few of the learned women also acted as Imams and adds that as the Holy Prophet chose the most learned and respected man in a group to lead the prayers when he was absent, he appointed the most learned woman to lead when women congregated for prayer. In one case, however, Umm Waraqah, one of the best students of the Quran, was asked to be Imam for both men and women of her large household. This instance, according to Naila Minai, did not serve as a precedent for later generations because the conditions under which women could be Imams were not specified.

But she goes on to point out that:

"Under Islam, poetesses rediscovered their role as historians, journalists, propagandists, social critics, and cheerleaders of their community. They celebrated the ideals which united their Islamic tribe, moved men to defend them against enemies, and sang of their victories. They eulogized those fallen in battle and elevated them to martyrdom, inspiring the living to avenge the dead and plaguing the conscience of those who transgressed the accepted code of ethics."

She points out further‑

"Although most women fighters were poetesses and nurses who took up arms in self‑defence or to avenge their loved ones' death, some volunteered as soldiers. The list of women warriors was in fact rather long, given the small size of the early Islamic community. Typical among them was Umm Umarah one of Muhammad's earliest converts. She fought alongside her husband and sons in many battles, retiring only after she lost a hand. Like any old soldier, she was proud to show off her battle scars.

Perhaps the most endearing of the women veterans was Safiya, Muhammad's seventy years old aunt, who stood guard when the Muslim community in Medina wits under siege. She noticed an enemy prowling around the weak point of the fortification. Unable to warn the men in time, she clubbed down the intruder herself."

Naila Minai concedes that:‑

"The old chronicles and poems celebrating the daring exploits of these Amazons may not stand the scrutiny of today's historians in every detail, but they point out that the ideal woman in the mass media of early Islam was neither a house‑wife nor a sex object, but man's colleague. She would have been quite at home with Judith, Queen Esther, and Joan of Arc."

I am happy to say that from what I see today the women professors and girl students of your Department appear to clearly be men's colleagues. May both of them working together in harmony and amity fulfil the dream of Professor Ghulam Jilani, your distinguished first Chairman of making the Department of Applied Psychology, one of the finest Departments of the Punjab University. May this prayer be realised much before your Golden Jubilee!

God Bless you all!

ISLAMIC LAW AND TRADITION OF DOWRY AND RECOVERY THROUGH FAMILY COURTS

ISLAMIC LAW AND TRADITION OF DOWRY

AND RECOVERY THROUGH FAMILY COURTS

By

Mian Zafar Iqbal Kalanauri,

Advocate Supreme Court of Pakistan

       A dowry is a gift given by the bride's family to the groom and the newly formed household at the time of their marriage. Historically most societies have had bides go to their husband's families, and often women could not legally own property. The husband would be primarily responsible for the economic prosperity of the household, while women would care for children and the household needs. When a woman or girl married into a family that was agricultural, she often was welcomed as another worker. In families that were more prestigious, however, she may have been viewed as another mouth to feed. and the dowry was an important sign of her gratitude for becoming a member of her husband's family. The earliest dowries were usually land entitlements, but later were attached to sentimental and decorative items as well as various commodities and even later to money.

       In the first era of Islam marriage was a simple affair, without pomp or ceremony. Any expenditure incurred in its performance was quite minimal, and not a burden on either family. Indeed, the Prophet stated: 'the most blessed marriage is one in which the marriage partners place the least burden on each other.' Nowadays, much difficulty and hardship can be caused by the setting and giving of dowries, bride-prices and mahr - not to mention enormous wedding feasts and celebrations in some cultures which bring a most unreasonable financial burden on the families concerned. Financially crippling celebrations are totally in opposition to the spirit of Islam, and are not necessary. They are purely a matter of the culture of certain regions. No Muslim should feel obliged to continue these un-Islamic traditions, or be embarrassed about breaking with their old cultural traditions.

       The custom of giving dowry (jahez) is not part of Islam, although it actually seems to be on the increase among several Muslim cultures, notably those of Indian, Pakistani and Bangladeshi origin, even when they have settled in the UK or USA. In fact, it is a practice which has never been sanctioned by Islam and is not prevalent amongst Muslims of other cultures. It seems to be in imitation of ancient Hindu culture in which daughters were not given any share in the family property, but were given payments, part of which might be in the form of household goods, as a measure of compensation. Islam granted daughters a rightful share in their family property and inheritance.

