It's about Islamic personal law

1. Personal Law, Marriage
what is meant by Personal Law?
What law has to prevail? Personal law or statutory law?
Why we need statutory law ?
Importance of this area in legal practice:
 As per report of European Union Punjab access to justice project, family issues
were cited as the most common issues in litigation and it forms almost 30% of all
litigation exclusively and indirectly up to 50%.
History of Personal law statutes in Pakistan:
 In Pakistan we have legislations addressing issues of personal law which were
implemented prior to partition and after independence.
 Present position of Personal law in Pakistan is much influenced by report of
Marriage and Family law commission 1956.
 Many reforms were brought in personal laws after this report e.g. Muslim Family
laws ordinance was introduced in 1961.

2. Personal Law, Marriage
Marriage:
“it is a civil contract entered into by a man and women by their free consent”.
Nature of the act:
 Primarily it is recommended act which is called Sunnah. But under special
circumstances it becomes obligatory or prohibited. E.g. if a person has all
means to pay dower and maintain his family and he is sure that he can
commit major sin.
 It is prohibited when a person has not sufficient means to maintain his
family and he is suffering from severe sexually transmitted diseases.
 It implies that marriage in Islam is not simply a matter of religious
injunctions but a sophisticated combination of Ibadat(worships) and
Muamlat(worldly affairs).

3. Personal Law, Marriage
Requirements of valid marriage:
A valid marriage must fulfill the requirements. i.e.
I. Contract is result of offer and acceptance.
II. Free consent of the parties.
III. There is consent of guardian in case of minor and minor has the option to
repudiate the contract upon attaining the age of majority.
IV. There is intention to continue for indefinite period with few exceptions
under Shia Law.
V. Parties must not fall within prohibited degree of marriage.

4. Personal Law, Marriage
Prohibited degree or prohibitions of marriage:
There are 2 prohibitions. i.e. temporary and permanent.
Permanent prohibitions:
There is permanent prohibition for following relations and marriage with these
relations is not permitted.
I. Mother, Grandmother and How High so ever.
II. Daughter or Grand daughter how low so ever
III. Sister (Full, Uterine and consanguine)
IV. Aunt or grand aunt or how high so ever.
V. Wife’s mother or grand mother
VI. Wife’s daughter or grand daughter
VII. Father’s wife and grandfather’s wife how high so ever
VIII. Son’s wife or grand son’s wife
IX. Wife of daughter’s son how low so ever.

5. Personal Law, Marriage
Temporary prohibitions:
Following are the temporary prohibitions that means that if the element that causes
prohibition is removed then that prohibition will no longer stop a person from marrying.
I. An unlawful conjunction: A man is not allowed to have 2 wives at the same time,
who are so related to each other that if either of them had been a male, they could not
have lawfully intermarried. E.g. Two sisters etc.
II. Period of iddat. A man can marry a women who has been divorced or her husband has
died but only after lapse of period of iddat. Period of iddat acts as temporary
prohibition.
III. Marriage of Muslim male is prohibited with any women who is not from Ahl-e-Kitab.
But if a non Ahl-e-Kitab women enters in one of the religions of Ahl-e-Kitab.
IV. A Muslim female is prohibited to marry a Non-Muslim male. Being Non-Muslim is a
temporary prohibition.
V. Fifth marriage by a Muslim male is temporary prohibition as he is allowed to contract
4 marriages at one time.
VI. A person who enters the precincts of Kaba and puts on a pilgrimage dress cannot enter
into a marriage contract. Hanfi jurists differ on this point and they say that in such
situation a person is allowed to contract a marriage but he is not allowed to
consummation.

6. Personal Law, Marriage
Legal consequences of a marriage:
A marriage contract can valid (Sahih), Void (Batil) or irregular (Fasid).
Valid Marriage:
I. It establishes a legal relationship between spouses and gives rise to
mutual rights and obligations.
II. It confers legitimacy over the children born during the wedlock. There is
strong presumption of legitimacy about the children born during the
wedlock and normally a chance for its rebuttal is not provided.
III. Valid marriage obligates the Husband to pay Dower to wife and pay
maintenance to the wife and children.
IV. Validly married spouses inherit from each other.
V. It gives rise to prohibition of affinity which becomes a prohibition
because of concluding a valid marriage.

7. Personal Law, Marriage
Void Marriage:
 It is unlawful in itself and there is no possibility to convert it into a lawful relationship. E.g.
entering into marriage with a person who falls within prohibited degree of relationship.
 Such a marriage does not create any rights and obligations such as dower, maintenance etc.
 Off springs of such marriage are considered to be illegitimate.
Irregular marriage:
 Such a marriage is not unlawful in itself but can become so if certain requirements are not
fulfilled.
 Absence of witnesses is a reason to make a marriage irregular, such marriage has no legal
consequences if it is not consummated but if it has been consummated it has following
consequences.
I. The wife is entitled to Dower.
II. She is bound to observe iddat upon termination of such marriage.
III. Legitimacy is conferred upon children.
IV. Mutual rights to inheritance between do not arise.
 The legal impediments for irregular marriage are not absolute or permanent but they can be
removed to make the marriage a valid marriage. E.g. if the parties married in absence of
witnesses they can make a fresh acknowledgement of their free consent before the witnesses
and it validates the marriage.

8. Personal Law, Marriage
Registration of marriage:
 Primarily there is no requirement of registration of marriage under Islamic
Law or Personal but it has been made mandatory by provisions of Muslim
family Laws Ordinance 1961.
 Section 5 of Muslim Family Laws ordinance requires mandatory
registration of marriage and suggest fine and punishment in case of
violation.
 It is admitted fact that registration of marriage has much evidentiary value
specially when the marital tie is in dispute during the life time of spouses or
even after their death.
 Therefore registration of marriage is much important that’s why law and
justice commission of Pakistan has suggested that fine imposed by the
Muslim Family Laws ordinance should be increased to 10 thousand rupees
if a person intentionally does not register his marriage.

9. Personal Law, Marriage
Presumption of valid marriage:
 In the absence of any evidence to prove a marriage, a presumption of valid
marriage arises as a result of prolonged and continuous cohabitation as
husband and wife.
 This presumption also arises if a man acknowledges a woman as his wife or
he acknowledges the paternity of a child born to a women.