       A 'bride-price' is either an amount of money, goods or possessions given to the bride by the bride's family at the time of her marriage, in order to attract a good husband for her. It would in effect become the property of the husband or his family upon his marrying her. This is a totally un-Islamic practice. In Islam, women are not 'owned' by their families and should not be 'traded with' in this manner. It is an insulting practice. An amount of money demanded from the bridegroom or his family by the bride or her family, usually the bride's father, without which the daughter will not be given in marriage. In the ‘jahiliyyah' society before Islam, this money was regarded as the property of the girl's guardian.

       The matters of fathers giving the bride gifts of money or property, or paying for an enormous wedding feast, or providing a home, or setting her up in her home with furniture and household effects are left to the discretion of the people involved in Islam. The Prophet himself saw to the marriages of his four daughters. He gave his daughter Fatimah various gifts when she married Ali b. Abu Talib, but there is no record of his having given anything to his other daughters on the occasion of their marriages. Had such gifts been a recommended Sunnah, he would surely have given the others gifts as well. Moreover, the gifts given to Fatimah were extremely modest household articles. The Prophet gave Abu Bakr some money and asked him to accompany Bilal and Salman, (or Ammar Ibn Yasir) to buy some household necessities for Fatima's house. The Prophet said to Abu Bakr: "Buy some appropriate household necessities for my daughter with this money." Abu Bakr said: "He gave sixty-three (63) dirhams, so we went to the market and bought the following:

1.    Two mattresses made of Egyptian canvas (One stuffed with fiber and the other with sheep wool) 2. A leather mat 3. A pillow made of skin, filled with palm tree fiber 4. A Khaibarion cloak 05 An animal skin for water 6. Some jugs and jars also for water 7. A pitcher painted with tar 8. A thin curtain made of wool 9. A shirt costing seven dirhams 10. A veil costing four dirhams 11. Black plush cloak 12. A bed embellished with ribbon 13. Four cushions made of skin imported from Ta 'ef stuffed with a good smelling plant 14. A mat from Hajar 15. A hand- mill 16. A special copper container used for dyestuff 17. A pestle for grinding coffee 18. A (water) skin.

       When Abu Bakr and the other companions had bought the above-mentioned articles, they carried them to Um Salama's house. When the Prophet saw them, he started kissing every article and supplicated to Allah, saying: "0 Allah, bless them! For they are people who the majority of their belongings are made of natural materials."

       A woman holds a very high status in the Islamic faith. She is honoured and respected at all times, but many startling transgressions have crept into Islamic practice. These transgressions have been caused by cultural influence that has no basis in Islamic scripture. Muslims living in the Indian subcontinent have slowly incorporated the act of dowry into their lives. Dowry originated in the upper caste Hindu communities as a wedding gift (cash or valuables) from the bride's family to the groom's family. There is nothing strange or unique about a culture influencing Muslim practice, as it is a common characteristic around the globe that when a new religion spreads in an area, people who live in that area retain some of the customs and traditions which they have been practicing for centuries. There is nothing wrong with this as long as those practices do not contradict Islamic law. The practice of dowry, however, does in fact transgress Islamic law.

       We usually use the word gift for something, which we give voluntarily, to a person we like. A gift is something that strengthens the friendship bond between two people. Dowry, which is usually defined as a "gift" given along with the bride, by a bride's family to the bridegroom, is used as a tool of coercion and greed in societies like Pakistan. The bride's family must give this "gift" or the marriage will not take place. Always the price of the dowry is set higher than the bride's family can afford and sadly, this results in the bride becoming burden on her family. The bride's family then struggles to pay the "gift".

       In Islam it is the man who pays the Mahr (dower) to the woman. The verses in the Qur'an prove that it is the man who is obligated to pay the Mahr (dower) to the woman unless the woman chooses not to take it.2

       Cultures that demand dowry from the bride's family are actually practicing the opposite of what Allah has commanded. They have reversed Allah's words in their practice. The bride is forced to pay a negotiated amount to the groom unless the man chooses not to take it. When the woman brings less than the negotiated amount, she has to endure constant torture from her in-laws after marriage. When the husband or in-laws are not satisfied with the dowry brought by the bride, they even go to the extent of killing the woman after marriage. The most severe among all the dowry abuse is "bride burning". The parties engaged in the murder usually report the case as an accident or suicide.

       Dowry abuse is rising in Pakistan despite a Dowry and Bridal Gifts (Restrictions) Act 1976. Many women remain unmarried due to this dowry. Another common practice is that people `exchange' their sons. In other words, they give a bridegroom (mostly their son) to a girl to be married in exchange for a bridegroom from the girl's family (the bride-to-be's brother or any unmarried male relative) so that they can have their daughters married without dowry. This places an incredible disadvantage on the parents who have daughters and no sons. The parents of daughters having to give money to get their daughters married!

       It is a sad irony that women (mostly mothers-in-law) are oppressive towards other women (daughters-in-law). Mostly, mothers-in-law-to-be are the ones who demand dowry from the bride's family and who end up torturing the daughter-in-law after marriage if she brings less than the negotiated amount. So in an effort to respect parents and to conform to cultural norms, Muslim youth in Pakistan are bending over backwards to follow traditions that aren't even rooted in Islam. Demanding dowry and getting married may seem valid in the eyes of many, but will the marriage be validated in the eyes of Allah?

       Dowry is purely a matter of culture. One should not feel obliged to continue these un-Islamic traditions. If a culture contains un-Islamic aspects, then one should not feel any shame to break the culture's traditional practices. The practice of dowry has caused Muslims in many parts of the world to continue their prejudices against women despite the Islamic prohibitions against it. In Pakistan, a woman is considered to be a great burden mainly because of the dowry system. Here, it is common to see people rejoicing over the birth of a son and lamenting over the birth of daughter. In Pakistan, the reason why people prefer male children over female children is mainly due to cultural practices such as dowry. Why aren't people listening to the message of Islam instead of following the customs of others around them?

       Allah has given us warning of this in the Qur'an. Allah tells us that infanticide is a grave sin and that favouring one gender over the other has no grounds in Islam. When news is brought to one of them, of (the Birth of) a female (child), his face darkens and he is filled with inward grief! With shame does he hide himself from his people because of the bad news he has had! Shall he retain her on (sufferance) and contempt, or bury her in the dust? Ah! What an evil (choice) they decide on?3

       As Muslims, we should consider the birth of daughters to be a great blessing. In addition to the Qur'an, the Hadiths also carry the message to value women.

       Malik reported Allah's Messenger (may peace be upon him) as saying: He, who brought up two girls properly till they grew up, he and I would come (together) (very closely) on the Day of Resurrection, and he interlaced his fingers (for explaining the point of nearness between him and that person).4

            Narrated Aisha: (the wife of the Prophet) A lady along with her two daughters came to me asking me (for some alms), but she found nothing with me except one date which I gave to her and she divided it between her two daughters, and then she got up and went away. Then the Prophet came in and I informed him about this story. He said, "Whoever is in charge of (put to test by) these daughters and treats them generously, then they will act as a shield for him from the (Hell) Fire."5

       Islam stresses fairness and kindness. Islam ensures that boys and girls are treated equally. Discrimination between children because of their gender is not advocated in Islam. It is so unfortunate to see people submitting themselves to the dictates of culture rather than the will of Allah, who is our Creator, Cherisher and Sustainer.

Let us not succumb to the 'Milli' caused by culture and let us stand firm in practicing Islam by enjoining what is right and forbidding what is wrong!6 In Islam, the dowry or the mahr, is clearly stated as an obligation by the groom to his bride in the Quran. Allah says in the Quran. "And give the women their Mahr as a free gift...7 Islam also guarantees the bride has the right to keep the dowry in any event."But if you had given the latter a cantar for dower (mahr) take not the least of it back...8

       Prophet Muhammad's (p.b.u.h.) in Last Sermon

       “……….0 People, it is true that you have certain rights with regard to your women, but they also have right over you. If they abide by your right then to them belongs the right to be fed and clothed in kindness. Do treat your women well and be kind to them for they are your partners and committed helpers. And it is your right that they do not make friends with any one of whom you do not approve, as well as never to commit adultery…….9

       Nothing could be more un-Islamic than ostentation. It is ridiculous to attempt to justify flamboyant displays of wealth in lavish gifts or feastings by citing the Prophet's extremely modest gifts to Fatimah. As soon as a daughter is born, the family in general and the father in particular starts calculating the huge financial burden that lies ahead of him. Whereas a Muslim father seizes, the same opportunity with both his hands as his Prophet (pbuh) has promised him heaven or paradise for bringing up his daughter the way he takes care of his male child. A Muslim father does not have to bother for dowry, as there is nothing called 'Dowry' in Islam. On the contrary, Islam enjoins the groom to give a 'Bridal-Gift' or 'Dower' as a token of love and assurance to his would be wife at the time of marriage. In fact without payment of this sum, the marriage cannot get solemnized. The Holy Qur'an instructs the believers "And give the women (whom you marry) their dower (obligatory bridal gift) happily" (4:4)

       Whatever the reasons, Islam does not approve of the dowry being a condition for marriage. It may be said that this is what is done in Pakistan. A dower is agreed between the two parties, but then it is forgone by the wife at a later stage. The fact is that the dower is treated as an awkward technicality. It is mentioned in the marriage contract but on the wedding night, the bride is taught by her family that she must tell the bridegroom that she has forgone every part of it. In other words, she is not doing it out of her own free will. She has no choice in the matter. The bridegroom expects that she would do that. If she does not do it, there may be trouble within the family, especially if the figure named is high. Perhaps neither the bride nor the bridegroom knows why they have to go through this process of naming a figure and forgoing its payment. Islam provides for a dower to be paid as a compensation for the woman in return for the obligation marriage imposes on her to be a good bed fellow to her husband. In other words, she is giving out of herself something to her husband, in consideration of which she is entitled to receive an amount of money in cash or kind, which she deems to be appropriate. Therefore, a woman's right to a dower is not lost unless she herself relinquishes it. For this reason, if the dower is not specified in the marriage contract, the woman does not lose her claim to it. She may ask her husband to give her something, which she deems to be satisfactory. If they can agree on a figure, then the same can be written in the form of an agreement, which will specify an amount, which is normally given to a bride in her social status.

       It is now clear that the dower payable by the bridegroom is the one, which Islam requires in marriage. The dowry system is merely a tradition in certain societies. We cannot say to a man who wants to see his daughter married and, therefore, gives her suitor a dowry that he has done something forbidden. We simply say to him that this is not the way Islamic marriage is arranged. It does not affect the validity of the marriage. Nor is it forbidden for the bridegroom to accept the gifts given to him by his father-in-law. But we should try to explain to the community that the dowry system impedes marriage and is not sanctioned by Islam. When people are aware of the tradition of the dowry may weaken within the Muslim community and it may give way to the proper Islamic tradition.

       But despite all this the custom of dowry is prevalent in our society and there are certain presumptions regarding the dowry articles which are as under:

a.     On occasion of the marriage some bridal gifts and dowry articles are given by the parents of the bride and presents are also given by the family of bridegroom;

b.    The amount of dowry articles given by the family of the bride depends upon their economic conditions and status; which in any case is much more than rupees five thousand which is the restriction imposed in the Dowry and Bridal Gifts Restriction Act;

c      The list of dowry articles is not prepared/maintained and signed by the parties at the time of marriage as this is considered to be a bad omen;

d.    In case of dispute between the husband and wife, when the wife leaves the house of the husband as a result of conflict she is not allowed to take with her the dowry articles (except from jewelry in some cases) which remain at the house of the husband.

e.     As per Islamic law and section 5.of the Dowry and Bridal Gifts (Restriction) Act,1976 the dowry and bridal gifts are the property of wife.10

       Under Section 3 of the Dowry and Bridal Gifts (Restriction) Act 1976 the maximum ceiling of five thousand has been given regarding the aggregate value of the dowry and presents given to the bride by her parents.11 "This act provides the penalty of imprisonment which may extend to six months or with fine which shall not be less than the amount proved to have been spent in excess of maximum limit laid down in the Act under Section 9, on a complaint filed against violation of the act under Section 8-A of the Act to the Deputy Commissioner. 12.The rule 4 of  the Dowry and Bridal Gifts (Restriction) Rules, 1976 framed in exercise of the powers conferred by Section 10 of the Dowry and Bridal Gifts (Restriction) Act, 1976 13 provide for preparation of lists of dowry and presents given or received in connection with the marriage which shall be furnished by the parents of the bride in Form D-1 and lists of bridal gifts and presents given or received in connection with the marriage shall be furnished by parents of the bridegroom in Form D-2. In practice however at the time of marriage no such lists are prepared. As per Section 5 of the Dowry and Bridal Gifts (Restriction) Act, 1976 or property given as dowry and bridal gifts and all property given to the bride as presents shall vest absolutely in the bride.

       It is the consistent view of the superior courts that articles of dowry, bridal gifts, presents and all other properties are the belonging of bride and the husband if deprives her of the same, she has the right to recover all these articles even though the same were given in contradiction of the provisions of Section 3 of the Dowry and Bridal Gifts (Restriction) Act, 1976. 14It is to be noted that the marriages are registered under Section 5 of the Muslim Family Laws Ordinance 196115 and in the form of ‘Nikahnama' prescribed by Rule 8 of the Muslim Family Rules 1961 in Form- II, which is to be filled and registered does not contain any entry regarding dowry articles.

       The strength of a law consists in its implementation. Many of our laws are without teeth. They are mere show pieces. A good member of them is made just to pacify the people when they make a hue and cry about a particular problem. Once they are enacted no one is bothered about their implementation. People's participation is minimum in Pakistan due to illiteracy, ignorance and apathy of the common people. In a democratic system of government, laws cannot be implemented without the active participation and collaboration of the people.

       Many of the laws enacted for the benefits of women are not implemented effectively due to the apathy and indifference of the law-enforcing agencies, such a police, bureaucrats, lawyers and judges. The situation can be changed only by awakening the conscience of the people, especially women, regarding their duty to become active partners in implementing the laws made for their benefits. Below are given some suggestions for the effective solutions to the problems relating to dowry articles.

1.    The maximum ceiling for the bridal gifts should be increased to rupees two lac by amending Section 3 of the Dowry and Bridal Gifts (Restriction) Act, 1976 to make it more realistic.

2.    The Nikah Nama Form prescribed by Rule 8 of the Muslim Family Laws Rules, 1961 under Section 5 of the Muslim Family Laws Ordinance, 1961 should be suitably amended to include an entry regarding dowry articles.

3.    It is recommended that offering dowry in any form be made an offence just like demanding dowry is explicitly made an offence. A new section 3-A in the Dowry and Bridal Gifts (Restriction) Act, 1976 should be inserted:

       "Penalty for demanding dowry.--If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride , as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:

       Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months."

4.    Women's organizations must be formed and registered wherever possible in view of strengthening women and to enable them to fight for their rights. Initiative must be taken by women's organizations to study the laws critically, to find out their loopholes, and to suggest ways and means to amend them, and implement them effectively. Women legal researchers must interview police officers, bureaucrats, lawyers, judges and common people to get their opinions on the efficacy of the Dowry and Bridal Gifts (Restriction) Act, 1976 Act and the problems faced in implementing its provisions.

5.    The Section 5 of the West Pakistan Family Courts Act, 1964 16deals with the jurisdiction of the Family Courts and provides that the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate specified in part-1 of the schedule. It is to be noted that Section 17 of the West Pakistan Family Courts Act, 1964 makes the provisions of the Code of Civil Procedure Code, 1908 and Qanun-e-Shandat Order, 1984 17 inapplicable to proceedings before Family Court in respect of Part-I of the Schedule. The Schedule of the West Pakistan Family Court Act, 1964 was amended vide Family Courts (Amendment Act) (VII) of 1997 whereby item 8 regarding dowry was added. Thus, in 1997 through this amendment the suit for recovery of dowry articles became a family suit and prior to that it used to be to be a civil suit. The whole problem regarding recovery of dowry articles and appreciation of evidence started with this amendment as from then onwards the provisions of CPC and Qanun-e-Shandat became inapplicable. Another complex situation arose when the Chief Justice Committees meeting issued directions to the Judges of the Subordinate Courts to substitute to examination of Chief of a witness for an affidavit to be sworn by him in Family cases and Rent matters in year 2001.

       The provisions relevant on the question of recording of examination in chief are contained in Article 2(c) of the Qanun-e-Shandat Order 18 which is part of the examination of a witness or his evidence. An affidavit on behalf of the witness that too without any order having been by the court under Rule 1 of Order XIX CPC or without any agreement by the parties to dispense with the ordinary mode of evidence i.e. (Order XVIII Rule 4 CPC) cannot be acquitted with the examination of such witness recorded orally in open court in the presence of and under the personal discretion and superintendence of the Judge. An affidavit replacing an examination in chief may contain irrelevant and scandalous facts which the court otherwise shall not allow to be deposed when the deponent is before the court as a witness. The opposite party would definitely subject the deponent to cross examination on such fact as well. Resultantly, the court time which is sought to be saved by the filing of affidavits in place of an examination in chief, is likely to be consumed more if such an affidavit happens to be submitted.

       As regards the family suits Section 11 of the West Pakistan Family Courts Act, 1964 governs the recording the evidence of the Family Court. Sub Section 4 of the Section reads as under:-

"(4) The Family Court may permit the evidence of any witness to be given my means of an affidavit;

       "Provided that if the court deems fit, it may call such witness for the purpose of examination in accordance with subsection (3)"

       The subsection (3) provides for a witness to give evidence in his own words, but a party or his counsel may examine, cross-examine or re-examine him.

       A combined reading of Section 11 19leads to the conclusion that ordinary mode of giving evidence before a Family Court is by examination of a witness in the court and that it is only with the permission of the "Court" that he may give evidence by means of an affidavit. Thus a blanket direction to replace examination in chief of a witness by an affidavit sworn by him may defeat the spirit of the provisions contained in Section 11 ibid, therefore this practice should be done away with as it is complicating the decision of family cases.20

       The subsection (3) of Section 7 of the West Pakistan Family Courts Act 1964 provides that the plaintiff has to append all the documents in his power and possession on which he relies along with the plaint. Where he relies on other documents in possession or power, as evidence in support of his claim, he shall enter such documents in a list to be appended to the plaint, (giving reasons of relevancy of these documents to the claim in plaint). 21Similar provision is contained in Section 8 of the said Act with regard to the production of the documents by the defendant. These provisions are similar to the provisions contained in Order XIII Rule 1 and Order VII Rule 14 of CPC with regard to the production of documents. The accumulative effect of Sections 7, 8 and 11 of the West Pakistan Family Court Act 1964 read with Rule 10A of the West Pakistan Family Courts Rules, 1965 is that even a Family Court while recording and appreciating evidence has take into account the general principles contained in the Civil Procedure Code,1908 and the Qanun-e-Shandat Order,1984. Therefore, the Family Court should not ignore these principles regarding the production and proof of documents such as the list of dowry articles and a receipt of the purchase of dowry articles and bridal gifts. The tendancy of the certain Judges of Family Courts to render verdicts on the basis of mere assumptions should be discouraged and they should be directed to follow the general principles contained in the Qanun-e-Shalulat Order, 1984 regarding the proof of documents and appreciation of documents.

---

1        (al-Haythami, Kitab ab-Nikah, 4:255).

2        “And give women (on marriage) their  dower (Mahr) as a free gift but if they, of their own good pleasure, remit any part of the it to you, taken it and enjoy it with right good cheer”(An-Nisa’: 4). Also (prohibited are) women already married, except those whom your right hands possess: Thus hath Allah ordained (Prohibitions) against you: Except for these, all others are lawful, provided ye seek (them in marriage) with Mahr (dower, a bridal money given by the husband to his wife at the time of marriage) from your property,-desiring chastity, not lust, seeing that ye derive benefit form them, give them their dowers (at least) as prescribed; but it, aft3er a downer is prescribed, agree mutually (to vary it), there is no blame on you, and Allah is All-knowing All-wise (An-Nisa’:24).

3        (An Nahl: 58-59).

4        [Sahih Muslim: Book 032, Number 6364]

5        [Sahih Bukhari: Volume 8, Book 73, Number 24].

6        ‘Let there arise out of you A band of people inviting to all that is food, Enjoining what is right, and forbidding what is wrong: They are the ones to attain felicity.’ (Al-Quran, Aal-e-Imran: 104).

7        Quran [4:4]

8        Quran [4:20]

9        (sic)

10       See 5. Vesting of dowry etc., in the bride.—All property given as dowry or bridal gifts and all property given to the bride as a present shall vest absolutely in the bride and her interest in property however derived shall hereafter not be restrictive, conditional or limited.

11       Sec. 3 Restriction on dowry, presents and bridal gift.—(1) Neither the aggregate value of the dowry and presents given to the bride by her parents not the aggregate value of the bridal gifts or of the presents given to the bridegroom shall exceed five thousand rupees;

          Explanation. The ceiling of five thousand rupees specified in this subsection does not in any way imply that the dowry, bridal gifts and presents of a lesser amount may not be given.

          (2) No dowry, bridal gifts or presents may be given before or after six months of nikah, awl, if rukhsati take place sometime after  nikah, after six months of such rukhsati.

12.      8.List of dowry etc. to be furnished to Registrar.—(10 The parents of each party to a marriage shall furnish to the Registrar lists of dowry, bridal gifts and presents given or receive din connection with the marriage.

          (2) The lists referred to in subsection  (1) shall be furnished,--

          (a) in the case of property given or accepted before or at the time of the marriage, at the time of the marriage; and

          (b) in the case of property given or accepted after the marriage, within fifteen days of its being given or accepted.

          (3) the lists referred to in subsection (1) shall—

          (a) contain details of the property along with the value thereof; and

          (b) be signed or thumb-marked by the persons furnishing to, the Registrar and attested by at least two witnesses.

          (4) The parents of each party to a marriage shall furnish to the Registrar the details of expenditure incurred on the    marriage, duly signed or thumb-marked by them within one week.

          (5) The Registrar shall forward the lists furnished under subsection (1) and the details of expenditure submitted under subsection (4) to the Deputy Commission within fifteen days of receipt of such list or details or expenditure.

          Sec. 9. Penalty and procedure.—(1) Whoever contravenes, or fails to comply with, any provision of this Act or the rules made therunder shall be punishable with imprisonment of either description for a  term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both, and the dowry, bridal gifts or presents given or accepted in contravention of the provisions of this Act shall be forfeited to the Federal Government to be utilized for the marriage of poor girls in such a way as may be prescribed by rules made under this Act:

          Provided that if both the parents of a party to the marriage contravene, or fail to comply with, any provision of this  act or the rules made thereunder, action under this section shall be taken only against the father;

          Provided further that if the parent who contravenes, or fails to comply with, any provision of this Act or the rules made thereunder is a female, shall be punishable with fine only.

          (2) Any offence punishable under this act shall be triable only by a Family Court established under the West Pakistan Family Court act, 1964 (W.P. Act No.XXXV of 1961).

          (3) No Family Court shall taken cognizance o fan offence punishable under this act except upon complaint in writing made by, or under the authority of, the Deputy Commission within nine months from the date of nikah, and if rukhsati takes place some time after nikah, from the date of such rukhsati.

          (4) While trying on offence punishable under this act, a Family Court shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 (Act V of 1898), for the trial of offences by Magistrates.

13       Sec. 10. Power to make rule.—The Federal Government may, by notification in the official Gazette, make rules for   carrying out the purposes of this Act.

14       Sec. 3. Restriction on dowry, present and bridal gifts.—(1) Neither the aggregate value of the dowry and presents given to the bride by her parents nor the aggregate value of the bridal gifts or of the present given to the bridegroom shall exceed five thousand rupees.

          Explanation.—The ceiling of five thousand rupees specified in this subsection does not in any way imply that the dowry, bridal gifts and presents of a lesser amount may not be given.

          (2) No dowry, bridal gifts or present may be given before or after six months of nikah, awl, if rukhsati takes place some time after niksh, after six months of such rukhsati.

          2009 MLD 998 Rehan Iqbal Baloch v. Presiding Officer, k2008 YLR 1124 Shariat-Copiurt-Azad-Kashmir Shaukat Hayat v. Mst. Shabnam Akhtar, 2006 CLC 1393 Mst. Nasim Sharif v. Imtiaz Ali Khan kPLD 2004 Lah. 290, Mst. Sahahnaz Begum v. Muhammad Shafi, 2004 LR 1932 Supreme Court-Azad-Kashmir Muhammad Mafrooz v. M;st.Shafeen Akhtar, 1995 SCMR 885 Muhammad Trazeel v. Khair Un Nisa.

15       Sec.5 Registration of marriage.—(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 marriage 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 one Nikah Registrar be licensed for any one Ward.

          (3) Every marriage not solemnized by the Nikah Registrar shall, for the purpose of registrar under this Ordinance by reported to him by the person who has solemnized such marriage.

          (4) Who ever contravenes the provisions of subsection (3) shall be punsihable 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 nikahnama, the registers to be maintained by Nikah Registrars, the records to be preserved by Union Councils, the manner in which marriage shall be registered and copies of nikahnama 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 subsection (5), or obtain a copy of any entry therein.

16       Sec. 5. Jurisdiction.—(1) Subject to provisions of the Muslim Family Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule Part I of the Schedule.

          SCHEDULE

                                                          (See Section 5)

          Part I

          Dissolution of marriage, Khula

          Dower.

          Maintenance.

          Registration of Conjugal rights.

          Custody of children, and the visitation rights of parents to meet them

          Guardianship.

          **[Jactitation of marriage].

          *[“8. Dowry.”]

          “9.Personal property and belongings of a wife.

          PART II

          Offences and aid and abetment thereof under sections 337-A(i), 337-F(i), 341, 342, 3343, 344, 345, 346, 352 and 509 of the Pakistan Penal Code (Act XLV of 1860).”.

          **.Inst. by W.P. Act I of 1969. S.j8.

          *. Added by Act 1 of 1997, dated 1-1-1997

          *. Words added by Family Courts (Amendment) Ordinance, 2002.

17       Sec. 17. Provision of Evidence act and Code of Civil Procedure not to apply.—(1) Save as otherwise expressly provided by or under this Act, the provisions of the Evidence act, 1872 Qanun-0e0Shahadat, 1984 (P.O. No.10 of 1984) and the Code of Civil Procedure 1908. *[except sections 10 and 11], shall not apply to proceedings before and Family Court in respect of Part I of Schedule

          *Words added by west Pakistan Family Courts (Amendment) Act of 1907, S.2.

          (2) Sections 8 to 11 of the Oaths Act, 1873, shall apply to all proceedings before the Family Courts.

18       Sec. 2(c) “evidence” includes—

          (i) all statements which the Court permits or requires to be made before it by witnesses in relation to matters to fact under inquiry such statement are called oral evidence; and

          (ii) all documents produced for the inspection of the Court, such documents are called documentary evidence;

19       11. Recording of evidence.—(1) On the date fixed for the *[recording of the evidence]. The Family Court shall examine the witnesses produced by the parties in such order as it deems fit.

          *Subs. by W.P. Family Courts (Amendment) Act (I of 1969), S.7(a).

          (2) The Court shall not issue any summons for the appearance of any witnesses unless, within three days of the  framing of issues, any party intimates the Court that it desires a witness to be summoned through the Court and the Court is satisfied that it is not possible for such party to produce the witness.

          *[(3) The witnesses shall give their evidence in their own words;

          Provided that the parties or their counsel may further re-examine, cross-examine or re-examine the witness:

          Provided further that the Family Court may forbid any question which it regards as indecent, scandalous or frivolous or which appears to  it to be intended to insult or annoy or in needlessly offensive in form].

          * Subs. by West Pakistan Family Court (Amendment) Act, 1969. S.7(b)

          *[(3-A) The Family Court may, if it so deems fit, put any question to any witness for the purposes of elucidation of any point which it considers material in the case.

          *Added by West Pakistan Courts (Amendment) Act, 1969, S.7.

          (4) The Family Court may permit the evidence of any witness to be given by means of an affidavit:

          Provided if the Court deems fit it may call such witness for the purpose of further examination in accordance with subsection (3).

          R.10-A(1) West Pakistan Family Court Rules, 1965.—Mode of recording-Presiding Officer of the Family Court is authorized to have the evidence of witnesses taken down in writing by, someone else in his presence and hearing and under his direction and superintendence.

20       Substitution of Examination-in-Chief of a witness for an Affidavit Sworn by him by Mian Zafar Iqbal Kalanauri, Member Punjab Bar Council, PLD 2001 Journal 26.

21       Sec. 7. Institution of suit.—(1) Every suit before a Family Court shall be instituted by the presentation of a plaint or in such other manner and in such Court as may be prescribed.

          (2)The plant shall contain all material* facts relating to the dispute and shall contain a Schedule giving the number of witnesses  indeed to be produced in support of the plaint, the names and addresses of the witnesses and a brief summary of the facts to which they would depose:

          *The  words  “material”  inserted  by  West  Pakistan  Ordinance  X  of  1966, section 7.

          “Provided that a plaint for dissolution of marriage may contain all claims relating to dowry, maintenance, dower personal property and belongings of wife, custody of children and visitation rights of parents to meet their children,”; and further that the parties may, with the permission of the Court, call any witness and at any later state, if the Court considers such evidence in the interest of justice.

          **[(3) (i) Whereas a plaintiff sues or relied upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall a the same time deliver the documents or a copy thereof to be filed with the plaint.

          (ii) where he relies on any other document, not in his possession or power as evidence in support of his claim he shall enter such documents in a list to be appended to the plaint giving reasons of relevancy of these documents to the claim in the plaint].

          ** Substituted by West Pakistan Family Courts (Amendment) Act, I of 1969, S.3.

          (4) The plaint shall be accompanied by as many duplicate copies thereof including the Schedule and the lists of documents referred to irk subsection (3), as there are defendants in the suit, for service upon the defendants.

          *[(5) A Family Court shall conduct hearing of the suits as expeditiously as possible and shall not adjourn hearing for a period exceeding seven days and shall dispose off the suit within a period of 120 days from the date fixed by the court for the appearance of the Defendant.]

          *Added by Senate Bill No.III of 1999 (PLJ 1999 Fe3d.St.175).